N Y District Council No 9

National Labor Relations Board - Board Decisions

Aug 26, 1970

185 N.L.R.B. 293 (N.L.R.B. 1970)

NY DISTRICT COUNCIL NO 9
New York District Council No. 9 Brotherhood of
Painters, Decorators and Paperhangers of America,
AFL-CIO and Strip Clean Floor Refinishing &
Painting Corp . Case 29-CC-201
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH, BROWN , AND JENKINS
On March 26, 1970, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain of the unfair labor practices
alleged in the complaint and recommending that it
cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondent had not engaged in certain other alleged
unfair labor practices and recommended that the com-
plaint be dismissed in that regard. Thereafter,
Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and supporting briefs.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and supporting
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that Respondent, New York District Council No.
9 Brotherhood of Painters, Decorators and Paperhang-
ers of America, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order.
Member Brown, dissenting:
In furtherance of a primary labor dispute with
Delta, Respondent Union threatened to, and did,
picket Delta's operations at the Board of Education
(BOE) project. This picketing complied in all respects
with the criteria for presumptively lawful picketing
set forth in Moore Dry Dock.' Whatever effects there
' Sailors' Union of the Pacific (Moore Dry Dock), 92 NLRB 547,
293
may have been on BOE, a neutral in the dispute,
were incidental to Respondent Union's lawful picket-
ing activities.2 That Respondent Union communicated
with BOE in an effort to avoid taking picketing
action against Delta was hardly sufficient, in my
judgment, to convert Respondent's lawful picketing
into unlawful secondary conduct.' At no time during
such conversations did Respondent threaten, or even
suggest, that it would picket either BOE or the latters
employees.
discussed in Local 761, IUE v NL R B [General Electra] 366 U S
667,673,677-681
t Local 761, IUE v NLRB [General Electric ] 366 U S 667.
672-674
' Retail Clerks Union, Local 770 [Food Eniploier c Council, Inc ]
v NL.R B 296 F 2d 368, 373 (C A D C), Plumbers and Pipefitters
Local 471 (Wyckoff Plumbing), 135 NLRB 329, 331-332, Truck Drivers
& Helpers Local No 592, Teamsters (Estes Express Lines, Inc), 181
NLRB No 121
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner- This proceeding
was heard at Brooklyn, New York, on December 1 and
2, 1969. A complaint, as amended at the hearing, issued
herein on October 17, 1969, based on a charge filed by
Strip Clean Floor Refinishing & Painting Corp., herein
called Strip Clean, on August 15, 1969, in which it is
alleged that New York District Council No. 9 Brotherhood
of Painters, Decorators and Paperhangers of America, AFL-
CIO, herein called Respondent, has, by certain described
conduct, violated Section 8(b)(4)(1) and (n)(B) of the Act
by threatening the Board of Education of New York City,
herein called the Board of Education, orally and in written
communications, with picketing and with other economic
reprisals if Strip Clean and Delta Contracting Corporation,
herein called Delta, were permitted to continue working
at Public School 228, located in Brooklyn, New York,
herein called P S. 228, and by thereafter, in futherance
of its labor dispute with Delta, engaging in picketing at
P.S 228 and causing employees of the Board of Education
and of other persons engaged in commerce to strike and
refuse to perform services for their respective employers,
all with an object of forcing and requiring the Board
of Education to cease doing business with Delta and of
forcing or requiring other persons normally doing business
with the Board of Education to cease doing business with
the Board of Education. In its answer, as amended at
the hearing, Respondent denies that it has engaged in
any of the unfair labor practices alleged herein.
Upon the entire record,' including my observation of
' Respondent filed a motion herein to correct the transcript of these
proceedings The General Counsel filed a reply thereto and a cross
motion to further correct the transcript Thereafter the General Counsel
filed an errata relating to the aforesaid reply and cross motion, as well
as additions to his cross motion to further correct the transcript Counsel
for Respondent, in turn, filed his own affidavit in which he opposes,
(cont'd)
185 NLRB No. 33
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the witnesses, including their demeanor while on the witness
stand, and after due consideration of the briefs of the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE BOARD OF EDUCATION
The complaint, as amended, alleges, and Respondent
admits, that the Board of Education is an agency of New
York City operating the public system of New York City;
and that, during the past year, which period is representative
of its annual operations generally, it purchased and caused
to be delivered to its New York City places of business
directly from states outside the State of New York various
materials, the value of which exceeded $50,000.
The complaint, as amended, alleges further and Respond-
ent admits that, at all times material herein, (1) Strip
Clean has been a New York corporation and has maintained
its principal office and place of business in the Bronx,
New York, where it is engaged in residential and commercial
painting contracting and related services; and (2) Delta
has similarly been a New York corporation with its principal
office and place of business in the Bronx, New York,
where it is engaged in commercial painting contracting
and related services; and, further, Delta has contracted
with the Board of Education to perform certain services
at P.S. 228, and has, in turn, subcontracted some of this
work to Strip Clean.
I find, upon the basis of the foregoing, and as Respondent
also admits, that the Board of Education is a person engaged
in an industry affecting commerce. I also find that the
purchases of the Board of Education which are affected
by the dispute have a substantial impact upon the shipment
of goods and supplies in interstate commerce and upon
industries affecting commerce within the meaning of Section
8(b)(4) and Section 2(6) and (7) and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
in certain instances, the General Counsel's cross motion to further correct
the transcript, basing such opposition on the transcript itself and on
his recollection of the testimony Upon consideration of all the foregoing,
I shall grant the motion of Respondent and the cross motion of the
General Counsel, as supplemented, with respect to all proposed corrections
which are not contested herein As to those corrections proposed by
Respondent which are contested by the General Counsel, I shall grant
those proposed by Respondent on p 13, 1 19 and on p 428, I 5,
however, i shall deny those proposed by Respondent on p 18, I 16,
p 19, I 24, p 343, I 1, and p 353, 11 21 and 22, and shall, instead,
grant the corrections at these respective places proposed by the General
Counsel in addition, I shall deny those proposed corrections appearing
in the General Counsel's cross motion which are objected to by Respond-
ent, namely, those on p 144, I 11, p 148, 1 16, p 158, 1 11, p
158, 1 20, p 294, 1 15, p 310, 1 4, and p 311, 1 4 While I note
that there are in the above motions a considerable number of imprecise
designations of the lines on the given pages on which corrections are
sought, I have not specifically corrected these imprecise designations
because, in all instances , the line mentioned should either bear the
number immediately preceding or immediately following the one men-
tioned, and the references are readily recognizable
in addition to all the foregoing corrections , the transcript is inaccurate
in various respects relating primarily to comments by the undersigned,
and it is hereby further corrected in the manner indicated in Appendix
"B " [Appendix B omitted from publication ]
Ii. THE LABOR ORGANIZATION INVOLVED
I find also, and Respondent does not deny, that, as
alleged, New York District Council No. 9 Brotherhood
of Painters, Decorators and Paperhangers of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Some Background Facts
In 1964, at the time Delta began to do business, it
entered into a contractual relationship with Respondent.
Thereafter, in 1965, Delta agreed with Respondent to be
bound, for the period of August 1, 1965 to July 31, 1968,
by a contract between Respondent and the Association
of Master Painters and Decorators of the City of New
York, Inc.' On July 15, 1968, while the latter contract
was still in effect, Delta entered into a contract with the
Board of Education to do post modernization painting
and finishing and incidental repairs at P.S. 228 for the
amount of $58,200. On September 9, 1968, after the expira-
tion of the above bargaining agreement, Delta and Respond-
ent entered into a "Memorandum of Independent Contractor
Agreement, Effective September 9, 1968," in which they
obligated themselves to "live up to and conform with all
the provisions, terms and conditions of the prior agreement,
except as modified and amended by the new agreement"
between Respondent and the Association; in addition, Delta
agreed "to execute a more formal instrument as soon as
[it] is notified by the Union that the same has been pre-
pared," and that this formal agreement would supercede
the memorandum agreement in all respects.' Subsequent
thereto, either in September or October, Respondent submit-
ted to Delta such a formal bargaining agreement covering
the period until July 31, 1971, but Delta declined to sign
the agreement because of an unsettled and disputed claim
by Respondent against Delta in the amount of about $26,000
for pension and fringe benefits assertedly due under Delta's
preexisting contracts with Respondent.
During August or September 1968, Delta subcontracted
to Stnp Clean some of the painting work to be done
for the Board of Education at P.S. 228. At about the
same time, Strip Clean executed a collective-bargaining
agreement with Respondent. However, this latter contract
was cancelled by Respondent on September 19, 1968, on
the ground that "Strip Clean is the alter ego of Delta
and under the rules of [Respondent] this is not permissible."'
Whereupon, Delta cancelled its subcontract with Strip
Clean.
Work was begun by Delta itself at P S 228 during
the latter part of 1968. Delta started with carpentry work
and other repairs; it did no painting work because the
' Delta was not a member of the Association
' It was stipulated that this memorandum of agreement is binding
on Delta
' Although John Durandes, the general manager of Delta, testified
to the contrary, it would appear, and I find, that Respondent had,
by this time, determined that Delta was an unfair employer
N Y DISTRICT COUNCIL NO 9 295
overcrowded condition of the school precluded such activity.
Painting work did begin thereafter in February or March
1969, but a concentrated effort in this direction occurred
in the latter part of June 1969.
The above-mentioned dispute between Respondent and
Delta, which had affected the consummation of a new
agreement in 1968, came to the attention of the Board
of Education In early January 1969, Respondent sent a
letter to the Board of Education complaining that "Delta
was not paying the prevailing rate and fringe benefits."5
Thereupon Richard J. Martin, the Director of Maintenance
and Operation of the Board of Education, convened a
meeting at his office in early January 1969, to which
all interested parties in the dispute were invited . Present
in behalf of the Board of Education were Martin; Charles
Francescani, chief of the field section, bureau of mainte-
nance; Irving Golden , Esq, a lawyer attached to the Board
of Education staff; and a Mr Houston. Attending at the
instance of Respondent were Frank Schonfeld , its secretary-
treasurer; Carl Blum, administrative aide to Schonfeld; and
Samuel Hirsch, executive secretary of the Joint Industry
Board.' And attending for Delta were John Durandes,
its general manager ; and a Mr . Feinstein , its lawyer During
the meeting, Respondent 's representatives claimed that Delta
owed Respondent about $26,000 consisting of unpaid
employee fringe benefits and a fine levied against Delta.
Durandes , in turn , disputed the amount claimed but indicat-
ed that if Delta could be shown that it owed the money,
it would pay. The upshot of the meeting was an amicable
' Art 63 of the above-mentioned contract between the Board of
Education and Delta provided , in relevant part , that the wages to be
paid for a legal day's work to laborers , workmen , or mechanics employed
upon work contemplated by this contract "shall not be less than the
'prevailing rate of wage ' `and supplements as required ' and defined in
Section 220 of Labor Law " Attached to the invitation from the
Board of Education to contractors to bid on the work to be done
at P S 228 was a section on wage rates which the office of the Comptroller
of the City of New York established , pursuant to Section 220 of the
Labor Law of the State of New York, for laborers, workmen, and mechanics
employed by private contractors under contracts involving public work
between any agency of the City of New York and such private contractors
With specific reference to painters, the Comptroller set forth the rate
per hour for painters, painters on steel, painters on swing scaffolds,
and painters apprentices , and also set forth figures as to the supplement
benefits , including fringe benefits and payment into the insurance fund
Also relevant, in connection with the issues herein, are arts 5 and
21 of this contract between the Board of Education and Delta Thus,
in art 5, the contractor undertook that he "shall not have work performed
nor shall he employ labor or means that would in any way cause or
result in a suspension , or delay of, or strike upon the work to be
performed hereunder of any of the trades working in and about [P S
228] or in or about any other buildings of the Board [of Education]
or working upon any of the premises of the City of New York " And
art 21 provided , in relevant part , that "the Board [of Education] shall
have the right to declare The Contractor in default on the whole or
any part of the work if at any time the [Executive Director
of the office of School Buildings] is of the opinion and shall so certify
to the Board [of Education] that The Contractor is or has been wilfully
or in bad faith violating any of the provisions of this contract "
The Joint Industry Board is comprised of seven members from
Respondent and seven members from contractors serving the painting
industry Schonfeld and Blum are part of the office force which handles
administrative details for the Joint Industry Board Included among their
functions are to collect pensions and welfare and annuity contributions
for the Painting industry insurance funds and to take action with respect
to reported violations of a collective -bargaining contract either by Respond-
ent or by a member of the Painting Industry
arrangement that representatives of Respondent, of the
Joint Industry Board , and Durandes would meet in an
effort to resolve the matter.
After the meeting that day, there was some further
discussion among some of those who attended the meeting.
The testimony is in conflict as to whether requests were
then made of Respondent by Board of Education representa-
tives to be notified in advance of any picketing should
that eventuate because of a failure to resolve the dispute.
Blum and Hirsch testified that there was such discussion
with Martin and Francescani. However, Martin denied
that he spoke to anyone from Respondent after the meeting
that day and added that there was no such discussion
during the meeting; and Francescani could not recall anyone
in the group mentioning picketing that day, nor did he
recall asking anyone to let the Board of Education know
if Respondent was going to picket Delta at any of the
schools. I note, too, that Blum acknowledged that he testified
before Judge Travia in the injunction proceeding in the
Federal District Court arising out of the subsequent picket-
ing, (1) that he probably brought up the subject of picketing;
and (2) that he told Francescani that Respondent was
contemplating picketing if the difficulties between Respond-
ent and Delta were not resolved; and (3) that "[he] also
suggested at that time we write to the Board" I note,
also, in the case of Hirsch, that, although he could not
recall while testifying herein whether Durandes was involved
in the postmeeting discussion concerning the contingency
of a picket line, he acknowledged testifying before Judge
Travia that Durandes was present and that Francescani
talked to Durandes about wanting him to straighten out
the matter because if there was any picketing, his contract
with the Board of Education might be in jeopardy. In
all these circumstances, including their acknowledged testi-
mony before Judge Travia, and as Blum's and Hirsch's
testimony herein seemed to be influenced by their strong
partisan feelings in the matter, I find that the record
does not preponderate in favor of a finding that any repre-
sentative of the Board of Education at that meeting or
immediately thereafter requested either Blum or Hirsch,
or both of them, to have Respondent notify the Board
of Education in advance of any picketing. However, I
find further, in this connection, on the basis of the entire
record that (1) representatives of the Board of Education
have made it known to unions performing work at any
of its locations that the Board of Education was interested
in knowing, whenever a labor dispute developed in the
course of such work, if there would be any picketing,
and (2) it is the practice of the representatives of the
Board of Education, upon being notified that picketing
was going to occur at a school, to ask for a letter to
that effect from the union involved.
The dispute between Respondent and Delta was not
resolved thereafter; it eventuated in picketing by Respondent
at P.S. 228, which began on September 4 and continued
through October 10, 1969. On the latter date, during the
pendency of the above mentioned injunction proceeding
before a Federal District Court of the Eastern District
of New York, which proceeding was instituted by the
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel pursuant to 10 of the Act,' Respondent
agreed to cease the picketing while awaiting a determination
by Judge Travia on the 10 petition . An injunction against
such picketing issued on October 31. The last day of
picketing was October 10, 1969.
B. The Critical Events and the Alleged Secondary Boycott
Activity
The critical events span the period beginning in June
1969 and ending on October 10 , 1969.8 During that period
Respondent made some visits to the jobsite and sent three
letters and a telegram to the Board of Education bearing
dates of July 1 , 14 and 29 and August 14. I shall treat
with these matters in detail hereinafter
On or about June 30, around 1 or 1:30 p . m , Barney
Beard , the business representative of Respondent, went
to the jobsite at P S 228 and there observed two painters
on an outside scaffold . He spoke to them , and upon learning
that they were employees of Delta, told them that he
had orders from Respondent saying that Delta was unfair,
that Delta owed money to the welfare and pension fund,
and further that he was to tell them to stop working.'
At this, the men stopped working and went inside the
building to change their clothes. Durandes arrived on the
jobsite about this time and spoke to Beard . After learning
what Beard had done, Durandes told Beard that he had
"no right to stop the men", and , to Beard's answer that
he had orders from Respondent to do so, Durandes replied
that "[he is] going to bung in 10 men from a different
local " Sometime during this episode, Beard entered the
building During his stay, he went to the custodian 's office
' As heretofore found, the complaint herein issued on August 15,
1969
All dates hereinafter are in 1969
Although Durandes testified that Beard made two visits to the jobsite,
one on June 27 and one on June 30 , during which Beard spoke to
painters on the job , Beard insisted that this happened only once during
this period and it could have been "the first [of July], the thirtieth
or the thirty first [of June] " I note , too, that Durandes ' pre-hearing
affidavit to a Board agent is at odds with his testimony , in that his
affidavit speaks of a visit to the P S 228 jobsite on or about the first
of July of " 10 or 12 business agents or District Council Members-
I don't know which ," and a visit to the same jobsite by "Beard,
a business agent of District Council 9" about 2 days thereafter I am
persuaded that had Beard been there on the two occasions , the affidavit
would have identified Beard as being among the 10 or 12 business
agents , too in all these circumstances , I find that Beard was there
only on one of these two occasions referred to in Durandes ' affidavit
and that this occurred on or about June 30 And assuming that there
was a prior visit by unidentified representatives of Respondent to the
jobsite on another occasion in June , I make no findings thereon, as
absent any identification of such representatives in the record Respondent
is precluded from adequately contesting the testimony adduced by the
General Counsel in that regard
" ° Although Beard denied that he went into the building that day
or that he telephoned or spoke to anyone from the Board of Education
while at the jobsite , I am satisfied that he did both , in view of Francescani's
credible testimony that , at the end of June , he received a telephone
call from P S 228 and in the course thereof spoke to a person who
identified himself as a business agent for Respondent in this connection,
I infer and find , from the coincidence that Beard was admittedly on
the jobsite at the end of June and from Francescani 's further credible
testimony as to the train of events which followed his conversation
with the business agent, that Beard was , in fact , the business agent
involved in the telephone conversation
and, from there , spoke on the telephone with Francescani.10
Beard told Francescam, according to the latter 's credible
testimony , that Delta "had not cleared its problems with
the union and that if Delta continued to work there,
[Respondent ] would have to picket the school "" At this,
Francescani asked Beard to have an officer of Respondent
call him and Beard agreed to do so. That afternoon , Frances-
cam received a telephone call from Blum , the administrative
aide to Schonfeld , who is Respondent 's secretary -treasurer,
in which Blum voiced , in effect , what Beard had said,
i.e. that "he had tried to solve the problem with Delta
and Delta had not cooperated , and that , if Delta continued
to work , [Respondent] would picket ." Whereupon, Frances-
cani asked Blum to put it in writing . Blum agreed to
do so" and, in consequence , by letter dated July 1, Schonfeld
wrote to Hugh McLaren of the Office of School Buildings
of the Board of Education concerning the matter. When
the letter" reached Francescani , he discussed the problem
with Martin and Golden , and a decision was reached con-
cerning it. Pursuant thereto, Delta was called by him and
told to stop working and to try to resolve the problem;
in addition , the custodian of P S 228 was called by him
and told not to allow Delta into the school . 14 Also according
" Although Durandes testified that he was present during this conversa-
tion and spoke to Francescani, too, i note that Francescam did not
mention this In all the circumstances , including the developments of
the next few days , as found herein , I find that , contrary to Durandes,
he did not then speak to Francescani , nor did he have a followup
conversation with Francescam that afternoon, as he further testified,
in which he agreed to stop work at P S 228
" Blum testified that , after hearing from Beard , he telephoned Francesca-
m and told him of Beard's visit to P S 228 and of Beard's finding
two men there who were working for Delta , that Respondent had been
unable to resolve its dispute with Delta , and that in keeping with his
promise last January to give advance notice of any action to be taken,
he was letting Francescani know that "we contemplated picketing Delta "
Also according to Blum , Francescam asked him to write to the Board
of Education about Respondent 's intention to picket and he , in turn,
spoke to Schonfeld and Hirsch , the executive secretary of the Joint
Industry Board , about this
" The letter is in evidence as G C's Exh 3 and reads as follows
We are resuming our request that the above be declared a nonrespon-
sive employer At a previous hearing , District Council 9 agreed
to withhold its request since the staff and personnel at your office,
and Mr Delta , indicated that they thought the difficulties that existed
could be rectified However, this has not been so in fact, there
are liens pending against this corporation by the Painting Industry
Insurance Fund and others , stemming from violations of the Trade
Agreement
Furthermore , we are notifying you of our intent to take necessary
economic action at any location at which we find this employer
working Specifically , we intend to picket the ob site at P S #228
in Brooklyn where we are informed that this company might resume
work for your organization
`° It is apparent that Francescani had not yet heard of Strip Clean
when this action was taken by the Board of Education Thus , Francescani
testified that he first heard of Strip Clean from the Board 's Regional
Office when he was called about a charge filed by Strip Clean in Case
2-CD-399 , and the record shows that the charge in question was filed
on July 14 , 1969 However , in view of the testimony of Beard that
Durandes told him during the conversation at the jobsite that he was
going to bring in 10 men from a different local, and in view of Durandes'
testimony that , at about this time, he subcontracted to Strip Clean the
work remaining to be done by Delta at P S 228 , and that Strip Clean's
employees who were represented under a collective agreement between
Strip Clean and Local 7 , were already on the job, I infer , and find,
that Strip Clean and its employees had been installed on the job before
the orders to stop work were issued
N. Y DISTRICT COUNCIL NO 9
to Francescam, he then noted on the above letters of
July 1, "for the file," the following: "Contractor not working
until a settlement is reached. Custodian notified. [signed]
C.F. 7/3/69."
On July 14, Respondent followed up its letter of July
1, above, by a telegram from Schonfeld to McLaren, which
read as follows:
Re Delta Contracting Corporation As Per Letter July
1, 1969 Delta Contraction [sic] Corp In Violation
Of Union Contract Under Payment To Pension And
Insurance Funds Amounting To $22,516 98 Job Will
Be Picketed Request Immediate Resumption Of Board
Of Responsibility Hearing And Cancellation Of Board
Of Education Contract Under Article 5.
On July 17, a meeting was convened at the instance
of officials of the Board of Education to discuss complaints
from Respondent about Delta. Present for the Board of
Education were Martin and several others. Present for
Delta were Durandes and its attorney, Feinstein. Durandes
also brought to the meeting a Mr. Kerr, who claimed
to be a delegate from Local 7. Respondent was not invited
to the meeting and was not represented. Durandes there
made known that he was no longer doing the work under
his contract with the Board of Education but had subcon-
tracted to Strip Clean. This, in turn, caused Martin to
raise the question of whether the fact that Strip Clean
was dealing with a union other than Respondent created
a jurisdictional dispute. At this juncture of the meeting,
or on the following day, according to Martin, he received
a telephone call from Blum, in which Blum said that
"he had given up on being able to resolve matters with
Delta and that they were going to be forced to picket."
Martin then explained to Blum what he had learned at
the meeting about Strip Clean. Blum's response was that
he knew about this, that Strip Clean was an "alter egd'
of Delta since Strip Clean was owned by the brother-
in-law of Durandes and that the fact that Strip Clean
was the subcontractee did not alter the situation. Martin
then indicated that the labor dispute was now "a jurisdiction-
al dispute and that they should take it up through proper
legal channels instead of trying to get [the Board of Educa-
tion] to resolve this," and that "[he] didn't think [the
Board of Education] could resolve it." The conversation
ended with Blum saying that "they were going ahead with
the picketing." There is testimony in the record by Blum
that he spoke to Martin on the telephone about the fact
that Respondent contemplated picketing at P S. 228. Howev-
er, he placed the time of the conversation "around early
September," after he had sent Beard to P.S 228 to check
on the job in early September and Beard had reported
back to him what he had found. In his version of the
conversation with Martin, he told Martin what Beard had
reported, and Martin said that Strip Clean was working
there and the employees on the job were affiliated with
Local 7 His reply to Martin was that Strip Clean was
not signed with Respondent, that he did not know who
Local 7 was and that "we were getting ready to picket
Delta Contracting." I note, in this connection, that Blum
insisted, during cross examination , that he had no knowledge
of Strip Clean doing any painting for Delta at P.S. 228
297
or any other school until Beard reported to him in early
September concerning the P.S. 228 job. Yet, he acknowl-
edged that "he [had] had dealings with Strip Clean" before
the above telephone conversation, that he had discussed
with Schonfeld "the body" of the correspondence consisting
of three letters and a telegram sent by Respondent to
the Board of Education during July and August; and that
Respondent's July 29 letter to the Board of Education
says, in part, "With regard to subcontractors allegedly
taking over the work from Delta, may I call your attention
to the fact that under the terms of the Trade Agreement
signed by Delta Contracting Corp., Delta assumes responsi-
bility that the work will be done by the sub-contractor
in accordance with the Trade Agreement. Further we have
previously established Strip Clean Painting is an alter ego
for Delta Contracting Corporation " In light of the above,
I find that the inherent probabilities of the situation are
that Blum was cognizant of the subcontracting by Delta
to Strip Clean at the time when, according to Martin,
Blum telephoned him In all these circumstances, including
the fact that Martin impressed me as a forthright witness
and as more reliable than Blum, I credit Martin and find
that Blum did telephone Martin on July 17 or 18 and
that the content of the conversation was as testified to
by Martin.
As already noted, a subsequent development during July
was the letter of July 29 from Respondent to the Board
of Education. The burden of the letter was that the Board
of Education call a meeting of the Board of Review for
the purpose of cancelling the contracts of the Board of
Education with Delta The entire text of the letter was
as follows:
In further clarification of our telegram of July 14,
1969, requesting "immediate resumption of Board of
Responsibility hearing and cancellation of Board of
Education contract, under Article V", please be advised
that the money due to the Pension and Insurance
Funds, $22,516.98, is separate and apart from the
list of names and amounts previously given to Mr.
Durandes, of Delta Contracting Corp., in connection
with the hearing in your office held on Thursday,
January 2, 1969, at 10:00 A M
Included in the above figure of $22,516.98 is an item
of $380 00, a check dated November 15, 1968, (prior
to the meeting in your office on January 2, 1969),
which was a payment to the Painting Industry Annuity
Fund. This check had been returned by the bank
for insufficient funds and is still outstanding.
Subsequent to that meeting, we have made every effort
to bring Delta Contracting Corp into good standing
with the union to avoid any drastic action Unfortunate-
ly, we have not been successful and we must insist
that there is more than adequate ground for the Board
of Review to resume its hearing with a view to cancella-
tion of the contracts of Delta Contracting Corp.
With regard to sub-contractors allegedly taking over
the work from Delta Contracting Corp., may I call
your attention to the fact that under the terms of
the Trade Agreement signed by Delta Contracting
Corp, Delta assumes responsibility that the work will
be done by the sub-contractor in accordance with
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trade Agreement Further, we have previously
established that Strip Clean Painting is an "alter egd'
for Delta Contracting Corp.
The charges we have made are serious. Because we
are mindful of serving the best interests of the schools
as public spirited citizens, we must insist that such
gross and repeated violations , involving large sums
of money, should not be ignored We want to avoid
any scandals involving execution of painting contracts,
both from the point of view of our Union, as well
as the board of Education and the City of New York
We trust that you will set a date for a meeting of
the Board of Review, to go into this matter, at your
earliest convenience.
On August 13, 1969, the Board of Education conducted
a meeting of its Board of Review to consider the matter
of declaring Delta in default on Delta's contracts with
it covering various schools in various New York boroughs,
including the one covering P S. 228 . Prior thereto, it had
received a recommendation from Martin, its Director, Divi-
sion of Maintenance and Operation, that Delta be declared
in default on these contracts in accordance with the provi-
sions of Article 21. Also operative factors in the calling
of this meeting were the above-described written communi-
cations to it from Respondent of July 1, 14, and 29 and
the telephone calls from Respondent to Francescani on
or about June 30 and the telephone call from Respondent
to Martin on July 17 or 18. So far as appears, among
those present at the Board of Review meeting were McLaren
and Francescani for the Board of Education, Hirsch for
the Joint Industry Board , and Durandes and Feinstein
for Delta. After considerable discussion, the meeting ended
without the Board making any finding of default by Delta.
One of the two developments in the wake of the August
13 meeting was a letter dated August 15, from Martin
to Delta, directing Delta to resume work wherever Delta
had theretofore suspended work and authorizing Delta to
use Strip Clean as a subcontractor "pending an audit of
[Strip Clean's] books and records to determine if it is
paying the prevailing rate of wages and benefits as represent-
ed in a letter of recent date from Strip Clean Floor Refinish-
ing and Painting Corporation, addressed to the Board of
Education." The letter then continued with the following
admonition:
This Division has been advised by the Brotherhood
of Painters, Decorators and Paperhangers of America,
District Council No 9 of New York City that if
either you or Strip Clean Floor Refinishing and Painting
Corporation perform any work in our schools, that
picket lines will be placed around the premises and
thereby cause a suspension or delay of or strike of
any trades working in or about the premises in question.
Your attention is directed to Article 5 of your contract
which reads as follows.
"The Contractor shall not have work performed,
nor shall he employ labor or means, in the carrying
out of this contract that would in any way cause
or result in a suspension, or delay of, or strike
upon the work to be performed hereunder of
any of the trades working in or about the premises
herein described, or in or about any other building
of The Board or working upon any of the premises
of The City of New York."
In the event such suspensions , delays or strikes develop
at the premises , this Division will recommend that
the Board of Education avail itself of the appropriate
remedies which are consistent with the terms of your
contracts.
The other development in the wake of the August 13
Board of Review meeting was a letter dated August 14
from Schonfeld to McLaren. The pertinent portions of
the letter are as follows-
Please be advised that until such time as Delta Contract-
ing Corp arranges to pay its obligations for its employ-
ees' pension , welfare, insurance and annuity benefits,
District Council 9 will picket any jobs which it should
work on or which any of its sub-contractors should
be engaged in on Delta's behalf. This includes Strip-
Clean Floor Refinishing and Painting Co., and any
other such sub-contractor. I am notifying you of this
because the Board of Education has a number of
outstanding, uncompleted contracts with Delta .
As long as Delta Contracting is under obligation to
pay pastdue fringe benefits, we would regard its
employment of a subcontractor as a subterfuge to
evade Delta's obligations under its contract with Dis-
trict Council 9 Therefore, whether Delta Contracting
Corp. does the work, or whether the work is done
by a sub-contractor, the terms of the Trade Agreement,
as above, still apply
Furthermore, with regard to Strip-Clean Refinishing
and Painting Corp., they signed a contract with us
on September 11, 1968. However, we revoked this
contract, effective September 19, 1968, when we deter-
mined that the employment by Delta of this company
was a device by Delta to continue working while
in violation of its contract with District Council 9.
The device was the more obvious, incidentally, by
reason of the fact that Ada Gloro (Mrs. John
Durandes), the president of Delta, is the sister of
Mr. Felix Jose Gloro, the principal of Strip-Clean
In this connection we cite the following Article VII,
Section 1(n) from our contract
"The Union shall not enter into a contract with
an employer who is indebted under the terms
of this Agreement or any prior Agreement by
reason of his non-payment of wages, wage benefits,
annuities , penalties or liquidated damages as
assessed by the Joint Industry Board, whether
such employer proposes the making of such con-
tract under his own name or under the name
of any firm or corporation in which he is a principal
or has a substantial interest."
For the above reasons, apart from the question of
any Union affiliation or lack of affiliation, it is clear
that, on the basis of our contract with Delta, District
Council 9 has more than ample legal ground to picket
Delta or any sub-contractor engaged in doing Delta'
work. Accordingly, if Delta should resume work, we
will ask the public and our men to give us every
N Y DISTRICT COUNCIL NO 9
possible legal support to assist us in maintaining the
wages and benefits of our members.
On August 18, Strip Clean was at work at P.S. 228,
performing painting work under its subcontract with Delta
It continued such work during the rest of August and
most of September. On September 2, Beard paid a visit
to the P.S. 228 jobsite where he made an on-the-spot
observation that Strip Clean was doing the painting work
and was employing painters, who were adherents of Local
7. Beard relayed this information to Blum via telephone1
from the school building and, in consequence, he was
given instructions to commence the picketing On September
4, as stipulated by the parties, picketing began at P S
228; the picket signs carved the following legend-
DELTA CONTRACTING UNFAIR
TO
DC 9, AFL-CIO
227 WEST 17TH STREET, NEW YORK CITY
FOR
UNDERPAYMENT
TO INSURANCE AND
PENSION FUNDS
The picketing continued until October 10.
Notwithstanding the picketing, Strip Clean continued to
work at P.S. 228 until September 26. At that time, Strip
Clean, on its own, ceased work temporarily, leaving a large
scaffold and other equipment on the premises Thereafter,
shortly before December 1, Strip Clean returned to P.S. 228
in order to complete the work under its subcontract
As heretofore found, Respondent agreed to cease the
picketing on October 10, while awaiting a determination
by Judge Travia in the pending 10(1) injunction proceeding
instituted by the General Counsel, and an injunction issued
thereafter on October 31.
C Analysis and Conclusions
It is apparent from all the foregoing that the labor
dispute herein was between Respondent and Delta and
arose over Delta's nonpayment into Respondent's pension
and fringe benefit funds of certain claimed deficiencies;
and that, although the Board of Education had no labor
dispute with Respondent, it became enmeshed in the dispute
" 1 have heretofore found, contrary to Beard's testimony, that he
did not speak to Francescani from a telephone inside the school building
on this occasion, but did so on the occasion of his prior visit to the
Iobsite on or about June 30
1fl Although the Board of Education is not an employer within the
Act's meaning, it is a person engaged in commerce within the definition
of Section 8(b)(4) of the Act and is entitled to the full protection
of the Act See Plumbers, Steamfitters, Refrigeration, Petroleum Fitters
& Apprentices of Local 298 A F of L ei al v (ounri of Door, a Municipal
Corporation, et al , 359 U S 354
299
between Respondent and Delta 16 In the latter connection,
I have heretofore found that there were three oral communi-
cations from Respondent to the Board of Education to
the following effect- (1) on or about June 30, Beard,
Respondent's business agent, telephoned Francescani, the
chief of the field section in the Bureau of Maintenance
of the Board of Education and said, in relevant part,
that "[Delta] had not cleared its problems with the union
and that if Delta continued to work there [Respondent]
would have to picket the school"; (2) later that same
day, Blum, the administrative aide to Respondent's secre-
tary-treasurer, telephoned Francescani and said, inter alia,
that "he had tried to solve the problem with Delta and
Delta had not cooperated and that, if Delta continued
to work, [Respondent] would picket"; and (3) on either
July 17 or 18, Blum telephoned Martin, the director of
maintenance and operation of the Board of Education,
and said, in relevant part, that "he had given up being
able to resolve matters with Delta and that they were
going to be forced to picket." As also found herein, there
were, in addition, some written communications from
Respondent to the Board of Education, namely, three letters
dated July 1, and 29 and August 14, respectively, and
one telegram dated July 14. An examination of these docu-
ments establishes, I find, the following. (1) Respondent's
July 1 letter requested that the Board of Education declare
Delta a nonresponsible employer," and also notified the
Board of Education of "[Respondent's] intent to take neces-
sary economic action at any location at which we find
this employer working. Specifically we intend to picket
the jobsite at P.S. 228 in Brooklyn where we are informed
that this company might resume work for your organiza-
tion", (2) Respondent's telegram of July 14 stated that
Delta was in violation of its contract with Respondent
and that the "fob will be picketed," and requested, at
the same time, "immediate resumption of Board of Responsi-
bility hearing and cancellation of Board of Education con-
tract [with Delta] under Article V", (3) Respondent's July
29 letter was in further clarification of the above telegram
and said "unfortunately we have not been successful [in
resolving our dispute with Delta] and we must insist that
there is more than adequate ground for the Board of
Review to resume its hearing with a view to cancellation
of the contracts of Delta Contracting Corp"; it also stressed
the seriousness of its charges and said, in that connection,
"we want to avoid any scandals involving execution of
painting contracts, both from the point of view of the
Union as well as the Board of Education and the City
of New York"; and (4) Respondent's letter of August
14 advised the Board of Education that "until Delta pays
its obligations under its contract with Respondent in respect
to employees' pension, welfare, insurance and annuity bene-
fits, [Respondent] will picket any jobs which [Delta] should
work on or which any of its subcontractors [including
Strip Clean] should be engaged in on Delta's behalf.""
" Such a determination would, according to the terms of the contract
between the Board of Education and Delta, result in a cancellation
of the contract
18 I note that this written communication did not, in haec verba,
seek a cancellation by the Board of Education of its contracts with
Delta
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, I have also found that these oral and written
communications culminated in picketing by Respondent
on September 4 to October 10 at P S 228, with picket
signs which referred to Delta as unfair to Respondent
because of underpayment to insurance and pension funds
The law is clear that Respondent may, under the proviso
to Section 8(b)(4)(B), lawfully engage in "a primary strike
or primary picketing" against Delta and/or Strip Clean,"
but it may not , for proscribed objectives , threaten , restrain,
or coerce the Board of Education , a neutral to the labor
dispute, or induce or encourage the employees of the Board
of Education to engage in a strike or refusal to perform
services. However, Respondent contends , in effect, in its
brief, that the essential elements of a violation of Section
8(b)(4)(B) of the Act have not been established Thus,
it asserts that the oral or written communications which
were directed to the Board of Education did not constitute
acts of coercion or restraint because these communications
(1) were in response to the request of the Board of Education
that Respondent keep it advised regarding Respondent's
intention to picket ; (2) were, insofar as they were in writing,
in accord with the practice of the Board of Education
of requiring complaints to be in writing before it would
take action ; and (3) constituted legitimate demands, in
its role as a member of the public, that the Board of
Education , a governmental organization , enforce the terms
of its contract with Delta And it urges further that its
picketing was not directed against the Board of Education
and, even if so directed , such picketing was in the nature
of a primary dispute with the Board of Education, in
that , as a member of the public, it was pursuing the
legitimate objective of getting the Board of Education,
a governmental agency, to enforce a contract that the
Board of Education had with Delta , with respect to Delta's
violation of New York state law.
I am unpersuaded by Respondent 's contentions. The
oral and written communications to the Board of Education
are to be considered together As such, they constitute
pressure upon the Board of Education to take the necessary
steps leading to the cancellation of its contract with Delta.
The consequence of cancellation would, of course, be the
cessation by the Board of Education of doing business
with Delta . This pressure to cancel was coupled by Respond-
ent with expressions of intention to picket so long as
Delta continued working for the Board of Education at
P.S. 228 and other jobsites. Although Respondent seeks
to import a doctrine akin to waiver into the situation
by claiming that its communications were not coercive
because they were in response to the request of the Board
of Education at the January meeting to be kept advised
regarding Respondent 's intention to picket , such argument
is unavailing to Respondent because I have found that
the record does not support its factual premise that there
was such a request . However , even assuming such a request,
the Board of Education would have indicated thereby no
" The General Counsel conceded that Strip Clean was the ally and/
or was doing the struck work of Delta As such , I find, Strip Clean
stands in the same position as Delta vas a vas Respondent in the instant
labor dispute
more than that it would be better able to cope with an
objectionable situation involving picketing of school premis-
es, if it was alerted to such situation before the inception
of the picketing . It would be straining to the breaking
point to hold that the Board of Education would thereby
be implying a waiver of its right to protection under 8(b)(4)
of the Act 20 And insofar as the Board of Education has
a practice , upon being notified that picketing was to occur
at a school , to ask for a written communication to that
effect from the union involved , and granting that such
practice was invoked here, it constituted no more than
an effort on the part of the Board of Education to have
the notification of the impending objectionable situation
formalized in the interest of being able to cope with it
better administratively . Further , while it cannot be denied
that , in its role as a member of the public , Respondent
was within its rights in demanding that the Board of
Education , as a governmental organization , enforce the
terms of its contract with Delta , it is, of course, also
true that Respondent was, at all relevant times, directly
involved in the matter which gave rise to its demands
upon the Board of Education Indeed , in its letter of July
29 to the Board of Education , the only communication
in which it made mention of its role as a public citizen
in making its demand upon the Board of Education to
cancel its contract with Delta , Respondent indicated that
its demand was prompted also by its direct involvement
in a labor dispute with Delta. Thus, the letter said, in
relevant part, "we want to avoid any scandals involving
execution of painting contracts , both from the point view
of our Union, as well as the Board of Education and
the City of New York." ( underscoring supplied ). In all
these circumstances , I conclude and find , that Respondent
made clear to the Board of Education through these written
and oral communications that it intended to picket and
that an object of such picketing would be to get the Board
of Education to cease doing business with Delta because
of Respondent 's labor dispute with Delta over the claimed
violation by the latter of its union contract.21
With respect to Respondent 's contentions addressed to
the picketing itself, it is true that the picket signs made
no mention of the Board of Education and mentioned
only Respondent 's labor dispute with Delta, and further
that the General Counsel concedes , in its brief, that there
has been substantial literal compliance with Moore Dry
Dock standards" in the picketing that took place at P.S
228. However , these standards are not to be applied on
an indiscriminate per se basis but are to be regarded merely
_° Such a waiver would, in any event , be against public policy
" in this connection , the July 14 telegram, which the July 29 letter
was meant to clarify further, read , in relevant part , "As Per Letter
July 1, 1969 Delta In Violation Of Union Contract Underpayment
To Pension And Insurance Funds Amounting To $22,516 98 Job Will
Be Picketed "
" The standards set forth in Moore Dry Dock Co, 92 NLRB 547,
are, in substance , that the picketing disclosed that the dispute was with
the primary employer , that the picketing occurred when the situs of
the dispute was located on the premises of the neutral or secondary
employer, that the picketing was limited to the situs of the dispute,
and that the primary employer was then engaged in its normal business
at that situs
N Y DISTRICT COUNCIL NO 9
as aids in determining the underlying statutory violation."
Here, the picketing does not stand in isolation. It was
preceded by the aforementioned communications which
sought to involve, and did involve , the Board of Education
in Respondent 's labor dispute with Delta , and, during these
communications , Respondent foretold its intention to picket
the school , without restriction or limitation , in the event
of the failure to resolve the labor dispute , and clearly
indicated the objective , because of such failure , of having
the Board of Education cancel its contract with Delta
and cease doing business with Delta . It follows therefore
that there is no legal substance to Respondent 's contention
that its picketing was not directed at the Board of Education.
Nor can Respondent take legal refuge in its alternative
position that , even if its picketing was directed at the
Board of Education , such picketing was in the nature
of a primary dispute with Board of Education in that,
as a member of the public, it was pursuing the legitimate
objective of getting the Board of Education , a governmental
agency, to enforce a contract that the Board of Education
had with Delta , with respect to Delta's violation of New
York state law. Thus, assuming without deciding, that
picketing for such a purpose is, in the circumstances , primary
picketing , 24 I cannot find , on this record , that this was
the only purpose of the picketing . Thus, the picket signs
made no mention that the picketing was for the purpose
of eliciting a public response to an alleged failure of the
Board of Education to ent _ rce a contract it had with
Delta, with respect to Delta's violation of New York state
law. Indeed, the only reference thereon was to Respondent's
labor dispute with Delta . And I have heretofore found
that , in the one instance during Respondent's communica-
tions to the Board of Education in which it made mention
of its role as a public citizen in making its demand upon
the Board of Education to cancel its contract with Delta,
Respondent indicated that its demand was also prompted
by its own direct involvement in a labor dispute with
Delta . Accordingly , as the picketing had as an objective
the cessation by the Board of Education to do business
with Delta because of Respondent 's labor dispute with
Delta over its claimed violation by the latter of its union
" See International Brotherhood of Electrical Workers, Local Union
861 and Arneth Lard, its agent, and Plauche Electric Inc, 135 NLRB
250, 255, International Brotherhood of Electrical Workers, Local Union
No 11, AFL-CIO, et al and L G Electric Contractors Inc, et al., 154
NLRB 766
" NL R B v Building Service Employees, 396 F 2d 131 (C A 1)
cited by Respondent, is not diapositive of the issue The cited case
involved a petition to hold a union in contempt of the Court's decree
enforcing the Board's cease and desist order grounded on 8(b)(4)(B)
violations One of the matters alleged in support of contempt was the
picketing by the union of the Massachusetts Board of Education at
the building housing the Department of Education, in an attempt to
prevent the Department from awarding a building-cleaning contract to
a nonunion cleaner Although the Court refused to hold the union in
contempt for such picketing, it did so because, in its view, the picketing
of a state agency which has no customers raised questions substantially
different from the union's picketing of private employers which gave
rise to the Board order, and this called for initial statutory interpretation
by the Board And the Court held further that "this action is intended
to be without prejudice to any further Board action to determine whether
the Department activity violated Section 8(b)(4) "
301
contract, which is a prohibited objective under the Act,
the picketing herein runs afoul of the Act.
It follows from all the foregoing, and I conclude, and
find, that by its written and oral communications revealing
its intention to picket, and by its picketing at P.S. 228,
Respondent threatened, coerced, and restrained the Board
of Education, where an object thereof was to force or
require it to cease doing business with Delta and/or
Strip Clean, in violation of Section 8(b)(4)(u)(B) of the
Act.25 However, I find differently with respect to the allega-
tions of the complaint, as amended, that Respondent violated
8(b)(4)(i)(B) by the picketing herein. The record fails to
demonstrate that any of the employees of the Board of
Education were induced or encouraged by Respondent to
engage in a work stoppage.26 And I cannot find, in view
of the concession of the General Counsel that the picket
signs and the picketing conformed to the standards of
Moore Dry Dock, that the necessary effect of the picketing
was to induce or encourage any employees of the Board
of Education at P S. 228, who may have been exposed
thereto, to engage in such stoppage in violation of the
Act. Accordingly, I find that the allegations of the com-
plaint, as amended, that Respondent violated Section
8(b)(4)(i)(B) have not been sustained.21
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Board of Education is a person engaged in an
industry affecting commerce within the meaning of the
Act.
2. Respondent is a labor organization within the meaning
of the Act
3. By threatening, restraining, or coercing a person in
an industry affecting commerce with an object of forcing
him to cease doing business with another person, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(4)(u)(B).
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
5. Respondent has not induced or encouraged employees
to engage in a work stoppage in violation of 8(b)(4)(i)(B)
of the Act.
11 See Local 2669, affiliated iiith Sullold Counts Divtnct Council of
Carpenters Untied Brotherhood of Carpenters rind Joiners of -1 menu a
AFL-CIO (T& D Roofing Co Inc ), 173 NLRB No 188 International
Brotherhood of Eler iris al Won,et i Lo( al Union No 11 AFL-CIO (L G
Elea tnc ( ontrai tore Inc et al ), vupra , Build,n Se, i u e L niplo i eev
International Union, i ocal Vo 105 [Industrial Janitorial Service Inc 151
NLRB 1424
i4 I note that the record also fails to disclose the nature and extent
of the employee complement of the Board of Education at P S 228
at the time of the picketing herein All that does appear is that employees
of Strip Clean were on the jobsite during the picketing until they stopped
work on September 26 at the instance of Strip Clean because Strip
Clean was short of funds
37 See Building Service Employees International Union, Local No
105 (Industrial Janitorial Service, Inc ), supra
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has violated Section
8(b)(4)(ii)(B) of the Act, I will recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
case, I recommend, in order to effectuate the policies of
the Act, that Respondent, New York District Council No
9 Brotherhood of Painters, Decorators and Paperhangers
of America, AFL-CIO, its officers, agents, successors, and
assigns, shall:
1 Cease and desist from threatening, coercing, or restrain-
ing the Board of Education of New York City, or any
other person engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or require
the Board of Education of New York City, or any other
person, to cease doing business with Delta Contracting
Corporation and/or Strip Clean Floor Refinishing & Paint-
ing Corp
2 Take the following affirmative action:
(a) Post in conspicuous places at its offices and meeting
halls copies of the notice marked "Appendix "2$ Copies
of said notice, on forms provided by the Regional Director
for Region 29, shall, after being signed by a representative
of Respondent, be posted by Respondent immediately upon
receipt thereof and maintained for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material
(b) Sign and mail sufficient copies of said notice to
the said Regional Director for posting by the Board of
Education of New York City, Delta Contracting Corpora-
tion, and Strip Clean Floor Refinishing & Painting Corp.,
if they are willing, at locations where notices to their
employees are customarily posted.
(c) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this Decision what
steps Respondent has taken to comply herewith.29
IT IS FURTHER ORDERED that the complaint, as amended,
be, and it hereby is, dismissed insofar as it alleges violations
not found herein.
Z° In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 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
in the event that the Board's Order is enforced by a judgment of
a United States Court of Appeails, 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 "
" In the event these Recommendations are adopted by the Board,
this provision shall be modified to read "Notify the aforesaid Regional
Director, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain the Board
of Education of New York City, or any other person
engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or require
the Board of Education of New York City, or any
other person, to cease doing business with Delta Con-
tracting Corporation and/or Strip Clean Floor Refinish-
ing & Painting Corp.
NEW YORK DISTRICT
COUNCIL No. 9
BROTHERHOOD OF
PAINTERS, DECORATORS
AND PAPERHANGERS OF
AMERICA, AFL-CIO
(Labor Organization)
Dated By
(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, 16
Court Street, Fourth Floor, Brooklyn, New York 11201,
Telephone 596-3535