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KAYNARD EX REL. NLRB v. NASSAU DIST. COUNCIL OF CA

November 11, 1974

SAMUEL M. KAYNARD, Regional Director of Region 29 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
NASSAU DISTRICT COUNCIL OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Respondent



The opinion of the court was delivered by: PLATT

Memorandum

 PLATT, D.J.

 Petitioner seeks an injunction under Section 10(l) of the National Labor Relations Act, as amended (29 U.S.C. § 160(l) ("the Act") claiming, inter alia, that respondent has engaged, and is engaging, in acts and conduct in violation of § 8(b)(4)(i), (ii), subsections (B) and (D) of the Act (29 U.S.C. § 158(b)(4)(i), (ii), subsections (B) and (D)).

 On October 3 and 7, 1974, pursuant to the provisions of the Act, Alexander's, Inc. filed charges with the National Labor Relations Board ("the Board"), alleging, among other things, that respondent has engaged, and is engaging, in unfair labor practices within the meaning of the above cited sections of the Act. Such charges were referred to petitioner as Regional Director of Region 29 of the Board.

 Petitioner claims it has reasonable cause to believe that said charges are true, and that a complaint of the Board based on the subsection (B) charge should issue against respondent pursuant to § 10(b) of the Act and that a notice of hearing based on the subsection (D) charge should issue pursuant to § 10(k) of the Act.

 Alexander's, Inc., maintains and operates a department store at Roosevelt Field, Garden City, New York ("the Roosevelt Field store") and other department stores located at various other locations throughout the Metropolitan area where it is engaged in the retail sale of furniture, clothing, drugs, toys and other products. Alexander's, Inc., and respondent have been parties to a collective bargaining agreement effective May 1, 1973, to and including April 30, 1975, which covers the terms and conditions of employment of the maintenance carpenter employed from the opening of the Roosevelt Field store in 1971 up to September 13, 1974.

 In and about March 1974, as the result of an ongoing study, Alexander's reached the conclusion that it should, because of economic reasons, reduce the staffs of various departments, including the maintenance carpenters employed in its various stores. Up to that point Alexander's had employed a carpenter in every store and it determined that if it contracted such work to an independent company, it could fulfill its carpenter requirements with one carpenter for every two stores.

 Accordingly, Alexander's negotiated, and executed on September 10, 1974, a contract with Aviva Maintenance Corporation to perform carpentry work at all of its various locations. Immediately thereafter it sent telegrams to all of its affected local unions stating "Due to economic reasons requiring reduction of force, all full-time carpenters will be laid off effective September 13".

 In accordance therewith, on September 13, 1974, the maintenance carpenter at the Roosevelt Field store, Harry Curcurto, was terminated, along with all other maintenance carpenters at Alexander's other stores.

 Soon after the dispatch of the aforesaid telegram Alexander's industrial relations director, Burl Michelson, received a telephone call from John G. Rosenstron, the secretary and business manager of the respondent, in which Mr. Michelson explained the reasons for the action and during which Mr. Rosenstron made no request to bargain and did not say anything about Mr. Harry Curcurto.

 On September 23, Aviva Maintenance Corporation assigned one of its carpenters, James Cerasoli, to Alexander's, Inc. Roosevelt Field store "to remove an existing dressing room and to relocate it at another area of the store" and after about an hour and fifteen minutes of work a business agent for the respondent asked him "to stop work on the grounds that Aviva Maintenance didn't have a contract with" respondent. As a result, Mr. Cerasoli did not perform any more services on that day and was told by his employer to leave the store.

 In the early morning of October 3, 1974, on his arrival at the Roosevelt Field store, Mr. Michelson observed "a group of men carrying picket signs in front of our employees entrance, such signs bearing the legend: 'To the public: the employees of Alexander's -- Roosevelt Field don't receive wages and working conditions established by the Nassau District Council of Carpenters'". Mr. Michelson spoke to two operating engineers and one electrician who were "waiting for some direction as far as the reporting to work was concerned" and remembers "seeing Mr. Curcurto there. He was carrying a picket sign."

 In the early afternoon Mr. Michelson conferred with Mr. Mervin Hartigan, president of the respondent, in a restaurant on the mall at Roosevelt Field in the presence of two corporate executives of Alexander's and a Mr. John Sullivan, a business agent of the operating engineers.

 At such conference Mr. Hartigan told Mr. Michelson "that if Aviva Maintenance did not have a contract with the Nassau Council of Carpenters, that he didn't respect the contract which Aviva held with the New York Joint Council of Carpenters, that we were * * * using stockmen, stockboys to do carpenters work and * * * suggested to me that we use -- and he * * * listed several other companies with whom the Nassau Council had contractual ...


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