IBEW Local Union 11

National Labor Relations Board - Board Decisions

Oct 15, 1969

179 N.L.R.B. 145 (N.L.R.B. 1969)

IBEW LOCAL UNION II
International Brotherhood of Electrical Workers,
Local Union 11, AFL-CIO (Lumley and Estes,
Inc.; Kess Construction Company ) and Jones and
Jones, Inc. Case 21-CC-1 130
October 15, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On August 5, 1969, Trial Examiner Maurice
Alexandre, issued his Decision 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 in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
also filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner This case was
heard in Los Angeles, California, on May 19, 1969, upon
a complaint issued on April 1, 1969,' and amended on
April 2, 1969, alleging that Respondent had violated
Section 8(b)(4)(i) and (H)(B) of the National Labor
Relations Act, as amended, by picketing a construction
site with an object of (1) forcing or requiring the general
contractor (with whom Respondent had no dispute) to
cease doing business with the electrical subcontractor (the
primary employer), and (2) forcing or requiring certain
other subcontractors to cease doing business with the
general contractor in order to compel the latter to cease
doing business with the said electrical subcontractor.
Respondent admits the picketing but denies the
commission of the alleged unfair labor practices The issue
145
presented is whether an object of the picketing was
unlawful
Upon the entire record, my observation of the
witnesses, and the briefs filed by the parties, I make the
following
FINDINGS AND CONCLUSIONS
I THE BUSINESSES OF THE EMPLOYERS INVOLVED
Kess Construction Company ( hereafter called Kess) of
Long Beach, California , is a sole proprietorship owned
and operated by one Derric C Kessinger During 1969,
Kess was engaged , as builder and general contractor, in
the erection of a four-unit apartment building in Long
Beach Kess utilized no employees of its own at the
construction site The electrical subcontractor on the
project, the primary employer herein, was Lumley and
Estes, Inc , a California corporation with its principal
place of business at Los Alamitos , California The
plumbing subcontractor was Specialty Plumbing, and the
roofing subcontractor was West Roofing Company
The parties stipulated that in the course and conduct of
its operations during the year ending March 31, 1969,
Lumley and Estes purchased goods, materials and supplies
valued in excess of $48,000 from suppliers who had
purchased such goods , materials and supplies directly
from suppliers located outside the State of California. The
parties further stipulated that in connection with and for
use at the aforesaid construction project, Kess and its
subcontractors other than Lumley and Estes purchased
and received goods, materials and supplies originating
outside the State of California valued in excess of $4,000.
When the above direct inflow and indirect inflow of the
said enterprises are added together , the total exceeds the
$50,000 minimum jurisdictional amount established by the
Board for such nonretail enterprises Accordingly, I find
that such inflow is sufficient to warrant the assertion of
jurisdiction over the Respondent ' s alleged unlawful
activity. Local 2669, affiliated with Suffolk County
District Council of Carpenters etc (T & D Roofing Co ,
Inc ), 173 NLRB No 188
II THE LABOR ORGANIZATION INVOLVED
Respondent is, and at all times material herein has
been, a labor organization within the meaning of the Act
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
1 February 4 through 9
On Tuesday, February 4, 1969,2 Respondent began
picketing the Kess apartment construction site and
continued the picketing through Friday, February 7' The
signs carried by the pickets throughout the picketing read
as follows
'Based upon an original and an amended charge filed on February 26
and March 18, 1969, respectively
'All dates referred hereafter relate to 1969 unless otherwise stated
'The record does not disclose the exact hours of the picketing Crepeac,
a member of Respondent, testified that he picketed from an unspecified
hour until I 100 a in. on each day from February 4 through 7 Dial,
Respondent's business representative, testified that the picketing on
February 7 ceased for the day between 2 30 and 3 00 p in
179 NLRB No. 22
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LUMLEY AND ESTES, INC. DOES NOT PAY
PREVAILING WAGE NOR MAINTAIN
WORKING CONDITIONS OF
LOCAL 11, IBEW AFL-CIO,
Following commencement of the picketing, the employees
of the roofing and plumbing subcontractors discontinued
working and did not work during the period of the
picketing. The record does not disclose whether the
employees of Lumley and Estes discontinued working on
February 4, but it is clear that they did not work on
February 5.5 Lumley testified that his employees did not
work on February 6, and that his prehearing affidavit to
the contrary was erroneous.
Business Representative Dial testified that he visited the
jobsite on the afternoon of Friday, February 7, and that
no one was working when he removed the picket and left
between 2 30 and 3:00 p.m Lumley testified that he and a
helper arrived at the site at "about" 2.00 p m. on
February 7 and worked until about 6 00 p m.; that they
completed the rough electrical work, which was then ready
for inspection, that at that time, he did not know of any
further work required of him prior to commencement of
the finish work,, and that although he went to the site on
Saturday and Sunday, February 8 and 9, neither he nor
his employees performed any work during that weekend.
Kessinger testified that Lumley and Estes worked during
the afternoon on February 7, that on that day, he was told
by Lumley that the rough electrical work had been
completed; that Lumley and Estes "pulled off" the jobsite
on that day, and that he did not recall whether Lumley
and Estes worked during the ensuing weekend
Apparently, no picketing occurred during the weekend.
2. February 10
Picketing was resumed sometime prior to 11.00 a.m on
Monday, February 10' Dial testified that he returned to
the construction site at 11 30 a m. that day, saw that a
little additional electrical work had been performed
sometime since his last visit,' but was unable to determine
through a visual inspection from the sidewalk whether or
not all the rough electrical work had been completed.
Crepeac testified that from his position on the sidewalk
while picketing, he could not observe what stage had been
reached in the electrical work in all of the four apartment
units. Dial further testified that when he arrived no one
was working at the jobsite, and that Lumley and Estes
performed no work that day up to the time he removed
the picket at about 2 30 p m.
At about that time, Dial received a telegram, signed
"Kess Construction Co " The telegram indicated that it
had been sent at 1:49 p m., and contained the following
words in the lower right corner
'Respondent has never been certified as the collective - bargaining
representative of the employees of Lumley and Estes and has no
collective-bargaining agreement with that company
'Sometime during the course of the picketing , Kessinger asked Business
Representative Dial why he was picketing him Dial replied that he was
picketing the electricians , not Kessinger
'According to Lumley, 4 to 6 weeks normally elaspe between the rough
and finish work
'According to the testimony of Crepeac , a picket
'Dial testified that he and one good electrician could have performed
such work in 10 to 15 minutes
Bd Jones and Jones
664 Monterey Pass'
The text of the telegram was as follows:
PICKETING AT 436 ALMOND LONG BEACH IS UNLAWFUL
AS LUMLEY AND ESTES ELECTRICAL CONTRACTOR ARE NO
LONGER PERFORMING WORK AT SUCH JOB SITE, PLEASE
REMOVE THE PICKETING
Dial testified that he was suspicious of the telegram for
two reasons. One was that it bore a Monterey Park
address and he knew that Kess had a Long Beach office
about two doors north of the jobsite. The second reason
was that he had previously fallen into a similar "trap"
created by another union which, almost immediately after
he removed a picket line, informed him that it had not
said that "they were off for good"; and that he felt there
was no assurance that Lumley and Estes' employees
would not return 5 minutes after the picket line was
removed. Dial thereupon telephoned Respondent's
attorney and was instructed by the latter to ask Kess, in
the presence of a witness, the intent behind the statement
in the telegram that Lumley and Estes were no longer on
the job, i e , whether it meant "temporarily off, off for the
hour, off for the day, or permanently off the job."
Dial then telephoned Kessinger and spoke to him while
Shannon, another representative of Respondent, listened
to the conversation on an extension. Dial identified
himself, stated that he had received a telegram, and asked
what it meant When Kessinger replied that he had not
sent the telegram and knew nothing about it,'' Dial stated
that it bore his signature and read the telegram to
Kessinger. According to Dial, he then asked Kessinger
Does this mean when you said Lumley and Estes is
off the job, you mean I am to take this to mean that
they will not be back, or that they will be back
tomorrow?
According to Shannon, Dial asked "if this telegram would
mean that Lumley and Estes would perform no more
work on the job" Dial and Shannon both testified that
Kessinger's reply was that he had a contract with Lumley
and Estes and that he assumed that they would finish the
job. In addition, both testified that Kessinger did not state
that Lumley and Estes had completed the rough electrical
work. Dial further testified that he did not know, after the
conversation, whether or not Lumley and Estes would
return to the job. Kessinger testified that Dial asked
whether Lumley and Estes was permanently off the
project, that he told Dial that that company was not
working at the time but that no agreement had been made
respecting the future, and that he did not say to Dial that
Lumley and Estes had a contract to finish the job.
Following completion of the call, Dial telephoned
Respondent's attorney and reported the substance of his
conversation
'I note that the Charging Party is Jones and Jones , Inc , labor relations
consultant When he introduced the telegram in evidence , the General
Counsel expressed the opinion that the quoted language meant that the
telegram was billed to Jones and Jones
"Kessmger testified that he had not authorized the sending of the
telegram On cross-examination , he first testified that Lumley had told him
about the telegram prior to his telephone conversation with Dial, and then
stated that he did not remember whether Lumley did so before the
conversation On redirect examination , Kessinger testified that he was told
by Gafney , his bookkeeper, that the latter had had a conversation with
Jones about the telegram during the afternoon of February 10 Kessinger
further testified that he did not know about the telegram before Gafney
told him about it
IBEW LOCAL UNION 11 147
3 February 11
Picketing was resumed sometime before 11 00 a.m on
Tuesday, February 11 and ended sometime during the
morning " Kessinger testified that at an unspecified time
on Monday, February 10, he had talked to Lumley on the
telephone and they had agreed to release each other from
their electrical contract; and that at about 8'30 a.m. on
February 11, a written agreement to that effect was
prepared and executed." Sometime during the morning,
Kessinger gave the release agreement to a picket, the
picketing ended about two hours later, and it has not been
resumed since that time.
At an unspecified time after the picketing ended,
Lumley and Estes finished the Kess project.
B Concluding Findings
There is no dispute, and I find, that an employee of
Lumley and Estes performed work at the construction site
on Friday, February 7, and that no employees worked at
the site on Monday and Tuesday, February 10 and 11 In
his brief, the General Counsel contends that Respondent's
picketing was unlawful because an objective thereof was
directly and indirectly to force Kess, a neutral, to cease
doing business with Lumley and Estes, the primary
employer. That objective, he asserts, is shown by two
factors. One is that Respondent knew that Lumley and
Estes' employees did not work and were not scheduled to
work on February 10 and 11 and hence that the picketing
failed to meet the Moore Dry Dock" criterion which,
according to the General Counsel, requires that the
picketing must be limited to times when the primary
employees "are present" at the common situs. The second
factor is Business Representative Dial's inquiry of
Kessinger as to whether Lumley and Estes had been
permanently removed from the job.
It is not entirely clear whether it is the General
Counsel's position that any of the picketing before
February 10 was unlawful The complaint seems to allege
the illegality of the picketing from its inception on
February 4. At the hearing, the General Counsel appears
to have contended that the picketing was unlawful from
and after February 7 In his brief, the General Counsel
seems to assert only that the picketing on February 10
and 11 was unlawful because Respondent learned on
February 10 that Lumley and Estes would perform no
more work at the construction site. I find that none of the
picketing by Respondent was unlawful
1. There is no dispute, and I find, that the picketing by
Respondent satisfied three of the Moore Dry Dock
criteria. The controversy in this case involves only the
criterion which requires that the primary employer be
engaged in its "normal business" at the situs of the
dispute at the time of the picketing." The uncontradicted
evidence shows that Lumley and Estes' employees worked
at the Kess project on Friday, February 7 Accordingly, I
find that Lumley and Estes was still engaged in its normal
business at the situs on February 7, and that the picketing
on that date thus satisfied the Moore Dry Dock criteria 15
"According to Dial, he did not know whether or not Lumley and Estes
had worked the preceding night
"The agreement was dated February 10
"Sailors' Union of the Pacific (Moore Dry Dock Co ). 92 NLRB 547
"The General Counsel describes the criterion too narrowly when he
states that the picketing must be limited to times when the primary
employees "are present " at the common srtus It is true that absent other
evidence , the "normal business" criterion is not satisfied where the
The situation on Monday, February 10, differed in that
no Lumley and Estes employee worked that day. But this
does not necessarily require a finding that the picketing on
that date was unlawful. If the rough electrical work had in
fact been completed on February 7, it would have been a
simple matter for either Kessinger or Lumley and Estes to
have informed Respondent that no further work was
scheduled for 4 to 6 weeks. Their failure to do so suggests
that the absence of Lumley and Estes' employees from the
jobsite on February 10 was not due to completion of the
rough electrical work and that it was still engaged in
normal operations on that date. But even assuming that
the employees did not work that day because the rough
electrical work had been completed, there is nothing to
show that Respondent knew this at any time prior to
cessation of the picketing at about 2.30 p m. On the
contrary, the credited testimony of Dial and Crepeac
shows that they were not able to ascertain, through a
visual inspection of the project from the street, whether or
not such work had been completed. And since Dial
observed on February 10 that Lumley and Estes had
performed some work on the project after the cessation of
the picketing on the preceding Friday, February 7, there
was no reason why Respondent should have concluded
that they would not resume work on February 10 Finally,
it was not until approximately the time that the picketing
ceased on that day that Respondent received the telegram
stating that Lumley and Estes was no longer performing
work at the jobsite.' 6 I therefore conclude and find that
despite the absence of Lumley and Estes' employees from
the jobsite on February 10, the picketing on that date
satisfied the "normal business" criterion IBEW Local 640
(Timber Buildings, Inc ), supra
There remains for consideration the picketing on
Tuesday, February 11, beginning sometime before 11.00
a.m. and ending two hours after Kessinger gave to one of
the pickets the agreement executed by Kess and by
Lumley and Estes, in which they released each other from
their electrical contract The General Counsel contends
that Respondent was on notice, following Dial's telephone
conversation with Kessinger on the afternoon of February
10, that Lumley and Estes' employees were not scheduled
to work on February 11 and, therefore, that the picketing
did not satisfy the "normal business" criterion. I find the
evidence insufficient to establish such notice.
picketing occurs at a time when the primary employees are not present at
the situs of the dispute But where , for example , the record shows that the
union was unaware that the primary employees were not scheduled to
work, the criterion is met International Brotherhood of Electrical
Workers. Local 640, AFL-CIO ( Timber Buildings , Inc ), 176 NLRB No
17
"In view of this finding , it is unnecessary to determine specifically
whether or not any Lumley and Estes employees worked on February 6
"The General Counsel states , in the portion of his brief entitled
"Statement of the Case ," that Lumley testified that he removed his trailer
from the jobsite on Thursday , February 6 In the argument portion of his
brief, however , the General Counsel does not rely on this testimony to
support his assertion of Respondent knowledge that Lumley and Estes
would not return to the project This is not surprising since the record
would not support such an assertion On cross-examination, when shown
his prehearing affidavit of February 7 stating that the trailer "is" parked in
the rear, Lumley testified that he could not recall whether the trailer was
still on the jobsite on February 7 On redirect examination , he testified that
the trailer was removed prior to February 8 1 find that Lumley was not a
reliable witness and reject his testimony relating to the removal date of the
trailer In this connection, I also note that a prehearing affidavit by
Lumley impeached his testimony that his company performed no work at
the jobsite on February 6 1 further note his testimony that he normally
removes the trailer from a project when the materials stored therein are
used up, even though work on the project has not been completed
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record contains conflicting evidence as to what
Kessinger told Dial during their telephone conversation
According to Dial and Shannon, Kessinger said that he
had a contract with Lumley and Estes and assumed that
the latter would complete it. According to Kessinger, he
said that Lumley and Estes was not working at that time
and that they had reached no agreement as to the
completion of the job I reject Kessinger's testimony and
credit the version testified to by Dial and Shannon.
Kessinger gave conflicting testimony as to when the
Lumley and Estes trailer was removed from the project,
and as to whether he knew about the telegram before Dial
telephoned him. In addition, although it is clear that he
already knew about the telegram when Dial telephoned,"
he pretended at the time that he knew nothing about it
Moreover, the fact that Lumley and Estes ultimately
finished the job raises some question as to the bona fides
of Kessinger's agreement releasing Lumley and Estes from
the subcontract, and suggests that it was a device to
mislead Respondent. Such conduct by Kessinger has
created doubt in my mind as to the probity of his
testimony, a doubt heightened by my observation of his
demeanor while testifying. On the other hand, I find that
Dial and Shannon testified in a straightforward and
honest manner.
In view of Kessinger's disavowal of the telegram and
the conflict between the telegram and Kessinger's stated
assumption that Lumley and Estes would complete their
subcontract, I credit Dial's testimony that he had a
legitimate doubt, after talking to Kessinger, as to whether
or not Lumley and Estes would return to complete the
job. The General Counsel argues that if Respondent felt
there was any ambiguity about the work schedule, it could
have sought clarification by further inquiry " Whatever
may be the obligation of a union under other
circumstances, I am not persuaded that in this case,
Respondent was required to pursue the matter further.
The only other source of information regarding its
intention to resume work was Lumley and Estes itself. But
even if, upon inquiry, Lumley and Estes had informed
Dial that it did not intend to resume work at the jobsite,
this information would not have resolved Respondent's
dilemma in view of Kessinger's stated assumption The
General Counsel has not suggested from what other
person or persons Respondent could have obtained
information resolving the dilemma
I find that the record does not establish that before it
began picketing on February 11, Respondent either knew
or should have known that Lumley and Estes' employees
were not scheduled to work on that day 18 I accordingly
find that the General Counsel has failed to establish that
Respondent's continued picketing on that day did not
satisfy the "normal business" criterion. IBEW Local 640
(Timber Buildings, Inc ), supra, fn. 14.
2. That Respondent satisfied the Moore Dry Dock
criteria does not end inquiry. Adherence to such criteria
indicates only presumptively that Respondent was
attempting to limit its dispute to the primary employer
and not to enmesh neutrals to the dispute. Plumbers Local
Union No 519 (H L Robertson), fn. 18, supra,
International Brotherhood of Electrical Workers, Local
"Kessmger testified that he first learned about the telegram from his
Union No 11 (L G Electric Contractors, Inc ), 154
NLRB 766 Other evidence can, and according to the
General Counsel does, establish the contrary
I find, in agreement with the General Counsel, that
Dial in effect asked Kessinger whether the telegram meant
that Lumley and Estes was permanently off the job "
However, I reject the General Counsel's contention that
by such inquiry, Dial revealed that an underlying,
unlawful objective of the picketing was the removal of
Lumley and Estes The evidence shows that Respondent's
attorney instructed Dial to obtain clarification of the
telegram by ascertaining whether it meant that Lumley
and Estes was temporarily off the job, i.e. for an hour or
for a day, or would not return at all. Such an inquiry
would not have demonstrated that Respondent had as an
objective the removal of Lumley and Estes It would have
constituted no more than an attempt to ascertain the work
schedule of Lumley and Estes' employees Although Dial
did not carefully follow the instructions given him, I am
persuaded that he made an honest attempt to do so I am
therefore unable to find that the words he used in his
inquiry were indicative of a hidden secondary motive 20
Based on the entire record, I find that there is
insufficient evidence to establish that Respondent's
picketing was aimed at achieving an unlawful secondary
objective. I therefore find that the picketing was not
violative of Section 8(b)(4)(1) and (n)(B) of the Act
CONCLUSIONS OF LAW
1. The combined operations of Kess Construction
Company, Lumley and Estes, Inc., Specialty Plumbing,
and West Roofing Company are sufficient to warrant the
assertion of jurisdiction over Respondent ' s alleged
unlawful activity.
2 Respondent International Brotherhood of Electrical
Workers, Local Union 11, AFL-CIO, is a labor
organization within the meaning of the Act
3. The allegations of the complaint , that Respondent
has engaged in unfair labor practices within the meaning
of Section 8(b)(4)(i ) and (n )( B) of the Act, have not been
sustained
RECOMMENDED ORDER
It is recommended that the complaint herein be
dismissed in its entirety.
bookkeeper Obviously, this must have occurred before Dial referred to the
telegram during the telephone conversation
""For this reason, the instant case is not governed by Local Union No
519 Plumbers (H L Robertson & Associates. Inc ). 171 NLRB No 37,
enfd as modified, 416 F 2d 1120 (C A D C ), relied on by the General
Counsel
"Kessmger's testimony that Dial made that inquiry was substantially
corroborated by Shannon, a witness for the Respondent
"The cases cited by the General Counsel are inapposite United
Association of Journeymen and Apprentices etc , Local No 32 (A & B
Plumbing , Inc ), 171 NLRB No 66 , International Brotherhood of
Electrical Workers. Local Union No 11 (L G Electric Contractors, inc ),
supra In each of those cases, the union 's unlawful objective was
demonstrated by the fact that it informed the neutral employer that
picketing would continue until the primary employer was removed from
the job