IBEW, Local Union 903

National Labor Relations Board - Board Decisions

Jul 21, 1977

230 N.L.R.B. 1017 (N.L.R.B. 1977)

IBEW, LOCAL UNION 903
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union 903, and its agent Jimmy
G. Russ and Hinton Commercial Contractors, Inc.
Case 15-CC-657
July 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On December 30, 1976, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in
this proceeding. Thereafter, Respondent and Charg-
ing Party filed exceptions and supporting briefs, the
General Counsel filed an exception and a brief in
support of the Administrative Law Judge's Decision,
and Respondent, Charging Party, and General
Counsel all filed reply briefs.
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, as modified
herein.
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, as
modified below, and hereby orders that the Respon-
dent, International Brotherhood of Electrical Work-
ers, AFL-CIO, Local Union 903, and its agent,
Jimmy G. Russ, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph I:
"1. Cease and desist from engaging in, or induc-
ing or encouraging individuals employed by Ingalls
Shipbuilding, Division of Litton Systems, Inc.,
Baggett Industrial Constructors, JAD Industrial
Electric Company, Inc., or any other employer
engaged in commerce or in any industry affecting
commerce other than Hinton Commercial Contrac-
tors, Inc., 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; and from threatening, coercing, or restrain-
ing the aforesaid employers, or persons other than
230 NLRB No. 155
Hinton where an object in either case is to force or
require Ingalls, Baggett, JAD, or any other employer
or person to cease doing business with Hinton."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Administrative Law Judge included without explanation a broad
order. The General Counsel and Respondent except. contending the
violation found herein does not warrant the expansion of the remedy to
include unknown primary employers. We rind merit in their exceptions and
will modify the Order by deleting the reference to unknown primary
employers.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in or induce or encourage
individuals employed by Ingalls Shipbuilding
Division of Litton Systems, Inc., Baggett Industri-
al Constructors, JAD Industrial Electric Compa-
ny, Inc., or any other employer engaged in
commerce or in an industry affecting commerce
other than Hinton Commercial Contractors, Inc.,
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 threaten, coerce, or
restrain the aforesaid employers or persons other
than Hinton, where an object in either case is to
force or require Ingalls, Baggett, JAD, or any
other employer or person to cease doing business
with Hinton.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO, LOCAL
UNION 903, AND ITS
AGENT, JIMMY G. Russ
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed on April 12, 19761 by Hinton
Commercial Contractors, Inc., herein called Hinton or
charging party, alleging in substance that Mississippi-Gulf
Coast Building Trades Council, AFL-CIO, herein called
Council, and certain named affiliate local unions, including
International Brotherhood of Electrical Workers, AFL-
CIO, Local Union 903, and its agent, Jimmy G. Russ,
herein called Respondent, had engaged in certain miscon-
All dates refer to 1976 unless otherwise indicated.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct in violation of Section 8(b)(4)(i) and (ii)(B) of the Act.
The Board issued a complaint on May 5 naming only
Local 903 and its agent Russ, and alleging that certain
picketing activity engaged in by Respondent violated
Sections 8(b)(4)(i) and (ii)(B) of the Act.2 An answer
thereto was timely filed by Respondent and pursuant to
notice a hearing was held before the Administrative Law
Judge at Pascagoula, Mississippi, on July 21. Briefs have
been timely filed by General Counsel, Respondent, and
Charging Party which have been duly considered.
FINDINGS OF FACT
I. EMPLOYER'S BUSINESS
Hinton is a Mississippi corporation with its principal
office and place of business located in Pascagoula,
Mississippi, where it is engaged in the business of general
construction. During the past 12 months in the course and
conduct of its business operations Hinton purchased and
received goods and materials valued in excess of $50,000
directly from points located outside the State of Mississip-
pi. The complaint alleges, the answer admits, and I find
that Hinton is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges and Respondent in its answer
admits and I find that Local 903 is a labor organization
within the meaning of Section 2(5) of the Act.
II11. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, in substance, that Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the Act by
picketing on a public road leading into the premises of a
neutral employer, Ingalls Shipbuilding, Division of Litton
Systems, Inc., herein called Ingalls, while refusing to picket
at a gate which had been established by Ingalls for the use
of the primary employer, Hinton, on Ingalls' premises.
A. Facts
Hinton is a nonunion contractor. Hinton had contracted
with Ingalls for the construction of certain restroom
facilities on Ingalls premises. Baggett Industrial Construc-
tors, herein called Baggett, is a general contractor having a
contract with Washington Iron Works, herein called
Washington, for the erection of three gantry cranes on
Ingalls' premises, which cranes had been purchased by
Ingalls from Washington. JAD Electrical Company, herein
called JAD, is an electrical subcontractor for Baggett on
the crane erection job.
Hinton's nonunion status had been a matter of concern
in the past. In November 1975, Respondent took part in a
meeting between Ingalls and the Council concerning
Ingalls subcontracting policy. At this time the restroom job
was being bid and a list of those from whom bids were
being solicited was read, which list included Hinton. A
statement was made to the effect that if Hinton got the job,
2 An appeal was taken by Hinton from the Regional Director's action in
limiting the complaint to Respondent which was denied by the General
Counsel on June 20.
"you got problems." It is the best recollection of Joseph
Hayes, director of labor and employee relations for Ingalls,
that John Weaver, president of the Council made the
statement in the presence of both Jimmy Russ, business
manager of Local 903, and Tommy Cates, assistant
business manager. On January 21, Hayes sent a letter to
Weaver advising that Hinton had been awarded the
contract for the restroom job and further that a reserve
gate for Hinton employees, subcontractors, and suppliers
had been established on the Ingalls premises (Charging
Party Exh. I).
In February, Hinton was picketed by the Council and
the picketing was conducted at the Hinton reserve gate.
The picketing which is the subject of the complaint
herein began on the morning of April 12. The picketing
took place on the median strip and by the side of a public
access road which led into Ingalls' premises. When Hayes
arrived at about 6 a.m. he saw the pickets. After parking his
car he returned to the picketing area and spoke to Russ. He
asked Russ why they were picketing at the public road
when there was a reserve gate available for the picketing of
Hinton which had been used by the Council in February.
Russ replied that these were not Council pickets and that
he did not picket on private property.
Thereafter Hayes consulted with Ingalls' attorney and
upon the attorney's advice a letter was prepared (Joint Exh.
3) which was substantially the same as the January letter
sent to Weaver.
At about 10:30 a.m. Hayes returned to the picket line
and gave the letter to Russ who read it and asked to be
shown the reserve gate. Hayes then drove both Russ and
Cates to the reserve gate. Russ expressed some concern
about security for the pickets and Hayes agreed to place a
security guard at the gate to protect against any violence.
This concern was based, according to Russ, on threats
made to pickets some years earlier during picketing which
had taken place on the east bank, which is public property
adjacent to the Ingalls' premises. The possibility of
establishing a reserve gate at the public access road was
also the subject of some discussion between Hayes and
Russ. It appears that the public does have access to the
reserve gate, although it is not generally used by the public.
The sign at the reserve gate reads,
THIS GATE IS FOR THE EXCLUSIVE USE OF HINTON
COMMERCIAL CONTRACTOR, THEIR SUPPLIERS AND
SUBCONTRACTOR. EMPLOYEES OF INGALLS SHIPBUILDING
ARE PROHIBITED FROM USING THIS GATE.
After looking at the reserve gate Hayes returned Russ and
Cates to the picket line.
The picketing lasted for 2 days, April 12 and 13. While
the picketing was in progress none of the employees of
either Baggett or JAD crossed the picket line to work,
although Ingalls' employees continued to work. The
picketing has not been resumed, at least until the date of
the instant hearing.
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IBEW, LOCAL UNION 903
B. Discussion and Analysis
The essential facts, as set forth above are not in dispute,
nor is the central legal issue, to wit, whether or not
Respondent's picketing activity herein violated Section
8(b)(4)(i) and (ii)(B) of the Act where Respondent declined
to picket at a reserved gate established by the neutral
employer on its premises.
Whether or not such violation occurred depends upon
the applicability of the Moore Drydock3 principles to the
facts of this case. In Moore Drydock the Board established
certain criteria which picketing unions were obliged to
observe when picketing was being conducted on a common
situs occupied by both primary and neutral employers. The
Board set forth four such criteria or "conditions." The only
one pertaining to this decision reads, "the picketing is
limited to places reasonably close to the location of the
situs." 4
The General Counsel and the Charging Party take the
position that, in order to satisfy this condition, Respon-
dents were obliged to accept Ingalls' invitation to picket at
the reserve gate established by Ingalls and that when they
declined to do so, they violated Section 8(b)(4) of the Act
by continuing to picket on the public road.
Respondents on the other hand, while not contesting the
general validity of the above-stated Moore Drydock
condition, contends that the picketing herein does not
violate that condition since they were not obliged to accept
Ingalls' invitation to picket at the reserved gate. In support
of its position that Respondent argue that the mere posting
of a sign does not establish a reserved gate which
thereafter, ipsofacto, becomes a reserved gate and the only
place they may legally picket. In general this is a valid
proposition. An employer may not, in my opinion,
arbitrarily impose unreasonable restrictions on otherwise
legal picketing activity by such device. The always delicate
balance between the right of a union to lawfully picket a
primary employer and the right of a neutral employer to be
free of the dispute insofar as possible must be maintained.
However, the facts of the instant case do not show that the
attempt to confine the picketing to the reserved gate herein
was unreasonable. Respondent complains that the safety of
its pickets would be jeopardized if it were required to
picket on private property at the reserved gate. However,
the evidence does not disclose any reasonable basis for this
fear. Respondent cites prior threats to pickets in support of
their position. However, the testimony shows that any
threats were made some years before and occurred not on
Ingalls' property but on public property near Ingalls'
premises. It should also be noted that Ingalls offered to
post a guard at the reserve gate for security purposes.
Respondent also protests that if they are required to
picket exclusively at the reserved gate, it would be unable
to reach the general public with its message. While it is true
that the reserve gate location would be less accessible to the
public than the location of the picketing on the public road,
such reduced accessibility does not, in my opinion,
legitimize picketing at the public road. Fair consideration
of the rights of neutrals not to become enmeshed in a
: Sailron' lnion of the Pacific. AFL (Moore Drv Dock CompanlJ), 92
NLRB 547 (1950).
primary dispute between Local 903 and Hinton requires no
less.
Respondent also contends that since (I) Ingalls' entire
work force crossed the picket line, and (2) there is no
contractural relationship between the primary employer,
Hinton, and the affected neutrals, Baggett and JAD, there
can be no cease-doing-business object and without such an
object there can be no violation. First, while it is true that
Ingalls' employees did cross the picket line, this fact does
not validate the picketing. The legality of the picketing is
not determined by its success or failure in achieving an
illegal objective. With respect to Baggett and JAD, the fact
that they have no direct contractural relationship with
Hinton does not preclude the finding of a violation. In this
case Ingalls purchased cranes from Washington who
contracted with Baggett for their erection. Baggett, in turn,
subcontracted the electrical work to JAD. Even neutral
employers who have no contractural relationships with the
primary employer are entitled to the protection afforded
neutral employees under Section 8(b)(4) of the Act. Miami
Newspaper Printing Pressmen Local No. 46, A Subordinate
Local Union of International Printing Pressmen and Assis-
tants' Union, AFL-CIO (Knight Newspapers, Inc.), 138
NLRB 1346 (1962), enfd. 322 F.2d 405 (1963).
C. Charging Party's Attempt to Expand Complaint
In the complaint, the General Counsel alleges only those
matters necessary to establish an 8(bX4Xi) and (ii)(B)
violation on a single theory, to wit, that picketing on the
public road is illegal when a reserve gate had been set aside
for picketing the primary employer.
The Charging Party, on the other hand argues in its brief
that Respondent also violated the Act by engaging in a
strike against JAD, and that Respondent violated the Act
by failing to take affirmative action to prevent and
terminate that work stoppage. Further, that the Council
and its affiliate unions are agents of Local 903 and
therefore share liability with Respondent for the violations
herein. At the hearing the Charging Party attempted to
adduce evidence, including certain subpenaed materials,
showing the liability of additional parties and theories of
violations not alleged by the General Counsel, over the
objection of the General Counsel, which objections were
sustained by me and subpenas quashed on motion by the
General Counsel.
Section 3(d) of the Act provides, in pertinent part, that
the General Counsel "shall have final authority, on behalf
of the Board, in respect of the investigation of charges and
issuance of complaints under Section 10, and in respect of
the prosecution of such complaints before the Board, and
shall have such other duties as the Board may prescribe or
as may be provided by law." In the instant case the only
Respondent named by the General Counsel in the
complaint is Local 903 and its agent, Jimmy Russ. The
only facts set forth as constituting a violation herein had to
do with picketing on the public road instead of at the
reserve gate. In my opinion, to permit the Charging Party
to introduce testimony to show the liability of additional
4 Moore Drydock, supra, at 549.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties and other evidence to support theories of violations
than the theory relied upon by the General Counsel, is
tantamount to granting to the Charging Party authority to
amend the complaint in derogation of the authority of the
General Counsel who has exclusive authority as to the
issuance and conduct of the complaint. I reject the
Charging Party's contentions. My decision herein is based
exclusively on the General Counsel's theory as set forth in
the complaint. 5
On September 3, the Charging Party filed with me a
motion to reopen the record to receive such evidence of
additional matters. An opposition thereto was filed by the
General Counsel on September 16. For the reasons cited
above, I conclude that the receipt of such evidence is
unwarranted. Accordingly, the motion is hereby denied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with the operations de-
scribed in section I above, have a close and intimate
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 of commerce.
CONCLUSIONS OF LAW
I. Hinton is an employer within the meaning of Section
2(6) and (7) of the Act.
2. Local 903 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By the picketing described in section III of this
decision with an object of forcing or requiring Ingalls,
Baggett, and JAD to cease doing dusiness with Hinton, or
any other person, International Brotherhood of Electrical
Workers, AFL-CIO, Local Union 903, and its agent,
Jimmy G. Russ, have engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
5 In this connection it is also noted as set forth above that the Regional
Director's refusal to issue a complaint including additional parties was
sustained on appeal from the Charging Party.
F 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
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 6
Respondent, International Brotherhood of Electrical
Workers, AFL-CIO, Local Union 903 and its agent,
Jimmy G. Russ, its officers, agents, and representatives,
shall:
1. Cease and desist from engaging in, or inducing or
encouraging individuals employed by Ingalls Shipbuilding,
Division of Litton Systems, Inc., Baggett Industrial
Constructors, JAD Industrial Electric Company, Inc., or
any other employer engaged in commerce or in any
industry affecting commerce other than Hinton Commer-
cial Contractors, Inc., 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; and from threatening, coercing, or restraining the
aforesaid employers or persons other than Hinton where an
object in either case is to force or require Ingalls, Baggett,
and JAD to cease doing business with Hinton or any other
person.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its offices, meeting halls, and at all places
where Respondent customarily posts notices to members, a
copy of the attached notice marked "Appendix." 7 Copies
of said notice to be furnished by the Regional Director for
Region 15, after being duly signed by an authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notice is not altered, defaced, or covered by any other
material.
(b) Forthwith mail copies of the said notice to the said
Regional Director of the National Labor Relations Board
in New Orleans, Louisiana, after such copies have been
signed as provided above, for posting by Hinton Commer-
cial Contractors, Inc., Ingalls Shipbuilding, Division of
Litton Systems, Inc., Baggett Industrial Constructors, and
JAD Industrial Electric Company, Inc., these companies
willing, at all locations where notices to their respective
employees are customarily posted.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
7 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.'
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