Local Union No. 69, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Mar 27, 1974

209 N.L.R.B. 875 (N.L.R.B. 1974)

LOCAL UNION NO. 69, SHEET METAL WORKERS 875
Local Union No. 69, Sheet Metal Workers Interna-
tional Association, AFL-CIO (Wind Heating
Company , Inc.) and Niagara County Sheet Metal
Contractors and Roofers Association. Cases
3-CC-778, 3-CC-781, 3-CC-782, 3-CC-786,
3-CC-791, 3-CB-2099, and 3-CB-2137
March 27, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 29, 1973, Administrative Law Judge
John G. Gregg issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions to his recommended
Order, and supporting briefs. The Respondent filed
an answering brief to the exceptions of the General
Counsel and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.'
conclusions regarding the scope of the cease-and-desist order regarding
Respondent Union 's secondary picketing activity , discussed below.
2 Both the General Counsel and the Charging Party have taken
exceptions to the recommended Order of the Administrative Law Judge,
and contend that a broad cease-and-desist order is warranted here. They
point out that the Respondent Union has engaged in illegal secondary
activity at five jobsites on separate occasions in Niagara County in a period
of approximately 3 months. Such conduct in their opinion has demonstrated
a proclivity to disregard the requirements of the Act, and they maintain that
only by directing the Respondent to cease and desist from picketing and
other conduct toward Charging Party's members at all its jobsites in
Niagara County will the policies of the Act be effectuated . We agree with
the Administrative Law Judge that the broadly restrictive cease -and-desist
order requested is not warranted in this case.
The Board has long held that a broad remedial order is appropriate
whenever a proclivity to violate the Act is established , either by facts
compelled by a particular case (see, e .g, Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Victory Transportation
Service, Inc), 180 NLRB 709), or by prior Board Decision against the
respondent at bar based upon similar unlawful conduct in the past. (See
Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America
(H A. Carney and David Thompson, Partners, d/b/a C & T Trucking Co),
191 NLRB 11 , and cases cited in fn. 2.)
Here the activity in question involves a single dispute between
Respondent Union and the Association members as the result of a contract
which expired on May 31 , 1973. The record shows little likelihood that
Respondent Union will broaden the purpose of its picketing and related
activity or that there is danger of recurrence of unlawful conduct that will
enmesh secondary employers other than those involved herein . (See United
Brotherhood of Carpenters and Joiners of America , Local 690 (K L (Bob)
Moore Construction Company, Inc), 190 NLRB 609 The record shows no
prior Board Decisions against the Respondent Union based upon similar
unlawful conduct.
Under all the circumstances , it has not been established that Respondent
Union has demonstrated a proclivity to disregard the secondary boycott
provisions of the Act . Accordingly , we find that a broad remedial Order is
not Justified in this case.
DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Local Union No. 69,
Sheet Metal Workers International Association,
AFL-CIO, Niagara Falls, New York, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
i The Charging Party contends that Cases 3-CB-2099 and 2137, as
noted in fn I in the Administrative Law Judge's Decision, have not been
properly severed from the instant case We find that an Order Granting
Approval of Motion to Sever was granted at the request of the General
Counsel on November 28, 1973, and the Charging Party has been
subsequently given adequate notice of such severance.
We further find that the Charging Party's request that the Board deny
severance of the cases in issue to be without merit. The instant case,
involving alleged illegal secondary picketing activity, is ripe for decision,
and we find that it would not effectuate the policies of the Act to delay the
issuance of a Decision pending the resolution of the issues involved in
related Cases 3-CB-2099 and 2137, involving other sections of the Act, new
witnesses, and different remedies At this stage of the proceedings, a
consolidation of the cases would prolong the trial and delay the issuance of
a Board Decision.
The General Counsel requested severance of the cases upon the
representation that settlement of the issues involved in the CB cases was
imminent In any event , assuming arguendo that the violations alleged in the
severed CB cases are found mentonous, such findings would not change our
STATEMENT OF THE CASE
JOHN G. GREGG, Administrative Law Judge: Pursuant to
complaint and notice of hearing duly issued by the
Regional Director for Region 3 this matter ' was heard on
October 2 and 3, 1973, at Buffalo, New York, upon charges
filed by Niagara County Sheet Metal Contractors and
Roofers Association, hereafter referred to as the Associa-
tion, alleging that Local Union No. 69, Sheet Metal
Workers International Association, AFL-CIO , hereafter
referred to as the Respondent , has engaged in unfair labor
practices in violation of Section 8(b)(4)(i) and (ii)(B) of the
National Labor Relations Act, as amended , hereinafter
called the Act.
In its duly filed answer the Respondent denies commis-
sion of any unfair labor practices.
Upon the entire record in this case , my observation of
the demeanor of the witnesses as they testified, and after
due consideration of the briefs filed herein, I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The Association is an association of employers engaged
i Cases 3-CB-2099 and 2137 were severed by order dated November 21,
1973.
209 NLRB No. 154
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
primarily in the sheetmetal fabricating, heating, and air
conditioning business, and it exists for the purpose, inter
alia, of negotiating collective-bargaining agreements, on
behalf of its members, with Respondent, and the last such
agreement expired by its terms May 31, 1973. During the
past year the Association and/or its members individually
and collectively received gross revenues in excess of
$50,000 and during the same period of time purchased and
received goods and materials valued in excess of $50,000
from points directly outside New York State at their New
York State locations. The Association and its employer
members are and have been at all times material herein
each individually and all collectively an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
Albert Eha Building Co., Inc., herein referred to as Elia,
at all times material herein a corporation duly organized
under and existing by virtue of the laws of the State of New
York and engaged in the general contracting business. Eha
has a contract valued in excess of $5 million with Niagara
Hydro Housing Corporation as general contractor for
construction of the Elderly Leased Housing Project in
Niagara Falls, New York, herein called the jobsite. Wind
Heating Company, pursuant to contract with Elia, is
performing air conditioning and sheetmetal work at the
jobsite; Edward M. Korpolinski Plumbing and Heating,
Inc., herein called Korpolinski, pursuant to contract with
Elia, is performing plumbing and heating work at the
jobsite; Rebco Steel Corporation, herein called Rebco,
pursuant to contract with Elia, is performing steel erection
work at the jobsite; Haney Erection Services Inc., herein
called Haney, pursuant to contract with Elia, is performing
steel erection at the jobsite; McCabe-Corcoran Electric,
Inc., herein called McCabe, pursuant to contract with Elia,
is performing electrical work at the jobsite.
Wind Heating Company, during the past year, in the
course and conduct of its business operations, purchased,
transferred, and delivered to its places of business and
jobsites in and around Niagara Falls, New York, goods
and materials valued in excess of $50,000 of which goods
and materials valued in excess of $50,000 were transported
to its place of business and jobsites from, and received
from, other enterprises, including, inter alia, Hysen
Supplies, Inc., and Comfort Supply, Inc., located in the
State of New York, which received said goods and
materials directly from States other than the State of New
York.
Dunng the past year Elia, Wind, Korpolinski, Rebco,
Haney, and McCabe individually and/or collectively
received goods and materials valued in excess of $50,000
directly from points outside the State of New York for use
at the jobsite, and at all times material herein are each
individually and are collectively employers engaged in
commerce within the meaning of Sections 2(6) and (7) and
8(b)(4) of the Act.
Sicoli and Massaro, Inc., herein called Sicoli, is, and has
been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the
State of New York, and is engaged as a general contractor
in the building and construction industry.
Kruger Motor Sales, Inc., herein called Kruger, is, and
has been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the
State of New York, and is engaged in the retail sale and
service of new and used automobiles.
Sicoli has a contract with Kruger to construct a building
at 1555 Third Avenue in Niagara Falls, New York, herein
called the Kruger jobsite; the value of the contract is in
excess of $600,000.
Pencelli Heating and Air Conditioning, Inc., herein
called Pericellh, is a mechanical contractor in the construc-
tion industry and, pursuant to a contract with Sicoli, is
performing heating and air conditioning work at the
Kruger jobsite; McCabe-Corcoran Electric, Inc., herein
called McCabe, is a mechanical contractor in the construc-
tion industry, and pursuant to a contract with Sicoli, is
performing electrical work at the Kruger jobsite; Edward
M. Korpolinski Plumbing and Heating, Inc., herein called
Korpolinski, is engaged in the plumbing and heating
business and, pursuant to a contract with Sicoli, is
performing plumbing and heating work at the Kruger
jobsite.
Pencelh, a member of the Association and a New York
State corporation having its main office and place of
business in Niagara Falls, New York, has received gross
revenues in excess of $50,000 during the past year and,
during the same period of time, has purchased and
received goods and materials valued in excess of $50,000
directly from points outside the State of New York.
During the past year, Sicoh, Pericelli, McCabe, and
Korpolinski, individually and/or collectively, received
goods and materials valued in excess of $50,000 from
points outside the State of New York for use at the Kruger
jobsite.
Sicoli, Pericelli, McCabe, and Korpolinski are now, and
have been at all times material herein, employers and/or
persons engaged in commerce within the meaning of
Sections 2(6) and (7) and 8(b)(4) of the Act.
Wright and Kremers, Inc., herein called Wright, is a New
York State corporation engaged as general contractor in
the building and construction industry. The United States
Air Force at the Niagara Falls International Airport,
hereafter called Air Force, engaged Wright as the general
contractor to modify or perform alterations on Building
Number 320, herein called the Airport jobsite. The value of
said contract is approximately $6,000.
Wind Heating Company, Inc., herein called Wind, is a
mechanical contractor in the construction industry and,
pursuant to a contract with Wright, was performing air
conditioning and sheetmetal work at the Airport jobsite.
During the past year, Wind, in the course and conduct of
its business operations, purchased, transferred, and deliv-
ered to its place of business and jobsites in and around
Niagara Falls, New York, goods and materials valued in
excess of $50,000, of which goods and materials valued in
excess of $50,000 were received indirectly from manufac-
turers, including but not limited to International Tele-
phone and Telegraph Company, from its plant in the State
of Alabama, and the Fedders Corporation from its plants
located in the States of Georgia and Texas.
Wright and Wind are now, and have been at all times
material herein , employers and/or persons engaged in
LOCAL UNION NO. 69, SHEET METAL WORKERS
commerce within the meaning of Sections 2(6) and (7) and
8(b)(4) of the Act.
Forest City Enterprises, herein called Forest, is a New
York State corporation engaged as a general contractor in
the building anc construction industry.
General Cinema Corporation, herein called General, is a
New York State corporation engaged in the managing of
theaters in the Western area of New York State. Forest has
a contract of a value of approximately $40,000 with
General to construct the outer walls of a new movie theater
at the Summit Park Mall in Wheatfield, New York, herein
called the Mall jobsite.
Wright and Kremers, Inc., herein called Wright, is a New
York State corporation engaged as a general contractor in
the building and construction industry. Wright has a prime
contract with the State of New York, Niagara Frontier
State Parks Commission, herein called the Parks Commis-
sion, to perform the general structural work at the Niagara
Frontier Performing Arts project in Lewiston, New York,
herein called the Arts jobsite.
John E. Burns, Incorporated, herein called Burns, is a
mechanical contractor in the building and construction
industry, and has a prune contract with the Parks
Commission to perform the plumbing, heating, and
ventilating work at the Arts jobsite.
Federspil & Son, Inc., herein called Federspil, is a New
York State Corporation engaged as a mechanical contrac-
tor in the building and construction industry and, pursuant
to a subcontract with Burns, is performing the supply duct
work and the ventilating duct work at the Arts jobsite. The
value of said subcontract is approximately $156,000.
Federspil is a member of the Association. During the
past year Federspil, in the course and conduct of its
business operations, purchased, transferred, and delivered
to its place of business and jobsites in and around Niagara
Falls, New York, goods, materials, and supplies valued in
excess of $50,000 of which goods, materials, and supplies
valued in excess of $50,000 were transported to its place of
business and jobsites directly from States other than the
State of New York.
Wright, Burns, and Federspil are now, and have been at
all times material herein, employers and/or persons
engaged in commerce within the meaning of Sections 2(6)
and (7) and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 69 , Sheet Metal Workers International
Association , AFL-CIO , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges essentially that the Respondent
Local Union No. 69, violated Section 8(b)(4)(i) and (ii)(B)
of the Act by illegal picketing at five separate jobsites in
the Niagara Falls, New York, area with the object of
bringing pressure upon neutral employers by picketing
neutral gates in an effort to force or require neutrals to
cease doing business with individual members of the
Association. For the reasons explicated more fully here-
877
linafter I,find that the Respondent did indeed violate
Section 8(b)(4)(i) and (ii)(B) as charged in the complaint.
The record establishes and it is not disputed that the
Respondent Local 69 has been engaged in a labor dispute
with members of the Association since on or about June 1,
1973.
A. The Elderly Leased Housing Project
Uncontradicted record testimony by Albert Elia, general
contractor and secretary of the Albert Elia Building Co.,
Inc., established that around the first part of January 1973
Elia commenced construction of the Elderly Leased
Housing Project. In July 1973 there were three entrances to
the jobsite, each entrance set aside and reserved for certain
employers and employees at the jobsite. The Niagara
Avenue and Main Street entrances were reserved for all
trades exclusive of Wind and the third entrance at
Whirlpool near Ontario was reserved for Wind Sheet Metal
only. At the latter entrance a sign indicated that the
entrance was reserved for the exclusive use of Wind
Heating employees.
Elia testified further that on July 27, 1973, he went to the
jobsite around 8 a.m. and observed picketing at all three
entrances by pickets with picket signs indicating that Local
Union 69 was picketing. After talking with the pickets Elia
telephoned Williams, business agent for the Union,
inquired as to why he was picketing and was informed that
the Union was not picketing Elia but was picketing Wind.
Elia advised Williams to confine his picketing to the gate
reserved for Wind employees and complained that the job
was being disrupted. According to Elia, Williams said he
would pull the pickets off if Elia guaranteed by letter that
Wind would not work on the job until a contract was
signed. When Elia refused Williams asked him to talk to
Wind. When Elia responded that he would if he had the
occasion Williams talked with another individual and the
pickets departed.
According to Elia the picketing that morning lasted
about an hour to an hour and a half.
Elia testified further that after the weekend the picketing
resumed at all three entrances on the morning of the
following Tuesday, July 31, 1973, and the pickets were
taken off just before noon. Although the pickets remained
in the area the other trades finally decided to cross the
picketline, and some went back to work sometime before
noon, and some just after noon on the 31st of July.
According to Elia there was additional picketing on
Wednesday, August 15, and subsequent to an agreement
entered into in Federal court the picketing has been
confined to the reserve gate since August 14, 1973.
It was stipulated by the parties that the sign at the
Whirlpool and Ontario entrance stated "Notice," "This
ENTRANCE exclusively reserved for employees and
equipment of WIND HEATING COMPANY All others
are expressly prohibited from using the ENTRANCE."
Bryan Swartzenberg , assistant vice president of Elia,
testified that he also observed the picketing on the 31st of
July at the Niagara and Whirlpool entrances. His recollec-
tion of the picket sign was that it was something to the
effect that Sheet Metal Workers Local 69 was on strike. He
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought the sign mentioned that the strike was against
Wind Heating.
During the course of the picketing and on July 30, 1973,
Swartzenberg by telegram advised the Respondent Union
and other trades that the Whirlpool street gate was
reserved exclusively for use by employees and equipment
of Wind Heating Company and Thompson Roofing Co.,
Inc. and all other contractors were expressly forbidden to
use said entrance . He also sent a letter to the Respondent
Union on July 28, 1973, to the same effect.
Swartzenberg testified further that on Monday, July 30
as Wind Heating was bringing materials on the job
Williams asked Swartzenberg what the sheetmetal workers
were doing there . Swartzenberg told him they were
working . Williams then said he thought he had an
understanding with Albert Eha that they would not be
working on the job anymore . Swartzenberg said he knew
nothing of any such agreement , that Williams could call
Elia to find out about it.
According to Swartzenberg , Williams said that he would
picket the job the next day and Swartzenberg advised him
he would sue for any interruption with the construction
schedule.
In his testimony Charles Wind, president of Wind,
testified that during the course of the strike commencing
on July 1, 1973, his shop was picketed at various times.
Wind commenced work at the project jobsite on July 26,
1973, and was advised around July 17 or 18, 1973, by
Swartzenberg that if the strike was not settled in the next
week or two a reserved gate would be set up for Wind at
the project . According to Wind he observed the picketing
on Tuesday, July 30 at both the Wind reserved gate
entrance and the Niagara Avenue entrance , and the picket
sign was worded as follows : "On Strike , Sheet Metal
Workers Local 69 against Wind Heating Company."
Wind testified that he worked the jobsite on July 26,
1973, and was not on the jobsite the following Friday, July
27, as Wind was fabricating material for the job. Wind
returned to the jobsite at 1 o'clock Monday, July 30. At
2:30 Williams arrived.
Joseph Nowak, project superintendent for Elia , testified
he spends all day, every day, on the jobsite , that during the
course of the picketing he took photographs , including one
on July 31 purporting to show picketing at the Whirlpool
entrance at 8:35 a .m. and one on July 31 showing pickets
at the Niagara Avenue entrance at 8:30 a.m.
Nowak had a conversation with Williams on Monday,
July 30 at his trailer office . Nowak asked why pickets were
on the job when the sheetmetal men on the job were union
men. He was told by Williams that they did not belong to
the union because he was going to "pull" their cards.
Nowak testified that on July 27 all three entrances were
picketed for about half an hour . Picketing again occurred
on Tuesday , July 31 at two entrances , Niagara Avenue and
Whirlpool. On August 1 there was picketing at Niagara
Avenue-Whirlpool. Picketing after Friday the 27th was
confined to two entrances , Niagara-Whirlpool and On-
tario.
Nowak testified that the reserved gate sign was posted at
the Whirlpool-Ontario entrance around noon on July 30th.
Prior to that time it had been located on the southwest
corner of the main building about 60 feet from the
Whirlpool-Ontario entrance.
Based on my observation of the demeanor of witnesses
Elia, Swartzenberg, Wind , and Nowak , all of whom I
found straightforward and uncontnved in their testimony,
I credit their testimony , with due regard for obvious minor
discrepancies or lapses of memory elicited on cross-
examination , none of which in my view were of such
nature as to impair their credibility.
It is clear from the record that the Respona Union
has been engaged in a labor dispute with Wind , while at no
time was it engaged in a labor dispute with Eli ' or other
neutral employers at the project Jobsite. It is also clear that
a gate reserved for the exclusive use of Wind was provided
and that ample notice to that effect was given to the
Respondent Union and others. There was additionally
uncontroverted testimony that the gate reserved for Wind
was in fact used exclusively by Wind employees even
though there was no express notice that said employees
were not to use any other entrance.
It is also clear to me from the testimony of record by
Elia, Swartzenberg, Wind, and Nowak , all of whom I
credit, and I find , that there was indeed picketing of the
Elderly Leased Housing Project by the Respondent Union
at neutral gates , not confined to picketing at the gate
reserved for Wind Heating employees and equipment, and
that neutral employees refused to cross the picket lines,
doing so only after the picketing ceased.
In accord with the credibility findings hereinabove it is
also clear that the Respondent Union threatened Elia that
picketing would continue at the jobsite unless Wind was
excluded from working on the jobsite until it signed a
contract with the Respondent Union, and I find that the
Respondent Union picketed , threatened, and coerced Elia
and other neutral employers with the object of forcing
them to cease doing business with Wind and that thereby
the Respondent Wind did engage in unfair labor practices
in violation of Section 8(b)(4)(i) and (ii)(B ) and Section
2(6) and (7) of the Act as charged in the complaint.
B. The Kruger-Pontiac Jobsite
Donald Marinucci testified that he was job superintend-
ent for Sicoli and Massaro , Inc., general contractors on the
Kruger Pontiac jobsite . Pericelli Heating was the heating
and air conditioning subcontractor on the job. Among
other subcontractors were McCabe on electric and
Korpolinski on plumbing.
Marinucci stated that on August 8, 1973, prior to 8 a.m.,
he observed pickets at the jobsite . A reserved gate was set
up for Pericelli on that day on the south side of Third
Avenue.
Marinucci testified that the picketing on August 8
included all three entrances, and that the other trades on
the jobsite refused to cross the picket line for about 2 to 3
hours . At that time , according to Marinucci , Pericelli had
no workmen on the jobsite.
Marinucci testified further that on August 9, 1973,
picketing took place at all three gates with the plumbers
and electricians refusing to cross the line for several days.
Pericelli had no men or equipment on the jobsite at that
time.
LOCAL UNION NO. 69, SHEET METAL WORKERS
Ercole Lumia, president of Pericelli, testified that a
reserve gate for Pericelli was posted on the jobsite on
August 8, 1973 around 8:00 a.m. He testified further that
he observed the picketing on August 8th, at the main gate
and that he then posted a reserve gate sign and advised the
pickets that the only place they could lawfully picket was
at the reserve gate. According to Lumia the men later went
back to work with the exception of the plumbers and
carpenters. By 11 o'clock the pickets were confining the
picketing to the reserve gate. Lumia left the jobsite but was
later notified that the pickets were again "all over the
place."
According to Lumia he returned to the jobsite and was
advised by a picket that Williams had instructed the
pickets to picket at points other than the reserved gate.
Lumia summoned the Sheriff's department, and the pickets
at the main gate then departed with their signs.
Testimony and exhibits of record provided by Lumia
established that the picket signs did not designate the party
with whom the Umon was in primary dispute.
Based on my observation of the witnesses Marinucci and
Lumia as they testified I credit their testimony which was
given in a sincere and straightforward manner. I find that
picketing did indeed take place at the Kruger Pontiac
jobsite, that a reserve gate had been properly posted and
notice given, and that the Respondent Union continued to
picket at the main gate with signs failing to designate the
party with whom the Respondent had a primary dispute,
and that some neutral tradesmen on the site refused to
work as a result of such activity, all in violation of Section
8(b)(4)(i) and (ii)(B) as charged in the complaint.
C. The Air Force Jobsite
William Thompson, contracting officer at the Air Force
base in Niagara Falls, New York, and an employee of the
Federal Government, testified that on March 14, 1973, a
construction project started at the base jobsite with Wright
and Kremers as general contractor and Wind Heating as
subcontractor on heating and air conditioning.
Thompson stated that on July 30, 1973, he had a
conversation in his office with Williams, business agent for
the Respondent Union. Williams said he understood two
sheetmetal workers were on the jobsite and said that if
Thompson didn't get the people off the base, "we'll picket
the gates." Thompson called Dave, superintendent for the
general contractor. Dave told Thompson he would call
Wind and get the workers off. Thompson informed
Williams they would be removed from the jobsite.
Williams said "I may be back this afternoon to check on
them."
After Williams left, Thompson went to the jobsite and
told the sheetmetal workers personally that they would get
a call from the general contractor or Wind to get off the
base. Thompson stated that he then left, and the Wind
employees ceased work on the jobsite, while such work is
still required.
Based on my observation of the demeanor of Thompson
I credit his testimony which was given candidly and
without contrivance. It is clear to me and I find that the
Respondent Union through Williams did indeed threaten a
representative of the Air Force that it would picket the
879
Airport jobsite unless Wind sheetmetal workers were
removed from the jobsite and that as a result of such
activity Wind employees were removed from the jobsite
while the job remained incomplete, and that the Respon-
dent Union did thereby violate Section 8(b)(4)(i) and
(ii)(B) of the Act as charged in the complaint.
D. The Summit Park Mall Jobsite
Ercole Luniia, president of Pericelli Heating, testified
that on Monday, August 13, 1973, a reserve gate sign was
erected at the jobsite, posted on one of the two entrances to
the theater. According to Lumia, on August 16, 1973, he
was advised by Michetti, manager of Summit Park Mall,
that Williams had been told about the reserve gate.
Subsequently Lumia went to thelobsite, found the original
sign missing, and then posted a reserve gate sign on the
southeast entrance to the mall.
According to Lumia when he posted the sign no pickets
were in evidence. Later, when he observed a picket, he
approached the picket at entrance 3, advised him that there
was a reserve gate which was the only place he could
lawfully picket, and showed him the location. The man
then went to gate 4, where three other pickets were and
subsequently returned to gate 3. The picketing then
continued. Luniia notified the Sheriff and asked him to
advise the pickets of the reserve gate. The Sheriff talked
with the pickets but after a brief pause the picketing
subsequently continued at all three gates and continued on
August 17, 1973.
Lumia stated that on August 17 there were five pickets
picketing at areas 3, 4, and 5 with no pickets at the reserve
gate area, and that he had instructed his employees to use
the reserve gate road entrance, and that he had not
observed any of his employees or equipment using the
other entrances. Lumia stated that there were no more
pickets at thelobsite after August 17, 1973.
Testimony by Joe Michetti, manager of the Summit Park
Mall, established that on August 15, 1973, he designated a
reserve gate for Pericelli . In a telephone conversation with
Williams, Williams told him that there would be pickets at
the mall the following day and Michetti advised Williams
that he had already set up a reserve gate and told him the
location.
On August 16, he observed pickets at all entrances at the
mall with signs indicating that Local 69 was on strike
against Pericelli Heating and Air Conditioning, Inc. He
called the Respondent's office and asked why pickets were
at the front of the mall when a reserve gate had been
designated at the driveway at the rear of the building. He
was advised that Pencelli was there and the Union was on
strike, and that if he didn't have "those people" there he
wouldn't have the problem. Although Michetti called the
Sheriff's office and they talked with the pickets the
picketing continued until three that afternoon at the main
drive with no picketing at the reserve gate.
There was testimony by Robert Demonte, an apprentice
in the Respondent Union, who stated that he picketed at
the Summit Park Mall jobsite on August 17, 1973. When he
arrived, before 8 a.m., no tradesmen were at the site. There
were three other pickets with him that day.
Demonte stated that he picketed the Williams Road
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entrance with a sign brought from the union hall. He stated
that although a photo had been taken of the sign, at the
time the "little tag fell off and I taped it on about a half-
hour later." He stated that the tag indicated "Pericellt."
Demonte stated that the signs the other pickets carried also
had this tag at the bottom of the sign, and that he picketed
without the tag for half an hour waiting to retape it when
he stopped for coffee. Demonte stated that he did not see
the reserve gate sign nor was he advised of its existence.
Based on my observation of the witnesses as they
testified I credit the testimony of Lumia and Michetti and
find that, as charged in the complaint, the Respondent
threatened Michetti that it would picket the mall jobsite
the next day, that there was indeed picketing by the
Respondent Union at the Summit Park Malllobsite, that a
reserve gate was established, and that said picketing took
place at neutral entrances to the jobsite. I find as
established by exhibits of record that the sign carried by
the pickets did not at all times designate the party with
whom the Respondent Union had a primary dispute. I do
not credit the testimony of Demonte that there was a tag
affixed to the sign indicating that the strike was against
Pericelli and that this tag had accidentally detached from
the sign for a period of time. Demonte failed to impress me
as sincere and his testimony was too convenient.
E. The Lewiston Arts Jobsite
In his testimony John Federspil, an employee of
Federspil & Son, a member of the Association, stated that
Federspil has been engaged in a strike with the Respondent
Union since June 1973, and is engaged as heating and
ventilating subcontractor to John Bums, Inc., at the
Performing Arts Center jobsite where Wright and Kremers
is the general contractor.
Federspil testified that there were three entrances to the
jobsite, that on September 10, 1973, he erected signs at gate
No. 1 and 2 at the jobsite, one at the Guard Street entrance
and another at the Main Street entrance directing
Federspil employees to the Guard Street entrance.
Federspil testified that on September 10, 1973 he
observed pickets at Gate No. 1 which is the main gate,
while there were no pickets at the reserve gate. The pickets
carried signs reading "On Strike, Sheet Metal Workers
Local 69." At the bottom of the sign , according to
Federspil, barely discernible, was "Against Federspil and
Son Inc."
Federspil stated that the picketing continued between
September 10 and 21st, each morning, at the main
entrance, gate No. 1. At no time did he observe pickets at
the reserve gate.
Federspil stated that Wright and Kremers erected a sign
stating "Wright and Kremer Employees and Sub-Contrac-
tors use Guard Street Entrance." There was no picketing at
the Guard Street entrance on September 10, 1973. He
stated that some of the men walked off the job on
September 10th and some of them never crossed the picket
line at the main gate to work.
There was also testimony of record by Charles Baker, an
employee of Wright and Kremers, indicating that he
observed pickets on September 10, 1973, at the main gate
and on his visits every other day at the jobsite to
September 21, 1973. Baker stated there were no pickets at
the reserve gate until September 21, 1973. Baker stated that
as a result of the picketing at least one truck was turned
back at the picket line as the driver would not go through.
Based on my observation of the witnesses Federspil and
Baker as they testified I credit their testimony and I find
that on or about September 10, 1973, Federspil established,
maintained, and enforced a neutral entrance to the jobsite
for the exclusive use of the general contractor Wright,
Burns, and other neutrals and established and maintained
a reserve gate for the exclusive use of the employees and
equipment of Federspil.
It is also clear and I find that the Respondent Union on
or about September 10, 1973, in furtherance of its labor
dispute with Federspil, authorized, established, and main-
tained pickets at the neutral entrance to the jobsite and did
not picket the reserve gate entrance, and thereby did
request and appeal to individuals employed by neutrals to
cease doing work at the jobsite, as a result of which
employees of neutrals have refused to perform work at said
site.
Analysis and Conclusions
The Board and courts have uniformly held that picketing
at locations where both primary and secondary employees
are present violates Section 8(bX4)(i ) and (ii)(B) of the Act
if the picketing is conducted in a manner which demon-
strates that the intent and purpose of such picketing is to
appeal to the employees of secondary employers or if any
of the requirements enunciated in Sailor 's Union of the
Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547,
are not satisfied.
The Supreme Court in Local 761, Electrical Workers v.
N.L.R.B., 366 U.S. 667, 664 (1961), established the
guideline of considering other evidence in order to
determine in common situs cases whether the impact of the
picketing on the neutral employees was merely an incident
of activity directed at the primary employer or whether a
deliberate attempt was made to induce those employees to
engage in concerted conduct against their employer in
order to force it to refuse to deal with the primary or struck
employer.
It is clear to me and I find from ample credited
testimony of record that the object of the Respondent
Union herein was to bring pressure to bear on neutral
employers by picketing neutral gates in an effort to force or
require neutrals to cease doing business with certain
individual members of the Association.
The record clearly establishes and I find that at all times
material hereto a primary labor dispute existed between
the Respondent Union and the Association and its
members including Pericelli. At no time did the Respon-
dent Union have a labor dispute with Sicoli, Kruger,
McCabe, Korpolinski, or any of the other neutrals
involved hereinabove at the various jobsites.
It is also clear, as explicated more fully hereinabove that
reserve and neutral gates were duly designated at the
various jobsites herein and that sufficient notice thereof
was provided by posting of signs, instructions, and
directions.
Additionally, as found hereinabove, it is clear that the
LOCAL UNION NO. 69, SHEET METAL WORKERS
Respondent Union authorized, established, and main-
tained pickets at these various jobsites at neutral entrances
and gates other than those reserved for parties to the
primary dispute, at least at some times with signs failing to
designate the party with whom the Respondent Union had
a primary dispute.
It is also clear, as found herein, that the Respondent
Union, in furtherance of its primary dispute, threatened,
ordered, and requested persons employed by neutral
employers to cease doing work at various jobsites or to
remove from the jobsite employees or members of the
Association with whom the Respondent Union had a
primary dispute. I am convinced and I find that the object
of such actions was to force or require Sicoli, Kruger,
McCabe, Korpolinski, Wright, U.S. Air Force, General
Cinema, and other neutral persons engaged in commerce
or in an industry affecting commerce to cease doing
business with members of the Association including
Pencelli and Wind.
It is also clear and I find that as a result of such threats,
requests, and orders, employees and members of the
Association were at some times removed from jobsites and
employees of neutral employers refused to perform work at
the variousjobsites herein.
The Respondent contends that it has, at the five jobsites
herein, established picketlines publicizing its economic
strike of the primary employer and admittedly with very
few or accidental or unintentional exceptions has picketed
the premises where the primary employer was employed,
while it was performing its work, carrying signs reflecting
the nature of the strike conducted by the Respondent
aimed at the primary employer. However, the record
compels a finding that there was more than incidental or
accidental picketing at the aforesaid jobsites, indeed there
was deliberate picketing at entrances and areas designated
for neutrals, coupled with noticeable absence of pickets at
gates reserved for the employees and equipment of the
primary employer.
Additionally, and adverting to the consistent holding of
the Board in these cases that picketing is not to be
considered in isolation but must be viewed as part of the
entire course of conduct of the union, the incidents of
picketing herein, coupled with the clear evidence or record
establishing threats, orders, and requests to neutrals such
as the U.S. Air Force inducing them and their employees
to withhold services and to cease doing business with the
primary employer, all viewed as a course of conduct,
compel the conclusion that the picketing was effected with
unlawful object in violation of Section 8(b)(4)(i) and (ii)(B)
of the Act. Local 11, IBEW (L. G. Electric Contractors,
Inc.), 154 NLRB 766, 767, 768.
Accordingly, I find and conclude that the Respondent
Union by the aforesaid acts and conduct did violate
Section 8(b)(4)(i) and (ii)(B) of the Act substantially as
alleged in the complaint.
2 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
881
The activities of Respondent set forth above have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. In my
view there are no circumstances herein compelling issuance
of a broad cease-and-desist order.
CONCLUSIONS OF LAW
1. Federspil & Son, Wright & Kremers, John E. Burns,
Inc., Sicoli and Massaro, Inc., Pencelli Heating and Air
Conditioning, Inc., McCabe-Corcoran Electric, Inc., Ed-
ward M. Korpolinski, Inc., Wind Heating Company, Inc.,
General Cinema Corporation, Forest City Enterprises,
Inc., Albert Elia Building Co. Inc., Rebco Steel Corpora-
tion, and Haney Erection Services, Inc., are employers
and/or persons engaged in commerce within the meaning
of Sections 2(6) and (7) and 8(b)(4Xi) and (ii)(B) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the acts and conduct set forth in section III,
above the Respondent Union has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case and pursuant to Section 10(c)
of the Act I hereby issue the following recommended:
ORDER2
The Respondent, Local Union No. 69, Sheet Metal
Workers International Association, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any
individual employed by Wright & Kremers, John E. Burns,
Inc., Sicoli & Massaro, Inc., McCabe-Corcoran Electric,
Inc., Edward M. Korpolinski, Inc., U.S. Air Force, Forest
City Enterprises, General Cinema Corporation, or any
other person engaged in commerce or in an industry
affecting commerce with whom it has no primary labor
dispute, to engage in a strike or a refusal in the course of
their employment to use, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or
to perform any services where an object thereof is to force
or require said persons or any other person engaged in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce or in an industry affecting commerce to cease
doing business with Federspil & Son, Pericelli Heating and
Air Conditioning Inc., or Wind Heating Company, Inc.,
under the circumstances prohibited by Section 8(b)(4) of
the Act.
(b) Threatening, coercing, or restraining the aforesaid
neutrals or any other person engaged in commerce or in an
industry affecting commerce with whom it has no primary
labor dispute, for the object described in the preceding
paragraph under circumstances prohibited by Section
8(a)(4)(B) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at the business office and meeting hall of
Respondent Local 69 copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms provided by
the Regional Director for Region 3, after being duly signed
by the representative of Respondent Local 69 shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
its members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Sign and furnish to the Regional Director for Region
3, sufficient signed copies of said notice for posting by the
employers herein, if willing, at places where notices to their
employees are customarily posted.
a In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
Bums, Inc., Sicoli & Massaro Inc., McCabe-Corcoran
Electric Inc ., Edward M. Korpolinski , Inc., U.S. Air
Force, Forest City Enterprises , and General Cinema
Corporation , or any other person engaged in commerce
or in an industry affecting commerce with whom we
have no primary labor dispute , to engage in a refusal in
the course of his employment to use , transport, or
otherwise handle or work on any goods, articles,
materials , or commodities , or to perform any services
where an object thereof is to force or require the
aforesaid neutrals , or any other person engaged in
commerce or in an industry affecting commerce with
whom we have no primary labor dispute to cease doing
business with Federspil & Son, Pericelli Heating and
Air Conditioning Inc., and Wind Heating Company,
Inc.
WE WILL NOT threaten , coerce, or restrain the
aforesaid neutrals or any other person engaged in
commerce or in an industry affecting commerce with
whom we have no primary labor dispute , for the object
described in the preceding paragraph , under the
circumstances prohibited by Section 8(b)(4XB) of the
Act.
Dated By
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that:
WE WILL NOT engage in, or induce or encourage any
individual employed by Wright & Kremers, John E.
LOCAL UNION No. 69,
SHEET METAL WORKERS
INTERNATIONAL
ASSOCIATION, AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 9th
Floor, Federal Building, Ill W. Huron Street, Buffalo,
New York 14202, Telephone 716-842-3100.