Electrical Workers Local 26, Etc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1498 (N.L.R.B. 1964)

1498 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
Electrical Workers Local 26, International Brotherhood ' of Elec-
trical Workers,` AFL-CIO and its Business Manager Robert
McAlwee and McCloskey & Co. Cases Nos. 5-CC-030 and
5-CD-93. Julie 30, 1964
DECISION AND ORDER
On January 20, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions to the Trial Examiner's Decision,
with a supporting brief. The General Counsel filed exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision
and the entire record in this case, including the exceptions and brief,
and hereby adopts the findings, conclusions, -and recommendations of
the Trial Examiner with the following modification.
The Trial Examiner found that the Respondents, Electrical Work-
ers, Local 26, and its business manager, Robert McAlwee, violated
Section 8 (b) (4) (ii) (B) and (D) of the Act. We agree with the Trial
Examiner that Respondents' conduct in threatening to withdraw the
services of all electricians on the project if employees represented by
the Sheet Metal Workers Union should perform the disputed work
was violative of Section 8 ('b) (4) (ii) (D). The work had been
awarded to the Sheet Metal Workers by the Joint Board, and, like
the Trial Examiner, we find that all parties were bound by that
award. The Respondents were not, therefore, entitled to seek to ob-
tain that work by methods proscribed by 8(b) (4) (D). We do not
agree, however, that the same conduct was also violative of Section
8(b) (4) (ii) (B). All of the electrical work had been subcontracted
by McCloskey to Foley-Ernst, and thus all the electricians on the
project were employees of Foley-Ernst. The threatened strike by the
electricians, if undertaken, would therefore have been exclusively
against Foley-Ernst, the primary employer, and as such would have
been a primary strike not violative of the secondary boycott provision
of Section 8(b) (4) (B) of the Act. And as such strike would not be
147 NLRB No. 159.
ELECTRICAL WORKERS LOCAL 26, ETC. 1499
violative of Section 8(b) (4) (B), the threat to engage in the strike
likewise cannot be regarded as a, violation of that section.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondents;
Electrical Workers Local 26, International Brotherhood of Electrical
Workers, AFL-CIO, its officers, agents, successors, and assigns, and
Robert McAlwee and his successor in office as business manager of the
aforesaid Local 26, shall take the action set forth in the Trial Ex-
aminer's Recommendations with the following modifications :
1. Modify paragraph 1 by deleting: "or (2) to force to require
McCloskey & Company to cease doing business with Foley-Ernst."'
2. Modify the notice appended to the Trial Examiner's Decision by
deleting: "or (2) to force or require McCloskey & Co., to cease doing
business with Foley-Ernst."
IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges
violations of the Act not found in this Decision and Order, be, and it
hereby is, dismissed.
i Cf General Drivers , Chavfeirs, and Helpers , Local Un ion. No 886 (The Stephens
Company ), 133 NLRB 1393, 1396.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint' herein , issued pursuant to Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act), and which was heard by Trial
Examiner Joseph I. Nachman at Washington , D.C, on November 26, involves alle-
gations that Electrical Workers Local 26, International Union of Electrical Workers,
AFL.-CIO ( herein called Electricians or the Union ), and its Business Manager
Robert McAlwee ( together with the Union called Respondents ), violated Section
8(b)(4)(ii )(B) and (D) of the Act. At the hearing all parties were represented
by counsel and were afforded full opportunity to be heard , to adduce pertinent evi-
dence, to examine and cross -examine witnesses , and to argue orally on the record.
Oral argument was waived . Briefs have been received from the General Counsel
and Respondents , which have been duly considered
Upon the entire record in the case, and from my observation of the witnesses,
including their demeanor while testifying , I make the following:
FINDINGS OF FACT2
I THE UNFAIR LABOR PRACTICE
A. Background
McCloskey is the general contractor for the construction of an office building in
Washington, D C., to provide additional office space for the House of Representa-
tives. McCloskey subcontracted all the required electrical work to Foley-Ernst, a
joint venture of the Howard T. Foley Co., and E. C. Ernst, Inc. Both joint ventures
but not the Joint Venture, as such, have a collective-bargaining agreement with the
'Issued October 25, upon charges filed September 6, In the CD case, and September 30,
in the CC case. All dates herein are 1963
2 The complaint alleges and the answer admits facts which establish that (1) McCloskey
& Co. (herein called McCloskey), and the joint venture of Foley-Ernst, are engaged in
commerce; (2) the Union Is a labor organization, and (3) the agency of Robert McAlwee.
I so find
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union; and neither has any employees who are members of or are represented by
Local 102, Sheet Metal Workers International Association, AFL-CIO (herein called
Sheet Metal Workers). Foley and Ernst are also members of the National Electrical
Contractors Association (herein called NECA).
The subcontract from McCloskey to Foley-Ernst provides that the latter will fur-
nish and install the necessary so-called luminous egg crate ceilings, with the neces-
sary hangers, T's, cross-T's, and wall angles.3 Foley-Ernst assigned the work of
installing the egg crate ceiling, with the necessary supports, to its employees repre-
sented by Electricians. However, Sheet Metal Workers made demand on Foley-
Ernst for the aforementioned work, and this dispute gave rise to the instant
proceeding.
B. The current facts
Early in July the dispute between the Electricians and Sheet Metal Workers con-
cerning the installation of the egg crate ceilings was submitted, apparently by the
latter, to the National Joint Board for the Settlement of Jurisdictional Disputes
(herein called Joint Board), for resolution. The Joint Board, on July 10, wired
McCloskey to submit by July 17, a "full and complete description of work in dis-
pute, including if possible pictures or prints." A copy of this telegram apparently
went to Foley-Ernst and to each of the contending Unions. The following day
(July 11), McCloskey wired Foley-Ernst, quoting in full the aforementioned tele-
gram from the Joint Board, and asked Foley-Ernst to prepare and submit the mate-
rial which the Joint Board had requested. On July 12 and 16, Foley-Ernst de-
livered to the Joint Board drawings and photographs, respectively, describing the
disputed work. On July 18, the Joint Board considered the dispute. It decided,
and by letter dated July 20, advised each of the parties:
The work in dispute shall be assigned to Sheet Metal Workers. This action of
the Joint Board was predicated upon particular facts and evidence before it
regarding this dispute and shall be effective on this particular job only.
On July 29, McCloskey wired Foley-Ernst calling attention to the Joint Board's
decision of July 20, and to certain information indicating that Foley-Ernst had not
complied therewith, and requested prompt compliance with the Joint Board's deci-
sion. On August 13, a conference was held at the jobsite office of McCloskey's
Project Manager Ryan Present in addition to Ryan, were Bancroft Foley, Jr.,4
McMahon, job superintendent for Foley-Ernst, Cash, business agent of Sheet Metal
Workers, and Respondent McAlwee. All parties are in accord that the topic of
conversation was the installation of the egg crate ceiling, each Union claiming the
work, McAlwee contending that the decision of the Joint Board was wrong, and
that he was taking steps to have the Joint Board reconsider the matter. During
this conference, Ryan telephoned James McCloskey (vice president of McCloskey)
to report that no agreement had been reached between the Unions, and that he
(Ryan) felt that a strike might result. At the end of this telephone conversation,
Bancroft Foley, Jr., in the presence of McAlwee, asked Ryan what decision had
been reached, and Ryan replied, in substance, that only one decision was possible,
namely, that Foley-Ernst should do the work using sheet metal workers. At this
point, according to Ryan, McAlwee stated that if the work was given to sheet metal
workers, there would be no electricians on the job.5
A day or two later James McCloskey initiated a telephone conversation with
McAlwee asking the latter why he would not comply with the Joint Board's deci-
sion. McAlwee replied that the work had traditionally been performed by elec-
tricians; that the Joint Board's decision was wrong; that he had no intention of
giving the work up; and if Foley-Ernst turned the work over to sheet metal workers,
"there wouldn't be any electricians on the job " 6
3 An egg crate ceiling is a type of construction whereby slats, made of aluminum or
plastic, run in opposite directions so as to be open at top and bottom Electrical fixtures
are hung above the ceiling, and the opening permits air and diffused light to pass
through
° Vice president of Howard P Foley Company, and a representative of Foley-Ernst.
I McAlwee denied making the statement attributed to him by Ryan. I credit Ryan.
See footnote 6. infra
This finding is bared on the credited testimony of McCloskey McAlwee has a some-
what different version of this conversation He at first denied that he had "indicate[d]
these would be a work stoppage," but later admitted that he "implied" to McCloskey
that the electricians were not going to strike no matter what Sheet Metal WCoikers did,
"but if electricians left the job it would be dark."' I got the definite impression from
ELECTRICAL WORKERS LOCAL 26, ETC. 1501
Under date of August 16, Foley-Ernst wrote the Joint Board regarding the latter's
decision of July 20 , and concluded that letter as follows:
We have now found , however, that there is a general confusion between the
two Unions concerning the interpretation of the assignment with respect to
independently hung ceilings or ceilings hung from common supports. Both
Unions interpret the decision of the Board as being awarded [sic] to them.
We hereby respectfully request that a clarification of the decision be made
and a definite statement concerning the erection be issued covering the ceil-
ings on this precise project.
The following day (August 17), the Joint Board wrote all the parties, enclosing a
copy of Foley-Ernst's letter of August 16, and stated:
In the event the application of this job decision [of July 20] to the work
covered therein is not clarified by the parties, this matter will be referred to
the Joint Board for clarification at its meeting of August 22, 1963.
At its meeting of August 22, the Joint Board reconsidered this dispute, and on
the following day notified the parties:
The Joint Board voted to clarify this job decision as follows: The installa-
tion of luminous egg-crate ceiling, hanger, tees, cross tees, and wall angles
shall be assigned to Sheet Metal Workers.
This action of the Joint Board was predicated upon particular facts and evi-
dence before it regarding this dispute and shall be effective on this particular
job only.
After receiving notification of the Joint Board's decision on reconsideration,
McCloskey on August 26, wrote Foley-Ernst to proceed with the work in com-
pliance with the Joint Board's decision. Foley-Ernst, however, refused to assign
the work to Sheet Metal Workers, and withheld performance of that portion of its
contract. Foley-Ernst continued, however, with its efforts to persuade the Joint
Board to change its decision.? Finally, on November 8,$ Foley-Ernst advised
McCloskey by letter that it would execute the work in accordance with the Joint
Board's decision. However, as of the date of the hearing (November 26), the work
had not gone forward .9
C. Contentions and concluding findings -
1. The 8(b) (4) (D) aspects of the case
a The validity of the complaint insofar as it alleges a violation of 8(b) (4) (D)
Respondent's basic contention is that the Section 8(b)(4)(D) allegations of the
complaint cannot stand because the preliminary step of a hearing under Section
10(k) of the Act is not alleged and, as all parties agree, no such hearing was in
fact held. The General Counsel resists Respondents' contention on the ground that
all the parties are bound to, and have submitted the dispute involved to the Joint
Board, which constitutes an agreed-upon method for the voluntary adjustment of
the dispute, and hence under the provisions of Section 10(k), no hearing pursuant
to that section can be held by the Board. The General Counsel further argues that
McAlwee's demeanor while testifying, that he was trying to be evasive by drawing a
distinction between a work stoppage openly induced by the Union, and a work stoppage
which he would regard as the individual action of the men. For that reason I have
credited the testimony of McCloskey and Ryan on this point, which is the only purely
factual issue in dispute.
'This took the form of a letter from Poage & Neal, counsel for Foley-Einst, to the
Joint Board, dated October 21, arguing that the Joint Board's decision was invalid be-
cause it had violated its own procedural regulations in processing this case. The Joint
Board declined to take any further action in the matter, other than to request the
parties to comply with the decision which it had theretofore made
8 In the meanwhile, the United States District Court for the District of Columbia, on
October 28, on petition of the Regional Director, enjoined Respondents from threatening,
coercing, or restraining McCloskey with an object of forcing the assignment of the dis-
puted work to Respondent, pending disposition of the matter by the Board.
e James McCloskey testified that he assumed the national day of mourning on Novem-
ber 25, had delayed the start of the work, and that he anticipated Foley-Ernst would
proceed in the next few days
1502 DECISIONS OF NATIONAL LABOR -RELATIONS= BOARD
the Board being-precluded from holding a hearing pursuant to Section ;10(k), and
the method agreed upon by the parties having failed to bring about an adjustment
-of the dispute, a complaint. alleging a violation of,Section 8(b)(4)(D) of the Act
is authorized. The issue is foreclosed, I conclude, by the Board's decision in Acousti-
cal Contractors Association of Cleveland, 119. NLRB 1345. In that case the Board
"Construe[d] the Act to permit the institution of an 8(b)(4)(D) complaint pro-
ceeding without the prerequisite of a hearing and determination under Section 10(k)
of the Act, if it appears that,,, there exists an agreed upon method of voluntary ad-
justment which has broken down in settling an underlying jurisdictional dispute."
I Emphasis supplied.] Although the Board did not apply that result in Acoustical
Contractors, etc., supra, because of its then existing Rules and Regulations, it di-
rected the amendment of such Rules and Regulations which would govern all future
cases. Rules and Regulations, Section 102.93, as amended.io Accordingly, I find
and conclude that the 8(b) (4) (D) complaint herein was properly issued if the
Regional Director was correct in finding that the contending unions and Foley-Ernst,
the employer with the power to assign the work, had agreed upon "methods for the
adjustment of the dispute," and that the methods so agreed upon failed to bring
about a "voluntary adjustment of the dispute." I proceed now to a considera-
tion of that question.
b. The agreed-upon method of adjustment and the results thereunder
Respondents concede, as the Board has held , that both Electricians and Sheet Metal
Workers are bound , by virtue of their affiliation with the -Building and Construc-
tion Trades Department , AFL-CIO, to submit jurisdictional disputes to the Joint
Board. See Acoustical Contractors, supra , at 1346-1347. The parties further con-
cede that Foley and Ernst , as separate entities , are members of NECA . The Gen-
eral Counsel contends that NECA has bound its membership to the Joint Board's
procedures . Alternatively, the General Counsel urges that whether bound by virtue
of membership in NECA or not , Foley-Ernst bound itself for the purpose of this
case by submitting information to the Joint Board, and by its request for reconsid-
eration and clarification of the initial decision . Respondents , on the other hand,
argue ( 1) that Foley-Ernst, as a joint venture , is a different entity than its separate
members, and as such is not a member of NECA, nor bound by the latter 's action;
and (2 ) that in any event NECA is without authority to bind its members to com-
pliance with Joint Board procedures ." I find it necessary to decide whether, on
the facts here, the membership of Foley and of Ernst in NECA bound the joint
"Respondent's contention that in N L R.B v. Radio & Television Broadcast Engineers
Union, Local 1212, IBEW (CBS), 364 U S. 577, the Supreme Court sub silentio overruled
the Board's prior decision in Acoustical Contractors,- supra, is plainly without merit. In
CBS the Court did not consider or decide what 10(k) requires the Board to do, or refrain
from doing, when there exists an agreed-upon method for the adjustment of the dispute.
All the Court held was that when the Board proceeds with a 10(k) hearing, it does not
discharge its statutory function by deciding merely that the charged union may not law-
fully engage in proscribed conduct, to force a work assignment ; that it must affirmatively
determine which of the contending unions is entitled to the work, and make an award
accordingly. That this is all the Supreme Court decided in CBS, is made clear by the
Court's recent decision in Carey, etc. v. Westinghouse Electric Corp , 375 U S 261, where
the Court approved the Board's practice of giving effect to private agreements for the
voluntary adjustment of jurisdictional disputes, and cited Acoustical Contractors, supra,
with approval. Id. at 4081.
11 Article VI, section 1, of the NECA constitution provides: "The governing body of
this association in ultimate control of all of its assets and affairs and to formulate its
policies and programs subject to the certificate of reincorporation of the Constitution and.
by-laws shall be the Board of Governors." In November 1957, the board of governors
adopted a resolution authorizing participation in the Joint Board's program "iiith
authority to obligate all of its IBEW employer members on building trades electrical
work, not including line construction work " The uncontradicted evidence in this case
is that pursuant to said resolution NECA advised the Joint Board that all of its IBEW
employer members would be bound by Joint Board procedures for other than line work.
The General Counsel argues that this resolution was effective to bind Foley-Ernst. How-
ever, in Local 450, International Union of Operating Engineers, AFL-CID (C. A. Turner
Construction Company and Hinote Electric Company), 119 NLRB 339, 344, the Board,
having before it a different provision of NECA's constitution, concluded that the NECA
constitutional provision there relied on was insufficient to authorize NECA to bind its
membership to abide by awards of the Joint Board.
,-,ELECTRICAL WORKERS,LOCAL 26i:ETC,., .i1 1503
venture of Foley-Ernst to abide, by awards of the Joint Board. - Assuming,-arguendo,,
that Foley-Ernst was not so bound I' agree with the General Counsel that-it bound
itself in that .respect so far as-the instant case is concerned , when, on July 12 and
16, it submitted the, drawings and photographs , respectively , to aid the Joint Board
in reaching it's decision, and its August. 16 request to the Joint Board that the latter
reconsider and, clarify its prior award, of the disputed work. A. W. Lee, Inc., 1.13
NLRB 947, 953; Jacobson & Co., Inc., 119 NLRB 1658, 1662.12 The record leaves
no room for doubt . that at least until it received the joint Board's award dated
August, 22 , Foley-Ernst was entirely willing, indeed it sought , • a decision from the
Joint Board with respect to the appropriate work assignment . It is equally clear
that the Joint Board's award, dated July 20, was regarded by Foley-Ernst, not as
one which the Joint Board was without authority to impose upon it, but rather as
an award which was erroneous , and it devoted its efforts to persuading the Joint
Board to change its decision to one which would result in a work assignment in line
with the result Foley-Ernst desired. .Only when it became evident that the Joint
Board would not change its award,'di'd Foley-Ernst first advance the contention that
it was not bound to comply with the awards made by the Joint Board in the instant
case. Even then it did not contend that it had not submitted itself to the Joint
Board 's jurisdiction , but relied solely on the proposition, also advanced here, that in
making its awards the Joint Board failed to follow its own procedural regulations.
See exhibit No. R-2.
Respondent 's related contention that the Joint Board's awards in the instant matter
are invalid because that body failed to follow its procedural regulations , is irrelevant
to any issue in this case and need not be decided . 13 Assuming , without deciding,
that the Joint Board violated its procedural regulations in the issuance of its awards,
that conclusion in no way negates the fact that the agreed-upon method of adjustment
failed to produce , in the language of Section 10(k), a "voluntary adjustment of the
dispute." Nothing in the statute or the Board's regulations indicate that the reason
for such failure is of any materiality . When there is an agreed -upon method for
adjusting the dispute , it is only where an actual adjustment results that Section 10(k),
and the Board's regulations , authorize dismissal of the charge . Absent such actual
adjustment , a complaint is authorized . The reason or reasons that the agreed-upon
method failed to result in an actual adjustment, are irrelevant and immaterial.
Accordingly, I find and conclude that there was an agreed -upon method for the
voluntary adjustment of the dispute , binding upon the parties; that such agreed-upon
method failed to produce an adjustment of the dispute ; and that issuance of the
8(b)(4)(D ) complaint herein was, therefore , appropriate.
c. The merits of the 8(b) (4) (D) allegation
McCloskey as vice president , and Ryan as project manager, were clearly in-
dividuals of the management level of their company . While a union 's attempt to
induce individuals of managerial level to engage in , or not to engage in, certain
activity, even for an object proscribed by Section 8(b)(4), is not unlawful, it is a
violation of Section 8(b) (4) (ii ), if for a proscribed object , the union goes "beyond
persuasion and attempt [s] to coerce such managerial officials." Carolina Lumber
Company, 130 NLRB 1438, 1443. McAlwee's statement to McCloskey and Ryan
that if Foley-Ernst , in compliance with the Joint Board 's decision , assigned the
disputed work to sheet metal workers "there wouldn't be any electricians on the
job," certainly went beyond the realm of "persuasion." Whether it be regarded as
12 Because , as I find , Foley-Ernst intended to submit this dispute to the Joint Board for
resolution , I do not regard Sline Industrial Pasnters , 119 NLRB 1925 , as being to the
contrary.
13 Respondent ' s allegations in this regard are (1 ) that the Joint Board failed to include
in its awards "a brief statement of the description of the work in dispute and the con-
clusions of the Joint Board with respect to the principal material issues which are in-
volved In the dispute " as required by section B-12 of the Joint Board's rules and regu-
lations ; and (2 ) that one of the members of the Joint Board present when the decisions
were reached, was a paid representative of Sheet Metal Workers, no alternate member
being designated to act In his place, contrary to section C-2 of said regulations With
respect to the second ground, the evidence shows that O'Toole, a member of the Joint
Board, and a paid representative of Sheet Metal Workers, was present when the instant
matters were considered, that he and a representative of Electricians present for the
purpose , presented the case on behalf of their respective organizations ; that such is nor-
mal practice before the Joint Board; and that O'Toole did not vote on the award to be
made. The evidence is silent as to whether an alternate was, or was not designated to
act in the place of O'Toole -
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a threat to strike , as Ryan and apparently McCloskey interpreted it, or as a state-
ment that in such event the members of Local 26 , as individuals , would not work,
as McAlwee apparently contends , it is clear that McAlwee intended to, and did
convey the theme that McCloskey & Company would suffer economic consequences
if the disputed work was assigned to sheet metal workers. This, as the Board has
held, is precisely the type of conduct that clause (ii) was designed to prevent.
Highway Truckdrivers and Helpers, Local No. 107, I.B.T. (Riss & Company,
Inc.), 130 NLRB 943, 947; Southern Construction Corporation, 132 NLRB 673.
The facts demonstrate wtihout doubt, indeed Respondents do not contend other-
wise, that an object of their conduct was to force or require Foley-Ernst to assign
the disputed work to employees who are members of, or represented by, Elec-
tricians, rather than to employees who are members of, or represented by, Sheet
Metal Workers.
It is therefore found and concluded that by threatening or coercing McCloskey,
as above set forth, for the aforementioned object, Respondents violated Section
8(b) (4) (ii) (D) of the Act.14
2. The 8(b)(4)(ii)( B) aspects of the case
In defense of this aspect of the case Respondents contend (1) that the state-
ments of McAlwee to Ryan and McCloskey did not constitute threats, coercion, or
restraint within the meaning of Section 8(b)(4); and (2) that the facts negate
rather than establish the alleged proscribed object of forcing or requiring McCloskey
to cease doing business with Foley-Ernst.
I have heretofore found and concluded that McAlwee's statements to McCloskey
and Ryan did constitute threats, restraint, and coercion, and that contention need
not be considered further With respect to the alleged lack of an 8(b)(4)(B) ob-
ject, the Board's recent decision in Retail Clerks Union, Local 770, et al. (Food
Employers Council, Inc.), 145 NLRB 307, is conclusive. As the Board there
stated:
. . . In the same case there may be both lawful and unlawful objectives. For
example, the ultimate objective of a strike may be, not to bring about a cessa-
tion of business between the primary and secondary employees, but in fact to
increase it, so as to increase the employment opportunities of the Union-
represented employees. The immediate objective, however, may be to cause a
cessation of business between the two employers, as a means of exerting pres-
sure to achieve the ultimate object. If the strike has such an immediate
objective, it is unlawful . Further, it is immaterial that the striking
union seeks to achieve a partial rather than a complete cessation of business
with any other person.
It is of course true that Respondents did not intend or seek a permanent cessa-
tion of business between McCloskey and Foley-Ernst. Only by said employers con-
tinuing their business relations could the members of Local 26 have the work which
those employers had for performance. But Respondents' conduct certainly had the
immediate objective of forcing or requiring McCloskey to suspend business rela-
tions with Foley-Ernst, and to resume them only on the terms which Respondents
sought to impose, namely, that the disputed work be performed only by members
of Electricians. In this posture, comparing the situation prevailing in Food Em-
ployers Council Inc., supra, with the facts in the instant case, McCloskey, by virtue
of Respondents' conduct directed at it, was left with no choice but to cancel Foley-
Ernst's contract-cease doing business with the latter. This cessation of business,
be it partial or total, "was thus not a hope or expectation or the side effect of legiti-
mate strike action, but the very way by which [Respondents] expected to achieve
[their] ultimate and preferred objective" of securing the performance of the dis-
puted work for members of Electricians. Food Employers Council, Inc., supra.
14 Respondent's contention that no violation of Section 8 (b) (4) (ii) (D) can be found be-
cause the threat or coercion was directed only to McCloskey, and there is no showing
that McCloskey had the authority to assign the disputed work to any employees, is with-
out merit. There is no requirement in that section that the inducement, or the threat
or coercion which Section 8(b) (4) proscribes, be directed to the employer possessing the
power to assign disputed work The violation is complete if "any person" (McCloskey),
is threatened or coerced and an object of that conduct is to force or require "any em-
ployer" (Foley-Ernst) to assign disputed work to one group rather than another. Local
450, International Union of Operating Engineers (Stine Industrial Painters, et al ) v.
Edwin A. Elliott, Reg. Dir., 256 F. 2d 630, 635 (C.A. 5).
ELECTRICAL WORKERS LOCAL 26, ETC. 1505
Accordingly , I find and conclude that by McAlwee 's statements to Ryan and
McCloskey , with an object of causing McCloskey to cease doing business with Foley-
Ernst , Respondents violated Section 8(b) (4) (ii ) ( B) of the Act.
THE REMEDY
Having found that Respondents have engaged in and are engaging in unfair labor
practices proscribed by Section 8(b)(4)(ii)( B) and (D) of the Act, it will be
recommended ,that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. McCloskey and Foley-Ernst are employers within the meaning of Section 2(2)^
of the Act, and are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 26 is a labor organization within the meaning of Section 2(5) of the
Act, and Robert McAlwee is an agent of Local 26.
3. By threatening, coercing, and restraining McCloskey with an object of forcing
or requiring Foley-Ernst to assign ,the disputed work to employees who are members
of or represented by Electricians, rather than employees who are members of or
represented by Sheet Metal Workers, Respondents engaged in and are engaging in
unfair labor practices proscribed by Section 8(b) (4) (ii) (D) of the Act.
4. By threatening, coercing, or restraining McCloskey with an object of forcing or
requiring McCloskey to cease doing business with Foley-Ernst, Respondents engaged
in and are engaging in unfair labor practices proscribed by Section 8(b)(4)(ii)(B)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Local 26, International Brother-
hood of Electrical Workers, AFL-CIO, its officers, agents, successors, and assigns,
and Robert McAlwee and his successors in office as business manager of the afore-
said Local 26, shall:
1. Cease and desist from threatening, coercing, or restraining McCloskey & Com-
pany or any other person engaged in commerce or in an industry affecting commerce,
where an object thereof is (1) to force or require the joint venture known as Foley-
Ernst, to assign the work of installing luminous egg crate ceilings, hangers, tees,
cross tees, and wall angles at the House of Representatives office building project in
Washington, D.C., to employees who are members of or represented by Local 26,
International Brotherhood of Electrical Workers, AFL-CIO, rather than to employ-
ees who are members of or represented by Sheet Metal Workers International Asso-
ciation, AFL-CIO, or (2) to force or require McCloskey & Company to cease
doing business with Foley-Ernst.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post at the business offices and meeting halls of Local 26, International
Brotherhood of Electrical Workers, AFL-CIO, in Washington, D.C, copies of the
attached notice marked "Appendix." 15 Copies of said notice, to be furnished by
the Regional Director of the Fifth Region of the Board (Baltimore, Maryland),
shall, after being signed by an authorized representative of Local 26, International
Brotherhood of Electrical Workers, AFL-CIO, and by Robert McAlwee, be posted
by said Local 26, immediately upon receipt thereof, and be maintained by it for 60 ,
consecutive days thereafter, in conspicuous places, including all places where notices
to its members are customarily posted. Reasonable steps shall be taken by Respond-
ents to insure that said notices are not altered, defaced, or covered by any other
material.
is In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced'
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
756-236-65-vol. 14 7-9 6
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Furnish to the aforesaid Regional Director an adequate number of signed
copies of the aforesaid notice for posting by McCloskey & Company, and by Foley-
Ernst, at the jobsite of the House of Representatives office building in Washington,
D.C., where notices to their employees are customarily posted, said employers being
willing.
3. Notify said Regional Director, in writing, within 20 days from receipt of this
Decision, what steps Respondents have taken to comply herewith.16
16 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND AGENTS AND TO ALL
EMPLOYEES OF FOLEY-ERNST
Pursuant to the Recommended Order of a Trial Examiner and in order to conduct
the business of Local 26 as required by the National Labor Relations Act, we
notify you that:
WE WILL NOT threaten, coerce, or restrain McCloskey & Co., or any other
person engaged in commerce or in an industry affecting commerce, where an
object thereof is (1) to force or require Foley-Ernst, to assign the work of
installing luminous egg crate ceilings, hangers, tees , cross tees , and wall angles,
at the House of Representatives office building project in Washington, D.C., to
employees who are members of or represented by Local 26, International
Brotherhood of Electrical Workers, AFL-CIO, rather than to employees who are
members of or represented by Sheet Metal Workers International Association,
AFL-CIO; or (2) to force or require McCloskey & Co., to cease doing business
with Foley-Ernst.
ELECTRICAL WORKERS LOCAL 26, INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
Dated------------------- By-------------------------------------------
(ROBERT MCALWEE)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any questions about this notice or whether Local 26 is comply-
ing with its provisions, they may communicate with the Board's Office, Sixth Floor,
707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Exten-
sion 2100.
Smith Cabinet Manufacturing Company, Inc. and Local Union
2577, United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO. Case No. 05-CA-1665. JWe 30, 1964
DECISION AND ORDER
On April 9, 1963, Trial Examiner Reeves R. Hilton issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
147 NLRB No. 168.