Electrical Workers, Local 38

National Labor Relations Board - Board Decisions

Dec 8, 1975

221 N.L.R.B. 1073 (N.L.R.B. 1975)

ELECTRICAL WORKERS, LOCAL 38
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 38 and Cleveland
Electro Metals Company. Case 8-CC-719
December 8, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On August 7, 1975,1 Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Charging Party Cleveland Electro Metals Compa-
ny (hereinafter called Cleveland Electro) is a manu-
facturer of deoxidized products for the steel industry
whose employees are represented by the United
States Steelworkers of America, AFL-CIO. Wiring
Unlimited is a nonunion electrical contractor which,
at times material herein, had a contract with
Cleveland Electro to perform electrical work on an
air pollution system at the latter's plant.
On March 26, Edward Shingary, a business
representative of Respondent Local 38, arrived at the
Cleveland Electro plant along with representatives of
various other construction trades unions. Accompa-
nied by representatives of the Painters, Bricklayers,
and Cement Masons, Shmgary met with Bruce
Sokol, Cleveland Electro's works manager.
It is undisputed that in that meeting Shingary
asked Sokol whether he would consider giving the
electrical work to a union contractor rather than to
Wiring Unlimited. Sokol replied that he, doubted
whether the Company would change contractors and
that in any event such a decision would have to be
made by the home office in Pittsburgh. It is further
undisputed, that Sokol and Shingary agreed that
Shingary would telephone Sokol the next day, March
27, and at that time Sokol would inform Shingary of
the Company's decision. In dispute, however, is
whether, as Sokol testified and Shingary denied:
He [Shingary] said to me [Sokol] that he would
have to play his game and probably ' set up a
I All dates herein are in 1975 unless otherwise indicated
2 United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
221 NLRB No. 173
1073
picket line at our plant and ask our union, the
union that represents the people who work in the
plant, to cooperate and not to cross the picket
line.
He told me [-] or asked [-] that we had a
United Steel Workers [union] representing out
people in the plant and said that they had had
good relations with United Steel Workers in the
past.
Shingary, in denying that he made the above
statements did testify that:
He [Sokol] told me that he had a non-union
contractor doing his work and stated that he was
happy with the way the non-union contractor was
performing.
I said that we may have to use an informational
type picket.
During the morning of March 27 Shingary dis-
cussed with Richard Acton, Local 38's business
manager, whether Acton would authorize an inform-
ational picket line if Cleveland Electro refused to
give the electrical work to a union contractor. Acton
did not reach a decision. Also on March 27, Shingary
telephoned Sokol. The latter told Shingary that he
had checked with his home office' and the decision
had been made to have Wiring Unlimited continue
to do the electrical work. Sokol then asked what
Shingary was going to do and the latter replied that
he "might" put up an informational picket line. No
picketing ever took place.
The Administrative Law Judge, crediting Sokol's
version of the March 26 conversation, found that
Shingary said he might establish an informational
picket line at Cleveland Electro's plant and might ask
the Steelworkers to honor such a picket line. Citing
American Modulars Corporation,2 the Administrative
Law Judge concluded that the mention- of the
possibility of an informational picket line was itself
an unlawful threat which "contemplated picketing of
the entire jobsite and anyone working there, whether
connected with the primary',or neutral persons or
employers." Accordingly, he concluded that irrespec-
tive of whether Shingary threatened to ask the
Steelworkers cooperation, his threat to picket "the
plant" included Cleveland Electro, a neutral employ-
er, as well as Wiring Unlimited, and therefore the
threat to establish an informational picket line was
unlawful.
Local No 639 (American Modulars Corporation), 203 NLRB 1112 (1973)
1074 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
We find, contrary to the Administrative Law
Judge, that American Modulars is inapposite and that
the instant case is more closely akin to Firelands
Sewer and Water Construction Co., Inc.,3 which the
Administrative Law Judge found distinguishable. In
that case an Administrative Law "Judge, relying on
American Modulars, found that the respondent
violated 'Section 8(b)(4)(ii)(B) by its business repre-
sentative's statement to representatives of the Buffalo
Sewer Authority that if the Authority awarded a
contract `to a nonunion contractor, respondent would
engage in informational picketing. The Administra-
tive Law Judge therein found this statement, made in
order to prevent the Authority from awarding the
contract to Firelands, an unlawful threat because it
"was by its terms unrestricted in scope and contem-
plated picketing the entire jobsite including future
phases and any employers working there."
The Board disagreed and found that the context in
which, the statement was made indicated that it did
not constitute a'threat to picket neutral employers. In
so finding the Board emphasized that at the meeting
where the alleged threat was made discussion
centered on Firelands; no other contracts had been
awarded ,and no other contractors or subcontractors
were involved or discussed at the meeting; and the
statement was made in response to a question as to
what respondent , would do. In that context, the
Board concluded, the statement could reasonably be
construed as a threat only to picket Firelands, and
therefore did not violate Section 8(b)(4)(ii)(B) of the
Act.
Similarly, in the instant case the only contractor
under discussion was Wiring Unlimited; and of the
other two contracts involved (for mechanical work
and painting), one was almost completed and the
other had not yet been awarded.4 Furthermore, in
the March 27 conversation, Shingary's remark that
Respondent might picket was made in reply to a
question by Sokol. Under these circumstances, we
find that Shingary's statement, while vague, should
not be concerned as an unlawful threat to picket
Cleveland Electro, but rather as a lawful statement of
the possibility of informational picketing of Wiring
Unlimited.
In view of the above, we find, contrary to the
Administrative Law Judge, that this case does turn
on whether Shingary, threatened to ask the Steel-
workers to cooperate in the picketing. In this regard
we find that Shingary's version of the March 26
conversation, rather than Sokol's, should have been
3 International Union of Operating Engineers Local No 17,17A and 17B,
AFL-CIO (Firelands Sewer and Water Construction Co, Inc) 210 NLRB
150 (1974).
4 Although the contract for mechanical work had been awarded to a
nonunion contractor, it is undisputed Shingary and the other union
credited and that Shingary did not refer to possible
involvement of Steelworkers.
In crediting Sokol's version of the March 26
conversation over Shingary's, the Administrative
Law Judge relied principally on his own inferences as
to what must have been Shingary's intent and what
Sokol concluded that Shingary meant, rather than
upon either the demeanor of the witnesses or
objective considerations. Thus, the Administrative
Law Judge stated:
Whether Shingary got his point across to Sokol
with a direct statement, as Sokol's testimony--
implies, is, however, beside the point. The
question is whether the message Sokol got was the
message Shingary sent. Shingary's admission on
direct that he asked Sokol "how he had gotten
into that kind of a situation" furnishes the answer.
A union professional like Shingary would see a
union employer who had entered into a contract
with a nonunion employer as being in a
"situation" fraught with peril for the employer
and opportunity for a union which objected to
that contract. In answering his own counsel,
Shingary gave a glimpse into the way ' his mind
was working as he talked to Sokol on March 26.
He saw 'Cleveland Electro's relationship with the
Steelworkers as a lever which he might use to
move the Company in the direction he wanted it
to go.
In these circumstances, where credibility resolutions
are not based primarily upon demeanor, it is well
settled that the Board itself may proceed to an
independent evaluation of credibility.5
In this case, the Administrative Law Judge credited
Sokol and discredited Shingary despite his findings
that "Sokol's testimony was not a model of clarity
and precision"; that Shingary had no authority to
establish a picket line without the approval of Local
38's business manager; that all Local 38 agents were
carefully trained as to what to say to employers; that
the conversation 'was amicable; and that Sokol's
version of the conversation was denied by the other
three union representatives present. Most important-
ly, the Administrative, Law Judge specifically dis-
credited Sokol's testimony that in his March 27
telephone conversation with Shingary the latter said
that Respondent' "would" picket Cleveland Electro.
To the contrary, the Administrative Law Judge
credited Shingary's version of that conversation and
found that Shingary merely remarked that Respon-
representatives were not concerned with that contract inasmuch as it was
virtually completed by March 26
5 Canteen Corporation, 202 NLRB 767 (1973), Valley Steel Products Co,
111 NLRB 1338 (1955). Cf Standard Dry Wall Products, Inc, 91 NLRB 544
(1950)
ELECTRICAL WORKERS , LOCAL 38 1075
dent "might" engage in informational picketing. In
our view, these findings are inconsistent with the
Administrative Law.Judge's credibility resolution in
favor of Sokol's version of the March 26 conversa-
tion, particularly in the absence of an objective
explanation for the crediting of Sokol, Rather, we
find that a clear preponderance of the evidence
supports Shingary's testimony that he did not tell
Sokol that he might ask the Steelworkers to honor a
picket line at the Cleveland Electro plant, and, thus,
any basis for finding a violation based on such a
purported threat completely disappears.
Based on all the foregoing, we find that Respon-
dent neither threatened unlawfully to picket a neutral
employer nor to ask the Steelworkers to honor an
informational picket line and, therefore, did not
violate Section 8(b)(4)(ii)(B) of the Act. Accordingly,
we shall dismiss the complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in this case was filed on March 28, 1975.1 The
complaint was issued on April 15. The hearing was held in
Cleveland, Ohio, on June 9. The issue litigated was whether
words spoken by Local 38 to Cleveland Electro Metals
Company on March 26 and27 with an object of forcing or
requiring the latter to cease doing business with Wiring
Unlimited constitute a threat within the meaning of
Section 8(b)(4)(ii)(B) of the National Labor Relations Act,
as amended. For the reasons set forth below, I find they
do.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
briefs, I make the following:
each of which annually receives goods worth more than
$50,000 directly from points outside the state.
II. THE UNFAIR LABOR PRACTICE
A. Credibility
The credibility problem posed by this record concerns
precisely what Edward Shingary, a business representative
for Local 38, said to Bruce Sokol, Cleveland Electro's
works manager, in person on March 26 and on the
telephone on March 27. There were three other persons
present on March 26. Each was a business agent, like
Shingary, of a union associated with the Cleveland
Building Trades Council. The import of their testimony
was to corroborate Shingary's version. Thus, the situation
presented is four against one.
The gap between the two versions is narrow but
important. There is no dispute that Shingary and his
colleagues visited Cleveland Electro's plant and talked to
Sokol in his office on March 26 in the hope they could talk
him into taking work away from Wiring Unlimited and
giving it to a union contractor. There is no dispute that the
possibility of an informational picket line was mentioned.
There is no dispute that the fact Cleveland Electro's own
employees are represented by United Steelworkers of
America, AFL-CIO, was mentioned. Wallace Kaufman, a
representative of the Painters union who was in the room
the whole time, recalled a reference to the Steelworkers.
George Christen, a representative of the Bricklayers union
who was in the room only part of the time, recalled a
reference to an informational picket line. (Homer Sanchez,
a representative of the Cement Masons union who, like
Christen, was in the room only part of the time, could
recall nothing. I have disregarded his testimony.) Shingary
acknowledged that he alluded to the Steelworkers at one
point and, at another, mentioned the possibility of a picket
line. All, of course, denied that Shingary made the
statement attributed to him by Sokol, viz:
He [Shingary ] said to me [Sokol] that he would have to
play his game and probably set up a picket line at our
plant and ask our union, the union that represents the
people who work in the plant, to cooperate and not to
cross the picket line.
FINDINGS OF FACT
1. JURISDICTION
Cleveland Electro Metals Company, a Pennsylvania
corporation,- manufactures deoxidized products for the
steel industry at its plant in Cleveland. It annually
purchases scrap aluminum worth more than $50,000 from
suppliers outside the State of Ohio which is shipped
directly to its plant in Cleveland.
Wiring Unlimited, an' Ohio corporation, is engaged in
Cleveland in commercial and industrial electrical installa-
tion and maintenance. It annually purchases goods worth
more than $100,000 from suppliers in the State of Ohio
He told me[-]or asked[-]that we had a United Steel
Workers [union] representing our people in the plant
and said that they had had good relations with United
Steel Workers in the past.
As his uncertainty over whether Shingary told him or
asked him about the Steelworkers indicates, Sokol's
testimony was not a model of clarity and precision. By the
same token, I have taken into consideration the fact that
Shingary has no authority to set up a picket line for Local
38 without the approval of the man over him, the fact that
Local 38 carefully trains its operatives as to what they
should say in dealings with employers, and the fact that the
1 Dates are 1975 unless otherwise indicated.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation was an amicable one, all points urged in
Local 38's brief as reasons why I should credit Shingary
and discredit Sokol. (I'have not taken into consideration
that "[i]t is common knowledge that all USW contracts
have no-strike clauses and asking him to breach these
contracts would be futile." There is no evidence in the
record as to the terms of a contract, if any, in effect
between Cleveland Electro and the Steelworkers.) Recog-
nizing that the question` is a close one, I have, nonetheless,
credited Sokol over Shingary and his associates.
What tips the scale is Shingary's own testimony. On
direct he testified the conversation began thus:
A. How did you open the conversation in Mr.
Sokol's office?
A. Well, I believe we all introduced ourselves once
more and presented our calling cards; if not at that
time, when we were leaving. But we got our names
straight, anyway, at that point.
Q. Did you give your calling cards to Mr. Sokol?
A. Yes.
Q. Do you know whether or not the other two or
three did?
A. Normally, that's the routine procedure, to
present your card; and I would say that it probably
happened there, but I just don't remember.
Q. Then what was said?
A. Well, I asked Mr. Sokol whether he was aware
of the fact that he had non-union building tradesmen
working on his property, and he said that he was aware
of it.
And I asked him how he had gotten into that kind of a
situation, having his employees belong to a union and
then contracting out work through non-union people.
[Emphasis supplied.]
When the General Counsel tried to follow up this opening
on cross-examination, Shingary's testimony went like this:
Q. Did you say to him, "You, know you have a
union"?
A. I don't know, to tell you the truth, whether I
said that or not. I was aware of it.
Q. Do you recall Mr. Sokol saying, "Yes, we have
the Steelworkers Union"? Do you recall him saying
that?
A. I asked him if he had a union, and he told me
yes, he did.
Q. Did you make any other statement referring to
Cleveland Electro Metals employees?
A. No.
Q. After you made the statement, or Mr. Sokol
responded to your question with "Yes, we have the
Steelworkers" or "Sure, we have the Steelworkers," or
words to that effect, is that when you mentioned the
picket line?
A. No.
Q. I beg your pardon?
A. No, I can't tie it together as part of the following
sentence or something to that nature, no.
Q. Would you tell me, then, when you did use that
phrase with "informational pickets"?
A. Well, I would say that we discussed the
problem. He told me that he had a non-union
contractor doing his work and stated that he was happy
with the way the non-union contractor was performing.
I said that we may have to use-an informational type
picket.
Q. You also told him that he knew he had a union?
A. He said that he-knew,he had a union.
Q. Did you make any statement that Mr. Sokol
knew that he had a union?
A. No.
Q. You just testified that you did make that
statement.
MR. SMOOT: That is not correct.
JUDGE BLACKBURN: Is that an objection?
MR. SMOOT: Yes.
JUDGE BLAcKBuRN: Sustained. Ask another ques-
tion . You are arguing with the witness, Mr. Warr.
Q. (By Mr. Warr) Do you recall making a
statement about your relations with the Steelworkers?
A. No.
Q. Do you have relations with the Steelworkers?
A. They are another union in town.
Shingary successfully parried the General Counsel's efforts
to get him to admit that he explicitly linked his references
to a picket line with his references to the Steelworkers.
Whether Shingary got his point across to Sokol with a
direct statement , as Sokol 's testimony implies, is, however,
beside the point. The question is whether the message
Sokol got was the message Shingary sent. Shingary's
admission on direct that he asked Sokol "how he had
gotten into that kind of a situation" furnishes the answer.
A union professional like Shingary would see a union
employer who had entered into a contract with a nonunion
employer as being in a "situation" fraught with peril for the
employer and opportunity for a union which objected to
that contract . In answering his own counsel, Shingary.gave
a glimpse into the way his mind was working as he talked
to Sokol on March 26. He saw Cleveland Electro's
relationship with the ' Steelworkers as a lever which he
might use to move the Company in the direction he wanted
it to go. It follows, I think, that he used that lever explicitly
enough for Sokol to get his message no matter how
indirectly he may have made his point.
B. Facts
In 1974 Cleveland Electro initiated an air pollution
control system in its plant . It entered into a contract with
William Kirkpatrick Co. for the mechanical portion of the
project and with Wiring Unlimited for the electrical. Both
Kirkpatrick and Wiring Unlimited are nonunion contrac-
tors. Cleveland Electro's own employees , some 40 in
number , are represented by the Steelworkers . By March 26
Kirkpatrick . had virtually completed its work; Wiring
Unlimited had just begun.
The Cleveland Building Trades Council has two teams of
business agents from its affiliated unions which have as
their mission the encouragement of union building and
construction projects . One team covers the west side of
Cleveland, the other, the east. The west side team is chaired
ELECTRICAL WORKERS , LOCAL 38
by Edward Shingary, one of Local 38's business represent-
atives. The team's members meet regularly for breakfast
each Wednesday. They then spend the balance of the day
jointly visiting employers in their territory who have
building projects in the works. They attempt to sell the
employers on the wisdom of having union labor on their
projects. Wednesday, March 26, was such a day.
Six members of the west side team arrived at Cleveland
Electra's plant in two automobiles sometime that after-
noon. They asked to see whoever was in charge. Bruce
Sokol, the works manager, went to the lunchroom and
introduced himself. They asked for a chance to talk to him.
He invited them to his office. Because the automobiles had
to be moved, only two men, Shingary and Wallace
Kaufman , a business agent for the Painters union, went
with him initially. Two others, George Christen of the
Bricklayers and Homer Sanchez of the Cement Masons,
joined them a few minutes later. The other two business
agents, representatives respectively of the Carpenters and
Tile Setters unions, remained with the automobiles.
In Sokol's office, Shingary acted as spokesman for his
committee . He explained its purpose in being there. He
inquired about the status of the work 'being done on
Cleveland Electra's air pollution control system. Sokol
explained that the mechanical phase was almost completed
and that the electrical phase was just beginning. He
indicated that the contract for painting had not yet been
let. Shingary indicated that the mechanical work was water
over the dam as far as the committee was concerned. He
asked Sokol, however, whether he would consider giving
the 'electrical work to a union contractor rather than to
Wiring Unlimited. He pointed out that Cleveland Electro
was already dealing with the Steelworkers, thus having
union labor in its plant would be 'no novelty for it. Sokol
said that the company had selected Wiring Unlimited on
the basis of its low bid. Shingary said that, in view of
economic conditions , union contractors were anxious for
work and he was sure that the Company could find one to
do the work at an acceptable price. He offered to furnish
Sokol with a list of union contractors whom he' thought
would meet the Company's needs, and to help Sokol in any
way that he could to get a suitable contract. Kaufman
asked Sokol to give consideration to union painting
contractors when the time came for letting that contract
and offered Sokol the same sort of list and the same sort of
cooperation Shingary was offering in the electrical area.
Sokol said that the Company was happy with Wiring
Unlimited and doubted that it would change the arrange-
ments it had already made. He pointed out, however, that
the final word was not up to him but to his superiors at the
home office in Pittsburgh. He offered to contact them, put
the _ committee's suggestion up to them :and let Shingary
know the answer. Shingary said he would telephone Sokol
the next day. The meeting, which was amicable through-
out, broke up on this note. Sokol had feared a different sort
of confrontation when he first learned that a group of
union agents had suddenly descended on his plant.
2 The charge and the complaint name only Local 38 as respondent.
Therefore, while it is clear that Shingary was also acting as an agent for the
Cleveland Building Trades Council and there is no evidence that he drew a
distinction between his two hats when he spoke to Sokol , I have treated his
1077
Consequently, as he was shaking their hands in farewell, he
thanked Shingary and his associates for their gentlemanly
conduct.
The above paragraph does not purport to be a sequential
account of what was said in Sokol's office on March 26. It
is, rather, a summary of what all the witnesses agreed was
the tone and thrust of the discussion. Sometime during the
exchange, Shingary said that he might have to put up an
informational picket line at Cleveland Electra's plant if the
Company did not give the electrical work to a union
contractor. He stressed that this was something he had a
legal right to do. He also said that he might ask the
Steelworkers to cooperate by having Cleveland Electra's
own'employees honor such a picket line.
The next morning, Shingary reported to Richard Acton,
business manager of Local 38 and Shingary's superior.
They discussed Acton's authorizing an informational
picket line if Sokol's answer should prove to be no. Acton
reached no decision. In the meantime, Sokol checked with
his home office and was told that Cleveland Electro would
stick with Wiring Unlimited. Consequently, when Shingary
telephoned on March 27, Sokol told him that the Company
would not switch to a union electrical contractor. Sokol,
who had put another man on his extension telephone
unbeknownst to Shingary, then asked what Shingary was
going to do. Shingary said again that he might put up an
informational picket line. (I do not credit Sokol's testimony
that Shingary's "might" of March 26 became "would" on
March 27. I also do not credit Sokol's testimony that
Shingary added "he would . . . ask our union people [i.e.,
Cleveland Electra's employees as distinguished from the
Steelworkers, their union representative] to cooperate by
not crossing the, picket line." Sokol's associate did not
testify.)
Acton and Shingary gave no further consideration to
picketing Cleveland - Electra's plant.. There has been no
picketing.
C. Analysis and Conclusions
As to Shingary's statement he 2 might put up an
informational picket line, Local 38 argues that , it is not a
threat to so advise a secondary employer . However, the
numerous cases it cites in support of this proposition are
not apposite . They turn on whether words spoken , without
more, are sufficient to establish a secondary object. Here,
there is no dispute that Shingary's object in saying what he
did to Sokol was to get Cleveland Electro to cease doing
business with Wiring Unlimited so that it could begin
doing business with a union contractor.
As to Shingary's statement he might ask the Steelworkers
to cooperate, Local 38 argues that it is not a threat within
the meaning of Section 8(b)(4)(ii). In support of that
proposition it cites Electrical Workers Union Local 38,
IBEW, AFL-CIO (Hoertz Electric Maintenance Co.), 138
NLRB 160 (1962). That case, too, is inapposite, for there
the statement that one union would "seek'the cooperation"
of another was held "clearly" to "contain no direct threat
statements as implying that only Local 38 and not the council and/or its
other affiliates was raising the possibility of putting a picket line at
Cleveland Electro 's plant and asking the Steelworkers union for its
cooperation
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a strike" in the context in which it was uttered. Here, the
statement that Local 38 might seek the cooperation of the
Steelworkers was uttered in connection with the reference
to a possible informational picket line. Thus, whether
Shingary's statements are considered together or separate-
ly, or, for that matter, even if the picket line remark is
weighed without taking the cooperation remark into
consideration at all, the issue fairly posed by this record is
whether the words which Shingary spoke to Sokol
constitute a threat within the meaning of Section
8(b)(4)(ii).
The test for whether a mention of the possibility of an
informational picket line is, in and of itself, a threat within
the meaning of the Act was stated by the Board in United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, Local No. 639 (American Modulars Corporation), 203
NLRB 1112 (1973). There, at footnote 1, it said:
Like the Administrative Law Judge, we find that the
statement of Respondents to American's area manager
concerning the possibility of "informational" picketing
at the Sherwood jobsite unless the latter's subcontrac-
tor, Sondles , the primary employer herein, became
unionized , constituted a threat within the meaning of
Sec. 8(b)(4)(ii)(B). This statement , by its breadth,
contemplated picketing of the entire jobsite and anyone
working there , whether connected with the primary or
neutral persons or employers. As such, it went beyond
the mere giving notice of prospective picketing against
a subcontractor to the general contractor.
In American Modulars the threat was uttered in a context
which included picketing , and the principal issue which the
Board discussed was whether the signs which had been
used met the Moore Dry Dock standards (Sailors' Union of
the Pacific, AFL (Moore Dry Dock Company), 92 NLRB
547 (1950). American Modulars is also unlike this case in
that the picketing took place at a jobsite where American
was erecting single -family residences while here the
common situs is a factory belonging to the secondary
employer.
The Board had previously dealt with the situation where
no picketing followed the words claimed to be a threat
within the meaning of Subsection (ii) in General Teamster,
Warehouse and Dairy Employees Union Local Nor 126, et al.
(Ready Mixed Concrete, Inc.), 200 NLRB 253 (1972). There,
at footnote 2, the Board said:
The Trial Examiner also found that Teamsters
Business Representative Rickmeier 's threat to Tiede's
superintendent to put up a picket line unless Tiede
discontinued its purchases of concrete from RMC did
not violate Section 8(b)(4)(ii)(B) of the Act because
there was no evidence "that a picket line was ever
established or that the inducement offered by Rickmei-
er was effective .... " A threat to an employer to
picket is itself coercive , whether or not the picketing is
subsequently instituted , and if the threat is intended to
achieve an object prohibited, by Section 8(b)(4)(B), as
in this case , it is violative of Section 8(b)(4)(ii)(B). We
therefore find, contrary to the Trial- Examiner, that
Rickmeier's threat to Tiede violated Section
8(b)(4)(ii)(B) of the Act.
In RMC also the principal question before the Board was
the legitimacy of the picketing which had taken place,' an
issue not present here.
More recently, in International Union of Operating
Engineers Local No. 17,'17A and 17B, AFL-CIO (Firelands
Sewer and Water Construction Co., Inc.), 210 NLRB No. 30
(1974), the Board had occasion to apply the rule it had set
forth in American Modulars, supra, once again in the
context of a'situation involving a traditional building and
construction jobsite rather than , as here , a factory. It said:
The record discloses and the Administrative Law
Judge found that a meeting had been arranged with the
Buffalo Sewer Authority for July 11, 1973, to discuss
the Authority's award of a contract to Firelands Sewer
and Water Construction Co., Inc., a nonunion contrac-
tor with which Respondent had its primary dispute.
The Authority informed the representatives of the
various unions at the meeting that Firelands was the
lowest responsible bidder. According to Respondent's
business representative , Thomas McPartlan, whose
testimony about the meeting was credited by the
Administrative Law Judge , someone asked the union
representatives what their local unions intended to do.
McPartlan replied that if Firelands were awarded the
contract, the Respondent would engage in information-
al picketing.
The Administrative Law Judge, citing United Broth-
erhood of Carpenters andJoiners of America, AFL-CIO,
Local No. 639 (American Modulars Corporation), 203
NLRB 1112 (1973), concluded that McPartlan' s state-
ment constituted a threat within the meaning of Section
8(b)(4)(ii)(B) of the Act inasmuch as it was "by its
terms unrestricted in scope and contemplated picketing
the entire jobsite , including future phases and any
employer working there ." We do,not agree.
In American Modulars Corporation respondent union,
when several neutral contractors were working at the
jobsite, threatened to engage in "informational picket-
ing of the Sherwood Acres jobsite ." The Board found,
"This statement, by its breadth, contemplated picketing
of the entire jobsite and anyone working there, whether
connected with the primary or neutral persons or
employers ." Unlike the situation in American Modulars
Corporation, McPartlan's statement was not a, threat to
picket neutral contractors who were or would in 'the
future be working at the jobsite . To 'find that the
statement was a general threat to picket neutrals is to
disregard th e context in which the statement was made.
Discussion at the meeting had centered ' on Firelands;
no contracts other than the one to Firelands ' had been
let; no other contractors or subcontractors were at the
time involved in the contracted work or talked about at
the meeting ; and McPartlan was responding to 'a
question as to what Respondent would do.' In these
circumstances, McPartlan's statement, although not
specific, is reasonably construed as threatening to
picket Firelands . A threat made to a contractor, to
engage in informational picketing against a s,ubcontrac-
ELECTRICAL' WORKERS , LOCAL 38
tor with which a union has a primary dispute is not a
threat to engage in proscribed activity but rather is the
mere giving of notice of prospective picketing against a
subcontractor of the general contractor . Such is the
case here.
When this case is measured against the ' precedent of
American Modulars and Fireland, the result must be a
finding that the words Shingary spoke were a threat within
the meaning of 8(b)(4)(ii). Here, Shingary said - without
elaboration that he might put up an informational picket
line if Cleveland Electro did not replace Wiring Unlimited
with a union contractor . The statement was, in theater
parlance, a throwaway line. While Shingary was undoubt-
edly aware, as he testified , of the legal technicalities of an
"informational" picket line as distinguished from one with
a different purpose, he made no effort to explain the
differences to Sokol or assure him that every effort would
be made to direct it only at Wiring Unlimited , the primary
employer, and not Cleveland Electro, the secondary.3 Most
significantly, since Shingary did not explain to Sokol what
exactly he had in mind when he used the phrase
"informational picket line," he stated, in effect, that Local
38 would , if certain events came to pass, picket Cleveland
Electro's entire plant. Unlike Fireland; Shmgary was not
simply announcing , at the beginning of a large-scale
building and construction project which was an entity in
and of itself and on which the contract which Local 38
found offensive was only the first of many, that he planned
to picket Wiring Unlimited only. Because it totally lacked
specificity and because Cleveland Electro 's entire plant
was, by implication , the target, Shingary's statement to
3 When Shtngary added that he might ask the Steelworkers to cooperate
with his picket line, of course , he explicitly indicated that the picket line
1079
Sokol on March 26 and again in March 27 that he might
resort to an informational picket line . falls within the rule of
American Modulars that a statement is a threat if, by its
breadth , it "contemplated picketing of the entire jobsite
and anyone working there , whether connected with the
primary or neutral persons or employers ." Since the threat
had as its object forcing or requiring Cleveland Electro to
cease doing business with Wiring Unlimited , I find that
Local 38 thereby violated Section 8(b)(4)(ii)(B) of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Cleveland Electro Metals Company and Wiring
Unlimited are employers engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 38 , is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By threatening on March 26 and 27, 1975, to picket
Cleveland Electro's plant and, on March 26, 1975, 'further
to ask the representative of Cleveland Electro's employees
to cooperate with an object of `forcing or , requiring
Cleveland Electro to cease" doing business with Wiring
Unlinuted , Local 38 has violated Section 8(b)(4)(ii)(B) of
the Act.
4. The aforesaid unfair labor . practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
would be informational in appearance only. As already indicated , however,
I do not think this case turns on that distinction