Local 137, Sheet Metal Workers International Association, AFL-CIO (Walter Sign Corporation)

National Labor Relations Board - Board Decisions

Mar 30, 1982

260 N.L.R.B. 1332 (N.L.R.B. 1982)

LOCAL 137, SHEET METAL WORKERS
Local 137, Sheet Metal Workers International Asso-
ciation, AFL-CIO and Walter Sign Corporation
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO and Walter Sign Corpora-
tion. Cases 29-CP-444 and 29-CP-445
March 30, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On December 11, 1981, Administrative Law
Judge Robert M. Schwarzbart issued the attached
Decision in this proceeding. Thereafter, both Re-
spondents filed exceptions and supporting briefs,
and the Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that Respondent Local 137, Sheet
Metal Workers International Association, AFL-
CIO, and Respondent Local 3, International Broth-
erhood of Electrical Workers, AFL-CIO, their of-
ficers, agents, and representatives, shall take the
action set forth in the said recommended Order.
'Respondent Local 137 has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
2 In adopting the Administrative Law Judge's conclusion that both Re-
spondents violated Sec. 8(bX7XC) of the Act by picketing for over 30
days without filing a representation election petition, we place no reli-
ance on events occurring after June 1, 1981, by which time both Re-
spondents had filed representation petitions. We further find it unneces-
sary to determine whether the coordination underlying Respondents' ac-
tivities made each Respondent the agent of the other, as found by the
Administrative Law Judge The facts here show that each Respondent
directly engaged in picketing in circumstances prohibited by Sec
8(bX7)C).
260 NLRB No. 191
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: These consolidated cases were heard on June 22,
23, and 24, 1981,' in Brooklyn, New York, pursuant to
charges filed on May 13 by Walter Sign Corporation,
herein Walter Sign, and a consolidated complaint issued
May 28.
The complaint alleges that Local 137, Sheet Metal
Workers International Association, AFL-CIO, herein
called Respondent Local 137, and Local 3, International
Brotherhood of Electrical Workers, herein called Re-
spondent IBEW, herein collectively called the Respond-
ents, violated Section 8(b)(7)(C) of the National Labor
Relations Act, as amended, by picketing Walter Sign at
its Elmhurst, Queens, New York, facility for more than
30 days without filing petitions for elections under Sec-
tion 9(c) of the Act. The complaint also alleges that the
Respondents are not currently certified by the Board as
collective-bargaining agents of Walter Sign's employees.
The Respondents, in their answers, deny the commission
of any material unfair labor practices. A principal ques-
tion presented is whether or not the picketing in this case
had an unlawful object.
All parties were given full opportunity to participate,
to introduce revelant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
Charging Party and Respondent IBEW argued orally
and the brief filed by the Charging Party has been care-
fully considered.
Upon the entire record of the case and my observation
of the witnesses and their demeanor, I make the follow-
Ing:
FINDINGS OF FACT
1. JURISDICTION
At all times material, Walter Sign, a New York corpo-
ration, has been engaged at its Elmhurst, Queens, New
York, plant in the manufacture, sale, and distribution of
signs and related products.
Contrary to the Respondents, the record shows that
during the 12 months preceding the filing of the charges
herein, a representative period, Walter Sign, in the
course and conduct of its operations, purchased and
caused to be delivered to its New York location, porce-
lain signs and other related products valued in excess of
$50,000, of which signs and related products valued in
excess of $50,000, were shipped directly to its New York
plant in interstate commerce directly from States other
than New York, where Walter Sign is located.2 There-
All dates hereinafter are within 1981, unless otherwise specified.
2 The Respondents have placed in issue whether Walter Sign meets the
Board's interstate commerce jurisdictional standards for nonretail enter-
prises. Noel Walter, president of Walter Sign, testified that pursuant to a
contract with the New York City Transit Authonty under which Walter
Sign was to furnish porcelain signs for use in 27 subway stations, at a
total cost to the city of around $200,000, his Company purchased several
shipments of signs from a supplier in Houston, Texas Four invoices from
this Texas supplier to Walter Sign, representing signs to be used in four
Continued
1332
LOCAL 137, SHEET METAL WORKERS
fore, I find that at all times material, Walter Sign has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE l.ABOR OR(GANIZATrIONS INVol V ED
Respondent Local 137 and Respondent IBEW are, and
have been at all times material herein, labor organiza-
tions within the meaning of Section 2(5) of the Act.
Ill. THE AI.I.EGED) 1UNFAIR I ABOR PRACTICES
A. The Facts
1. Background
Walter Sign, in the business of manufacturing, distrib-
uting, and installing signs, employed approximately 15
employees at its Elmhurst, Queens, New York, plant as
of April 13. The president of Walter Sign is Noel
Walter, 3 and Leonard LaRosa is general manager.
From mid-March until mid-April, representatives of
Respondent IBEW distributed literature in front of
Walter Sign's premises. These leaflets read as follows:
JOIN TODAY
JOIN THE LEADER
JOIN BROTHERHOOD/ON THE MARCH
THE STEP YOU MAKE MAY
BE THE MOST IMPORTANT
YOU'VE EVER MADE
A drawing to the right showed a drawing of a man
counting what appears to be money by a cashier's cage
with the caption "You owe it to yourself." In a drawn
box the leaflet advised readers to:
Inquire of the nearest IBEW office or representa-
tive International Brotherhood of Electrical Work-
ers AFL-CIO and CLC
A second leaflet with the IBEW emblem and "IBEW"
in large letters across the top informed employees that:
IF YOU'RE EMPLOYED IN-
of the contracted subway stations, showed that on February 19 subway
signs valued at a total of $75,081.45 were shipped to Walter Sign's New
York location. Shipping and invoice records show that additional large
shipments were received by Walter Sign from this supplier in August
Contrary to unsubstantiated arguments by Respondent IBEW that, as the
invoices do not detail routes of shipment, the signs may not have been
moved directly from the facilities of the Texas supplier to Walter Sign's
New York City plant, Walter testified without contradiction that all ship-
ments were received directly from Texas This testimony supported by
records showing the supplier's Texas address, dates of shipment, quanti-
ties, and types of merchandise is credited. Even, arguendo, had the signs
ordered from and onginating in Texas been forwarded to Walter Sign di-
rectly from a public warehouse in New York State, this would not have
been material. In United Cigar-Whelan Stores Corporation and Whelan
Drug Company, Inc., 114 NLRB 1219, 1221 (1955), the Board noted that
the brief housing of goods purchased from an out-of-state supplier in
public warehouses in the recipient's own state did not constitute a break
in the practical continuity of movement of goods until they reached the
purchaser, so as to preclude a finding of direct inflow under the Board's
standards.
5 Walter became company president in 1977
MANUFACTURING, INSTALLATION,
DESIGN, MAINTENANCE, REPAIR RE-
CORDING, BROADCASTING, TELEPHONE
IN THE ELECTRICAL AND ELECTRONIC
FIELD, THE IBEW IS FOR YOU
YOU OWE IT TO YOURSELF TO JOIN
I.B.E.W!
To the right of the foregoing, across the top, the follow-
ing appears:
YOU PROBABLY HAVE INSURANCE, THE
FOLLOWING IS LISTED AUTOMOBILE,
FIRE, THEFT, LIFE, HOSPITALIZATION
BUT DO YOU HAVE JOB INSURANCE?
THE IBEW OFFERS INSURANCE
AGAINST-
DISCRIMINATORY DISCHARGE
DISCRIMINATORY LAY-OFF
LOW WAGES
POOR WORKING CONDITIONS.
A third leaflet with an illustrated cover sheet "Why All
The Fuss About Union Cards," provided an explanation
that the National Labor Relations Act requires that a
majority of the employees sign cards authorizing the
Union to represent them before the Union can ask for
recognition from the Company and advised that the em-
ployees sign and mail attached authorization cards. It
was explained there that when a majority of cards have
been secured, the IBEW will ask the Company for rec-
ognition. If not granted, the Union would petition the
Board for an election in which the employees would
vote. When the Board certifies the Union, contract nego-
tiations for higher wages, job security, and improved
working conditions would begin. It is undisputed that
much additional literature of similar nature also was con-
currently distributed at Walter Sign's premises by Re-
spondent IBEW, and also by Respondent Local 137.
Walter testified that one day in late March, he saw
John D. Crowley, Respondent IBEW business agent,
handing out such leaflets outside the Company's prem-
ises. When Walter asked what Crowley was doing there,
Crowley replied that he was trying to organize Walter's
place. Walter retorted that he was not interested in being
organized. Walter related that he also noticed Camillo
Bombadiere, Sheet Metal Workers Union International
organizer for the eastern United States, in front of the
plant while the leafleting was in progress.
2. The picketing
Walter testified that on March 31 he met with Re-
spondent IBEW Business Representative Crowley at
Crowley's office in Flushing, Queens. Also present were
Sheet Metal Workers Union Representatives Bombadiere
and William Fotiadis, the latter being business agent for
Respondent Local 137. Crowley began the meeting by
telling Walter that he would like him to sign an agree-
ment with Respondent IBEW. Walter replied that he did
not have any electrical work to speak of. Fotiadis then
interjected that if Walter had a Local 137 agreement, it
would be very advantageous to his firm. Walter respond-
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that although his Company had had some difficulties
with Fotiadis' union in the past, Fotiadis should drop off
his agreement at Walter's office. Crowley announced
that this was a new regime and that Walter should not
be concerned about past difficulties. Walter, however,
told Crowley that he still was not interested in signing
an agreement with Respondent IBEW. Crowley told
Walter to find an attorney.
According to Walter, on April 15, around 9:30 a.m.,
Crowley visited his office and told Walter that he repre-
sented his Company's employees. When Walter pointed
out that Crowley did not represent them, Crowley left
the office and moved in the direction of the plant area
yelling, "Strike, strike, strike!" Thereafter, five Walter
Sign employees, Thomas, Grace, Donald Trautman, Mi-
chael Martin, Skip Pinto, and Ray Vasquez, left the plant
and joined the picketing that had begun immediately in
front of Walter Sign's premises.
Walter related that when he looked out the window
after Crowley left his office, he saw approximately 50
people in front of the plant. Some carried blue picket
signs that bore the legend "Walter Sign On Strike, Local
3, International Brotherhood of Electrical Workers."
Others carried red signs declaring "Walter Sign On
Strike, Local 137, Sheet Metal Workers International As-
sociation." 4
Walter averred that on May 11, while the picketing
continued, he met in his office with Respondent 137
Business Representative Fotiadis. Fotiadis asked whether
Walter would sign an agreement with Respondent IBEW
in order to solve this problem. Walter reiterated that his
Company did virtually no electrical work. Fotiadis re-
plied that Crowley must have gotten some false informa-
tion, but was not going to back down concerning the
picketing. Fotiadis then asked if one of Walter's present
employees would join Respondent IBEW. Walter replied
that he was not interested.5
On June 1, the U.S. District Court issued a temporary
restraining order with respect to the picketing by the Re-
spondents, which order was served on the Unions on
June 2. As the result, after June 2, use of the picket signs
was discontinued by the Respondents. Since then, ap-
proximately five to eight persons have remained outside
Walter Sign's premises distributing the following leaflet
reproduced on the stationery of Local 3, IBEW:
TO WHOM IT MAY CONCERN
THIS IS INFORM YOU THAT THE STRIKE
BY LOCAL UNION #3, I.B.E.W. IS CONTINU-
ING AND WILL CONTINUE FOR AS LONG
AS IS NECESSARY. OUR PICKET LINE HAS
BEEN TEMPORARILY RESTRAINED PEND-
ING THE OUT-COME OF LEGAL PROCEED-
INGS.
OUR STRIKE HAS NOT BEEN, AND CAN
NOT BE ENJOINED.
'For reasons of credibility discussed in fn. 22 below, contrary to
Walter, I accept the Respondents' contention that Respondent 137 did
not begin to picket at Walter Sign until about I week after the Apnl 15
start of picketing by Respondent IBEW. At that time, Respondent Local
137 did use the red picket signs described by Walter.
' Walter's testimony concerning the May II conversation with Fotiadis
is uncontradicted as Fotiadis did not testify in this proceeding.
YOUR CONTINUED UNDERSTANDING AND
SUPPORT IS APPRECIATED.
/s/ THE WALTER SIGN EMFLOYEES ON
STRIKE!
Walter observed that, after removal of the picket
signs, persons who had picketed continued to appear out-
side the Company's plant each day, handing out copies
of the above-quoted letter to passers-by and to drivers
for suppliers who attempted to make deliveries. When
the drivers, having received this letter, persisted in pull-
ing up to the loading dock, the pickets would encircle
the cab and the drivers would leave without making de-
liveries.
Accordingly, Walter testified that a truck from Walter
Sign's paper supplier, Viking Criterion, arrived at Walter
Sign's loading dock, approximately I week before the
hearing, to make a scheduled delivery. The truck was
surrounded by pickets who gave copies of the letter to
the driver. The driver then went into Walter's office and
called his employer in Walter's presence. He declared
that he had been threatened and was not going to make
the delivery. The driver then departed.
Similarly, on Friday, June 19, at midday, a truck deli-
vering solvents ordered from Baron Blakeslee arrived at
Walter Sign's premises before midday. As the Baron
Blakeslee truck arrived at the loading dock, it was sur-
rounded by pickets who would not allow the driver to
make the delivery.
A Baron Blakeslee representative, then summoned to
the plant, announced that the delivery could not be made
at Walter Sign's loading dock. He had the truck moved
across the street from the plant where the truck was un-
loaded and, using a forklift, the merchandise was moved
into Walter Sign's shop by several of that Company's
employees. Involved in this operation were: Savas Kay,
described as an assistant manager; Clyde Weeks, hired
since the start of the April 15 strike; and Jaime Palacio,
an employee who did not join the strike.
Walter testified that years before Walter Sign had had
collective-bargaining agreements with Respondents
IBEW and Local 137 and with Local 230, Sign Paint-
ers. 6 At the time the strike began, Walter Sign had one
part-time employee, Pericles Gomide, who was a
member of Local 230, Sign Painters. Although Walter
averred in a pretrial affidavit that he thereafter replaced
Gomide, he testified at the hearing that he had continued
to use Gomide after April 15 on outside installations so
that he would not have to cross the picket line. After
June 15, Gomide became a full-time employee of Walter
Sign and thereafter did work inside the plant as well.
Walter related that because of the difficulties in receiv-
ing deliveries at his Company's loading dock created by
the pickets since April 15, it has been necessary for
6 Crowley explained that in the sign industry, the employees of each
employer are represented in separate bargaining units on a "tri-trade"
basis by the Sheet Metal Workers with jurisdiction over metal fabrication
and installation work, the Sign Painters and the IBEW, representing the
electrical workers. In New York City, the tri-trade unions who negotiate
with employers in the sign industry are Local 3, IBEW, Local 137, Sheet
Metal Workers, and Local 230, Sign Painters.
1334
LOCAL 137, SHEET METAL WORKERS
Walter Sign personnel to arrange to meet suppliers'
trucks at predetermined places away from the plant,
unload them there, and to move the merchandise to the
plant from those distant points. Of the various ordered
materials delivered directly or indirectly to the plant
since the start of the picketing, only about 50 percent has
been received. The result has been to reduce the month-
ly volume of sales by at least half the prior amount.
A longstanding business relationship between Walter
Sign and a sign-rigging and installation firm owned by
John Montana, Service Sign Erectors, has been inter-
rupted by the picketing since mid-April. 7 Walter testified
that during a telephone conversation with Montana after
April 15, he was told that Montana could not pick up
certain signs at Walter's premises because if he crossed
the picket line, Local 3 would strike against him. When
Walter asked why Respondent IBEW would strike, as
Montana did not do any electrical work and Local 137
represented his sign installers, Montana replied that
Walter did not understand; there would be a strike.
According to Walter, in early May, he encountered
Montana at the Board's Regional Office. He told Mon-
tana on that occasion that he knew that Montana's Serv-
ice Sign Erector Company had no agreement with Re-
spondent 3, IBEW, that the subway signs in their joint
venture were being installed by Local 137 mechanics,
and asked why Local 3 would picket. Montana replied
that he had another company called Montana Electric
that did have an agreement with Local 3 and that he had
been threatened that the men would strike if he picked
up Walter's signs. 8
Crowley, in turn, recalled that, through the years, Re-
spondent IBEW has signed agreements with various
Montana-owned companies, identifying four by name.
However, although Respondent IBEW has had only one
contract at any given time with Montana, as far as
Crowley was concerned, Montana was the signatory and
that agreement pertained to all of Montana's companies
that did work in the sign industry.
Although none of the tri-trade locals in the New York
City sign industry were certified as bargaining repre-
sentative of Walter Sign employees, Walter conceded
that he had learned from his father, Lewis Walter, who
preceded him as president, that 15 years before, the
Company had had collective-bargaining agreements with
Respondents IBEW and Local 137, and also with Local
230, Sign Painters. Except as to Local 230, those con-
tracts are long expired. Although in the past year,
Walter Sign had executed a collective-bargaining agree-
ment with Local 230, Sign Painters, which contract ex-
pired on March 31, 1981, and no new agreement has
7 Montana, who also does business through several other corporate en-
tities, had erected larger signs for Walter Sign over a period of from 20
to 25 years in a series of about 30 transactions. Montana also is involved
in a joint venture with Walter Sign in the above-referred contract with
the New York City Transit authority to provide and install signs at some
27 subway stations.
I Although Walter initially repeatedly insisted that he did not learn
until that occasion, in early May, that Montana with whom he has had a
longstanding business relationship was party to a collective-bargaining
agreement with Respondent IBEW, he later contradicted this testimony
by admitting that he had known since 1975 that Local 3 had had a bar-
gaining relationship with Montana
been signed, Local 230 did not participate in the picket-
ing at Walter Sign's premises.
On April 14, 1975, just 6 years before the start of the
present dispute, Walter Sign and Respondent IBEW did
execute a recognition agreement whereby the Company
recognized that Union as bargaining representative of
Walter Sign's electricians, maintenance mechanics, and
helpers, excluding supervisors and all other employees
employed by Walter Sign at its Elmhurst plant. Howev-
er, the record shows that there was no followup of this
recognition agreement by negotiation and no collective-
bargaining agreement was thereafter signed. Similarily,
as noted, there was no current collective-bargaining
agreement between Walter and Respondent 137.
On May 22 and June 1, Respondent IBEW and Re-
spondent 137, respectively, filed petitions for representa-
tion elections for separate units of Walter Sign employ-
ees. Pursuant to these petitions, a consolidated hearing
was held but no decision has issued.
Crowley testified that in mid-March, he, Sheet Metal
Workers International organizer Bombadiere, and Re-
spondent Local 137 Business Representative Fotiadis
went to Walter's office but were unsuccessful in their at-
tempt to meet with him.
In mid-March, after the above-described leafleting
began outside Walter Sign's premises by the Respond-
ents, Walter visited Crowley in his office. Again, Bomba-
diere and Fotiadis were present. 9 At that meeting, Crow-
ley told Walter that his firm was doing work usually
done by the people whom Crowley represented. Crow-
ley requested that Walter either honor his agreement
with Respondent IBEW, referring to the 6-year-old rec-
ognition agreement, or stop doing his Union's work. t He
suggested that Walter hire an attorney. "
Crowley related that he next saw Walter on the morn-
ing of April 15 when he went to Walter's office and an-
nounced that Walter had had a month to decide what his
position was going to be and that Walter was still doing
the work of the people whom Crowley represented. He
then put forward some authorization cards. '2 However,
Walter put his hands in front of his eyes and repeated, "I
see nothing, I see nothing." Walter then told Crowley
that he should leave. He opened the door and took
Crowley by the elbow. As Crowley headed for the door,
he yelled back over his shoulder that he had no alterna-
tive but to strike.
I Walter had come to Crowley's office at the latter's invitation when
he called to discuss the leafleting with Crowley.
10 Crowley corroborated that some time in mid-March he had asked
Walter to sign a collective-bargaining agreement with Respondent
IBEW, but denied that he had done so during the meeting in his office,
also attended by Bombadiere and Fotiadis.
" Crowley did not specifically recall how Fotiadis and Bombadiere of
the Sheet Metal Workers Union happened to be at his meeting with
Walter. except that the matter related to a tri-trade situation. He ex-
plained that in the sign industry other tri-trade unions were welcome at
such meetings as his union had had on that occasion with Walter.
12 Earlier, Thomas Grace, an employee of Walter Sign, had collected
12 signed authorization cards from employees which he had given to
Crowley on the evening of April 14 Crowley, however, was interested
in representing only five of these employees, who had signed the cards
he attempted to show Walter on the morning of April 15.
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Outside the building, Crowley immediately set up a
picket line. Within a half hour, five of Walter's employ-
ees walked out and joined the line.
That morning, after the picket line was established,
Crowley asked Fotiadis if his people were going to be
picketing at Walter Sign. While he does not remember
Fotiadis' answer, he recalled that within a week, Re-
spondent Local 137 did start to picket there. "
Crowley's denial that his union had interfered with de-
liveries made to Walter Sign's premises after the start of
the picketing is not credited.
The Respondents' overall position and arguments will
be detailed and considered below under the discussion
and conclusions herein. However, one important reason
given by Crowley for the continued picketing was to
protest the asserted discharge of five Walter Sign em-
ployees who had left work and joined the picketing on
April 15.
In this regard, synthesizing the testimony of employees
Thomas Grace, Michael Martin, and Donald Trautman,
on April 15, about 10 minutes before the scheduled 9:30
a.m. coffeebreak, usually taken by employees at a coffee
truck parked outside the shop, Assistant Manager Savas
Kay entered the shop area and walked around with a
list, taking the men's coffee orders. Kay told the employ-
ees that he did not want anyone to go outside; the boss,
Walter, was going to buy coffee. Soon after, General
Manager Leonard LaRosa also came into the area and
announced that there were going to be union problems;
union goons were outside. The Company was afraid that
there would be violence and that the men would be hurt
if they went outside. At 9:30 a.m., Grace heard Crowley
yell, "Strike," in the direction of the loading dock.
Grace then moved to the service door,"4 which had been
locked by LaRosa. ' As Grace fumbled with the bolt
lock on the door, LaRosa came up behind him and re-
peatedly declared that Grace should not go outside, that
he should come back and not unlock the door. Grace re-
plied that he was going through the door and that the
men were going on strike. LaRosa told Grace that if he
went out, he would be fired. Nonetheless, Grace suc-
ceeded in pushing the lock open and was the first of the
employees to walk out.
He, thereafter, was followed by Martin who, like the
others, had seen Grace leave. Martin was the second em-
ployee to walk out and join the strike. Employees
Donald Trautman, Ray Vasquez, and Skip Pinto also
joined the strike that morning, even after LaRosa had
" Although denying that the picketing, when it began on April 15, had
recognitional/organizational objectives, Crowley testified that even
before then, when his union had been interested in representing Walter
Sign employees, Respondent IBEW claimed jurisdiction over no more
than five of Walter Sign's employees, who, as asserted, did electrical
work. As to the remaining 10 employees, 3 were sign painters who came
under the jurisdiction of Local 230, while others were metal fabricators
and mechanics generally under the aegis of Respondent Local 137.
" Grace, who on the preceding evening had turned over collected au-
thorization cards to Crowley, had been told then that Crowley would be
at Walter Sign around 9:15 the next morning to offer Walter a collective-
bargaining agreement. Accordingly, Grace had been forewarned that
matters might climax at that time.
'' When LaRosa entered the work area at 9:30 that morning, he locked
all the doors.
told them that if they went out, they could not come
back.
Upon joining the picket line, the above-named individ-
uals carried the blue IBEW picket signs, described
above, until use of these signs was discontinued on or
about June 2. During that period, Grace was among the
pickets who spoke to drivers arriving to make deliveries
at the premises, asking if they were union or nonunion.
Drivers who were union members were asked to honor
the picket line; others crossed. After the signs were taken
down, these men were among those who remained in
front of Walter Sign's premises, passing out leaflets. 6
Grace related that when on Friday, April 17, he re-
turned to the plant to collect his paycheck, Assistant
Manager Kay asked what kind of work he was going to
get into now.
General Manager LaRosa testified that on April 15, at
or about 9:30 a.m., as he was going into the office area
from the shop, he saw Crowley and another man, whom
he did not know, emerge from Walter's office, heading
towards the shop. Crowley began to shout, "Strike!
Strike! Come on, you are all on strike." LaRosa asked
Crowley if there was a need for him to make such a dis-
turbance and suggested that he leave. As LaRosa ap-
proached, Crowley told LaRosa not to touch him.
LaRosa replied that if Crowley did not touch him, he
would not touch Crowley. As Crowley left, Walter
came out of his office, gave LaRosa some money, and
told him to have someone bring in the coffee that day
rather than have the men go out.
LaRosa then went into the plant area and told the men
not to go to the coffee truck at breaktime. The Company
was making a list for coffee orders as it looked as if there
might be a strike and the Company did not want the men
to become involved. LaRosa did not recall speaking to
Grace that morning, but did see him leave, followed by
Martin, Trautman, Pinto, and Vasquez. LaRosa denied
having locked the doors and could not remember having
said anything to the men about violence or about union
goons being outside the plant. He did remember asking
Martin as the latter was leaving to join the strike, wheth-
er he was going to leave his toolbox in the shop. Martin
replied in the affirmative but stated that he would come
back for it. The box, however, is still in the shop.
LaRosa also asked Trautman where he was going when
Trautman, leaving, came back for his coat. Walter, too,
testified that none of the employees who had joined the
strike were terminated. None had returned to work by
the time of the hearing, and two new shop employees
had been hired since April 15.
B. Discussion and Conclusions
As the Respondents are not certified as the bargaining
representatives of any of Walter Sign's employees, as
they picketed Walter Sign at its Elmhurst, Queens, prem-
ises for more than 30 days before filing petitions under
Section 9(c) of the Act and as such picketing induced in-
"6 Martin, however, testified that after being instructed to stop carrying
a picket sign, he did not participate in the leafleting done by others, but
merely stood alone on a far corner in the vicinity of the plant, in effect,
isolating himself.
1336
LOCAL 137, SHEET METAL WORKERS
dividuals employed by other persons in the course of
their employment not to deliver to or pick up goods at
Walter Sign, a violation of Section 8(b)(7)(C) of the Act
has occurred if an object of the picketing was to force or
require Walter Sign to recognize or bargain with the Re-
spondents as representatives of its employees. 17
The Respondents contend that their concurrent picket-
ing, as two of the sign industry tri-trade unions, was not
for proscribed purposes. 8 Rather, the Respondents con-
tend that the picketing solely was to stop Walter Sign
from doing work that came within the Respondents' ju-
risdictions; to try to prevent work from being taken
away from employees represented by the Respondents
employed by Montana, and given at lower wage to Wal-
ter's employees; and to protest the April 15 discharge of
the five Walter Sign employees who had joined the pick-
eting, objectives that have not changed since. The Re-
spondents do not dispute that during the month before
the start of the April 15 picketing, from mid-March to
mid-April, they simultaneously distributed noncoercive
organizational campaign literature at Walter Sign's prem-
ises to encourage that Company's employees to become
members, that signatures were solicited on authorization
cards and that Crowley, in March, unsuccessfully did ask
Walter to honor a 6-year-old recognition agreement and
to sign a collective-bargaining agreement with his union.
The foregoing confirms Walter's testimony that Re-
spondent IBEW did ask Walter to sign a collective-bar-
gaining agreement with Respondent IBEW. As no repre-
sentative of Local 137 testified, Walter's assertion that
Fotiadis, too, in late March, solicited a contract on
behalf of Respondent 137 is uncontradicted, as is Wal-
ter's testimony that on May 11, during the picketing, Fo-
tiadis also suggested that Walter sign a contract with Re-
spondent IBEW in order "to solve the problem." How-
ever, the Respondents, through Crowley, assert that any
recognitional purpose was abandoned when, on the
morning of April 15 before the start of the picketing,
Walter covered his eyes and refused to look at the au-
thorization cards then being offered by Crowley. Since
then, absent certification, Respondent IBEW is not pre-
pared to accept any Walter Sign employees as members
and is not willing to bargain with that Employer.
Crowley's assertion that he immediately lost interest in
acquiring recognition or bargaining from Walter Sign at
1 International Brotherhood of Electrical Workers. Local Union ;Vo. 211
(Atlantic County Improvement Authority), 248 NLRB 168, 172 (1980)
'' Respondent Local 137 did not call witnesses at the hearing, in effect,
deferring to Respondent IBEW in its defense presentation. Noting the
Respondents' history of mutual cooperation within their industry, their
concurrent organizational activities among complementary, nonconflict-
ing bargaining units of Walter Sign employees, their joint approaches to
Walter for recognition, Fotiadis' separate request during the picketing
that Walter sign a contract with Respondent IBEW, and their joint pick-
eting, for reasons to be further explicated below, I find that the efforts of
the Respondents were coordinated to compel Walter Sign to recognize
them, respectively, as representatives of certain of its employees. I also
find that the Respondents acted as agents for each other and that each
Respondent is equally responsible for the picketing. Yuba. Surter &
Colusa Counties Building d Construction Trades Council: Carpenters LUnion
Local 1570, United Brotherhood of Carpenters and Joiners of America.
AFL-CIO (James N Wilson), 189 NLRB 450, 454-455, fn 14 (1971):
Construction, Shipyard and General Laborers Local 1207, AFL-CIO, and
Building and Construction Trades Council of Tampa. Florida (Alfred S
Austin Construction Company, Inc.). 141 NLRB 283, 286 (1963)
the moment that Walter refused to look at the signed
cards offered to him, and that the picketing thereafter
ensued only for purposes unrelated to recognition or or-
ganization, is rebutted by clear evidence that the pickets
and the signs already were in place, their use contingent
upon whether Crowley's renewed recognitional bid on
April 15 was successful. His plan to try again for a con-
tract that day had been announced to Grace during the
preceding night. When recognition was not forthcoming,
the picketing by Respondent IBEW began immediately,
joined within a week by Respondent Local 137. This
picketing continued without hiatus and without change
until service of the temporary restraining order on June
2. After June 2, the picketing continued also without in-
terruption, although without the use of picket signs. It
cannot be concluded that the picketing was caused by
the asserted discharge of five employees who left work
to participate in the strike as the line already was in
place before they walked out of the plant.
The Respondents contend, however, that to proscribe
all handbilling, an activity which, at the time of the hear-
ing, had ensued since June 3, would serve to infringe on
their First Amendment right to publicize their dispute
with that Company. In support of this, the Respondents
argue that picketing is not the functional equivalent of
handbilling, the former alone being subject to regulation
as:
Picketing by an organized group is more than
free speech, since it involves patrol of a particular
locality and since the very presence of a picket line
may induce action of one kind or another, quite ir-
respective of the nature of the ideals which are
being disseminated. "
However, in United Mine Workers of America, District 12,
and United Mine Workers of America (Truax-Traer Co., et
al.),20 cited in the Charging Party's brief, the Board in
finding that patrolling and carrying picket signs are not
requisite components of picketing, noted that:
The purpose of picketing in labor disputes is to
convey a message which is usually intended to in-
fluence the conduct of certain persons to stay away
from work or to boycott a product or business, and
is frequently accomplished . . . by posting individ-
uals at the approaches to a place of work.2'
Here, the persons posted at Walter Sign's premises on
and after June 2, when the picket signs were discontin-
ued, not only gave out handbills but continued active in-
terference with deliveries as when the signs had been in
use. Walter's undisputed testimony, supported by com-
prehensive photographic documentation reveals,22 more
'9 Justice Douglas' concurrence in Bakery d Pastry Drivers &d Helper
Local 802 of the International Brotherhood of Teamsters. er al v Wohl et
al, 315 US. 769. 776 (1942), cited with approval in Giboney, et al v
Empire Storage & Ice Co., 336 U.S. 490, 501 (1949).
' 177 NLRB 213 (1969)
2' See also District 30, United Mine Workers of America (Terry Elkhorn
Mining Company, Inc.). 163 NLRB 562, 569-570 (1967)
"' In reaching the findings herein, care was taken to avoid reliance
upon testimony by the General Counsel's principal witness, Walter,
Continued
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 2 weeks after the picket signs were discontinued, it
was necessary for Walter Sign employees to unload sol-
vent supplies from the Baron Blakeslee truck across the
street from the plant, rather than at the plant's loading
dock, and to transport this cargo by forklift to the shop.
Accordingly, there was no need for the Respondents to
display picket signs or patrol specific areas in order to
reaffirm and imbue others with the purpose of the Re-
spondents' presence at Walter Sign's premises.
Respondent IBEW, indicating the 6-year-old recogni-
tion agreement from Walter Sign, separately asserts that
it would not logically have picketed that Company after
April 15 in order to obtain recognition it already had, re-
gardless of whether Crowley was justified in believing
that that agreement was legally binding. However, any
contention that Crowley had given material weight on
April 15 to that venerable document was rebutted by the
authorization cards he had caused to be distributed for
signature, had personally collected from Grace the night
before the picketing,2 3 and had offered to Walter on
April 15.
The Respondents urge that their picketing was pro-
longed, in part, to protest an assertion that Walter Sign
had engaged in unfair labor practices in terminating the
five employees who had left their jobs to join the strike
on April 15. However, it is settled that the fact that ob-
jectives for picketing beyond recognition and/or organi-
zation also exist does not preclude a finding that Section
8(b)(7)(C) of the Act has been violated. As Administra-
tive Law Judge Pannier noted in his Board-approved de-
cision in Construction and General Laborers, No. 304,
AFL-CIO (Paul E lacono Structural Engineer, Inc.): 24
except as that testimony was otherwise corroborated and remained un-
contradicted by other witnesses. Walter was an extremely evasive, incon-
sistent witness, readily impeached. Accordingly, although he repeatedly
testified that he did not learn that his Company's long-time business asso-
ciate, John Montana, had a bargaining relationship with Respondent
IBEW until early in May 1981, he later reluctantly conceded that he had
had such knowledge since 1975. Although Walter averred in his pretrial
affidavit that he had replaced Pericles Gomide, a part-time employee and
member of Local 230, Sign Painters, when the picketing began, he ad-
mitted at the hearing that he had assigned Gomide to do outside swork
after April 15 so that that employee would not be faced with crossing the
picket line. He also related that since a week before the hearing, Gomide
has been a full-time Walter Sign employee who performed work within
the plant. Walter testified evasively concerning the impact of the picket-
ing on his Company's operations, and even had found it necessary to
change his initial testimony that he had been president of the Company
for 8 years, reducing his asserted tenure period by half. Accordingly,
Walter appeared to be less than reliable, and the accounts by Crowley of
their March 31 and April 15 meetings are credited, except as the March
meeting relates to Fotiadis.
I The Board has found recognitional/organizational objectives where,
as here, the Respondent Union's agents have urged employees to join the
Union and to get others to do the same in the time before the picketing
began. Minneapolis Building and Construction Trades Council. AFL-CIO,
Local No. 34, Sheet Metal Workers International Association, AFL-CIO
(Krasen Plumbing and Heating, Inc.), 229 NLRB 98, 103 (1977) The Re-
spondents' assertion that the picketing had not been for
recognitional/organizational purposes also is countered by the collective
testimony of Grace and Martin that they had joined the strike to be rep-
resented by Respondent IBEW in order to gain more money and better
benefits Respondent IBEW's argument at the hearing that these individ-
uals, who had risked their jobs to join its picket line, were not picketing
with the same objectives as itself is unconvincing.
:" 245 NLRB 346, 350-351 (1979). Also see United Food and Commer-
cial Workers International Union, Local No. 576, AFL-CIO (Earl J Engle.
So long as recognition is at least an object of the
picketing, the requirement of Section 8(b)(7) that
there be an object of recognition or bargaining is
satisfied. See Amalgamated Meat Cutters and Butch-
er Workmen of North America, Local Union No. 229,
AFL-CIO (Jensen Meat Company, Inc.), 237 NLRB
650, 652 (1978).
. . . the fact that an employer may commit unfair
labor practices does not eliminate the need for a pe-
tition to be filed whenever recognitional picketing is
conducted. "It seems fair to say that Congress was
unwilling to write an exemption into Section
8(b)(7)(C) dispensing with the necessity for filing a
representation petition whenever employer unfair
labor practices were alleged." International Hod
Carriers' Building and Common Laborers' Union of
America, Local 840, AFL-CIO (Charles A. Blinne,
d/b/a C. A. Blinne Construction Company), 135
NLRB 1153, 1164-65 (1962). Consequently, wheth-
er or not Iacono violated the Act in its hiring prac-
tices . . . would not serve as a defense to Respond-
ent's picketing.
. . . failure to file a petition is excused only "where
a union strikes and pickets against an employer's un-
lawful refusal to recognize it and meritorious 8(a)(5)
charges have been filed." Arthur F. Derse, Sr., Presi-
dent, and Wilder Mfg. Co., Inc., 185 NLRB 175, 177
(1970).25
As found above, the picketing herein by Respondent
IBEW began on April 15 and the picketing by Respond-
ent 137 commenced within a week after that. Petitions
for representations for representation elections among
employees of Walter Sign thereafter were filed on May
22 and June 1 by Respondent IBEW and Respondent
137, respectively.
From the entire record, I find that objects of the pick-
eting by the Respondents were to force or require
Walter Sign to recognize or bargain with them as bar-
gaining representatives of that Company's employees,
and to force or require that Company's employees to
accept and select them as bargaining representatives. As
neither Respondent was certified as the representative of
such employees, and as both had engaged in such picket-
ing for more than 30 days without filing petitions for
certification, it is concluded that the Respondents violat-
ed Section 8(b)(7)(C) of the Act.
Attorney. on behalf of R & F Grocers. Inc.), 252 NLRB 1110, 1113-14
(1980)
5 No finding is made as to whether the five employees who joined the
picketing on April 15 actually were terminated or if so, whether such dis-
charges were unlawful as it is clear from the above that, in the circum-
stances of this case, their unlawful terminations, even if found, would not
constitute a defense to the 8(b)(7XC) picketing allegation Barring that,
the question of unlawful discharge is outside the scope of this proceeding
1338
LOCAL 137, SHEET METAL WORKERS
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The conduct of the Respondents set forth in section
III, above, occurring in connection with the operation of
Walter Sign set forth in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Walter Sign Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondents both are labor organizations
within the meaning of Section 2(5) of the Act.
3. By picketing, or causing to be picketed, Walter Sign
with objects of forcing or requiring that Employer to
recognize and bargain with them as collective-bargaining
representatives of its employees, and forcing or requiring
those employees to accept and select the Respondents as
their collective-bargaining representatives in separate re-
spective units, without their being certified as the collec-
tive-bargaining representatives of such employees and
without petitions under Section 9(c) of the Act being
timely filed, the Respondents, respectively, engaged in
unfair labor practices within the meaning of Section
8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
jobsite, where an object thereof is forcing or requiring
said Employer to recognize or bargain with them as rep-
resentatives of its employees, or to force or require em-
ployees of Walter Sign Corporation to accept or select
the Respondents as their collective-bargaining repre-
sentatives, in circumstances violative of Section
8(b)(7)(C) of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Post at their respective business offices and meeting
halls copies of the attached notice marked "Appendix." 2 8
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by an of-
ficial representative of each Respondent, shall be posted
by said Respondents immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondents have been taken to comply there-
with.
2' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant Io a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
THE REMEDY APPENDIX
Having found that the Respondents have engaged in
unfair labor practices in violation of the Act, I shall rec-
ommend that they be required to cease and desist there-
from and that they take certain affirmative action de-
signed to effectuate the policies of the Act.26
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER"
The Respondents, Local 137, Sheet Metal Workers In-
ternational Association, AFL-CIO, and Local 3, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
their officers, agents, and representatives, shall:
1. Cease and desist from picketing, or causing to be
picketed, Walter Sign Corporation at its plant, or at any
" As it has been found that even after ceasing to use picket signs fol-
lowing service of the temporary restraining order, the Respondents' con-
tinued presence at Walter Sign's premises was asserted not only by the
distribution of literature, but also by interference with deliveries made
there, it is intended that restraints on unlawful picketing provided in the
recommended Order, infra, also pertain to this tandem conduct
27 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, 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.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RElATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL. NOT, under conditions prohibited by
Section 8(b)(7)(C) of the Act, picket or cause to be
picketed, Walter Sign Corporation, where objects
thereof are to force or require that Employer to
recognize or bargain with us as representatives of
its employees, or to force or require Walter Sign
employees to accept or select us as their collective-
bargaining representatives.
LOCAL 3, INTERNATIONAL BROTHERHOOD
OF EI.ECTRICAL WORKERS, AFL-CIO
LOCAI. 137, SHEET METAL WORKERS IN-
TERNATIONAI ASSOCIATION, AFL-CIO
1339