United Furniture Workers of America, AFL-CIO

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.