United Furniture Workers of America, AFL-CIO

National Labor Relations Board - Board Decisions

Mar 25, 1964

146 N.L.R.B. 474 (N.L.R.B. 1964)

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Furniture Workers of America, AFL-CIO and James-
town Sterling Corporation . Case No. 3-CP-58. March 25, 1964
DECISION AND ORDER
On December 6, 1963, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 ('b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to as three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner 2
1 In accordance with his dissenting opinion in Claude Everett Construction Co , 136
NLRB 321, Member Leedom would find that the proscribed picketing objectives of recog-
nition and bargaining are established here by Respondent's picket sign legend calling
attention to Respondent's claim that the Employer has not met area wage standards. He
finds it unnecessary , therefore to rely on other evidence to establish that Respondent's
picketing, after the loss of its representative status, continued to have the foregoing pro-
scribed objectives . He views such evidence as cumulative.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , United Furniture Workers of America, AFL-CIO, its officers , agents,
representatives , successors , and assigns , shall:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge of unfair labor practices filed on June 19, 1963, by Jamestown
Sterling Corporation, the General Counsel of the National Labor Relations Board
issued a complaint on July 29, 1963, alleging that United Furniture Workers of
America, AFL-CIO, - herein called Respondent or Union, had engaged in and was
engaging in unfair labor practices within the meaning of Section 8(b) (7) (B) of the
National Labor Relations Act, herein called the Act. Respondent filed an answer
in which it admitted certain allegations of the complaint but denied the commission
of any unfair labor practices and set up certain affirmative defenses . Pursuant to
146 NLRB No. 74.
UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO 475
notice , a hearing was held before Trial Examiner George J. Batt at Jamestown,
New York, on September 10, 1963. All parties were represented at the hearing.
Subsequent to the hearing General Counsel and Respondent filed briefs which I
have considered. After filing its brief, Respondent also filed, on November 7,
1963, motions to dismiss the complaint and to reopen the record which are disposed
of . herein.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Jamestown Sterling Corporation 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.
At all times material herein, the Company has maintained its principal office
and place of business in the town of Ellicott, State of New York, herein called
the plant, and various plants, warehouses, and other facilities in the Common-
wealth of Pennsylvania , and is, and has been at all times material herein , engaged
at said plants and locations in the manufacture, sale, and distribution of furniture
and related products. The Ellicott plant is the only facility involved in this
proceeding.
During the 12-month period prior to the complaint, which period is representa-
tive, of all times material herein, the Company, in the course and conduct of its
business operations, manufactured, sold, and distributed at said plant finished prod-
ucts valued in excess of $50,000, of which products valued in excess of $50,000
were shipped from said plant directly to States of the United States other than the
State of New York.
The Company is, and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
On August 9, 1961, the Board certified Respondent as the bargaining representa-
tive of the production and maintenance employees of the Ellicott plant of Respondent.
After unsuccessful negotiations for a contract, Respondent, on October 3, 1961,
struck and began picketing the plant with on-strike signs. The Respondent and
the Company met in a number of bargaining sessions during the course of the
strike, the last of which was on August 15, 1962.
Sometime in January 1962, the Company began hiring persons to do the work
formerly done by striking employees.
Although the Respondents at the commencement of the strike picketed the Com-
pany with signs bearing the legend, "On-Strike," the patrol of pickets with these
signs stopped in the spring of 1962 and the signs were tacked on poles and trees in
front of the plant. In August 1962, the signs were placed around poles in front
of the plant with a chain to which a lock was attached.
May 24, 1963, was the last day Respondent used the "On Strike" signs On
Monday, May 27, 1963, new signs were placed on the poles and trees in front of
the plant with the legend, "Wages at Jamestown Sterling Are Not Up to Area
Standards." These signs are placed at the plant by Respondent's representatives
around 6 a.m., 5 days a week. They are removed around 3 p.m. After the signs
are affixed, Respondent's representatives retire to the parking lot across the street
from the plant and sit in automobiles. There has been no actual patrol of pickets
with signs since the spring of 1962.
On December 10, 1962, the Company filed a representation petition with the Board
seeking an election to determine whether or not the Union represented a majority
of the employees. A hearing on the petition was conducted on January 17, 1963,
in which the Respondent Union participated. On. February 6, 1963, the Regional
Director .for the Third Region of the Board issued a Decision and Direction of
Election. On February 19, 1963, the Union filed a request for review of the Regional
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director's action with the Board which was denied by the Board on March 1, 1963,
in a telegram stating that the appeal showed ". . . no prejudicial error in any ruling
made in connection with the proceedings."
On March 5, 1963, the Regional Director conducted an election among the em-
ployees in the unit. Of the approximately 198 eligible voters, 118 were challenged
and 66 voted without challenge. Since the challenges substantially exceeded the
number of unchallenged ballots the Regional Director impounded the ballot box
and caused an investigation to be made of the challenges
The Regional Director on April 12, 1963, issued a Supplemental Decision. In
this document the Regional Director pointed out that the primary issues were the
eligibility of economic strikers and replacements. He noted that the Union had re-
quested him to conduct a hearing to resolve the validity of the challenges and had
submitted memorandums in support of the request which he had considered. He
stated that he had decided that the issues might be resolved on the basis of an ad-
ministrative investigation, pursuant to Section 102.69 of the Board's Rules and
Regulations, and, therefore, denied the Union's request for a hearing. On the
merits of the challenges, the Regional Director, giving his reasons therefor, ruled,
in brief that the strikers had been permanently replaced. He directed that the
challenged ballots of the replacements be opened and counted at a time and place to
be subsequently determined by him.
On April 26 1963, the Union filed with the Board a request for review of the
Regional Director's Supplemental Decision of April 12, 1963. The Union in its
request for review, which it described as, "Exceptions of the United Furniture
Workers (AFL-CIO) to the Regional Director's Supplemental Decision, Dated
April 12, 1963, and to Denial of the Union's Motion that a Hearing on Challenges Be
Directed," emphasized, among other things, the alleged illegality of denying the
Union a hearing on the challenges and conducting an ex parte,investigation.
The Board, on May 21, 1963, by telegram, ruled that ". . . the Union's request for
review be, and it hereby is, denied as it raises no substantial issues warranting review."
On May 24, 1963, the Regional Director opened the ballots of the challenged
replacements and issued a tally of ballots. He certified that of the approximately 128
eligible voters, 25 votes were cast for the Union and 90 against it.
On June 3, 1963, the Union filed with the Regional Director objections to elec-
tions and to the conduct of the election and brief in support thereof. In this docu-
ment the Union asserted, inter alia, the alleged impropriety of ordering an election
in the first instance, since the record contained no evidence respecting whether the
strikers were permanently replaced, and an alleged denial of due process in the
Regional Director's action of investigating the challenges administratively rather
than holding a hearing in the matter.
The Regional Director, on June 6, 1963, issued a Second Supplemental Decision
and Certification of Results of Election in which he overruled the Union's objections
and certified that -a majority of the valid ballots in the election had not been cast
for Respondent Union and that the Union, was not ". the exclusive representa-
tive of all the employees, in the unit herein involved, within the meaning of Section
9(a) of the National Labor Relations Act." In his Second Supplemental Decision
the Regional Director pointed out, among other matters, that the Union had sought
review of his original Decision and Direction of Election but such had been refused
by the Board on March 1, 1963, as showing ". . . no prejudicial error in any ruling
made in connection with the proceeding." The Regional Director also stated that
the Union's claim of denial of due process with respect to his action of administra-
tively investigating the challenges had already been considered and passed upon
adversely-by him and that the Board had denied review of his actions.
On June 23, 1963, the Union filed with the Board a request for review of the
Regional Director 's Second Supplemental Decision and Certification of Results of
Election. Again, the Union raised the issue of a hearing on the right of replace-
ments to vote and stated that it had offered to prove by sworn testimony that the
replacements were temporary . As before, the Union also contended in its request
for review that the original decision to hold an election was improper since there
was no valid question of representation.
The Board denied the Union's request for review on July 15, 1963. The telegram
to the parties stated that the request raised "... no substantial issues warranting
review."
To repeat, on Friday, May 24, 1963, the ballots were counted and the tally
showed 25 votes for the Union and 90 against. May 24 was the last day the picket
signs bore the legend , "On Strike." On Monday, May 27 , 1963, the signs bore
the legend , "Wages at Jamestown Sterling Are Not Up to Area Standards" and
this continues to be the legend.
UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO 477
On June 5, 1963, the Respondent Union sent a letter to customers of the Com-
pany. This letter was on Respondent's letterhead and was signed by Sol Silverman,
Respondent's union label director. Silverman had participated in the labor negotia-
tions with the Company. In the letter, Silverman said:
Once again, we are reluctantly forced to bring to your. attention the fact
that the labor difficulty at the Jamestown Sterling Furniture Company in
Jamestown, New York, is continuing. _
No amount of company legal maneuvering can hide the fact that this cotit-
pany has not seen fit to come to terms with their striking employees for over
twenty (20) months.
In conclusion, our Union, once again reiterates that-now, as well as from
the very beginning of this very unfortunate labor dispute, our Union has always
been willing to negotiate, arbitrate, mediate, as well as to accept the recom-
mendations made by a special panel created by Governor Rockefeller, to, serve
as a basis for a settlement of this strike.
Unfortunately, the company has seen fit to refuse to come to terms or to
accept arbitration or the recommendations of the Governor's panel and, by
doing so, has made necessary this long protracted strike.
Earlier, on March 19, 1963, Silverman had written a similar letter to customers
of the Company in which he called attention to the "labor" dispute between the
Union and the Company and to the Union's intention to reach a settlement with
the Company.
Richard Perry, vice president of William Iselin & Co., a factor for Jamestown
Sterling, testified without contradiction, and I credit his testimony, that Silverman
visited him on May 29, 1963, and introduced himself as a representative of the
Union. Silverman said that the Union planned to continue to picket Jamestown
customers. Perry reminded Silverman of the recent Board election but Silverman
said ". . he thought that this whole matter with Jamestown Sterling could still
be settled."
On the night of June 5, 1963, the Union held a news conference at the Jamestown
Hotel. Manley Anderson, a reporter for the Jamestown Post-Journal, testified with-
out contradiction, and I credit his testimony, that Silverman was the principal
speaker. Silverman said the Central Labor Council had voted to continue moral
and financial support to the strikers. He also stated that -the, Union had not yet
lost its right to be bargaining agent at the plant and would continue to be active
there for a long time to come. Anderson also recalled that Silverman mentioned
the closing of one of the Company's plants which he attributed to effective union
pressure Silverman regretted the closing but felt the Company was at fault in not
abiding by the findings of the Governor's panel. He also recalled, under cross-
examination, that Silverman said the Union had not yet been decertified and would
appeal any such action to the "ultimate limits."
William R. Gott, a furniture dealer and customer of Jamestown Sterling, testified
without contradiction, and I credit his testimony, that on June 18 or 19, 1963,
one Earl Kiehl, who identified himself as a union representative, called upon Gott
at his place of business and, in reference to the labor dispute at the plant, said,
. they were still on strike ... .
The Respondent Union has never disclaimed either its status as statutory repre-
sentative of employees in the unit, or its desire to bargain for them.
B. Issues and contentions
Section 8(b)(7)(B) of the Act makes it an unfair labor practice for a labor
organization or its agents:
to picket or cause to be picketed, or threaten to picket or cause to be picketed,
any employer where an object thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the representative of his
employees, or forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining representative,
-unless such labor organization is currently certified as the representative of
such employees:
(B) where within the preceding twelve months a valid election under section
'9(c) of this Act has been conducted, or
* * * * * * *
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For this section of the Act to come into operation there must first be picketing
by an uncertified union, an object of which is to force the employer to recognize
that union as the bargaining agent for his employees or to force these employees
"to accept or select" the labor organization "as their collective bargaining repre-
sentative." If such "recognitional" or "organizational" picketing occurs where there
has been a valid Board election within the preceding year, a violation of Section
8 (b) (7) (B) is made out.
The Union puts forward at least three principal defenses in this case. ' At the
threshold, it contends that the questions of the Union's object in picketing, or the
validity of the election the Regional Director conducted, need never be reached
because what the union representatives are doing in affixing signs to trees and poles
and retiring to their cars is not picketing. As a second defense, it argues its object
is not recognitional or organizational but is simply to publicize the fact that wages
are below area standards. Finally, as its last but probably most seriously asserted
position, the Union contends that the election was invalid since it should not have
been directed in the first instance, and the Union was deprived of its rights by the
Regional Director's investigation of the striker-replacement issue administratively
rather than through a hearing. Lurking or contained in some of these defenses are
subsidiary positions, such as, for example, claimed error in my revocation of
subpenas to the Regional Director and replacements.
The General Counsel contends that the Union picketed for an improper object
because picketing does not necessarily include patrolling and only an improper
object need be shown. To the claim that the election was invalid, he merely con-
tends that this is an attempt to relitigate in an unfair labor practice case matters
which were litigated in a representation proceeding, which he says the cases say
may not be done.
C. The picketing
- Although there has been no patrolling of the plant since the spring of 1962 and
the union agents now put signs on trees and poles in front of the plant and return
to the parking lot across the street from the plant where they sit in cars, I find that
the conduct of the Union is picketing within the meaning of the statute. In Local
182, International Brotherhood of Teamsters, etc. (Woodward Motors, Inc.), 135
NLRB 851, enfd. 314 F. 2d 53 (C.A. 2), the Board found that the act of placing
picket signs in the snowbank abutting an employer's premises and watching them
from a car parked on an adjacent highway was picketing within the meaning of
the Act. The court of appeals, in affirming the Board, held that movement is not a
requisite of picketing. I think it a reasonable inference in this case that the
union representatives in affixing the signs with chains and locks and sitting in cars
were doing this so that the signs could be watched'and protected. By their conduct
the strikers were establishing a locus in quo which was more than mere speech within
the meaning of the cases.
D. The object
I also find, contrary to the Union's contention, that an object of the picketing
both before and after the election was recognitional and organizational. The
question of objectives in every case is one of fact. It is true that "area standards"
picketing is permissible under Section 8(b)(7) for if it is for that object alone it is
not tantamount to, nor has an objective of, recognition or bargaining. It is also
a fact that after the ballots were counted and a tally issued showing that the Union
was no longer the statutory representative of the employees, the Union changed its
picket signs to read, "Wages at Jamestown Sterling Are Not Up to Area Standards."
However, the picketing has continued without interruption since the Union first
struck the Company in October 1961, and commenced patrolling with "On-Strike"
signs. General Counsel is correct in his view that the fact that the sign does not
specifically state recognitional or organizational objects is not controlling. The
Board does not rest its judgment on self-serving language on a sign but looks to all
the surrounding facts and circumstances and draws its conclusion from the facts.'
'Operative Plasterers' and Cement Masons' etc. ( Penny Construction Company), 144
NLRB 1298 ; Warehouse and Mail Order Employees ( Aetna Plywood and Veneer Com-
pany ), 140 NLRB 707; Local 741, United Assocsation of Journeymen , etc., (Keith Riggs
Plumbing and Heating Contractors ), 137 NLRB 1125; Local Joint Executive Board etc.
(W. D. Evans d/b/a The Evans Hotels, etc .), 132 NLRB 737; Local 182, International
Brotherhood of Teamsters, etc. (Woodward Motors ), 135 NLRB 851 ; Retasl Store Em-
ployees Union Local 692, etc. ( Irvin, Inc.), 134 NLRB 686.
UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO 479
The record in the case convinces me that Respondent's main object in its picketing
continues to be recognitional. Since the Union struck the Company in October
1961, after unsuccessful negotiations for a contract, picketing has continued without
interruption. The object of picketing prior to May 27, 1963, was clearly for recog-
nition and bargaining. The language on the picket signs was not changed until
immediately after the counting of the ballots, and Respondent continued thereafter
to refer in its letters to customers, and by direct contact of its representatives, to
strike, striking employees and terms of settlement. In its letter of June 5, 1963, the
Union said that the labor difficulty at the plant was continuing; that the Company
had not come to terms with the striking employees; and that the Union was willing
to negotiate and arbitrate and the Company's refusal to do so made necessary the
long strike. This letter was similar in tone and terms to a letter written to customers
before the signs were changed. Union Representative Silverman told the reporters
at his press conference on June 5, 1963, that the Union had not lost its bargaining
rights and would continue to be active at the plant for a long time. These factors
make it appear that the change in language on its picket sign was a device to conceal
the true object of the picketing, namely, for recognitional or bargaining purposes.
Finally, the Respondent has never disclaimed its intentions of seeking bargaining
or recognition, and throughout the entire representation proceeding, which preceded
and supports the instant proceeding, the Union has continued to maintain that it is
the legal bargaining representative for the unit employees. I conclude that Respond-
ent since the certification of results of the election has been picketing for an object
proscribed by Section 8(b) (7) of the Act.
E. The validity of the election
Despite the picketing for a proscribed object, however, unless the election con-
ducted by the Regional Director on May 24, 1963, was valid, a necessary element
in the alleged violation is missing . From the very beginning of the representation
case the Union has raised certain alleged fundamental defects in the proceeding
which it asserts contaminates the whole process upon which the Certification of
Results of June 6, 1963, is based. Basically and in short, the Union says the election
was invalid because it was given no hearing on the issue of the permanence of the
replacements.
At the hearing on the Company's petition for an election held on January 17,
1963, the Union sought to introduce evidence about the eligibility of strikers to
participate in the election but ,the evidence was rejected. The Union also contended
that there was no question of representation raised and that no election could
properly be directed. This contention was also rejected by the Director in his
Decision and Direction of Election. The Board rejected the Union's appeal from
this action.
After the election at which strikers and replacements voted challenged ballots,
the Union asked the Regional Director to conduct a hearing to resolve the validity
of the challenges. The Regional Director refused the Union's request and held that
the issue could be disposed of on the basis of an administrative investigation which
he proceeded to conduct. On the basis of the administrative investigation the
Director ruled against the Union's contention that the strikers had not been per,
manently replaced. The Union requested review of this action by the Board but
its request was denied.
After the Regional Director opened the ballots of the replacements, which he had
found to be permanent, and issued a tally of ballots, the Union filed formal objections
to the election. The Regional Director ruled against the Union and again the Board
denied the Union's request for review of the Director's action.
The Union's argument that there was no valid question of representation raised
in the first instance and that it should, have been heard on -the replacement issue at
the original representation hearing need not detain us long. There is nothing un-
usual or improper in postponing resolution of the question of eligibility of certain
classes of voters until after the election and voting them by challenged ballot. It
may turn out, if the challenges are not sufficient to affect the results, that they need
never be decided. - This is what the Regional Director, in effect, decided. If the
Union is entitled to a hearing on the issue it is- not necessarily entitled to a hearing
at any particular, time prior to the-issuance of an order against it. It also seems clear
that under Board practice the Regional Director was correct in finding the existence
of a question of, representation under. the, statute 2
9 Westinghouse Electric Corporation, etc., 129 NLRB 1846.
744-670-65-val. 146-32
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Union's complaint about the Director's refusal to grant the Union
a hearing at some stage of the proceeding on the replacement issue, the General
Counsel argues that this is an attempt on the Union's part to relitigate an issue that
has already been litigated in the representation case. General Counsel relies on
Dallas General Drivers, Warehousemen and Helpers Local Union No. 745 (Macatee,
Inc.), 127 NLRB 683. I think General Counsel's reliance on Macatee is misplaced
and that he misconceives the main thrust of the Union's argument. The Union
claims it is not relitigating the issue of replacements but attempting to litigate it by
and through a hearing which it never got and was legally entitled to .3 This is the
issue, as I see it, and its resolution, unfortunately, requires additional repetition of
some of the Regional Director's actions and reasoning prior to the certification of
results.
The Regional Director in his Supplemental Decision stated that the Union had re-
quested him to conduct a hearing on the challenges. He said that ". . . the Union
contends that substantial and material factual issues exist which can be resolved only
at a hearing." After deciding that the "factual. issues" could be resolved on the
basis of an administrative investigation, the Regional Director turned to the issues
and the evidence. He pointed out that the strike was economic and that the investiga-
tion revealed that employees were hired to fill positions formerly held by strikers.
In view of the Board's decision in Pacific Tile and Porcelain Company, 137 NLRB
1358, the Regional Director determined that said employees are presumed to be
permanent and eligible to vote. To rebut such presumption, the Union, said the
Regional Director, was required under the principles of the Pacific Tile case to estab-
lish by affirmative objective evidence that the replacements were not employed on
the struck jobs on a permanent basis. The Regional Director proceeded to outline
the contentions of, and the evidence submitted by the Union, and found, inter alia,
that certain alleged events did not occur or that certain facts were overcome by others.
He found, for example, that the Company's president did not make certain state-
ments attributed to him by union witnesses about the impermanence of the replace-
ments, and that even if the statements were made, they were overcome by later
affirmative company action with respect to the strikers. Other evidence, he deter-
mined, would not standing alone affirmatively establish that the replacements were
temporary, as contended by the Union. The Regional Director concluded that the
Union had failed to establish affirmatively that the replacements were not employed
on the struck jobs on a permanent basis. As a consequence, they were entitled to
vote and the strikers were not. Thus, the Union lost its certification.
It cannot be denied that the issue about replacements was and is fundamental. No
formal or oral hearing has been held on this question although the parties were
given the opportunity and did submit evidence to the Regional Director. A party to
a representation case, however, is not always entitled to a hearing on objections or
challenges. Under the cases and the Rules and Regulations of the Board one is only
entitled to a hearing if the objections or challenges raise material and substantial
questions of fact, and this requirement has been held proper to prevent dilatory
tactics by employers or unions disappointed in the election returns 4
Implicit, of course, in the Regional Director's determination that "... the factual
issues herein may be resolved on the basis of an administrative investigation; pursuant
to Section 102.69 . . ." of the Rules,! was the holding that,, in his view; there existed
no "substantial and material factual issues . . ." requiring a hearing. I have examined
the Regional Director's Supplemental Decision and Second Supplemental Decision
upon which the certification of results of election is based and, although at first
glance the credibility question involved in whether or not the Company's president
said the replacements were temporary would seem to be the kind of thing best
resolved after confrontation and cross-examination, I am not prepared to say that
the Regional Director's action was capricious in the light of his finding (in effect)
that the statement, even if made, would not affect the result because of other clear
3In Macatee the Trial Examiner and the Board would not permit "relitigation" of the
replacement issue but it appears that such issue was actually heard at the representation
hearing. Here it has not.
* N L R B v. Joclin Manufactaaring Company, 314 F. 2d 627, 630 (C.A. 2) ; N.L.R.B. v.
Lord Baltimore Press, Inc., 300 F. 2d 671 (C.A. 4) ; N.L.R.B. v. Clearfield Cheese Co., Inc.,
322 F. 2d 89 (C.A. 3) ;'N.L.R B v. O K. Van & Storage, Inc., 297 F. 2d-74,,76 (C.A. 5) ;
J. R. Simplot Company, 138 NLRB 172; International Ladies ' Garment Workers' Union,
AFL-CIO, 142 NLRB 353 . Section 102 .69(c), Rules and Regulations , Series 8, as
amended.
UNITED FURNITURE WORKERS OF AMERICA,. AFL-CIO 481
evidence that the replacements were permanent. But in -any event, whatever my
views may be, I am foreclosed, in my opinion, by previous actions of the Board from
reviewing the Regional Director's determinations.
As set forth in greater detail above, each time the Regional Director ruled against
the Union on this issue of hearing about the replacements the Union requested Board
review, as it had a right to do under Section 102.67 of the Rules, and each time the
Board considered and denied the 'appeal, stating that it raised no substantial issues
warranting review. In its appeals to the Board the-Union raised every question of
substance which it raised before me at the hearing and in its briefs,and motions.
I find that the issue of the validity of the election has been decided by the Board
and that I am bound by the Board's earlier action.5
What has been said to here decides the other issues in the case. At the hearing
I revoked a subpena for the Board's Regional Director to appear and bring all notes
and papers reflecting the investigation of the replacement-of-strikers issue. With
the cooperation of all counsel, and in order to save time at the hearing, I clearly
indicated to counsel for the Union, so that his record would be preserved, that it
would be unnecessary for him to physically obtain subpenas for 60-odd replacements
in order to examine them on the issue of whether they were temporary or permanent
replacements, but that I would rule in advance that if the employees appeared and
proper objection was made to taking testimony on the issue, I would sustain the ob-
jection because I felt bound by the prior actions of the Board in denying review of
the Regional Director's processing of the case. These rulings, I feel, are consistent
with my ultimate finding here that the questions of the Regional' Director's method
of investigation and refusal to hold a hearing have already been decided adversely to
the Union by the Board. I renew my rulings and deny the Union's motion to reopen
the hearing in order to take testimony on the replacement issue. -
Accordingly, I find that Respondent's picketing for a proscribed object, occurring
as it did within 12 months after a valid election which Respondent lost, violated
Section8(b)(7)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Union set forth above, occurring in connection with
the operation of the Company described in section I, 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
of commerce.
V. THE REMEDY
Having found that Respondent Union has engaged in an unfair labor practice in
violation of the Act, I shall recommend that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Jamestown Sterling Corporation , Ellicott, New York, is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Furniture Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By picketing Jamestown 's place of business in Ellicott , New York , from June
6, 1963 , to the present , with an object of forcing or requiring the Company to
recognize it or bargain with it as the collective -bargaining representative of the
employees in the unit , or forcing or requiring said employees to accept or select
it as their collective -bargaining representative , although it had not been currently
certified as the collective-bargaining representative of such employees, and a valid
election under Section 9(c) of the Act had been held within the preceding 12
months, Respondent Union engaged in an unfair labor practice within the meaning
of Section 8(b) (7) (B) of the Act.
5 See The Mountain States Telephone and Telegraph Company, 136 NLRB 1612. I re-
ject Respondent 's argument that the holding in Warehouse and Mail Order Employees
Union, Local 743, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America (Phil-Maid, Inc.), 144 NLRB 888, to the effect that failure to
request review of a Regional Director's action forecloses relitigation under Section
102 67(f) of the Rules means that if review is denied the matter may be relitigated, as a
non requiter.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the Respondent, United Furniture Workers of America, AFL-
CIO, its officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Picketing, causing to be picketed, or threatening to picket or to cause to be
picketed, Jamestown Sterling Corporation, an object being to force or require the
Company to recognize and bargain with it as the representative of the employees
in the unit, or the employees in said unit to accept or select it as their collective-
bargaining representative, such picketing not to be engaged in for a period of 12
months following the termination of the picketing found unlawful.
(b) Picketing, or causing to be picketed, or threatening to picket Jamestown
Sterling Corporation for any of the aforementioned objects, where within the
preceding 12 months a valid election under Section 9(c) of the Act has been con-
ducted which Respondent did not win.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post in Respondent Union's business offices and meeting halls, copies of the
attached notice marked "Appendix." s Copies of said notice, to be furnished by
the Regional Director for the Third Region, shall, after being duly signed by official
representatives of Respondent, 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 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) Furnish to the Regional Director for the Third Region signed copies of the
aforementioned notice for posting by the Company, it willing, in places where
notices to employees are customarily posted. Copies of said notice, to be furnished
by the Regional Director for the Third Region, shall, after being signed by Re-
spondent, as indicated, be forthwith returned to the Regional Director for disposi-
tion by him.
(c) Notify the Regional Director for the Third Region, in writing, within 20
days from the date of the receipt of this Decision and Recommended Order, what
steps Respondent has taken to comply herewith.?
It is further recommended that, unless within 20 days from the date of receipt
of this Decision and Recommended Order, Respondent notifies- said Regional
Director, in writing, that it will comply with the foregoing Recommended Order,
the National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
OIn the event that this Recommended Order Is adopted by the Board, the words "A
Decision and Order" shall be substituted for, the-words "The Recommended Order of a
Trial Examiner" in the notice. •In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order." -
7In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED FURNITURE WORKERS
OF AMERICA, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner, of'the National Labor
Relations Board, and in order to effectuate the policies of the National- Labor
Relations Act, as amended, we hereby notify you that: '
WE WILL NOT picket, or cause to be picketed, or threaten to picket, James-
town Sterling Corporation, Ellicott, New York, where an object thereof is to
force or require the Company to recognize or bargain collectively with us as
the representative of the employees in the bargaining unit at the Ellicott plant,
or said unit employees to accept or select us "as their collective-bargaining
LOCAL 181, INT'L UNION OF OPERATING ENGINEERS 483
representative , and will abstain thereafter from picketing for such objects for
ia period of 12 months.
WE WILL NOT picket , or cause to be picketed , or threaten to picket , James-
town Sterling Corporation , where an object thereof is to force or require the
Company to recognize or bargain collectively with us as the representative of
the employees in the bargaining unit at the Ellicott plant , or said unit employees
to accept or select us as their collective -bargaining representative , where a valid
election which we did not win has been conducted by the National Labor
Relations Board among the employees in the bargaining unit at the Ellicott
plant, within the preceding 12 months.
UNITED FURNITURE WORKERS
of AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By--------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office , Fourth
Floor, The 120 Building, 120 Delaware Avenue , Buffalo, New York, Telephone No.
Tl. 6-1782 , if they have any questions concerning this notice or compliance with its
provisions.
Local Union No. 181, International Union of Operating Engi-
neers, AFL-CIO and Service Electric Company. Case No.
9-CD-69-1. March 25, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National
Labor Relations Act, following a charge filed by Service Electric
'Company, herein called Service, alleging that Local Union No. 181,
International Union of Operating Engineers, AFL-CIO, herein
called called Engineers or Respondent, had violated Section 8 (b)
(4) (D) of the Act. Pursuant to notice, a hearing was held on
-October 24 and 25, 1963, before Hearing Officer Donald O. Logsdon.
All parties appeared at the hearing and were afforded full oppor-
tunity to be heard, to examine :and cross-examine witnesses, and to
adduce evidence bearing on the issues.' The rulings of the Hearing
Officer made at the hearing are free from prejudicial error and are
hereby affirmed. Briefs have been filed by Service, by Engineers,
and by Local Union No. 183, International Brotherhood of Electrical
Workers, AFL-CIO, herein called the IBEW.
Upon the entire record in the case, the Board I makes the following
findings :
1. The business of the Employer
Service Electric Company, a Tennessee corporation, is an electrical
contractor engaged primarily in the construction of powerhouses and
Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Leedom and Jenkins].
146 NLRB No. 64.