Electrical Workers, Local 453

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 719 (N.L.R.B. 1980)

ELECTRICAL WORKERS, LOCAL 453
International Brotherhood of Electrical Workers,
Local 453 and Southern Sun Electric Corpora-
tion. Case 17-CP-215
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELL.O
On June 24, 1980, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Brotherhood of Electrical Workers, Local 453,
Springfield, Missouri, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order.
t In adopting the Administrative L.aw Judge's finding of an 8(b)(7)(A)
violation, Member Jenkins does not adopt his reliance on International
Brotherhood of Electrical Workers. Local 265 ( RP M Electric), 236
NLRB 1333 (1978), enfd. 604 F.2d 1091 (8th Cir. 1979). As discussed in
his dissent therein. Member Jenkins does not find that a union's coupling
of "working conditions" with a reference to substandard wages necessar-
ily implies a demand that an employer do more than comply with area
standards In the instant case, Member Jenkins joins his colleagues in
finding that the advertisements placed by Respondent Union in the
Springfield Labor Record informing the public that Southern Sun Elec-
tric does not employ Respondent's members do indicate an organizational
objective proscribed by Sec 8(b)(7)(A) United Brotherhxood Of Carpenter
and Joiners, Local 906,.4FL-CIO (Blankenship Builders. Inc.), 204 NLRB
138 (1973).
DECISION
HAROI.D A. KENNEDY, Administrative Law Judge:
Respondent International Brotherhood of Electrical
Workers, Local 453, is charged in this proceeding with
violating Section 8(b)(7)(A) of the National Labor Rela-
tions Act, as amended, in connection with its picketing
of various jobsites in the Springfield, Missouri, area
where Southern Sun Electric Corporation performs elec-
trical work. Southern Sun filed a charge with the Re-
gional Director for Region 7 of the National Labor Rela-
tions Board on September 14, 1979,' and a complaint
was issued thereafter against Local 453 on October 16.
Jurisdiction and many other issues are not in dispute.
Respondent admits that Southern Sun is a Missouri cor-
poration engaged in the construction industry as an elec-
trical contractor. Respondent admits that Southern Sun
is an employer within the meaning of Section 2(2), (6),
and (7) of the Act. The pleadings further establish that
Southern Sun purchases in Missouri goods and materials
valued in excess of $50,000 from sources that purchase
them directly from outside the State of Missouri.
It was stipulated at the hearing that Congress of Inde-
pendent Unions, referred to herein as CIU, is a labor or-
ganization within the meaning of the Act. And see Gen-
eral Counsel's Exhibits 7, 8, and 9 and Respondent's Ex-
hibit 13.
The pleadings establish:
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Respondent is not the currently certified bargaining
representative of any of Southern Sun's employees.
3. On June 27, 1978. CIU was certified in Case 17-
RC-8413 as the exclusive bargaining representative of
the following unit of Southern Sun's employees:
All full- and regular part-time employees em-
ployed at the Employer's East Division Street,
Springfield, Missouri, facility, excluding all office
clerical and professional employees, guards and su-
pervisors as defined in the Act.
4. Southern Sun and CIU are parties to a collective-
bargaining agreement which covers the above-described
unit of employees and expires on May 31, 1981.
5. Respondent has, since on or about June 22, picketed
Southern Sun at jobsites in the Springfield, Missouri,
area with picket signs which state:
Notice To Public
Employees of Southern Sun Electric are doing elec-
trical work on this job, receiving wages, benefits,
and working conditions that are substandard to
[those] received by members of Local Union No.
453 IBEW. We have no dispute with any other Em-
ployer.
6. Union Business Manager Jim W. Hensley has been,
at all times relevant herein, an agent of Respondent
within the meaning of Section 2(13) of the Act.2
Respondent denies that it has demanded that Southern
Sun recognize or bargain with it as the representative of
Southern Sun's employees as alleged in paragraph 8 of
the complaint. Respondent also denies that it has picket-
ed in order to force or require Southern Sun to recog-
nize or bargain with it as the representative of Southern
Sun's employees in the above-described unit or to force
or require the employees in such unit to accept or select
All dates refer to 1979 unless otherwise stated The General Counsel
and Respondent have requested that certain corrections be made in the
transcript No objections have been made to the requested changes. and
they are therefore ordered as requested
2 The complaint alleged Hensley's title to be business representative.
252 NLRB No. 103
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent as their bargaining representative. Respond-
ent's answer concedes that a question concerning repre-
sentation of said unit employees could not be appropri-
ately raised, but asserts, among other things, the follow-
ing:
1. The Board determined in Case 17-CP-198, reported
at 242 NLRB 1130 (1979), that the picketing herein is
not violative of Section 8(b)(7)(A) of the Act.
2. This matter is res judicata and the picketing in-
volved herein resumed after the Board decided Case 17-
CP-198 in its favor on June 13, 1979.
3. The Regional Director is collaterally estopped for
proceeding while Case 17-CP-198 is pending in the
United States Court of Appeals for the Eighth Circuit.
4. This matter "merged" into the Case 17 CP-198 pro-
ceeding.
5. Prosecution of this action deprives Respondent of
due process.
6. Respondent's activity is "protected free speech." 3
Respondent's answer also sought dismissal of the com-
plaint because it failed to specify "the nature of the
charges." Respondent also filed, prior to the hearing, a
motion for a bill of particulars requesting "that the Gen-
eral Counsel be required to specifically state how and in
what manner [he] claims that Respondent has demanded
and is demanding that the employer recognize or bargain
with Respondent, including the names and positions of
the persons who allegedly are involved in such de-
mands." On November 9 the Board's presiding Adminis-
trative Law Judge in San Francisco, having considered
Respondent's motion "in the light of the allegations of
the complaint and the particulars supplied in the General
Counsel's timely filed response," denied the motion. The
General Counsel's response to Respondent's motion
stated in part:
With respect to Respondent's request for more
specificity with regard to the complaint allegations
of paragraph 8, averring that Respondent has de-
manded recognition from the Charging Party, the
General Counsel states that it is its contention that
the picketing described in paragraph 7 of the com-
plaint, viewed in full setting, constitutes a demand
for recognition.
This, it is to be noted, comports with the position
advanced by the Regional Director in the U.S. Dis-
trict Court for the District of Missouri, on a petition
filed under Section 10(1) of the Act arising out of
the instant charge. Here, as there, the allegations of
Respondent's violative conduct are predicated upon
the following:
(a) The testimony of Jim W. Hensley, business
manager, at the hearing on August 24, 1979, in
Case 17-CC-778 before an Administrative Law
Judge of the Board.
(b) Advertisements which Respondent has
placed in the "Springfield Labor Record" since
at least on or about August 10, 1979.
3 Respondent has abandoned the constitutional contentions initially
raised. Its brief contains no supporting arguments in support of them.
At the hearing Respondent filed a motion to amend its
answer herein so as to make reference to the effect of the
Board proceeding in Case 17-CC-778, which had been
heard on August 24. Respondent makes some of the
same arguments in its amended answer with respect to
the effect of Case 17-CC-778 as it did in its original
answer with respect to the effect of Case 17-CC-198:
1. The Charging Party, the General Counsel, and the
Regional Director are estopped from proceeding herein
because the charges are based on the same facts that
were involved in Case 17-CC-778.
2. The General Counsel has improperly split a cause of
action into multiple actions, depriving Respondent of due
process.
3. Any action herein has merged into Case 17-CC-
778.
The present status of Cases 17-CP-198 and 17-CC-
778 should be noted here. Administrative Law Judge
James Kennedy's Decision of November 7, 1978, in Case
17-CP-198, holding that Respondent had picketed
Southern Sun at various jobsites in July 1978 with a re-
cognitional objective in violation of Section 8(b)(7)(A) of
the Act, was reversed by the Board on June 13, 1979,
242 NLRB 1130. However, on April 11, 1980, the Court
of Appeals for the Eighth Circuit reversed the Board's
holding 620 F.2d 172. (On the same day the same court
affirmed another Board Decision Case 17-CC-619, re-
ported at 237 NLRB 829 (1978), holding that Respond-
ent's picketing of Southern Sun at a shopping center pro-
ject did not violate Section 8(b)(4)(i) or (ii)(B) of the
Act. 620 F.2d 170.)
Administrative Law Judge James Rasbury's Decision
of December 28, 1979, in Case 17-CC-778, holding that
the General Counsel had not established that Respondent
violated Section 8(b)(4)(ii)(B) of the Act by threatening
to picket a neutral employer, Empire Bank, if employees
of Southern Sun continued to perform work for the
bank, was affirmed on May 7, 1980. 249 NLRB 384.
At the hearing, the record of the proceeding in Case
17-CC-778 was received by stipulation, including the
transcript taken before Administrative Law Judge James
Rasbury on August 24, the charges filed, the complaint,
the answer, the briefs, the motion to reopen, Respond-
ent's answer in opposition to reopening, and the Admin-
istrative Law Judge's order denying reopening. (Resp.
Exh. 1-12.)
Four witnesses testified in Case 17-CC-778. Judge
Rasbury succinctly summarized their testimony in five
paragraphs, as follows: 4
J. A. Nelson, vice president and assistant treasur-
er of Southern Sun, testified that his Company had
been employed by the general contractor, Ronnie's
Remodeling, to perform certain electrical work at
an Empire Bank location in Springfield, Missouri.
He testified that the work was being performed but
had not yet been completed when they were ad-
vised to cease all work. Southern Sun has not per-
4 The General Counsel oered portions of the testimony of three of
the witnesses which were also received by stipulation. (G C. Exhs. 2, 3,
and 4)
720
ELECTRICAL WORKERS, LOCAL 453
formed any work for the Empire Bank since June
22.
Floyd Tucker, a vice president of Empire Bank,
testified that on June 22 James Hensley, whom he
knew to be business manager of Respondent, was in
the bank and they engaged in a conversation.
During this conversation, Hensley told Tucker that
Hensley had received complaints from his members
because there were non-IBEW members performing
electrical work on the Empire Bank's drive-in facili-
ty, Hensley said he would have to take some action
on his members' complaints. Tucker thought the
word "pickets" might have been mentioned during
the conversation, but said that it could have been
his word and not that of Hensley.
Tucker testified that he spends a good deal of his
time traveling on behalf of the bank and had no
knowledge of the work to which Hensley was re-
ferring, so he took Hensley to the desk of Billie
Reser, a senior vice president of the bank, in order
that the matter might be discussed with him.
According to Reser, Hensley told him that Hens-
ley had received complaints from his members
about non-IBEW workers performing electrical
work at the drive-in facility of the Empire Bank
and that he was going to have to look into the com-
plaints. Reser had been out of town on vacation and
had no knowledge of the particular work being per-
formed, but deemed Hensley's comments to be of
sufficient importance that he went immediately to
see Mr. Jefferies-president and chairman of the
board of the Empire Bank-to advise him of Hens-
ley's conversation. Reser testified that Jefferies told
him they did not want to get involved in any labor
trouble and for Reser to tell Cobb, an employee of
the bank, to inform the general contractor, Ronnie's
Remodeling, that the non-IBEW workers should be
taken off the job immediately. Reser said he went
back to his desk and made the call to Cobb. Reser
testified that during his conversation with Hensley
that there was some mention of pickets, but that it
might have been his Reser's own words or his as-
sumption.
James Hensley, the business manager for Re-
spondent, stated that the Union has its vacation
trust fund, health and welfare trust fund, pension
trust fund, and a checking account with the Empire
Bank, and have had said accounts there for a
number of years. Hensley testified that he had gone
to the Empire Bank on June 22 to check on the va-
cation trust fund to make sure that all employers
had completed their payments to the said fund, be-
cause the moneys from this particular vacation trust
fund are distributed to the members on July 1.
Hensley parrotted the testimony of Tucker and
Reser regarding his informing them of the com-
plaints from his members regarding the non-IBEW
employees working on the bank job. He denied
making any threats or even mentioning the words
pickets or picketing. Hensley did acknowledge on
cross-examination that he told Tucker and/or Reser
that he could not ignore the complaints his mem-
bers were making.
In addition, the parties stipulated into the record Ad-
ministrative Law Judge James Kennedy's Decision in
Case 17-CP-198 and the Board's Order dismissing the
complaint (later reversed).
The parties also stipulated into the record an advertise-
ment that had appeared in the Springfield Labor Record,
a weekly publication, on August 31. The advertisement,
received as General Counsel's Exhibit 5, reads:
PLEASE CUT THIS NOTICE OUT AND MAIL
TO OR CONTACT-THE BELOW NAMED
COMPANIES:
-PLEASE DO NOT PATRONIZE-
Electrical work at the following listed business and
construction projects is not being done by IBE\W
Local 453 Electricians.
Springfield Boys Club-720 S. Park
Ollis & Co.-2274 E. Sunshine
Arbys-735 S. Glenstone
Hutchens Industries-Patterson St.
H&R Block-1046 W. Sunshine
Shamrock Shopping Ctr.-3444 S. Campbell
Colonel Self Storage--3194 S. Campbell
Jim W. Hensley
Business Manager
Local 453
The parties agree that similar advertisements were run
in the Springfield Labor Record at the request of Re-
spondent beginning on or about March 1. The advertise-
ments varied in that different firm names would be listed
in the ads from time to time.
Jerry Nelson, vice president of Southern Sun Electric,
identified the current collective-bargaining agreement his
firm and CIU had executed. 5 Nelson testified that his
firm did commercial and residential electrical work. He
said he had read other advertisements of Respondent in
the Springfield Labor Record similar to General Coun-
sel's Exhibit 5 over the past several months. His firm had
done work for the Springfield Boys Club and Hutchens
Industries (firms listed in the August 31 ad) and was
picketed at each jobsite by Respondent. The picket signs
contained the language set forth in paragraph 7 of the
complaint as stipulated to by Respondent. According to
Nelson, Respondent picketed "nearly every job we had
going." 6
Nelson testified that picketing of his Company had
ceased during the pendency of the case before Adminis-
trative Law Judge Kennedy, while an injunction was in
effect, but picketing resumed after the Board reversed his
Decision. The fact that the picketing was to resume was
A cost-of-living increase that went into effect the second year is not
contained in the agreement.
' Nelson named 10 or so jobsites picketed by Respondent "They
suitched around here and there, but they picketed us just about eery
day unless it as raining eor something." he said
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
announced in local newspapers, on TV, and on the radio,
he said.
Nelson said his firm also performed work briefly for
the Empire Bank, but there was no picketing.
Jim Hensley, business manager and chief executive of-
ficer of Local 453, testified on defense that it was the
practice of Respondent to write a letter before picketing
a firm. He identified 14 letters he had written to Spring-
field, Missouri, concerns between June and October
1979, informing them that the Union would picket be-
cause "some electrical work is being performed by
Southern Sun Electric." The letters, which are identical
in content, state, in part:
Our sole purpose in this advertising is to inform
the public that employees of Southern Sun Electric
are working for wages and under conditions which
are substandard to those which our Union has
struggled many years to obtain.
The letters state that the picketing would be peaceful
and not interfere with any of the work deliveries or any
other activity. Hensley stated that it is his practice to
send letters of this kind to the "owner, the general con-
tractor, and the electrical contractor stating our position
on substandard wage pay."
Hensley said he had not sent any letters to the Empire
Bank and had not picketed it.
Hensley identified Respondent's Exhibit 15 as the col-
lective-bargaining agreement between Local 453 and the
Springfield Division, Kansas City Chapter of the Nation-
al Electrical Contractors Association, Inc. (NECA). The
agreement applied, he said, to "residential, commercial,
building wiring, parking lots, and so on." There is, he
said, an additional residential IBEW agreement which
provides for lower wage rates.
On cross-examination, Hensley agreed that his Union
had picketed Southern Sun at numerous jobsites in
Springfield after June 22. He acknowledged that Re-
spondent had sought to represent employees of Southern
Sun prior to the IBEW-CIU election and that Local 453
had thereafter protested the conduct of the election. 7 He
said he had stated under oath since that time, however,
that he would not represent Southern Sun employees and
that he would not do so. He said he had refused to talk
to Southern Sun employees about the prospect of repre-
senting them.8
' Local 453 won an election and the right to represent Southern Sun
employees after picketing the firms in 1976, but no contract was ever ne-
gotiated.
R Wendell Nelson, Jr., who Hensley had identified as one who had
called to say he wanted "out of the CIU and to belong to the IBEW,"
testified on rebuttal that he had never talked to tlensley Nelson also con-
tradicted the testimony of another defense witness, Charlie Howell, an
IBEW member who said Nelson had asked "how he could get into Local
453." Nelson said he never asked Howell about joining Local 453, but,
on the contrary, had told him that an IBEW Local in Oakland, Califor-
nia, had "nearly ruined him" by getting a contractor to lay him off.
Hensley also identified a piece of paper, Resp Exh. 30, bearing the
name of a Southern Sun employee, Leamon Eden, along with a tele-
phone number. which had been handed to one of the Union's pickets
Eden testified on rebuttal that he had given the note to a picket carrier
after the latter had indicated that he was not allowed to talk Eden said
he "could not believe what the sign said," and he wanted to talk to a
union official because they were jeopardizing his employment.
Asked why Respondent had run the advertisement in
the Springfield Labor Record, Hensley replied that it
was to inform members "who are using our people" and
"who their friends are." Hensley denied that in picketing
Southern Sun Respondent was seeking to force its em-
ployees either to join Local 453 or quit work.9
Hensley testified that his experience with CIU contrac-
tors had indicated to him that they pay substandard
wages and that he had picketed such contractors for that
reason. He initially claimed that he was familiar with the
bargaining contracts of CIU contractors that he had
picketed, but he was unable to recall if he had ever seen
a CIU agreement before resuming the picketing in June.
He then said he did not rely on provisions of such agree-
ments. Hensley testified:
I saw their paychecks. I have been told by their
people what their wages are repeatedly in the past
and presently. I know what their wage rates are ba-
sically. Whether I have a contract or not, I really
can't remember. I have got a stack of papers three
feet high.
Hensley said he had picketed Southern Sun and B & J
Electric with the same picket sign, but that different
signs were used in picketing other contractors. The signs
used in picketing the other contractors referred, he
thought, to the fact that they did not employ Local 453
IBEW members, but he was not sure. He said he did not
know what any of their wage rates were.
With respect to Southern Sun (and B & J Electric). he
said the Union's picketing served to notify the public of
the substandard wages being paid as recognition "was no
longer an issue." His dispute with Southern Sun, he said,
was over the fact that the electrical contracting firm's
wages and working conditions were "substandard." He
explained that working conditions include many things-
such as pension benefits, having "gang bosses on the job
site," having "a journeyman there to supervise you at all
times," and having two people present when "there is
480 volts-which come under "the protection of a con-
tract which Southern Sun doesn't have for their employ-
ees." He said he was not sure if grievance and hiring
procedures were working conditions, but he opined that
Respondent's procedures in these areas were superior to
the ones available under the CIU and Southern Sun con-
tract. 0
Hensley also stated on cross-exarmination that Southern Sun employees
had harassed and intimidated his pickets and that the Union had filed an
action in a circuit court of Missouri seeking an injunction and damages
against Southern Sun and W. W. Johnson Construction Co. (Resp. Exhs.
32, 33, and 34.) Southern Sun also filed an action in the same court seek-
ing injunction and damages against Local 453 and certain of its officers.
(Resp. Exh. 31.)
a Hensley agreed that Sam Miller, who had been a member of IBEW
Local 453, had been fined by the Union after he went to work for South-
ern Sun. According to Hensley, Miller was fined for joining another
union and working for a non-IBEW contractor. Hensley indicated Miller
was not referred to a job by his Union because he "was never around."
Miller later appeared as a witness and identified correspondence of Re-
spondent indicating that he had been fined $1,000 after being observed
working for Southern Sun at a Springfield shopping center.
'o Hensley claimed he knew that Southern Sun's wage rates and work-
ing conditions were inferior to those afforded by his Union as he had
Continued
722
ELECTRICAL WORKERS, IO()CAL 453
Section 8(b)(7)(A) prohibits a labor organization from
picketing or threatening to picket an employer for recog-
nitional or organizational purposes if the employer has
lawfully recognized another labor organization and a
question concerning representation may not be appropri-
ately raised.
Respondent concedes that it is a labor organization
under the Act, that it has picketed Southern Sun at job-
sites in the Springfield area since June 22, that it is not
currently certified as the representative of Southern
Sun's electrical workers, that Southern Sun has lawfully
recognized CIU as the representative of such employees,
and that a question concerning representation may not be
appropriately raised under the Act. The only question I
need determine, therefore, is whether Respondent's pick-
eting was with "an object" of forcing or requiring
Southern Sun to recognize or bargain with it or of forc-
ing or requiring Southern Sun's employees to accept or
select it as their collective-bargaining representative.
Quoting from a recent decision of the United States
Court of Appeals for the Eighth Circuit N:L.R.B. v. In-
ternational Brotherhood of Electrical Workers, Local 265
[R P & M Electric], 604 F.2d 1091, 1096 (1979):
Section 8(b)(7), enacted as part of the 1959 Lan-
drum-Griffin amendment to the Act, establishes a
comprehensive code governing recognitional and
organizational picketing. .... The application of
§8(b)(7) is limited to picketing by unions, not cur-
rently certified, where an object thereof is either
forcing or requiring an employer to recognize or
bargain with it or forcing or requiring employees to
select it as their bargaining representative.
The Supreme Court of the United States stated in
N.L.R.B. v. Local Union No. 103, International Associ-
ation of Bridge, Structural & Ornamental Iron Workers.
AFL-CIO, et al. (Higdon Contracting Co.), 434 U.S. 335,
346-347 (1978), held:
As for §8(b)(7), which, along with §8(f), was
added in 1959, its major purpose was to implement
one of the Act's principal goals-to ensure that em-
ployees were free to make an uncoerced choice of
bargaining agent. As we recognized in Connell Con-
struction Co. v. Plumbers & Steamfitters, 421 U.S.
"examined the contracts." Asked if he had gotten the contracts "through
these proceedings after the picketing started." Hensley said he could not
remember Also, he could not recall whether he had made "any other
investigation" to determine if Southern Sun's wage rates or working con-
ditions were inferior to Respondent's
I Sec. 8(b)(7)(A) makes it an unfair labor practice for a labor organi-
zation or its agents:
(7) to picket or cause to be picketed, or threaten to picket or cause
to be picketed, any employer where an object thereof is frcing or
requiring an employer to recognize or bargain with a labor organiza-
tion as the representative of his employees, or forcing or requiring
the employees of an employer to accept or select such labor organi-
zation as their collective bargaining representative, unless such labor
organization is currently certified as the representative of such em-
ployees:
(A) where the employer has lawfully recognized in accordance
with this Act any other labor organization and a question conccrning
representation may not appropriately be raised under section 9(c) of
this Act
616 (1975), "One of the major aims of the 1959 Act
was to limit 'top down' organizing campaigns. in
which unions used economic weapons to force rec-
ognition from an employer regardless of the wishes
of his employees." Id. at 632 and references cited
therein. The use of picketing was of particular con-
cern as a method of coercion in three specific con-
texts: where employees had already selected an-
other union representative, where employees had
recently voted against a labor union, and where em-
ployees had not been given a chance to vote on the
question of representation. Picketing in these cir-
cumstances was thought impermissibly to interfere
with the employees' freedom of choice.
It is to be remembered that the prohibitions of Section
8(b)(7) apply even if there are legitimate purposes in the
picketing; it only requires that recognition or organiza-
tion be "an object." See, for example, Building Service
Employees Union. Local No. 87 .4FL-CIO (Liberty
House/Rhodes), 223 NLRB 30 (1976). "Area standards
picketing"-i.e., picketing to induce an employer to
comply with prevailing area wage and benefit stand-
ards-is permissible but only if there is no recognitional
or organizational purpose. Houston Building and Con-
struction Trades Council (Claude Everett Construction
Company), 136 NLRB 321 (1962). Language used on the
picket signs does not necessarily establish the real object
or objects of the picketing. A union's self-serving dis-
claimer of picketing for recognitional purposes is not de-
terminative. See, for example, General Service Employees
Union Local No. 73, affiliated with Service Employees In-
ternational Union, AFL-CIO [A-l Security Service Compa-
n] v. .L.R.B., 578 F.2d 361 (D.C. Cir. 1978). Whether
a union pickets for recognition or organization is a ques-
tion of fact (.VL.R.B. v. Local 182, International Brother-
hood of Teamsters Chauffeurs. Warehousemen and Helpers
of America [Woodward Motors], 314 F.2d 53 (2d Cir.
1963)) to be determined by the organization's "overall
conduct." Teamsters Local Union No. 5, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers, Ind. (Barber Brothers Contracting
Co., Inc.), 171 NLRB 30 (1968).
The Court in R P & M Electric stated (604 F2d at
1097):
To establish that an object of picketing is recog-
nitional, it need not be established that the union is
seeking to gain recognition qua recognition. Rather,
Congress proscribed as recognitional picketing any
picketing that seeks to establish a union in a con-
tinuing relationship with an employer with regard
to matters which could substantially affect terms or
conditions of employment of his employees and
which are or may be subjects of collective bargain-
ing by a lawfully recognized exclusive representa-
tive... . Therefore, a recognitional object is estab-
lished when a union, although purportedly picket-
ing to maintain area standards, undertakes to go
beyond a legitimate area standard object and de-
mands that a picketed employer do more than equal
the total cost package of its area contracts. For ex-
723
DECISIONS OF NATIONAL I.ABOR RELATIONS BO()ARD
ample, to attempt to dictate to the employer the dis-
tribution of benefits paid to his employees between
wage and fringe benefits establishes a recognitional
object under §8(b)(7) . . . In such circumstances
the union's conduct is seen as an attempt to engage
in pro tanto bargaining to gain benefits for employ-
ees it does not represent.... Similarly, because the
rationale for permitting area standards picketing is
the recognition of the legitimate concern of unions
that the employers with whom they have contrac-
tual relationships should not be put at a competitive
disadvantage because of the cost of such contracts,
a union has no legitimate concern in demanding that
a picketed employer observe non-cost benefits
which the union obtained for its own members. At-
tempts to impose such noneconomic terms of em-
ployment on the employees of other employers
sounds more in terms of demanding acceptance of
the area bargain than adherence to area standards.
The record convinces me that the purpose of Re-
spondent's picketing was recognitional or organizational
and therefore unlawful. I am persuaded that Respond-
ent's purpose was to force Southern Sun out of business
and its employees out of work unless Southern Sun rec-
ognized Respondent and agreed to be bound by the col-
lective-bargaining agreement that it had negotiated with
NECA. (Resp. Exh. 15.)t "
The letters Respondent wrote and the picket signs it
used reveal that the Union was picketing for more than
area standards. The letters and pickets referred to the
"substandard" working conditions of Southern Sun's em-
ployees and clearly imply a recognitional and organiza-
tional objective. What the court said in R P & M (in en-
forcing the Board's Order in 236 NLRB 1333 (1978)) ap-
plies in the case at bar (604 F.2d at 1098):
That the Union requests extended well beyond a re-
quest to merely comply with area standards is readi-
ly apparent when one considers that it requested the
Company to maintain "the minimum standards of
wages, hours, and working conditions" established
by the Union for electricians in the area, and includ-
ed an offer to furnish the Company with its stand-
ard for all three categories mentioned. This lan-
guage appears to require the Company to adhere
not only to area wages and hours, but also to "other
working conditions which may or may not be eco-
nomic in nature and which flow from a collective-
bargaining agreement." Local 437, IBEW (Dimeo
Construction Co.), 180 NLRB 420, 421 (1969).
Indeed, the Board's interpretation of the language
of the August 9 letter is buttressed by the language
of the picket signs which stated that the Company
does not pay Union wages and conditions. This ref-
erence imports an object of bringing non-Union
conditions to an end by causing the Company to
recognize the Union as its employees' representa-
2 Respondent had picketed Southern Sun in 1976 and later had won
the right to bargain for Southern Sun's employees. No contract was ever
negotiated, however. Hensley proposed that the Southern Sun agree to
the IBEW agreements that had been previously negotiated
tive. This language clearly implies a recognitional
and organizational objective.
In the underlying case in R P & M, the Board, reject-
ing the union's contention that it had abandoned any at-
tempt at recognition, had pointed out that the union's
letter and picket sign, not unlike those used by this Re-
spondent, indicated otherwise. The Board stated (236
NLRB at 1334):
[W]e find that the letter was tantamount to a recog-
nitional demand constituting a continuation of Re-
spondent's efforts to obtain recognition. Respond-
ent's requests extended well beyond a request to
comply with area standards. Thus, it requested R P
& M to maintain the "minimum standards of wages,
hours and working conditions" established by the
Union for electricians in the area, and included an
offer to furnish the Company with its standards for
all three categories mentioned. This language ap-
pears to require R P & M to adhere not only to
area wages and hours, but also to other "working
conditions" which may or may not be economic in
nature and which flow from a collective-bargaining
agreement. 2 Furthermore, Respondent's picket sign
stated that "R P & M Electric does not pay union
wages and conditions." [Emphasis supplied.] The ref-
erence to "union . . . conditions" clearly implies a
recognitional and organizational objective. 3 Ac-
cordingly, Respondent's use of terminology such as
"working conditions" and "conditions" imparts a
meaning to Respondent's request which transcends
mere compliance with area standards, and instead
implies a request that R P & M adopt the terms (or
similar ones) of the labor agreements executed be-
tween Respondent and other employers in the
area. 4
2 Local 437, International Brotherhood of Electrtcal Workers.
AFL CIO, et al. (Dimeo Construction Co), 180 NLRB 420, 421
(1969).
3 San Francisco Joint Executive Board of the Culinary Workers.
Bartenders. otel, Motel and Club Service Workers. AFL-CIO
(Foodmaker. Inc., d/b/a Jack-ln-The-Box), 203 NLRB 744. 746
(1973).
4 Ibid.
The same court which enforced the Board's Order in R
P & M found that Decision controlling in the Board's
later Decision in Case 17-CP-198 and held Respondent's
picketing of Southern Sun in 1978 to be unlawful. Ac-
cording to the court, the "history of this dispute and the
language of the union's letters and picket signs" support-
ed a finding that Local 453 engaged in recognitional
picketing in violation of Section 8(b)(7)(A) of the Act.'3
620 F.2d at 177.
" The picket signs and letters which Respondent used herein after
June 27, 1979, were essentially the same The Board had thought that the
Administrative Law Judge in Case 17-CP 198 had interpreted the signs
too broadly on the facts there presented There is, however, additional
evidence here of Respondent's recognitional and organizational objective
in the form of testimony, primarily that given by Hensley, and Respond-
enl's advertisements
724
ELECTRICAL WORKERS, LOCAL 453
There are other facts of record which indicate Re-
spondent had sought by its picketing to force Southern
Sun out of business and its employees out of work unless
the Company recognized the Union. The advertisements
placed in the Springfield Daily Record refer to the fact
that electrical work was being performed on specifically
listed projects (by Southern Sun and other contractors)
by workers who were not members of the IBEW.'4 The
advertisements plainly invite a boycott of businesses be-
cause they are doing business with electrical contractors
who employ workers who are not members of Local
453. Further, Southern Sun's employee Sam Miller was
fined $1,000 for "working with Southern Sun employees
as an electrician for Southern Sun Electric," which had
signed a collective-bargaining agreement with another
union. ' 5
Hensley's testimony before Administrative Law Judge
Rasbury in Case 17-CC-778 (which the parties presented
to me for consideration by stipulation) and before me in-
dicated that Respondent had a recognitional and an orga-
nizational objective with respect to Southern Sun. Hens-
ley testified in Case 17-CC-778 that he had told an
Empire Bank official, Tucker, that Respondent was pick-
eting Southern Sun because "[T]hey are not IBEW mem-
bers," and "they are not an IBEW contractor." (Resp.
Exh. 1, p. 58.)L6 Hensley testified later that in picketing
Southern Sun he was protesting Southern Sun's substan-
dard wages, benefits, and working conditions. He ex-
plained what he meant by working conditions, as fol-
lows:
A. Working conditions. All employees should be
assured of pension benefits. He knows that he has
something laid up in the future. Other working con-
ditions, it says on there that the contractors will
have gang boxes on the jobsite. It says if there is
480 volts that there will be two people working on
it and not one. It says that if you are an apprentice,
that you will have a journeyman there to supervise
you at all times. That you won't put two, or three,
or four novices out on the job that might get hurt.
There are various requirements we have in ours
saying that that says that they will take two lessons
before they operate power activitated tools. They
have the protection of a contract which Southern
Sun doesn't have for their employees.
It is clear that Respondent's demands were much
broader than necessary to achieve compliance with area
standards. Paraphrasing the Board's Decision in R P &
M, the total picture is that of a union which had previ-
ously demanded recognition and thereafter sought to
achieve the same end under the guise of area standards
picketing.
'4 The ads did not reveal the material fact that employees of Southern
Sun were represented by another legally recognized union
i" Miller's activity was found to have violated four separate provisions
of the IBEW constitution.
l' Respondent did not picket Empire Bank It is to be noted. however.
that stating that an employer does not employ members of a labor organi-
zation does imply an organizational object See United Brotherhood of
Carpenters and Joiners, Local 906. .4fL-'10 (llanALenhip Builder. Inc ),
204 NLRB 138 (1973)
Respondent raises certain procedural issues which
must be considered. Pointing to the Board's dismissal of
8(b)(7)(A) charges in Case 17-CP-198 (later reversed)
and the dismissed 8(b)(4)(B) charges in Case 17-CC-778,
Respondent refers to a "procedural quagmire which the
General Counsel has created in this case." It asserts that
" res judicata, collateral estoppel, merging of causes of
action, and the rules against splitting the cause of action
clearly show that the General Counsel cannot prevail in
the instant case."'7 However, as the General Counsel's
attorney suggests in her brief, an agency is not barred
from proceeding where the facts have not been previous-
ly litigated. The charges involved in Case 17-CP-198 are
the same, but the facts are not identical because the time
period was entirely different. There are, in addition,
other facts to consider in the instant case, primarily the
testimony of Hensley and the Union's advertisements
which were published around March 1979.
There are some facts in the instant case which were
also before Administrative Law Judge Rasbury in Case
17-CC-778, but there are other facts, including the
Springfield Labor Record advertisements, letters, and ad-
ditional testimony, which could not have been consid-
ered by him in reaching his decision. More importantly,
the issue before Administrative Law Judge Rasbury was
not whether the picketing had an organizational or re-
cognitional object, but whether Respondent had engaged
in unlawful secondary activity. "
The authorities Respondent cites are inapposite and do
not compel dismissal of the instant matter. In United
States v. Utah Construction & Mining Co., 384 U.S. 394
(1966), the Supreme Court held:
[W]hen the Board of Contract Appeals has made
findings relevant to a dispute properly before it and
which the parties have agreed shall be final and
conclusive, these findings cannot be disregarded and
the factual issues tried de novo in the Court of
Claims when the contractor sues for relief which
the board was not empowered to give.
In that case the Supreme Court was presented with the
issue of whether breach of contract claims, arising out of
the construction of an AEC facility, previously adjudi-
cated by the agency's Advisory Board of Contract Ap-
peals could be retried de novo in the Court of Claims.
The disputed claims remained the same; the legality of
practices engaged in during different time periods with
different evidence was in no way involved.
" Of course, if Respondent is correct in saying that the legality of its
picketing of Southern Sun after June 22, in 1979, was determined in Case
17 CP- 19. then the Court of Appeals for the Eighth Circuit has decided
that it is unlawful
in Respondent's answer in opposition to the General Counsel's motion
to reopen Case 17 CC-778 is curious. The motion refers to the August
31, 1979, advertisement in the Springfield Labor Record (admitted herein
but not in Case 17-CC 77). proposes consolidation of a new complaint
(Case 17-CC-809) "about to he issued." and states that "this case should
be iewed as not an isolated incident but as a part of a pattern of con-
duct" (Resp. Exh. 10.) Respondent's response n opposition asserts that
"the so-called evidence referred to by the Employer clearly has no bear-
ing on this case and insolses a totally different act which the Employer
deems to be a violation of the Act '" (Resp Exh I 11.) Cf aremtont Corp
World Paurr )ivlon, 2415 NLRH 21t (1980)
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Safir v. Gibson, 432 F.2d 137 (2d Cir. 1970), cert.
denied 400 U.S. 942, the Federal Maritime Commission
had found that a conference of federally subsidized carri-
ers, AGAFBO, had reduced shipping rates to "an admit-
tedly noncompensatory and unreasonable" level in an
unfair attempt to drive Sapphire Steamship Lines, Inc.,
from the trade (the carrier of military cargo). The re-
duced rates were found to be "so unreasonably low as to
be detrimental to the commerce of the United States,
and, therefore, contrary to Section 18(b)(5) of the [Ship-
ping] Act" of 1916, as amended.
The court in a 1969 decision (417 F.2d 972) had point-
ed out that the Maritime Administration (not FMC
which had found AGAFBO to begin violation of Section
18(b)(5)) was required under Section 810 of the Mer-
chant Marine Act to consider whether subsidies paid to
AGAFBO members should be recovered. The Maritime
Administration thereupon directed an investigation on
the public record as "a basis for recommending . . .
whether Section 810, Merchant Act, 1936, as amended
(46 U.S.C. §1227), has been violated." The court held, in
effect, that FMC had decided that Section 810 of the
1936 Act had been violated. Finding it "unseemly" under
the circumstances for the Maritime Administration to be
able "to conclude that its sister agency had been wrong
on a fully litigated issue the decision of which Congress
had confided to it," the court directed that the Maritime
Administration be instructed (by the district court which
had declined to enjoin subsidy payments to members of
the AGAFBO on petition of Safir) "not to redetermine
the issue as to whether the AGAFBO carriers' concerted
act in reducing their rates to an unreasonably low level
and holding them there for eleven months was unjustly
discriminatory or unfair." The circumstances noted by
the court effectively distinguish the case from the instant
matter. Among them: "Section 810 is violated not only
when agreement by a subsidized carrier is justly discrimi-
natory or unfair to another American-flag carrier but
when such carriers 'engage in any practice in concert
with another carrier or carriers by water' having that
effect." The court pointed out that there was a difference
in the sanctions provided by the two statutes involving
different causes of action but it perceived no "injustice
would result" where AGAFBO had not sought judicial
review. The court stated: "While the issues here may not
have been purely factual, they were fully litigated before
the agency designated to determine them." (Emphasis sup-
plied.) The court added: "It is the FMC, not the Mari-
time Administration, that has the expertise to pass on
whether rates are unfair or unduly discriminatory."
The District Court in Whitman Electric, Inc. v. Local
363, International Brotherhood of Electrical Workers,
AFL-CIO, 398 F.Supp. 1218 (1974), held, after discuss-
ing the Utah Construction and Safir cases, that the
Board's "determinations of questions of law" in a Board
case (that had been enforced) holding that the union had
engaged in illegal secondary boycott activity was con-
clusive between the parties as there was "no showing
that injustice would result." The case before the court
presented the same issue that the Board had determined;
the law and facts were the same.
The other Labor Board cases are clearly distinguish-
able from the case at bar. In Mosher Steel Company v.
NV.L.R.B., 568 F.2d 436 (5th Cir. 1978), an Administra-
tive Law Judge had improperly permitted relitigation of
an employee's conduct (threats by Buruato) on a specific
occasion. In N.L.R.B. v. Deaton Truck Line, Inc., 389
F.2d 163 (5th Cir. 1968), an employer sought to reargue
the court's earlier (1961) decision that certain drivers
were employees. In N.L.R.B. v. Brown & Root, Inc., 206
F.2d 73 (8th Cir. 1953), the court declined to permit the
Board, on a request for rehearing, to change its position
with respect to the status of strikers (from economic to
unfair labor practice strikers) and explore the possibility
that there may have been jobs to which strikers may
have been entitled.
Finally, Respondent requests reconsideration of certain
rulings made during the hearing but it does not cite any
that could have resulted in prejudice to Respondent. It is
apparent that the General Counsel's attorney had pre-
sented a prima facie case when she completed her case-
in-chief, and, in any event, it did not prejudice Respond-
ent to hear the defense and other evidence before decid-
ing the issues in the case. Respondent was allowed to
show how Hensley dealt with "overtures ... and his re-
action to them." A party is called upon to present evi-
dence which has probative value. It is not apparent that
any question allowed was relevant only to another pro-
ceeding or resulted in any prejudice to Respondent. 19
Based upon the foregoing, I enter the following:
CONCLUSIONS OF LAW
1. Southern Sun Electric Corporation is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local 453, and the Congress of Independent Unions are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By picketing Southern Electric Corporation at job-
sites since June 22, 1979, with an organizational and re-
cognitional object at a time when that Employer had
lawfully recognized the Congress of Independent Unions
and a question concerning representation could not ap-
propriately be raised under Section 9(c) of the Act, Re-
spondent violated Section 8(b)(7)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
'l In the last section of its brief Respondent reiterates its contention
that this proceeding sought relitigation of matters previously ruled upon,
but this argument has been previously addressed
726
ELECTRICAL WORKERS, LOCAL 453
ORDER2 0
The Respondent, International Brotherhood of Electri-
cal Workers, Local 453, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from picketing Southern Sun Elec-
tric Corporation where an object thereof is forcing or re-
quiring an employer to recognize or bargain with it as
the representative of its employees, or forcing its em-
ployees to accept or select it as their representative,
where the employer has lawfully recognized another
labor organization and a question concerning representa-
tion cannot appropriately be raised under Section 9(c) of
the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its offices and meeting halls in Springfield,
Missouri, copies of the attached notice marked "Appen-
dix." 21 Copies of said notice, on forms provided by the
Regional Director for Region 17, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
20 In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
21 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National l.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
ter, in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(b) Furnish the Regional Director for Region 17
signed copies of said notice in sufficient number to be
posted by Southern Sun Electrical Corporation, if will-
ing.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT picket or threaten to picket South-
ern Sun Electric Corporation with an object of
forcing or requiring that employer to recognize or
bargain with us as the representative of its employ-
ees, or forcing such employees to accept us as their
representative, where Southern Sun has lawfully
recognized another labor organization as the repre-
sentative of its employees and a question concerning
representation cannot be raised.
INTERNATIONAl BROTHERHOOD OF El C-
TRICAL. WORKERS, LOCA 453
727