Electrical Workers Union Local 38, Etc.

National Labor Relations Board - Board Decisions

Aug 16, 1962

138 N.L.R.B. 160 (N.L.R.B. 1962)

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act:
All production and maintenance employees at the Employer's
Holmwood, Louisiana, rice drier and warehouse, including the weigher
and clerk, but excluding all office clerical employees, professional
employees, guards, watchmen, foremen, and all other supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
Electrical Workers Union Local 38, International Brotherhood
of Electrical Workers, AFL-CIO and Hoertz Electric Mainte-
nance Co. Case No. 8-CC-138. August 16, 1962
DECISION AND ORDER
On May 9, 1962, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceeding, finding that Elec-
trical Workers Union Local 38, International Brotherhood of Elec-
trical Workers, AFL-CIO, hereinafter called the Respondent or the
IBEW, 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 filed exceptions to the Inter-
mediate Report and a supporting brief and Hoertz Electric Main-
tenance Co., the Charging Party, hereinafter called Hoertz, filed a
memorandum in support of the Intermediate Report.
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 Rodgers and Fanning].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent with the
decision herein.
The Trial Examiner found that the Respondent violated Section
8(b) (4) (ii) (B) by the totality of its conduct which, in effect, threat-
138 NLRB No. 17.
ELECTRICAL WORKERS UNION LOCAL 38 , ETC. 161
ened Ohio Pipe and Supply Company , hereinafter called Ohio Pipe,
with a strike unless Ohio Pipe ceased doing business with Hoertz.
The Respondent contends that the General Counsel has failed to meet
his burden of proof that the Respondent threatened , restrained, or
coerced Ohio Pipe within the meaning of the proscription of (ii) of
Section 8 (b) (4). We find merit in the contention of Respondent.
On January 5, 1962, Ohio Pipe , acting as its own general contractor
for the construction of an addition to its business premises , awarded
certain electrical work on the project to Hoertz . On January 9, 1962,
Seeholzer , the business agent for the Respondent , visited the premises
of Ohio Pipe and, in the course of conversations with Larsen and
Sisson, vice presidents of Ohio Pipe , stated that Hoertz was nonunion
and requested that the electrical work be given to a union contractor.
When asked what would happen if the electrical work was not taken
from Hoertz , Seeholzer replied that he would seek the cooperation
of the Plumbers Union which represented Ohio Pipe 's employees and
the employees of its customers . Seeholzer was asked to return on
the next day and discuss the matter with Irwin , the president of
Ohio Pipe.
The next morning Seeholzer returned , accompanied by Kocian, the
business representative of the Plumbers , and Laverty , the business
representative of a Carpenters local. During the meeting Seeholzer
took the position that Ohio Pipe, despite its contract with Hoertz,
should let Hoertz go and hire a union contractor . While the meeting
was in progress , five union business agents , representing various con-
struction industry locals , appeared at Irwin 's office. Each checked the
name of the contractor who handled the particular work within the
jurisdiction of his craft , and, after being satisfied that the work had
been handled by union contractors , they all left . The meeting ended
with Kocian stating that Ohio Pipe should hire a union contractor,
that that was the only way that the work could be done satisfactorily,
and that it should be done right away . Kocian also told Sisson that
he (Sisson ) had been wrong in awarding the electrical work to Hoertz
and "the only satisfactory way out of it is for you to let Hoertz go
and hire a union contractor." Kocian noted that Ohio Pipe had never
had any trouble with the Plumbers Union and, in consideration of
such relations, should hire a union contractor for the electrical work.
Thereafter , Ohio Pipe would not allow Hoertz to continue work
until after the charges in the instant action were filed.
In our view, the conduct herein falls short of that proscribed by
(ii) of Section 8(b) (4). The General Counsel has not established
that a strike threat was made, either overtly or inferentially , or indeed
that any other acts were engaged in by the Respondent which would
constitute "threats, restraint , or coercion ." The Respondent informed
Ohio Pipe only that it would seek the "cooperation" of the Plumbers.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Plumbers' cooperation as it turned out consisted of Kocian's
statements to officials of Ohio Pipe that its conduct in engaging Hoertz
was wrong, that the wrong could be corrected satisfactorily by the
replacement of Hoertz with a union contractor, and that Ohio Pipe
should replace Hoertz in consideration of its trouble-free relations
with the Plumbers in the past. Such statements clearly contain no
direct threat of a strike. Nor are we willing to infer a threat of a
strike which would be based simply on the statements made by
Kocian,i The most that can be inferred from such statements is that
if Ohio Pipe decided not to replace Hoertz, it could expect that its
bargaining relationship with the Plumbers would not be as trouble-
free in the future as it had been in the past. While Ohio Pipe may
have construed such statements as foretelling a possible strike over
some issue arising in future bargaining negotiations, it cannot reason-
ably be construed as a threat to strike over an issue as to which the
Plumbers would have no right to strike. Moreover, Kocian's state-
ments are just as open to a construction that he was simply requesting
favorable consideration of his suggested solution of the matter in
issue because of the lack of trouble between Ohio Pipe and the Plumb-
ers in the past. His request to Ohio Pipe, under this view, would be
that Ohio Pipe be considerate of the Plumbers in view of the awkward
position the Plumbers would otherwise be put in by Ohio Pipe in the
Plumbers' relationship with a sister union, the IBEW. In these cir-
cumstances, we find that the Respondent's reference to the Plumbers'
cooperation amounted to lawful persuasion rather than to attempts
to threaten, coerce, or restrain Ohio Pipe.2
As for the simultaneous visit by the other construction industry
unions, who presumably were informed that Ohio Pipe had engaged
one nonunion contractor, no more was done than check for the identity
of the contractors who performed the craft work within their respec-
tive jurisdictions. This check is an insufficient basis upon which to
infer any proscribed conduct on the part of Respondent.
Accordingly, we shall order the complaint herein be dismissed.
[The Board dismissed the complaint.]
MEMBER RODGERS, dissenting :
I would affirm the Intermediate Report.
'Moreover , we note that Kocian testified that the Plumbers ' contract with Ohio Pipe
contains a no-strike clause ; the General Counsel offered no evidence to rebut an inference
that a strike in furtherance of the demand herein would be in violation of that clause.
In view of this clause in the parties ' contract , we find it difficult to infer a threat of a
strike which would violate the contract where we could as likely impute other, legal, impli-
cations to the statements
2 Cf. United Slate, Tile and Composition Roofers , Damp and Waterproof Workers Asso-
ciation, AFL-CIO, Local Union No. 57 (Atlas Roofing Co. Inc ), 134 NLRB 367, Local
32i, International Union of Opeiatiny L'ngii,cers, AFL-CIO (Bieuer's City Coal Dock),
131 NLRB 228
ELECTRICAL WORKERS UNION LOCAL 38, ETC. 163
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case, Case No. 8-CC-138, was brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act,
on a charge filed January 11, 1962, and an amended charge filed January 16, 1962, by
Raymond J. Hoertz, doing business as Hoertz Electric Maintenance Co., a solely
owned individual proprietorship, herein called Hoertz. The charges were filed against
Electrical Workers Union Local 38, International Brotherhood of Electrical Workers,
AFL-CIO, herein called Respondent; Donald B. Seeholzer, its business representative,
and Cleveland Building & Construction Trades Council. On February 19, 1962,
General Counsel issued a complaint against Respondent. The complaint alleges
that beginning on or about January 10, 1962, Respondent violated Section 8(b)(4)
(ii) (B) of the Act by threatening, coercing, and restraining Ohio Pipe and Supply
Company, an employer engaged in commerce, with the object of forcing that com-
pany to cease doing business with Hoertz. On February 27, 1962, Respondent filed
an answer to the complaint denying the alleged violation. It also denied in the
answer that Ohio Pipe and Supply Company was an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, or that the conduct it al-
legedly engaged in in connection with the operations of Ohio Pipe and Supply Com-
pany had a close, intimate, or substantial relation to interstate commerce or affected
commerce within the meaning of Section 8(b)(4)(ii)(B) or Section 2(6) and (7)
of the Act. It admitted in its answer that it was a labor organization within the
meaning of Section 2(5) of the Act.
A hearing on the complaint and answer was held on March 19, 1962, before
Trial Examiner James F. Foley. Respondent, General Counsel, and Charging Party
were represented by counsel. All parties were afforded an opportunity to be heard,
make oral argument, and file briefs. Respondent, by counsel, filed a brief after
the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE NEUTRAL OR SECONDARY EMPLOYER
Ohio Pipe and Supply Company, an Ohio corporation, herein called Ohio, has
its principal office and place of business at Cleveland, Ohio, where it is engaged in
the business of selling as a distributor to industrial and manufacturing plants in
"Greater Cleveland," and to other customers, plumbing and heating equipment and
supplies, and of manufacturing and distributing aluminum greenhouses for residential
use. Annually, its purchases directly from sources outside the State of Ohio are
of a value in excess of $50,000. I find that Ohio is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that the assertion of jurisdiction
will effectuate the purposes of the Act.
H. LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Evidentiary findings
1. Background evidence
The following background evidence is undisputed.
On January 5, 1962, Ohio awarded a contract to Hoertz, an electrical subcontractor,
for the electrical work on an addition to its place of business . Ohio was acting as
its own general contractor. Hoertz began work on January 6, 1962. At that time
most of the construction work on the new addition, which was begun in September
1961, had been completed. Besides the electrical work, there remained only the
erection of a crane and a monorail system, and a small amount of masonry to support
that system and two pipe machines. Ohio's employees are represented by a local
of the United Association of Journeymen & Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO, herein called the
Plumbers Union. Ohio and the Plumbers Union are parties to a collective-bargaining
contract. Ohio has approximately 45 employees, but the record does not disclose
the number in the unit represented by the Plumbers Union. All but a few clerical
and custodial personnel would appear to be included. Hoertz is a nonunion con-
tractor, that is, he does not have a collective -bargaining contract with Respondent
662353-63-vo1 138-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other unit. He is the sole proprietor of Hoertz, is self-employed, and he
and one to two employees constitute the entire working staff.
2. The alleged illegal pressure on Ohio, the secondary employer
On January 9, 1962, about 4:30 p.m., Robert C. Larsen, Ohio's vice president in
charge of production, saw a strange person inside the new addition to Ohio's place
of business, looking it over. Larsen's office is close to the site of the new addition.
Larsen asked him if he could help him. The person identified himself as Seeholzer,
the business representative of Respondent. Seeholzer asked Larsen who the electrical
contractor was, and Larsen replied that it was Hoertz. Seeholzer then asked Larsen
if he knew that Hoertz was not a union contractor, and Larsen said that he did not
have this knowledge. Seeholzer asked Larsen if there were other bidders on the
electrical work, and Larsen answered by saying that they had better see Donald F.
Sisson, Ohio's vice president in charge of contracts. Seeholzer and Larsen went into
Sisson's office. Larsen introduced Seeholzer to Sisson, and the three of them went
into the office of President Irwin of Ohio. Irwin had left for the day.
Seeholzer asked Sisson if he was aware that Hoertz was not a union contractor.
Sisson replied that he did not know whether Hoertz was or was not a union con-
tractor. Sisson also said that Ohio had a contract with Hoertz and was satisfied with
Hoertz' work. Seeholzer then said that he was not satisfied with Hoertz doing the
electrical work. He requested Larsen to give the work to a union contractor, and
asked Sisson who the other contractors were who bid on the work. Sisson told him
who the other bidders were, and then said he did not see how he could take the work
away from Hoertz in view of the contract Ohio had with him. He asked Seeholzer
if Ohio could continue Hoertz on the work, and stated that in the future Ohio would
bear in mind the importance of hiring a union contractor. Seeholzer said it would
not be possible to continue using Hoertz, that Ohio would have to hire a union
contractor. Sisson asked Seeholzer what would happen if the electrical work was
not taken from Hoertz. Seeholzer said that if Ohio did not voluntarily take the
work from Hoertz and give it to a union contractor, he would have to seek the co-
operation of the Plumbers Union, which represented Ohio's employees and those
of its customers. Sisson then said that a decision could not be reached until the
matter was discussed with President Irwin. He asked Seeholzer to return the next
morning for a conference with President Irwin. Seeholzer said he would.
Between 9:30 and 10 o'clock the following morning, January 10, 1962, Vice Presi-
dent Sisson met Seeholzer in the lobby of Ohio's place of business. Seeholzer was
accompanied by Conrad Kocian, business representative of the Plumbers Union,
and Business Representative Laverty of a Cleveland local of the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, herein called Carpenters Local.
Hoertz was standing with them. He had just finished a conversation with Seeholzer
in the presence of Laverty and Kocian, and two other representatives of AFL-CIO
craft locals.' Seeholzer, Kocian, Laverty, and Hoertz accompanied Sisson to the
office of Ohio's President Irwin. Sisson introduced them to Irwin.
Seeholzer asked if Sisson and Irwin had decided whether or not to hire a union
contractor. Sisson or Irwin replied that they did not see how they could as Ohio
had a contract with Hoertz. Sisson again asked him if Ohio could let Hoertz finish
the job. Seeholzer replied that the only satisfactory solution was for Ohio to hire
a union contractor to replace Hoertz. Kocian then said that they were getting
nowhere and asked for a private meeting. He answered yet to Sisson's question
whether he meant a meeting without Hoertz. Sisson asked Hoertz to leave. Shortly
after Hoertz left, five union representatives appeared in Irwin's office unannounced.
Kocian or Seeholzer introduced them. They were Anthony lousue of a Painters z
local, Martin Graham of a Bricklayers 3 local, William Thomas of a local of Sheet
Metal workers,4 George Urich of a Tile and Terrazzo Workers Local of the Brick-
layers, and Konzen of a local of the Roofers Union.5 Sisson was asked to name
the contractors who did the painting, masonry, roofing, sheet metal, and other
work. The particular representatives were satisfied that the types of work handled
1 Seeholzer had told Hoertz that as a nonunion contractor he could not do electrical work
on a new addition When Hoertz disagreed, Kocian said that they were getting nowhere,
and should talk to representatives of Ohio.
z Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO.
s Bricklayers, Masons and Plasterers International Union of America, AFL-CIO.
4 Sheet Metal Workers International Association, AFL-CIO.
5 United States Tile and Composition Roofers Damp and Waterproof Workers Associa-
tion, AFL-CIO.
ELECTRICAL WORKERS UNION LOCAL 38, ETC. 165
by their unions ' members were done by union contractors .° Kocian said that Ohio
should definitely hire a union contractor, that that was the only way the work could
be continued satisfactorily, and that it should be done right away. In answer to
Kocian, either Sisson or Irwin replied that while they did not see how they could
replace Hoertz since he had a contract , they could not give him a definite answer
at that time. Seeholzer said he would return the next morning for a definite answer.
When the meeting ended , Vice President Sisson and Plumber Union 's Business
Representative Kocian had a conversation . Kocian said to Sisson that he had been
wrong in awarding the electrical contract to Hoertz before checking with Respondent.
He further said that "the only satisfactory way out of it is for you to let Hoertz go
and hire a union contractor . I am sure you can make some arrangements to see
that is done." Kocian also said that Ohio had never had any trouble with the
Plumbers Union, which represented the employees of a great number of Ohio's cus-
tomers and suppliers , and had never had any trouble with him. Sisson agreed with
Kocian that that was the case. Kocian then said that in consideration of such
relations between Ohio and the Plumbers Union, Ohio should hire a union con-
tractor for the electrical work.
When the union representatives left, Sisson and Irwin had a conversation . Sisson
testified that "we discussed the matter and came to the conclusion that we were
afraid to go ahead with the job under Mr. Hoertz ' direction , and we called in Mr.
Hoertz and told him to shut down the job as soon as he could do so in safety."
Hoertz and his employees discontinued work about 2 o'clock that afternoon. See-
holzer returned to Sisson 's office the next morning . Sisson informed him Ohio had
told Hoertz to discontinue the electrical work , and that it would make an effort to
hire a union contractor . He then said that Hoertz was displeased , and he did not
know what the outcome would be. Seeholzer said he appreciated Ohio 's decision
to take the work from Hoertz, left with Sisson a list of union electrical contractors
acceptable to him, and left.?
As previously found , the unfair labor practice charge and the first amended
charge against Respondent were filed on January 11 and 16 , 1962, respectively .8
On or about January 30, 1962, a Mr. Corrigan, attorney for the Cleveland Building
Trades Council,9 a Mr. Settler, attorney for Respondent, and Kocian, Plumbers
Union 's business representative , visited Ohio 's place of business and asked for a
meeting with President Irwin and Vice President Sisson.fo
6 Seeholzer testified that these business agents , as representatives of the Cleveland Build-
ing Trades Council, called weekly at construction jobs on the west side of Cleveland, just
happened to be in the vicinity on January 10 during their weekly calls , and called on Ohio
when Seeholzer , Kocian, and Laverty were having a meeting with President Irwin and
Vice President Sisson of Ohio. However, they had not previously visited Ohio either dur-
ing or before the construction which started in September 1961. Nothing was said that
would indicate that they were visiting only by Seeholzer , Kocian , or ariy of the others
when the business representatives entered the meeting unannounced and sat down. They
arrived at Ohio's place of business at or about the same time as Seeholzer. Two of them,
along with Kocian and Laverty, were present when Seeholzer had the conversation with
Hoertz prior to the meeting with Irwin and Sisson. I do not credit Seeholzer 's testimony
that the business representatives were merely visiting Ohio.
°I have credited Sisson and Larsen as to what Seeholzer said to them on January 9,
and Sisson as to what Seeholzer said to him and President Irwin on January 10, and to
him on January 11. Seeholzer 's testimony of what he said on January 9, 10, and 11 to
Ohio's officials , as far as it goes, does not vary substantially from the testimony of Vice
Presidents Sisson and Larsen. Seeholzer was silent as to what Koclan said at the
January 10 meeting except in regard to one incident where Kocian suggested to Sisson
what he could say to Hoertz in taking the disputed work from him. Seeholzer , was also
silent as to Sisson 's testimony that he, Seeholzer , said he would seek the cooperation of
the Plumbers Union, of which Kocian was business representative , if Ohio did not volun-
tarily take the work from Hoertz. As stated elsewhere, supra, Kocian's testimony con-
sisted only of a reference to a no-strike clause in the collective -bargaining contract between
the Plumbers Union and Ohio.
8 General Counsel filed a petition for a temporary injunction in the United States District
Court for the Northern District of Ohio on or about February,12, 1962. The record does
not show what action, if any, was taken by or in the court following the filing of the
petition.
e Hoertz filed the charge against the Cleveland Building Trades Council as well as
Respondent and Seeholzer.
10 Stettler had telephoned Sisson a few days earlier and asked for a meeting, but Sisson
had refused for the reason that he could not see that anything would be accomplished by
the meeting.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Irwin and Vice President Sisson met with Corrigan , Stettler, and Kocian.
Corrigan and Stettler said they wished to assure Irwin and Sisson that they had
no reason either to have feared the unions whose representatives appeared at Ohio
on January 10, 1962, or to have told Hoertz to discontinue the electrical work.
They further said that the representatives had been making a routine call on jobs
being done, just happened to be in the neighborhood at the time , and called on
them. They alsa said that Seeholzer was surprised that Ohio had stopped the
electrical work, and he felt that after they had talked to Irwin and Sisson that Ohio
would probably continue it with Hoertz . Sission replied that the incident of Jan-
uary 10, 1962, was the first time anything of that nature happened to them, that
the last thing President Irwin and he wanted was to shut the job down, that Ohio
had a responsibility to its 45 employees and to its customers to keep its business
going, and due to what happened on January 10, they were afraid to continue the-
electrical work with Hoertz.
Following this conversation , Vice President Sisson gave an account of it to
Levine, attorney for the General Counsel , and Metzner , attorney for the Charging
Party, He also discussed it with President Irwin . They stated to Sisson their
opinions that Ohio should ask Hoertz to complete the electrical work. Sisson there-
upon asked Hoertz to complete this work . It was completed about February 12,
1962.11
B. Analysis and concluding findings
It is undisputed that on January 9, 10, and 11, 1962, Respondent 's Business Rep-
resentative Donald Seeholzer engaged in conduct that had as its object the persua-
sion of Ohio, the Charging Party, to take the electrical work on its new addition to
its place of business from Hoertz , the nonunion electrical contractor , and give it
to a union electrical contractor . It is undisputed that the conduct on January 10,
1962, of Plumbers Union 's Business Representative Conrad Kocian and that of
the other five business representatives of AFL-CIO craft locals had the same object.
The questions for resolution are:
Is Respondent responsible for the conduct of Seeholzer , Kocian , and the five
other business representatives?
Did their conduct constitute threats to , or coercion or restraint of, Ohio? 12
Did this conduct constitute a "forcing or requiring " of Ohio to cease doing business
with Hoertz, the nonunion electrical contractor?
If the answer is "yes" to each of these three questions , Respondent has violated
Section 8 (b)(4)(ii )(B) of the Act. If a finding of a violation is made then there
remains the question whether an order against Respondent would be an appropriate
remedy since the electrical work, the object of the thrust of Respondent 's conduct,
was completed on or about February 12, 1962 . The hearing was held on March 19,
1962.
It is elementary to find , and I so find, that the conduct of Seeholzer is the conduct
of Respondent . I also find the conduct of Kocian to be the conduct of Respondent.
On January 9, 1962, Seeholzer stated to Vice Presidents Sisson and Larsen that if
Ohio did not voluntarily take the work from Hoertz, he would seek the assistance
of the local of the Plumbers Union that represented Ohio's employees and the
employees of Ohio's customers . Kocian, the business representative of the Plumbers
Union's local that represented Ohio's employees , appeared with Seeholzer on the
morning of January 10 , 1962 , and made common cause with Seeholzer in his efforts
to have Ohio cease doing business with Hoertz . Although Kocian testified, he
made no effort to rebut the presumption raised by the testimony of General Counsel's
witnesses that he was present on behalf of Respondent . He only testified that
the collective-bargaining contract between Ohio and the Plumbers Union contained
a no-strike clause. This evidence does not rebut the evidence of joint venture or
agency for the purpose of mutual aid and protection , although it does raise the
question whether the conduct of Kocian in view of the no-strike clause could
"threaten , coerce or restrain" or have as its object "forcing or requiring" within
the meaning of Section 8(b)(4)(ii)(B).
The evidence shows that the business representative of the Carpenters' local ac-
companied Seeholzer and Kocian into the meeting on January 10, and that the
"About January 21, 1962, Hoertz called at Ohio's place of business and asked if he
could go to work. Sisson said that they were sorry , but the answer was no. Ohio did
not assign the work to any other contractor
12I have found supra that Ohio is a person engaged in commerce It is also engaged in
an industry affecting commerce . See Sheet Metal Workers International Association,
Local Union 299, etc (S H. Kisner, et at. d/b/a S. H. Ki8ncr and Sons ), 131 NLRB 1196.
ELECTRICAL WORKERS UNION LOCAL 38, ETC. 167
business representatives of certain locals of the Painters, Bricklayers, Sheet Metal
Workers, and the Roofers entered this meeting unannounced after Hoertz was re-
quested to leave. After they were introduced by Seeholzer to President Irwin and
Vice President Sisson, Seeholzer proceeded to inquire from Sisson the names of
the contractors who did the types of construction on the new addition handled by
the members of the craft locals represented by the business representatives. The
business representatives nodded approval as each contractor was named. Appar-
ently they were union contractors. I find that the conduct of these business repre-
sentatives, as well as the conduct of Kocian , was the conduct of Respondent.'3
I conclude and find that the conduct consisting of the conduct of Seeholzer, Kocian,
and the other business representatives, to be conduct that would and did "threaten,
coerce or restrain" Ohio, a "person engaged in commerce or in any industry af-
fecting commerce," with the object of "forcing or requiring" Ohio "to cease doing
business" with Hoertz. I further conclude and find that by this conduct Respondent
violated Section 8(b) (4) (ii) (B) of the Act.
While it could be argued that the statements of Seeholzer when considered in
isolation do not satisfy the terms "threaten , coerce or restrain" or "forcing or
requiring," it is clear that the totality of conduct or the complete pattern of conduct
more than satisfies these terms. The Respondent threatened a strike unless Ohio
ceased doing business with Hoertz. The defense of a no-strike clause in the contract
between Ohio and the Plumbers Union is not substantial as the only evidence of
such a clause is Kocian's testimony there was such a clause. Neither the contract
nor the clause was offered in evidence. Therefore, the record does not disclose
whether the no-strike pledge would have had application to a strike by the Plumbers
Union on behalf of Respondent. In any event, Kocian's conduct showed that the
Plumbers Union acting in behalf of Respondent, would not have been restrained
by the no-strike clause even if it had application to the controversy between Ohio
and the Respondent.
The visit of the attorneys for Respondent and the Cleveland Building Trades
Council on January 21, 1962, was intended to conceal the true nature of Respondent's
conduct of January 9, 10, and 11, 1962, and an attempt to provide a basis for
escaping liability. Respondent's noninterference with Hoertz when he resumed
work shortly after January 21, 1962, had the same purposes.
Respondent 's counsel in oral argument relied on the Board decision in Plumbers
and Pipefitters Local No. 471 etc. (Leo E. Murray, Inc., An Individual, d/b/a Wyck-
off Plumbing), 135 NLRB 329. In that case, however, respondent merely threatened
to do what it had a legal right to do. The case before the Trial Examiner is gov-
erned by the Board 's decisions in Building and Construction Trades Council of
Tampa and Vicinity, AFL-CIO; et al. (Tampa Sand and Material Co.), 132 NLRB
1564; and Butchers' Local 563 (Oxford Meat Co.), 134 NLRB 136, where the em-
ployer was threatened with a strike to force him to cease doing business with another
employer, and in General Drivers, Chauffeurs, and Helpers, Local Union No. 886
(The Stephens Company), 133 NLRB 1393, insofar as it applies to the first letter to
the secondary employer. Respondent therein threatened a picket to force it to cease
doing business with Stephens, the primary disputant. It is true that in regard to
the second letter in that case the Board found no violation. But that was because
Respondent merely stated to the secondary employer in the second letter that there
would be lawful picketing in the vicinity of its premises, and the picketing would
be governed by the standards in Moore Dry Dock Company, 92 NLRB 547. More-
over, Respondent stated in this second letter that it solicited the secondary employer's
advice of "means by which any possible incidental effects of our lawful primary
picketing may be minimized." So unlike in the case at bar, the Respondent in the
second letter informed the secondary employer of action which it had a legal right
to take. Even certain threats may be protected under Section 8(b)(4)(ii)(B) if
they are to do something legal. Teamsters, Chauffeurs, Warehousemen & Helpers,
Local 901, IBTCW & H of America (Editorial "El Imparcial." Inc.). 134 NLRB 895.
In the case at bar, the threat was to engage in illegal secondary conduct.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Ohio set forth in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
33 Selby-Battersby and Company et at v N.L R R, 259 F 2d 151 , 156-157 (C A 4).
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(b) (4) (ii ) ( B) of the Act , I shall recommend that it cease such conduct
and like or related acts, and take certain affirmative action to effectuate the purposes
of the Act. While the electrical work stopped by Respondent 's conduct was com-
pleted prior to the hearing in this proceeding , and Respondents and its agents did,
not interfere with the resumed work, there is no guarantee disclosed by the evidence
of record that Respondent will not engage in similar conduct in the future. Re-
spondent refrained from interfering with the work resumed by Hoertz on or about
January 30, 1962 , because an unfair labor practice charge had been filed against
it, and the General Counsel of the Board had the charge under investigation. Re-
spondent did not assure Ohio that it would not repeat its conduct of January 9, 10,
and 11 , 1962 . In fact , Seeholzer made clear to the president and vice president of
Ohio that Respondent would not permit it to contract for construction work with
a nonunion electrical contractor . Its noninterference with the resumed work and
its indication to Ohio that it would not interfere , were clearly an expedient effort to
avoid liability for its prior illegal conduct . For these reasons , I recommend to the
Board that it issue an order against Respondent to protect Ohio from future sec-
ondary illegal conduct of Respondent.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS of LAW
1. Ohio Pipe and Supply Company is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and is a person engaged in commerce or in an
industry affecting commerce within the meaning of Section 8(b) (4) (ii) (B) of the
Act.
2. Respondent Electrical Workers Union Local 38 , International Brotherhood
of Electrical Workers, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. The said Respondent Electrical Workers Union Local 38 violated Section
8(b)(4 (ii ) (B) of the Act by threatening, coercing , and restraining Ohio Pipe and
Supply Company to force or require it to cease doing business with Raymond J.
Hoertz, doing business as Hoertz Electric Maintenance Co.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Allen-Stevens Corporation and Architectural & Engineering
Guild , Local 66, American Federation of Technical Engineers,
AFL-CIO. Case No. 2-CA-8464. August 16, 1962
DECISION AND ORDER
On June 12, 1962, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed, as
set forth in the attached Intermediate Report. Thereafter, the Gen-
eral Counsel filed exceptions to the Intermediate Report and a sup-
porting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
138 NLRB No. 23.