Electrical Workers Ibew Local 211 (Atlantic County Authority)

National Labor Relations Board - Board Decisions

Dec 10, 1985

277 N.L.R.B. 1041 (N.L.R.B. 1985)

ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC COUNTY AUTHORITY)
International Brotherhood of Electrical Workers,
Local Union No. 211 and Atlantic County Im-
provement Authority , and Atlantic City Conven-
tion Center Authority . Case 4-CC-1603
10 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 12 August 1985 Administrative Law Judge
James J. O'Meara Jr. issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusion and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Margaret M. McGovern, Esq., for the General Counsel.
Robert F. O'Brien, Esq., for the Respondent.
Robert Wachs, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA JR., Administrative Law Judge.
The complaint in this case was issued 21 February 1985
and is based on a charge filed on 26 December 1984 by
and on behalf of the Atlantic County Improvement Au-
thority and the Atlantic City Convention Authority (the
Authority), against the International Brotherhood 'of
Electrical Workers, Local Union No. 211 (the Union).
The complaint charges that the Authority is engaged in
renovating Atlantic City Convention Hall and has en-
gaged several firms to provide services and/or equip-
ment. Among such firms so engaged was the Jaden Elec-
tric, A Division of The Fairfield Company, (Jaden),
which company was the successful bidder on the electri-
cal work of the renovation contract at the Convention
Hall. On 21 December the Union, in furtherance of its
labor dispute with Jaden, picketed the Convention Hall
site and in so doing induced an individual employed by a
neutral third party to refuse to deliver a "standby elec-
tric generator" to the Authority pursuant to a contract
between the Authority and a neutral third party, Frank-
lin Electric Company, the manufacturer of the electric
generator. The complaint alleges that an object of the act
and conduct of the Union was, and is, to force or require
the Authority and other persons to cease using, selling,
handling, transporting, or otherwise dealing in the prod-
1041
ucts of Jaden and each other to cease doing business
with Jaden and each other and that such action and con-
duct constitutes an unfair labor practice within the mean-
ing of Section 8(b)(i) and (ii)(B) of the Act.
The Union in its answer to the complaint denies that it
has violated the Act and contends that it was engaged in
lawful primary picketing.
The case was heard in Ventnor, New Jersey, on 8
April 1985. The parties were given an opportunity to
present evidence and to argue their respective positions.
At the termination of the hearing the parties waived oral
arguments and have filed briefs which have been re-
ceived and considered.
On the evidence of record, including the testimony
and demeanor of the witnesses, and in consideration of
briefs filed by the parties hereto, I find the following
I. FINDINGS AND CONCLUSIONS
A. Jurisdiction
Jaden Electric, A Division of the Fairfield Company,
is, and has been at all times material, a Pennsylvania cor-
poration with its principal office located in Lititz, Penn-
sylvania. Jaden is engaged in the construction business as
an electrical contractor and has been engaged in the per-
formance of a certain contract between itself and the
Charging Party. During the past year in the course and
conduct of its business, Jaden has received more than
$50,000 from the performance of services at construction
projects located in the State of New Jersey. I find, and
the Respondent Union admits, that Jaden is and has been
at times material an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
B. The Union
The International Brotherhood of Electrical Workers,
Local Union No. 211, the Respondent herein, is and has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
I find that the Union and Jaden are subject to the ju-
risdiction of the Board and that it will effectuate the
policies of the Act to assert jurisdiction in this case.
C. The Unfair Labor Practice Charged
The General Counsel has charged the Union with a
violation of Section 8(b)(4)(i).and (ii)(B) of the Act. That
section provides as follows:
(b)-It shall be an unfair labor practice for a
labor organization or its agents-
(4)(i) to engage in, or to induce or encourage any
individual employed by any person engaged in com-
merce or in an industry affecting commerce to
engage in, a strike or a refusal in the course of his
employment to use, manufacturer, process, trans-
port, or otherwise handle or work on any goods, ar-
ticles, materials or commodities or to perform any
services; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
277 NLRB No. 111
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fecting commerce, where in either case an object
thereof is:
'(B) forcing or requiring any person to cease
using , selling , handling , transporting or otherwise
dealing in the products of any other producer,
processor , or manufacturer , or to cease doing
business with any other person, or forcing or re-
quiring any other employer to recognize or bar-
gain with a labor organization as the representa-
tive of his employees unless such labor orgamza-
tion has been certified as the representative of
such employees under the provisions of section 9;
Provided, That nothing contained in this clause (B)
shall be construed to make unlawful, where not oth-
erwise unlawful, any primary strike or primary pick-
eting . [Emphasis added.]
The General Counsel specifically alleges that the
Union picketed the site where Jaden and other contrac-
tors were performing their contracts with the Authority
and in connection therewith induced an employee of a
hauling company to refuse to deliver a certain "standby
electric generator" to the Authority.
D. The Renovation Contracts
Atlantic County Improvement Authority has engaged
in the renovation of Atlantic City Convention Hall (Con-
vention Hall) which is managed by the Convention
Center Authority. In furtherance of this renovation of
Convention Hall, the Authority has engaged Jaden to
perform the electrical work incidental to the renovation
project. It has also contracted with Franklin Electric
Company for that company to provide an electric stand-
by generator to be included in the electrical system of
Convention Hall. The Authority has also engaged with
Perini Corporation to provide construction consultation
and oversee the renovation project on its behalf.
The existing electrical system in the convention center
provided a source of electrical current to the convention
center from two public utility substations. Although in
the past continuous service has been anticipated from
one or the other of these sources, the potential for multi-
ple failure existed. The renovation contract provided for
a single source of electrical power to be acquired from
the public utility and another "convention hall con-
tained" standby electric generator for auxiliary emergen-
cy power. Because of the time required to manufacture
the standby electric generator, it was pre-ordered from
the Franklin Electric Company by the Authority for de-
livery to the convention center when it was completed.
Among the specifications of Jaden's contract for the
electrical work was the task of "tying in" the standby
electric generator.
The contract provisions of both the electrical contract
and the generator contract provided that the contractor
and the manufacturer each be obligated to deliver the
unit to the convention center and place it in the proper
mode for hookup. The construction supervisor chose to
call on Franklin to deliver the unit since it was going to
require a later more exact positioning due to the fact that
some electrical transformers from the old system were
blocking the planned location for the electric generator.
A change order was not provided to the Jaden contract
because it was anticipated to be necessary that Jaden
would re-rig the generator in order to place it in the
final planned position after the removal of the transform-
ers.
E. The Convention Hall
The construction situs, Atlantic City Convention Hall,
is a rectangular building extending from Pacific Avenue
on the north to the Boardwalk on the south, it is bound-
ed on the east by Mississippi Avenue and on the west by
Georgia Avenue. Mississippi Avenue is a two-way street,
while Georgia Avenue is a one-way northbound thor-
oughfare. Mississippi Avenue divides into two levels of
thoroughfare. The lower level, reached by a down ramp,
enters the basement of the convention center and pro-
ceeds across the width of the building and exits on Geor-
gia Avenue, northbound. Mississippi Avenue also has an
up ramp at its southern extremity which crosses under
the Boardwalk and returns north on Georgia Avenue.
F. The Gate Assignment
The Authority was aware that Jaden Electric had an
ongoing controversy with the Union. Accordingly, it
was determined by the owner and its agents that gates
for entry to the convention center would be assigned for
the exclusive use of Jaden and other gates to remain for
the use of all other contractors or be designated as neu-
tral gates. Gates 4 and 11 were labeled and designated as
gates for the exclusive use of Jaden. All other gates were
designated and labeled neutral gates or gates for the use
of other contractors and do not enter into this issue.
Gate 5 was located on the lower level of Mississippi
Avenue at the bottom of the grade of Mississippi Avenue
which permitted access to the basement of the Conven-
tion Hall from the east. Gate 11 is located on Georgia
Avenue at the west side of the convention center and
allows entry and exit to and from the basement level of
the convention center. Gate 5 is a neutral gate and gate
11 has been designated as a gate for the exclusive use of
Jaden.
G. The Aborted Attempt to Deliver the Standby
Electric Generator
The standby electric generator is a large cumbersome
piece of equipment measuring approximately 13 feet
long, 5 to 6 feet in width, and 5 feet in height and
weighing in excess of 20,000 pounds. Because of this
factor, the delivery of the generator was accomplished
by rigging and removing the generator from the truck
and placing it at the site. The size of this generator re-
quired that it be delivered through gate 5 or 11, which
gates would accommodate the swing of a tractor-trailer
and also since both gates give access to the basement
level of the site where the generator was eventually to
be situated. This need for special treatment in the deliv-
ery of the generator required that those involved with
the delivery and receipt of the generator would require
prior notice so that necessary arrangements could be
made for this piece of equipment. The manufacturer of
ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC COUNTY AUTHORITY)
the generator, Franklin Electric, engaged a trucking
company to deliver the generator on a flatbed trailer.
The rigging contractor on the job was notified of the
need for its service to remove the generator from the
truck and place it at a point about 60 feet from the loca-
tion where it would eventually rest permanently and be
"tied into" the electrical system. It was necessary to tem-
porarily place the generator` because two large trans-
formers which were later to be removed interfered with
placing the generator in its permanent location.
On 21 December the superintendent for Perini, Simp-
kins, was informed by a rigging foreman that there was a
"problem" with the generator at gate 11. Simpkins went
to investigate and observed the truck parked opposite the
center on the northeast corner of Pacific and Georgia
Avenues. Simpkins observed picket signs leaning against
the wall with the legend turned toward the wall. Several
men were gathered at the corner and on inquiry of these
men, Simpkins was directed to Bishop, the union business
agent, who was then inside the center. Bishop told Simp-
kins that, notwithstanding that the contract was between
Franklin and the Authority, Jaden would ultimately "tie
in" the generator and that gave Bishop and the Union "a
problem." The delivery was not attempted that morning.
In the afternoon of the same day at approximately 2
p.m., the truckdriver attempted delivery by driving south
on Mississippi Avenue approaching gate 5. The vehicle
was stopped about halfway between Pacific Avenue and
the gate for the purpose of receiving delivery instruc-
tions. Simpkins told the driver to proceed down the
down ramp to gate 5 and to enter the lower floor of the
center. The driver was instructed by Simpkins to abort
the attempt to deliver if pickets appeared and not to
drive through the picket line. As the driver resumed
driving toward the ramp to gate 5, 8 to 12 men, includ-
ing 2 union business agents, ran to the ramp entrance and
picketed with signs which read, "Jaden Unfair IBW
211." The pickets formed a circle across the ramp en-
trance effectively blocking the rampway and requiring
the truck to stop. The driver waited a few minutes while
the pickets continued their patrol and then backed the
truck up allowing blocked traffic behind it to pass. The
truck left the premises with the generator on the trailer
and no effort to redeliver the generator has been made as
of this date. The only time and location of picketing by
the Union against Jaden occurred at this time and place.
II. DISCUSSION AND CONCLUSIONS
The provisions of Section 8(b)(4) reflect the dual con-
gressional objective of preserving the right of labor orga-
nizations to bring pressure to bear on offending employ-
ers in primary labor disputes in shielding unoffending
employers and others from pressures and controversies
not their own. NLRB v. Denver Building Council, 341
U.S. 675, 692 (1951). Thus, a union is permitted to picket
a primary employer with whom it has a labor dispute,
but it runs afoul of Section 8(b)(4) if it pickets a neutral
employer with a prescribed objective of enmeshing the
neutral employer in the controversy. In resolving issues
relating to union picketing at a common situs the prob-
lem to be addressed is that unrestricted union activity
would be inconsistent with the neutral employer's intend-
1043
ed immunity. Conversely depriving a union of the right
to picket at a common site might render nugatory its
right to bring pressure on a primary employer. In order
to accommodate these conflicting interests and in an at-
tempt to strike a reasonable balance in such situation,
certain rules have evolved and were adopted by the
Board and approved by the courts. In Sailors Union
(Moore Dry Dock), 92 NLRB 547 (1950), the Board set
forth several criteria, which, if met, raise a presumption
that common situs picketing is directed against the pri-
mary employer and not the secondary employer. These
criteria comprising the Moore Dry Dock rule are as fol-
lows:
When a secondary employer is harboring the
situs of a dispute between a union and a primary
employer, the right of neither the union to picket
nor of the secondary employer to be free from pick-
eting can be absolute. The enmeshing of premises
and situs qualifies both rights. In the kind of situa-
tion that exists in this case, we believe that picket-
ing of the premises of a secondary employer is pri-
mary if it meets the following conditions: (a) The
picketing is strictly limited to times when the situs
of dispute is located on the secondary employer's
premises; (b) at the time of the picketing the pri-
mary employer is engaged in its normal business at
the situs; (c) the picketing is limited to places rea-
sonably close to the location of the situs; and (d) the
picketing discloses clearly that the dispute is with
the primary employer. [Electrical Workers IBEW
Local 323 (J. F Hoff Electric), 241 NLRB 694, 697
(1979).]
The Board has also held and the courts have approved
that in order to isolate a labor dispute and to minimize
disruption of the entire work force in common situs situ-
ations, special gates may be reserved for the subcontrac-
tor which is the object of picketing. So long as the em-
ployees and suppliers of that subcontractor are limited to
that gate, the union may not picket the other or neutral
gates used by others not involved in the dispute. Electri-
cal Workers IBEW Local 761 v. NLRB, 366 U.S. 667
(1961). Where such cases are properly established, a
union may picket only at the gate of the employer with
whom it has a dispute. Such gates were established here
by the owner's agent. Since the successful bidder for the
electrical work in the renovation of the convention
center was Jaden who had an ongoing labor dispute with
the Union, gates 4 and 11 were assigned for the exclusive
use of Jaden (gate 4 does not enter into the facts relating
to this controversy). All other gates, including gate 5,
are neutral gates. The General Counsel contends that the
picketing by the Union of the approach to gate 5 is a
violation of Section 8(b)(4)(i) and (ii)(B) of the Act. The
Union contends that the integrity of the gate was violat-
ed by the attempt to deliver the standby electrical gener-
ator to be eventually tied into. the electrical system by
Jaden Electric through the neutral gate, thus, permitting
the Union to lawfully picket at that gate. I find that the
neutrality of gate 5 was compromised by the attempt to
deliver the generator through that gate. I further find
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the picketing by the Union met the limitations set
forth in Moore Dry Dock, supra, and that such picketing
'did,not have the objective of instituting coercive pres-
sure against neutral parties in order to force them or it to
refuse to deal with Jaden.
The stage for events of 21 December 1984 was first re-
vealed when Simpkins, the project superintendent for the
owner, was informed that there was a "problem with the
generator at gate 11." Simpkins' investigation of the
problem disclosed that the truck with the generator was
parked not at gate 11 but across Pacific Avenue from the
center and on the northeast corner of Pacific and Geor-
gia Avenues. Several men were gathered on the corner
and picket signs were observed by Simpkins leaning
against the wall next to the men at that corner. The men
told Simpkins to speak to their business agent, Bishop,
inside the center. Bishop told Simpkins that the Union
had a problem with the delivery of the generator. Thus,
the owner's agent became aware that delivery of the
standby generator was, or would be, the subject of union
action if delivery was attempted through Jaden's exclu-
sive gate 11. After learning that the Union would, or
had, picketed delivery of the generator through gate 11,
an attempt to deliver the unit to the convention center
through gate 5 was designed. The driver of the trailer
truck drove down Mississippi Avenue stopping midway
between Pacific and the Boardwalk for instructions from
Simpkins as to delivery. The truck being in the vicinity
of the Convention Hall site for several hours was un-
doubtedly constantly observed by the union pickets. The
attempt to deliver the generator through neutral gate 5
was deemed by the Union to have compromised the neu-
trality of that gate.
As long as the Moore Dry Dock limitations are met, a
union may legitimately picket at a common situs in such
a way that all employees, suppliers, and customers of the
primary employer are reached by the pickets; neutral
employers may insulate themselves from the picketing
only if the reserved gate practice is faithfully observed.
J. F. Hoff, supra. An analysis of the relationship of Jaden
to the standby generator must be made to determine
whether or not the provider of the generator is a "sup-
plier" to whom union pickets may legitimately appeal.
Legal title to the generator at this juncture is not deter-
minative of this issue. Operating Engineers Local 450
(Lendbeck - Construction), 219 NLRB 997 (1975). The
issue is resolved by inquiring whether the generator was
essential to the primary employer's normal operations. If
that is resolved in the affirmative, the delivery of such an
item through a neutral gate is a violation of the neutrali-
ty of that gate and makes the locale subject to lawful
picketing by the Union. In this case, the generator was in
a similar status as were the items in the J. F. Hoff, supra.
In that case a number of electrical fixtures were deliv-
ered to the site through a neutral gate. The electrical fix-
tures were to be installed by the contractor who was the
subject of the primary picketing. I discern no significant
difference between the role of the fixtures in that case
and the standby generator in this case . Here Jaden was
required to perform a significant part of its contract by
placing the electric generator and "tying it in" to the
electrical system with which it was to function. Al-
though only a relatively few number of hours were re-
quired to be expended by Jaden in performing its con-
tract relating to the generator, that generator is an indis-
pensable integral part of the convention center's electri-
cal system which Jaden had the obligation to install.
Jaden was unable to complete his contract until he had
"tied in" the emergency generator. The entire system
was designed to power a locale where the general public
would congregate and an emergency electrical system is
deemed indispensable to the function of the convention
site itself and without a proper functioning backup
system for emergency use, the entire electrical system for
a public gathering place is insufficient. Therefore, I deem
that the integration of the standby generator into the
electrical system was a substantial part of Jaden's con-
tract. Having made that determination, it follows that
since Jaden was obligated by his contract to place and
integrate the standby generator into the electrical com-
plex of the center, the generator was supplied in order
that Jaden could pursue what was at that time and place
its normal course of business.
Having determined that the generator was an integral
part of Jaden's contract undertaken in the normal con-
duct of Jaden's business it follows that the attempt to de-
liver such a unit through a neutral gate comprised a vio-
lation of the neutrality of that gate. Once having deter-
mined that the neutrality of that gate was compromised
it follows that picketing by the Union at that gate or the
approach of that gate was primary picketing and lawful.
There had been no prior picketing by the Union
before the attempt to deliver the standby generator. The
picketing was conducted while Jaden and company was
in the process of performing its normal business under
the contract at the convention center. The pickets dis-
played signs clearly establishing that their dispute was
only with Jaden and the picketing function was limited
to the subject matter of Jaden's contract and an attempt
to further Jaden's business by delivery of an integral part
of its contract through a neutral gateway.'
In view of the foregoing, I am compelled to interpret
the Union's picketing at the approach to gate 5 to be
lawful picketing of a primary employer and not a sec-
ondary boycott or a violation of the Act.
CONCLUSIONS OF LAW
1. Jaden Electric, A Division of the Fairfield Compa-
ny is an employer engaged in commerce or in an indus-
try affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local Union No. 211 is a labor organization within the
meaning of Section 2(5) of the Act.
3. International Brotherhood of Electrical Workers,
Local Union No. 211 did not commit the unfair labor
practices as alleged in the complaint.
i On instructions of the superintendent of the renovation project, the
driver of the truck did not attempt to make delivery by driving through
the picket line and no personal confrontation took place between the
pickets and third parties.
ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC COUNTY AUTHORITY) 1045
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The complaint in the instant matter is dismissed in its
entirety.
2 If no exceptions are filed as provided by Sec. 102 . 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the poses.