Garst-Receveur Construction Co.

National Labor Relations Board - Board Decisions

Apr 19, 1977

229 N.L.R.B. 68 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 369, International Brotherhood of
Electrical Workers, AFLCIO and Garst-Receveur
Construction Company, Inc. Case 9-CC-847
April 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On November 5, 1976, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
The Administrative Law Judge found, and we fully
agree, that Respondent violated Section 8(b)(4)(i)
and (ii)(B) of the Act. Contrary to our dissenting
colleague, we agree with the Administrative Law
Judge that the statements made by two of Respon-
dent's business agents clearly reveal that the picket-
ing had an unlawful objective.
Respondent picketed Arrow Electric Company
(hereinafter Arrow) with whom it had a primary
dispute. The picketing took place at a construction
site where the Charging Party, Garst-Receveur
Construction Company, Inc., was the general con-
tractor.' The picketing effectively shut down the
construction project as employees of Garst and
several of its subcontractors, who were represented
by various unions, refused to work.
Garst requested that its employees return to work,
but in response they requested that their business
agents and Respondent's business agent be invited to
the jobsite to tell them whether or not they could
work and to explain what the problem was. Garst
then arranged for the meeting.
At the meeting, several of Respondent's business
agents made remarks which, in our view, clearly
demonstrate that Respondent hoped to cause, as the
object of its picketing, the cessation of business
between Garst and Arrow. The first remark was that
I After a reserved gate was set up for the use of Arrow employees, the
picketing was confined to that gate. As completely discussed by the
Administrative Law Judge, the picketing at first glance appeared to meet the
formal requirements of Sailors' Union of the Pacific. A FL (Moore Dry Dock
Company), 92 NLRB 547 (1950), and Local 761, International Union of
229 NLRB No. 17
"a picket line at any gate constitutes an invisible
picket line around the entire project." The second
remark, made as the meeting was adjourning, was
that "[i ]f the job was run 100 percent Union and then
if Arrow is off this job, then everything can be
cleared up."
As correctly stated by the Administrative Law
Judge, the totality of a picketing union's conduct in
each situation must be examined to determine
whether one of its purposes was to enmesh neutrals
in the dispute. 2 With respect to the remark that "a
picket line at any gate constitutes an invisible picket
line around the entire project," our dissenting
colleague finds that "[i]t indicates no secondary
purpose." In our view nothing could more clearly
convey the intention and purpose by Respondent of
shutting down the entire project. As the Administra-
tive Law Judge stated, the "statement disclosed to
those present an intent to expand the inducement of
the pickets to all gates and to all entering the
jobsite."
With respect to the second remark ("[i]f the job
was run 100 percent Union and then if Arrow is off
this job, then everything can be cleared up") our
dissenting colleague states:
That the Union would not picket Arrow at the
project if it had nothing to protest, does not
evidence any purpose to disrupt the relation
between Arrow and the General Contractor, only
commonsense. Willinghurst [the business agent
who made the remark] could as well have again
replied that the picket signs said it all, and that
the picketing would stop with the reason.
In support thereof, he cites the majority opinion in
Rollins Communications, Inc., supra, and states that
the Board there said that telling a general contractor
that picketing would not continue after the primary
employer left would only be "notice of intent to
comply with the Board's rules."
We respectfully disagree with our dissenting
colleague, both with respect to his understanding of
the majority opinion in Rollins, supra, and with
respect to his conclusion concerning the Willinghurst
remark herein. The Board stated in Rollins, 222
NLRB at 101:
Further, it would not appear to be unlawful for a
union representative, upon being informed that
the prime contractor intended to remove the
offending employer from the jobsite, to inform
Electrical, Radio & Machine Workers, AFL-CIO [General Electric Companyl
v. N.L.R.B., 366 U.S. 667 (1961).
2 Local No. 441, International Brotherhood of Electrical Workers, AFL-
CIO (Rollins Communications, Inc.), 222 NLRB 99 (1976), Member Fanning
dissenting.
68
LOCAL NO. 369, ELECTRICAL WORKERS
the prime contractor that the union would cease
its picketing activities. Since the Board's rules for
"common-situs" picketing do not permit picket-
ing in the absence of the primary employer, such
a statement would constitute no more than notice
of intent to comply with the Board's rules.
However, where, as here, the removal of the picket
line by the union is conditioned upon some action to
be taken by the neutral general or prime contractor,
such conduct constitutes a deliberate entanglement
of a neutral person in a dispute not his own and is
violative of the secondary boycott provision of the
Act. In the first circumstance, the prime contrac-
tor elects to remove the offending employer either
because of the incidental effects of the union's
picketing or out of sympathy with the union's
labor dispute. But, in the second, unlawful circum-
stance, the union is in effect telling the neutral
employer that he, alone, has the power to resolve the
underlying dispute by removing the offending
employer or byforcing him to make some agreement
with the union. [Emphasis supplied.]
The Board thus did not state in Rollins what our
dissenting colleague now seeks to attribute to that
decision. The Board, in fact, took pains to explain
that a remark, such as the one made by Willinghurst
here, would taint what may ostensibly appear to be
lawful picketing.
In sum, we find, in agreement with the Administra-
tive Law Judge, that the remarks of Respondent's
business agents graphically illustrated the true
purpose behind its picketing-to enmesh neutral
employers such as Garst in the primary dispute
Respondent had with Arrow by causing a cessation
or disruption of their business relationship-a pur-
pose clearly violative of Section 8(b)(4)(1) and (ii)(B).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Local Union No.
369, International Brotherhood of Electrical Work-
ers, AFL-CIO, Louisville, Kentucky, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
CHAIRMAN FANNING, dissenting:
The majority finds that the Union unlawfully
picketed a construction project in order to disrupt
3 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950).
' The message could not have been more straightforward: "A portion of
the Electric Work on this project is not being performed under a collective
the relation between a nonunion subcontractor on
the common jobsite and other employers working
there. It reaches that conclusion although the Union,
without question, carefully complied with the rules
set down in Moore Dry Dock3 for lawful primary
picketing in this situation. The majority justifies itself
by pointing to a statement by the Union's representa-
tive confirming the message its picket signs lawfully
proclaimed: that Arrow Electric Company was not
operating under a collective-bargaining agreement.
But the Union did all that could be expected to
confine the dispute, consistent with its duty to its
members and their right to engage in primary
picketing. There is no evidence that the Union
sought to cause anyone to stop dealing with Arrow.
The Union's picket signs correctly reported that
Arrow was not operating under a collective-bargain-
ing agreement. The signs made it clear that the
Union's dispute was only with Arrow and that the
Union was not suggesting that employees of neutral
employers should refuse to work on the project. 4
Additionally, the Union's pickets were asked to tell
neutral employees that they were not being requested
to refuse to work on the project.
After the picketing began, the general contractor,
Garst-Receveur Construction Company, reserved a
special gate for Arrow employees in order to prevent
the Union from lawfully picketing Arrow at all the
gates and to restrict the Union's right to convey its
message as narrowly as possible. The Union prompt-
ly limited its picketing to that gate. Nonetheless,
some employees of other employers chose to strike to
support the Union's protest. No one argues they did
not have that right.
Because some of their members were refusing to
work, the general contractor asked the business
agents of all the unions represented on the site to
meet with it. At the meeting, the Union's representa-
tive, Willinghurst, who was in charge of the picket-
ing, explained that its objective was set forth in full
on the picket signs. As the meeting was breaking up,
the general contractor asked Willinghurst how the
matter could be settled. Willinghurst remarked, and
thereby supposedly broke the law, that "[i]f the job
was run 100 percent Union and then if Arrow is off
this job, then everything can be cleared up."
That was no surprise. The Union was advertising
that a nonunion employer, Arrow, was working on
the project. The Union's displeasure was not con-
cealed, some guilty secret only furtively to be
revealed. It was no mystery that the Union would not
picket Arrow for being nonunion if it recognized a
Bargaining Agreement .... We are picketing the Arrow Elect. Co. We are
not requesting employees of neutral employers to refuse to work on this
project. We are picketing the Arrow Elect. Co."
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative for its employ-
ees. It was no revelation that the Union would not
picket Arrow at the site if Arrow were not at the site.
There is not one thing to suggest the Union's
purpose was anything other than what it purported
to be: to engage in primary picketing of Arrow as is
its lawful right.
That the Union would not picket Arrow at the
project if it had nothing to protest does not evidence
any purpose to disrupt the relation between Arrow
and the general contractor, only commonsense.
Willinghurst could as well have again replied that the
picket signs said it all, and that the picketing would
stop with the reason.5
I do not see anything in Burke's opinion about the
moral effect of a picket to alter my view. Burke, a
union business agent otherwise uninvolved, went to
the meeting called by the general contractor along
with Willinghurst only as a witness. While there,
Burke commented that a picket at a single gate made
an invisible line around an entire project. Even
supposing that Burke's comment was unlawful, that
is hardly sufficient to make the picketing unlawful,
except, perhaps, as a metaphysical violation of the
rules for primary picketing. It indicates no secondary
purpose; and without that purpose there is no
violation here.
Accordingly, and for the reasons set forth in my
dissenting opinion in L. G. Electric,6 I would dismiss
the complaint. Even granting the majority their
interpretation, it is unconscionable that a chance
remark by a business agent should be permitted to
outweigh painstaking adherence to the rules for
primary picketing and make forfeit the right of
employees to public protest.
5 The Board has said that telling a general contractor that picketing
would not continue after the primary employer left would only be "notice of
intent to comply with the Board's rules." There a majority found other
reasons for holding that a union representative's reply to an employer's
questions made picketing unlawful. I dissented there, too. Local No. 441,
International Brotherhood of Electrical Workers, AFL-CIO (Rollins Commu-
nications, Inc.), 222 NLRB 99 (1976).
s International Brotherhood of Electrical Workers, Local Union No. 11,
AFL-CIO (L. G. Electric Contractors, Inc.), 154 NLRB 766 (1965).
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed on April 14, 1976, and the
complaint issued on June 30, 1976, alleging that, in
furtherance of a dispute with Arrow Electric Company,
Respondent induced and encouraged individuals employed
by other contractors to refuse to perform services for their
respective employers and threatened and coerced other
contractors with an object of forcing them to cease doing
business with Arrow, to disrupt their business relationship,
and/or to force or require Arrow to enter into a contract
with Respondent, in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act. Respondent denies the commission of
any unfair labor practices.
A hearing was held before me on August 12, 1976, at
Louisville, Kentucky. At the close of the hearing the parties
waived oral argument. All parties have filed briefs.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYERS INVOLVED
Garst-Receveur Construction Company, Inc., referred to
herein as Garst; James E. Smith & Sons, Inc., referred to
herein as Smith; Jesco Sheet Metal Co., Inc., referred to
herein as Jesco; and Arrow Electric Company, referred to
herein as Arrow, are Kentucky corporations with their
principal offices located in Louisville, Kentucky, engaged
as contractors in the building and construction industry.
Each separately has an annual direct inflow in interstate
commerce of goods and products valued in excess of
$50,000. I find that each is an employer engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 369, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
I. The work performed by the contractors
In September 1975, Garst, a general contractor, started
work at the Kentucky State Fair and Expositions Center
under contract with the Commonwealth of Kentucky.
Garst secured four separate contracts at the site. Garst
employed direct labor to perform some of the work on
these contracts and subcontracted other work. It subcon-
tracted sheet metal fabricating work to Jesco, mechanical
work to Smith, and electrical work to Arrow. Garst did not
enter into any written subcontract with Arrow until April
23, 1976. However, before that date, Garst had listed
Arrow as a subcontractor in a bid to the Commonwealth of
Kentucky which was submitted by March 1976, and Garst
had received a letter of intent from the Commonwealth
indicating that it was the successful bidder. Having listed
Arrow as a subcontractor in its bid, Garst was required to
use Arrow and had notified Arrow in March that its bid
has been accepted.
On March 15, 1976, on verbal instruction from Garst,
Arrow had entered the premises to remove four utility
poles and wiring at the construction site. That job was
finished in 1 day. During the week of April 5, and possibly
earlier, Arrow also had a truck-mounted auger on the
jobsite on a time-and-material basis pursuant to a verbal
agreement with Garst to drill footing holes. Initially
70
LOCAL NO. 369, ELECTRICAL WORKERS
Arrow's employees operated the auger, but to resolve a
dispute with the Operating Engineers Union over the
operation of the auger Arrow leased the equipment to
Garst which utilized operating engineers to run it from
April 7 on. Sometime before April 5, in preparation for the
performance of its electrical subcontract with Garst, Arrow
moved toolboxes and two 30-foot trailers onto the jobsite
which were plainly marked as Arrow's property.
In addition to the work which Arrow performed or was
preparing to perform for Garst at the fair grounds, from
about March 25 through April 10 or 12, Arrow performed
work elsewhere on the fair grounds unrelated to any
arrangements it had with Garst. In conjunction with a
show of the American Retreaders Association which was
held at the fair grounds, Arrow set up the show, performed
all wiring, and tore it down after it ended.
2. The picketing at the fair grounds
For some years before 1976, Respondent had a primary
dispute with Arrow. On April 5, 1976, Respondent began
to picket at the entrances to the fair grounds. At the start of
the picketing, one of the six gates to the fair grounds was
locked and unused, and none of the other gates was posted
for special use. On April 5, Respondent picketed at all the
open gates to the fair grounds with the signs bearing the
following legends:
A portion of the Electric Work on this project is not
being performed under a collective Bargaining Agree-
ment with Electrical Workers Union Local No. 369,
IBEW. We are picketing the Arrow Elect. Co.
We are not requesting employees of neutral employers
to refuse to work on this project. We are picketing the
Arrow Elect. Co.
Respondent gave written instructions to its pickets, telling
them, among other things, not to block or obstruct any
entrances, not to interfere with persons entering or leaving
the entrances to the premises, and not to interfere with,
block, or attempt to stop deliveries. The written instruc-
tions also stated:
6. DON'T TALK! With the exception as stated under
SPECIAL INSTRUCTIONS. If persons try to draw
you into a conversation about anything except as listed
under SPECIAL INSTRUCTIONS, refer them to the
Union officers for answers to their questions.
* * *
8. SPECIAL INSTRUCTIONS: Ifwhile on duty as a
picket you notice any person including employees of
any employer on the job not crossing the picket line
you should volunteer the following statement to that
person: We are not asking any employee of any
employer to quit their job or to cease handling goods.
Soon after the picketing began, Garst took steps to
reserve Gate 6 for the exclusive use of Arrow, its
employees, and suppliers, and to restrict them from using
any other gates. As the signs were posted to that effect,
Respondent Union withdrew its pickets from Gate I
through 4. By midmorning, April 6, all gates had been
posted, and from then on Respondent restricted its
picketing to Gate 6.
When the picketing started, Garst employed carpenters,
laborers, ironworkers, operating engineers, and cement
masons at the jobsite, and it had collective-bargaining
agreements with the craft unions which customarily
represent those trades. Smith and Jesco had work sched-
uled at the jobsite pursuant to their subcontracts with
Garst. Their employees were covered by contracts with
Plumbers and Pipefitters locals and a Sheet Metal Workers
local.
Of the employees scheduled to work for Garst on April 5,
four or five operating engineers, three or four laborers, and
three or four carpenters worked. Approximately 15
laborers, 15 carpenters, 6 ironworkers, and 5 cement
masons who were scheduled to work did not work. Of
those who worked that day, other than the operating
engineers, most were foremen. None of the employees of
Smith and Jesco worked on April 5.
On April 6 most of Garst's employees came to the
parking lot inside the gates at the jobsite. The ironworkers,
laborers, and carpenters started to work, but after their
business agents came to the jobsite and spoke with them,
they left, with the exception of a few carpenter and laborer
foremen and a few other laborers. The cement masons did
not report to work at all on April 6, but the operating
engineers again reported and worked. On April 6, employ-
ees of Smith and Jesco were seen in the parking lot but did
not work. Employees of Arrow were at the fair grounds on
both days and worked.
On April 7, employees again entered the parking lot but
did not report for work. At approximately 7:30 a.m. David
Holobaugh, project director for Garst, and William
Receveur, secretary-treasurer of Garst, called the men
together and asked them to go to work. In response the
employees requested that their business agents and Re-
spondent's business agent be invited to the jobsite to tell
them whether or not they could work and to explain what
the problem was. Thereafter, Holobaugh arranged for the
business agents to come to the jobsite. Between 9:15 and
9:30 that morning, business agents from the Carpenters
Union, the Laborers Union, the Sheet Metal Workers
Union, and two of Respondent's business agents, Willing-
hurst and Burke, arrived at the jobsite. About 20 persons,
including the business agents, Holobaugh, Receveur, the
job superintendent, timekeeper, carpenter foreman, and
others, gathered in Garst's trailer. One of those present was
a plumber employed by Smith. Garst's superintendent,
carpenter foreman, and Smith's plumber were members of
unions and covered by collective-bargaining agreements.
Holobaugh opened the meeting and told the business
agents that he had called them to the jobsite because the
employees wanted to hear from them why they could or
could not work and they wanted Respondent to tell them
why the job was being picketed. At some point after the
meeting opened, Burke stated that in his opinion a picket
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line at any gate constituted an invisible picket line around
the entire project.' The Sheet Metal Workers business
agent stated that he supported Burke, and the Carpenters
and Laborers business agents nodded affirmatively. Holo-
baugh asked Willinghurst if the picketing was against Garst
or Arrow. Willinghurst asked Holobaugh if he had read the
signs, and Holobaugh acknowledged that he had and
Willinghurst then said that all Holobaugh had to do was
read the signs. At the outset of the meeting, Willinghurst
had indicated that he would be glad to tell the workers
what the facts were, but later in the meeting he reversed
himself and said he did not think that he was obliged to
talk to the other trades involved and that the other business
agents had that duty. As the meeting was breaking up,
Receveur asked Willinghurst what they could do to settle
the matter. Willinghurst responded that "If the job was run
100 percent Union and then if Arrow is off this job, then
everything can be cleared up." 2 Receveur told Willinghurst
that it was impossible to remove Arrow from the job
because it was low bidder and had been listed with the
State as the electrical subcontractor on the job.
After the meeting ended Holobaugh saw the Carpenters
business agent talking to job carpenters outside the trailer.
Holobaugh approached and heard the business agent say,
"Here is the Company man and I have to tell you to go
back to work." Holobaugh asked him if there was a picket
line on the project, and he replied that as far as he was
concerned there was a picket line around the whole site.
Somewhat later someone asked the Carpenters business
agent if he would work, and he answered that, if it were he,
he would not work there.
The picketing continued through April 14. Garst crews
remained below strength during that period, and the
employees of Smith and Jesco did not work. Garst, Smith,
and Jesco obtained state court injunctions against the
unions with which they had contracts. Brock Electric,
another subcontractor at the jobsite which had a contract
with Respondent obtained an injunction against Respon-
dent Union on April 13. On the following day the pickets
were moved.3
B. Concluding Findings
The General Counsel and Charging Party concede that
the picketing met the formal requirements of Sailors' Union
of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB
547 (1950), and Local 761, International Union of Electrical,
Radio & Machine Workers, AFL-CIO [General Electric
Company] v. N.L.R.B., 366 U.S. 667 (1961), and that the
picketing, standing alone, was presumptively lawful.
However, they contend that the statements of Respon-
dent's business agents Burke and Willinghurst at the April
7 meeting disclosed that the object of Respondent's
picketing was to enmesh individuals employed by neutral
employers and the employers in the Union's primary
t Holobaugh and Receveur testified that Willinghurst made the state-
ment. Willinghurst identified Burke as the speaker. As Respondent is
responsible for the statement in either event and it is more likely that
Holobaugh and Receveur may have been uncertain as to the identities of
those present, I have credited Willinghurst. I note that there are no conflicts
otherwise in the testimony as to any of the other material facts.
2 Receveur so testified.
3 The injunction obtained by Brock against Respondent did not require
dispute with Arrow. They contend that the picketing
therefore violated Section 8(bX4XB) of the Act. Respon-
dent contends that Burke's statement was an innocuous
statement of opinion lacking any impact or significance
uttered by a business agent who was a stranger to the
events and that Willinghurst's statement to Receveur stated
only what would be required by law if Arrow left the
jobsite. Respondent contends further that the fact that
secondary employees may have respected the picket line
does not establish that the picketing was intended to
induce them to engage in a concerted refusal to work.
It is well settled that the fact that picketing meets Moore
Dry Dock standards is not conclusive evidence that it
constitutes lawful primary activity. Rather the totality of a
picketing union's conduct in each situation must be
examined to determine whether one of its purposes was to
enmesh neutrals in the dispute.4
Burke's statement at the April 7 meeting and Willing-
hurst's later statement to Receveur about what it would
take to get the pickets removed are evidence of inducement
of individuals employed by neutral employers in Respon-
dent's dispute with Arrow and of an object to enmesh
neutral employers in Respondent's dispute. The April 7
meeting was called by Garst to explain the positions of the
various unions and the facts concerning Respondent's
dispute with Arrow to employees at the jobsites. Burke's
statement was a direct statement of opinion by one
authorized to speak for the picketing union which negated
the limitation of the picketing to the gate reserved for the
Arrow employees. In effect, Burke told those present,
including business agents, members of other unions, and
individuals employed by Garst, and subcontractors at the
jobsite, that regardless of the physical restriction of the
pickets to Gate 6, he viewed the picketing as a picket line at
all gates at the jobsite. Agreement with that position was
signaled by three of the business agents of other unions
present at the meeting. Notwithstanding the literal compli-
ance with the requirements of the Moore Dry Dock and
General Electric cases as to the location of the pickets,
Burke's statement disclosed to those present an intent to
expand the inducement of the pickets to all gates and to all
entering the jobsite. Even if Burke had no responsibility for
the picketing at the jobsite,5 his statement is indicative of
Respondent's purpose in picketing. Whatever Willin-
ghurst's purpose in having Burke accompany him, Burke
was an authorized agent of Respondent Union, and
Willinghurst, who was responsible for the picketing, did
not disavow Burke's statement or seek to limit its impact.
Willinghurst's statement to Receveur about what it
would take to have the pickets removed also is indicative of
an objective to enmesh neutrals in the dispute. While
Respondent contends that Willinghurst's statement con-
veyed no more than a statement of what would be legally
required if Arrow's employees were removed from the job,
removal of the pickets but restrained Brock's employees from violating their
collective-bargaining agreement. On April 15 the work force on the jobsite
returned to full strength.
4 Local No. 441, International Brotherhood of Electrical Workers, AFL-
CIO (Rollins Communications, Inc.), 222 NLRB 99 (1976).
5 Willinghurst testified that Burke, an assistant business representative,
had no responsibility for the picketing at the fair grounds and accompanied
Willinghurst at the latter's request to serve as a witness.
72
LOCAL NO. 369, ELECTRICAL WORKERS
Receveur's uncontradicted version of Willinghurst's state-
ment shows clearly that Willinghurst said more, adding the
condition that if the job were 100 percent union, as well as
if Arrow were off the job, the pickets could be removed.
While there is some doubt as to whether Arrow's employ-
ees were on the jobsite at that time to perform work for
Garst, there is no question that it already was understood
that Arrow would perform electrical work as a subcontrac-
tor for Garst and Arrow's trailers and tools were on the site
for that purpose. Willinghurst's statement to Garst can
only be construed as showing as an objective of the
picketing by Respondent Union the cessation or disruption
of the business relationship between Garst and Arrow. 6
I find from these circumstances that the presumption of
validity which attached to the Union's picketing was
overcome, that Respondent sought to induce individuals
employed by other contractors at the jobsite to refuse to
work, that it coerced other contractors, and that an object
of its conduct was to cause Garst to remove Arrow from
the jobsite or otherwise disrupt its business relationship
with Arrow. To be sure the instructions given to the
pickets, the signs carried by the pickets, and the prompt
confinement of the picketing to Gate 6 after the gates were
posted all indicate and are consistent with lawful picketing.
However, those measures do not outweigh the inferences to
be drawn from the conduct of Respondent Union's
business agents at the meeting called because of Garst's
concern over the effect of the picketing. If Respondent's
business agents at that meeting had followed the instruc-
tions which Respondent gave to the pickets, no question
would remain as to the legality of the picketing. They did
not do so. Both Burke and Willinghurst at the meeting
went beyond the narrow statements as to the object of the
picketing which appeared in the instructions and on the
signs and conveyed to other business agents and employees
a broader and unlawful objective. I can only conclude that
the instructions and the wording of the signs were designed
to avoid obvious violation of Section 8(b)(4XB), but that
the object of the picketing nonetheless was violative of the
Act. Accordingly, I find that the picketing by Respondent
Union at the fair grounds, in conjunction with the
statements of Willinghurst and Burke, violated Section
8(bX4XBXi) and (iiXB) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Union set forth in section
11I, above, occuring in connection with the operations of
Garst, Smith, Jesco, and Arrow as described in section I,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
i Local No. 441, International Brotherhood of Eleclrical Workers, AFL-
CIO (Rollins Communications, Inc.), supra International Brotherhood of
Electrical Workers, Local Union No. 11, AFL-CIO) (L G. Electric
Contractors, Inc.), 154 NLRB 766 (1965). The dissents of Member Fanning
in these cases, on which Respondent relies herein, appear to remain a
minority position.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. Garst-Receveur Construction Company, Inc.; James
E. Smith & Sons, Inc.; Jesco Sheet Metal Company, Inc.;
and Arrow Electric Company are employers engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local Union No. 369, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By inducing or encouraging individuals employed by
persons engaged in commerce, or in an industry affecting
commerce, to engage in a strike or refusal to perform
services, and by coercing or restraining persons engaged in
commerce, or in an industry affecting commerce, with an
object of forcing or requiring Garst-Receveur Construction
Company, Inc., to cease doing business with Arrow
Electric Company, Respondent has engaged in unfair labor
practices within the meaning of Section 8(bX4Xi) and
(ii)(B) of the Act which affects commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the basis of the above 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, I hereby issue the following recommend-
ed:
ORDER 7
Respondent, Local Union No. 369, International Broth-
erhood of Electrical Workers, AFL-CIO, its officers,
representatives, and agents, shall:
1. Cease and desist from inducing or encouraging any
individual employed by Garst-Receveur Construction
Company, Inc.; James E. Smith & Sons, Inc.; Jesco Sheet
Metal Co., Inc.; or any other person engaged in commerce
or in any industry affecting commerce to engage in a strike
or refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or
to perform any services; or threatening, coercing, or
restraining said employers or any other person engaged in
commerce or in an industry affecting commerce; where in
either case an object thereof is to force said employers or
persons to cease doing business with Arrow Electric
Company.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
I 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.
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its business offices and meeting hall copies of
the attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent Union's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of said notice to said
Regional Director for posting by each of the Employers
named in the preceding paragraphs, if willing, at all places
where notices to their respective employees are customarily
posted.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
I In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NoTIcE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individual
employed by Garst-Receveur Construction Company,
Inc.; James E. Smith & Sons, Inc.; Jesco Sheet Metal
Co., Inc.; or any other person engaged in commerce or
in any industry affecting commerce to engage in strikes
or refusals in the course of their employment to use,
manufacture, process, transport or otherwise handle or
work on any goods, articles, materials, or commodities,
or perform any services; and WE WILL NOT threaten,
coerce, or restrain the above-named employers or any
other person engaged in commerce or in any industry
affecting commerce; where in either case an object
thereof is to force any of said employers or persons to
cease doing business with Arrow Electric Company.
LOCAL UNION No. 369,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
74