International Brotherhood of Electric Workers, Local 211

National Labor Relations Board - Board Decisions

Mar 5, 1980

248 N.L.R.B. 168 (N.L.R.B. 1980)

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No. 211 and Atlantic County Im-
provement Authority and Jaden Electric, a Di-
vision of the Farfield Company
International Brotherhood of Electrical Workers,
Local Union No. 334 and Atlantic County Im-
provement Authority and Jaden Electric, a Di-
vision of The Farfield Company. Cases 4-CC-
1135, 4-CP-293, 4-CC-1138, 4-CC-1139, and
4-CC-1 141
March 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
October 12, 1979, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the Respondents, the
Charging Parties, and the General Counsel all filed
exceptions and supporting briefs, and the Charging
Parties each filed answering briefs in opposition to
the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
The Respondents have excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
2 We agree with the finding of the Administrative Law Judge that the
Respondent Locals violated Sec. 8(b)(4)(i) and (ii)(B) of the Act by their
picketing of primary employer Jaden Electric at properly established and
validly maintained gates reserved for neutral secondary employers, in
nonconformance with the standards for lawful common situs picketing es-
tablished in Sailors' Union of the Pacific, AFL (Moore Dry Dock Company),
92 NLRB 547 (1950). In so finding, we also rely on the threat made by
Respondent Local 334's business manager, Menardy, that if a contract
was awarded to Jaden the project would be picketed, no one would cross
the picket line, and the job would be closed down, and the threat made
by Respondent Local 21l's business manager, Stockinger, that awarding
a contract to Jaden would mean that the Union would picket the project
and close it down. Thus, the Respondents' unlawful secondary intent in
their picketing in this case is clearly evidenced not only by the Respon-
dents' failure to conform their picketing to Moore Dry Dock standards,
but also by the threats of their respective business managers to cause a
complete work stoppage on the project-threats that were fully realized.
248 NLRB NO. 34
Order of the Administrative Law Judge and
hereby orders that the Respondents, International
Brotherhood of Electrical Workers, Local Union
No. 211 and International Brotherhood of Electri-
cal Workers, Local Union No. 334, Pomona, New
Jersey, their officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: The
charges herein having been filed on various dates be-
tween April 13 and 27, 1979,1 on May 31, an Order con-
solidating cases and a complaint therein was issued. The
complaint alleges that Local 211 and Local 334 have en-
gaged in and are engaging in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
National Labor Relations Act, as amended, and, in addi-
tion, that Local 211 has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(b)(7)(C) of the Act. Respondents duly filed an answer
denying that they had engaged in the alleged unfair labor
practices. A hearing in this proceeding was held on July
25 and 26 in Atlantic City, New Jersey. Briefs have been
filed with the Administrative Law Judge by General
Counsel, Respondent, and each of the Charging Parties. 2
Upon the entire record in the case, 3 and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, Respondents admit, and I find
that International Brotherhood of Electrical Workers,
Local Union No. 211, herein called Local 211; and Inter-
national Brotherhood of Electrical Workers, Local
Union No. 334, herein called Local 334, are labor organi-
zations within the meaning of Section 2(5) of the Act.
During the times material hereto construction work
has being performed at the Federal Aviation Administra-
tion/National Aviation Facilities Experimental Center at
Pomona, New Jersey, herein called NAFEC. The con-
tracting authority was Atlantic County Improvement
Authority, herein called ACIA, an agency of the State of
New Jersey. The general contractor and construction
manager for the project was George A. Fuller Co.,
I All dates refer to the calendar year 1979 unless otherwise indicated.
2 At the hearing the record in this proceeding was amended to reflect
the names of the entities (Atlantic County Improvement Authority and
laden Electric, a Division of the Farfield Company) which were substi-
tuted as Charging Parties in the stead of the persons whose names appear
in the charges.
I The record in these proceedings having been kept open in order that
General Counsel might add thereto as an exhibit a New Jersey Prevailing
Wage Rate Determination and General Counsel having filed a motion,
received by the Administrative Law Judge on September 11, 1979, to
admit in evidence as G.C. Exh. II the New Jersey Prevailing Wage Rate
Determination issued on June 27, 1978, and no opposition having been
filed, the motion is granted and the documents attached to said motion
are received in evidence as G.C. Exh. 11.
----- --
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 211 169
herein called Fuller, who employed clerical, administra-
tive, and supervisory, but not construction trades, per-
sonnel at the project site. On March 14 a contract was
awarded to Jaden Electric, a Division of the Farfield
Company, herein called Jaden or Jaden Electric, by
ACIA to perform certain electrical construction work at
the NAFEC jobsite. Jaden Electric is a nonunion con-
tractor whereas most of the other contractors on the
project are union employers. This proceeding arises out
of picketing conducted at the NAFEC project by Local
211 and Local 334 between March 30 and May 15.
Jaden, a Pennsylvania corporation, is an electrical and
mechanical contractor engaged in the construction busi-
ness. Its principal office is located in Lititz, Pennsylva-
nia. In a representative calendar year Jaden purchases
goods valued at in excess of $50,000 which are shipped
directly to its projects through channels of interstate
commerce from locations outside the State where it is
engaged in construction work. Fuller, a California corpo-
ration, manages construction projects throughout the
United States. In a representative calendar year Fuller
performs services valued at in excess of $50,000 outside
the State of California. The complaint alleges, the
answer admits, and I find that during all times material
hereto Jaden and Fuller were employers within the
meaning of Section 2(2) engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Issues
On March 14 ACIA awarded a contract for electrical
construction work at the NAFEC project to Jaden, a
nonunion contractor. Because the employees of the other
trades on the job are represented by labor unions and be-
cause it was anticipated that Respondent might picket
Jaden, in order to minimize possible interruption of
work, gate 13 to the project was reserved for the exclu-
sive use of Jaden and its suppliers while two other gates,
gates 18 and 18(a), were reserved for the other trades
and Jaden and its suppliers were prohibited from using
them. The complaint alleges that in violation of Section
8(b)(7)(C) Local 211 picketed Jaden at the NAFEC site
from March 30 to May 15, a period of more than 30
days, with an object of forcing or requiring Jaden to rec-
ognize or to bargain with Local 211 as the representative
of Jaden's employees when Local 211 was not certified
as the representative of such employees and a petition
under Section 9(c) of the Act had not been filed within
30 days from the commencement of the picketing. The
complaint also alleges that Local 211 and Local 334
were acting in concert with each other and as agents of
each other and that Local 334 as agent of Local 211 par-
ticipated in such picketing. No competent evidence was
adduced on behalf of General Counsel to support this al-
legation. The complaint does not allege any violation of
Section 8(b)(7) on the part of Local 334. The defense of
4 On May 15 United State Dllrict Coulrt Judge John F: Gerry i,uied
a temporary injunction reilraitung I ocal 211 from picketing Jaden at he
NAFEC site Peter 14: lirl. *cc X Initre ir ia/ul ril hrhood otf :o/lri
cal U'Worier. ocal nuimor .\A 21]. Cil No 79 1488 ( S I) C. Neo
Jersey)
Local 211 to the 8(b)(7)(C) allegations is that it was not
seeking recognition as the representative of Jaden's em-
ployees but was picketing to advertise that Jaden was
paying its employees lower wages and fringe benefits
than had been established as a standard in the area by
Local 211 and also that it was picketing to protest the
fact that Jaden was not using employees who lived in the
area where the work was being done.
The complaint further alleges that on April 12 Local
211 and that on April 25 Local 334 picketed gates 18 and
18(a) in violation of Section 8(b)(4)(i) and (ii)(B).
B. Origin of the Dispute
Local 211 and Local 334 represent electricians in the
construction industry in Atlantic County, New Jersey.
Local 334 normally represents electricians concerned
with distribution of high voltage electricity, who are
commonly referred to as lineman, while Local 211 has
jurisdiction over other types of electrical installations.
Although NAFEC is a Federal facility, the contract-
ing authority for the work with which these proceedings
are concerned is ACIA, a State agency. Under the Pre-
vailing Wage Act of New Jersey contractors on the
NAFEC job are required to pay their employees the pre-
vailing wage rates (or higher) as determined by the New
Jersey Department of Labor and Industry. As so deter-
mined, during the times relevant hereto, the prevailing
wage rate for journeymen electricians in the classifica-
tions employed by Jaden was $12.10 per hour,5 plus
fringe benefits equal to $1.75 per hour for total wage
package of $13.85 per hour; the overtime rate was $29.95
per hour; and the apprentice rate was between $5.25 and
$9.40 per hour with overtime between $8.75 and $17.05
per hour.
In the period between March 30 and May 15 Jaden
paid its journeyman electricians at the NAFEC site
$13.85 per hour. In addition, full-time employees re-
ceived 7-1/2 paid holidays per year after the first 60 days
of employment; I week paid vacation after the first 1,200
hours of employment; and hospitalization and life insur-
ance coverage paid for by the Company. Dennis Pierce,
Jaden's vice president, estimated the value of these fringe
benefits at 51 cents per hour. Only one apprentice has
been employed at the NAFEC job by Jaden who is paid
$10.25 per hour.
The contract was awarded to Jaden on March 14 and
on March 27 Jaden moved its office trailer onto the pro-
ject. However, no electrical construction work was per-
formed by Jaden before Monday, April 2. As of April 9
only three journeymen, including supervisors, were
working at the project for Jaden, all of whom had per-
manent residences outside Alantic County and had
worked for Jaden for more than 6 months. As of May 15
Jaden employed 12 to 15 journeymen on the project and
as of the date of the hearing it employed 41 electricians
on the project of whom approximately 31 resided in the
State of New Jersey and of the latter number 25 lived in
Atlantic County.
As there was concern that problems would arise when
Jaden began work at the NAFEC project site several
i hc tfi Cnl.ir rate a, $13 0(h per hour
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings were held between NAFEC and the Unions in
order to forestall or minimize any interruption of work.
The first meeting was held on March 2 at the suggestion
of George Stockinger, business manager of Local 211,
who did not attend. Present in the stead of Stockinger
was George Fenwick, assistant business manager of
Local 211; also present was Joseph Menardy, business
manager of Local 334. Representing NAFEC were:
Frank Munroe, executive officer of the Federal Aviation
Administration at NAFEC; Joseph Lovette and John
Fogarty, contracting officers; and John Brennan, who
was in charge of the NAFEC building program. Men-
ardy stated that the purpose of the meeting was to dis-
cuss the problems that would arise if a contract should
be awarded to Jaden, a nonunion contractor who was
not located in Atlantic County.6 Lovette explained that
the contracts were not let by the Federal government
and that NAFEC personnel were unable to influence the
award of the contracts. Menardy complained that Atlan-
tic County had been economically depressed for a long
time and the Unions did not consider it fair that when
work developed it should be given to an out-of-town
contractor who was employing out-of-town personnel.
He further said that if a contract was awarded to Jaden,
the project would be picketed, no one would cross the
picket line and the job would be closed down. 7 Munroe
pointed out that the NAFEC job was important to the
Federal government and that if there was any delay in
construction the government would suffer substantial
detriment because of the arrangements that had been
made to finance the project.
A second meeting, held at a restaurant on March 19,
was called at the request of Delbalso, acting director of
NAFEC; present were Stockinger, Menardy, Delbalso,
Munroe, Lovette, and Faith, the previous director of
NAFEC. The reason Delbalso called the meeting was to
discuss with the Unions the problems that would arise
should there be any delay in the construction at the
NAFEC site and to obtain from the union representa-
tives suggestions as to how interruptions of the work
could be avoided. Delbalso told the meeting that he rec-
ognized that the Unions had been a major factor in pre-
venting the NAFEC installation from being closed. He
described the difficult arrangements that had been made
to finance the project and explained that any construc-
tion delay would add to the government's financial
burden and would have an adverse effect on the job.
Stockinger replied that he understood the government's
position but nevertheless the Unions "would have to do
their thing." According to the testimony of Frank
Munroe, whom I credit, "Mr. Delbalso ... asked Mr.
Stockinger and Mr. Menardy did they have any sugges-
tions as to what could be done by us to prevent disrup-
tion on the job site [because of the presence] of the non-
union contractor. Mr. Stockinger said that the only thing
he could recommend was that Jaden Electric sign a
work agreement with his union and [then] there would
f In February the bids for the clcclrical iork had beenl published in
the Dodge Report from ,hich it appeared hat Jaden ,sas the loss
bidder
Fenwick interjected the remark that he urnliotSl "x uld hase to do
their thing "
be no disruption on the job." 8 Also, at the March 9
meeting, Stockinger pointed out that the Atlantic City
area was building up rapidly, that a great many contracts
were being awarded, and that if a nonunion contractor
was given a contract at NAFEC it would have an effect
on other contracts. Stockinger asserted that awarding a
contract to Jaden would mean that the Union would
picket the NAFEC job and would close it down.9
There were additional meetings between representa-
tives of NAFEC and the Unions on March 21 and
March 26 but no solution was found to the problems that
would arise when Jaden began work on the job site. A
final meeting was held on May 10. The purpose of this
meeting was to discuss the award of the stage B electri-
cal contract to Jaden. The construction at NAFEC was
being done in two stages. Stage A involved construction
of the outside shell of the building and a computer labo-
ratory, while stage B included finishing the inside of the
building. Stockinger asked whether anything could be
done to prevent the contract for the stage B work from
being awarded to Jaden Electric whom he understood
was the low bidder on the job. Stockinger was informed
that the stage B contract had not yet been awarded but
that it would be awarded in accordance with the laws of
New Jersey which required that the contract be awarded
to the lowest bidder who was able to demonstrate that it
could responsibly complete the project. At none of the
meetings, including the March 2 and 19 meetings, did the
Union voice any concern about maintaining area stan-
dards. There was no reason for any such concern be-
cause the contract which was awarded to Jaden required
the Company to pay the determined prevailing wage
rates which were in line with the wage standards in the
area.
C. The Picketing
On March 16, at a pre-job conference, a decision was
made by NAFEC and the contractors that certain perim-
eter gates into the project area would be reserved for the
I Stockinger testified that during the meeting he Aras asked what could
be done "to avoid an) pickets or words to that effect" but he was unable
to remember the answer that he gave In the circumstances, and because
I find that MNunroe was a truthful and reliable witness. I do not credit the
following testimony elsewhere given by Stockinger:
Q Did ou ever tell those officials of NAFEC at any meeting in
March that the problem or the mailter could be resolved if Jaden
would sign a stork agreement with you''
A No. sir
Q You are certain of that
A. Yes. sir
9 Stockinger testified that he reminded the group that Local 211 and
the other building trades unions had spent many weekends getting peti-
tions signed to prevent the NAFEC facility from being closed and that
wshen the NAFEC project first began 60 to 80 percent of the membership
of Local 211 as unemployed, although since then the employment pie-
ture has brightened. Stockinger stated that the Unions had worked to
keep the NAFEC project and they sAanted the jobs for their members.
According to Slockinger. 1 told them I don't remember seeing Jaden or
any f his people helping get the signatures [on petitions asking that
NAFEC be contiued]" Stockinger also told the meeting that if Jaden
came onwlti the project the Unionl swould probably picket because "e felt
that our people should do the work out there and that is the main thing "
Slockinger further testified that he told the meeting that. although he did
riot knoss what lJaden's wage scale sas. otlher conlractors had informed
hint that at the price w'hich as, bid b Jladenl thes could not do the Job if
the 5 had to pal their electricians the prevailing ,tage rate
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS. LOCAL 211 171
use of the contractors; more particularly, that gate 13
would be reserved for the use of Jaden and its suppliers
and that gates 18 and 18(a) would be reserved for the use
of all other contractors.
On March 24 Jaden sent the following mailgram to
Local 211 and to Local 334:
A separate gate has been established for the em-
ployees and suppliers of Jaden Electric. This gate is
number 13 and is located approximately 7/10 of a
mile east from Delilah Road along the NAFEC
property perimeter.
Employees and suppliers of Jaden Electric have
been duly instructed and will use only this posted
entrance to the job site. It is illegal for your mem-
bers to picket any other gate. If they do the NLRB
will be contacted and we will institute private
action in court under Section 303 of the Act for all
damages caused by your union engaging in illegal
activity.
Jaden sent similar advice by mailgram to the South
Jersey Building Trades Council and to various contrac-
tors and authorities concerned with the NAFEC building
project.
Sometime between Friday, March 30, and Monday,
April 2, prominent signs were posted at gates 13, 18, and
18(a) to the NAFEC project advising that gate 13 was
reserved for the use of Jaden and its suppliers and that
gates 18 and 18(a) were reserved for the use of all con-
tractors other than Jaden and its suppliers and that Jaden
and its suppliers must use only gate 13.
On March 30 Local 211 Business Manager George
Stockinger sent the following letter to Fuller:
We would appreciate your taking the enclosed
letter and making sure it is delivered to JADEN
ELECTRIC.
As far as we are concerned, there has been no re-
served gate established as required by Federal Law
and accordingly, we are going to attempt to publi-
cize our dispute with JADEN ELECTRIC to the
Public.
The enclosed letter reads as follows:
Please be advised that we do not claim to be the
majority representative of your employees working
in this area. We do not seek recognition as the bar-
gaining representative of your employees. We do
not wish in any manner to organize or attempt to
organize your employees. We do not wish to nego-
tiate with you over wages, hours and working con-
ditions of your employees.
Be further advised that we represent IBEW
Local Union #211. As the Union primarily in-
volved in representing employees in the Atlantic
City area, we have been successful in negotiating
high standards of wages, hours and other cost items
of employment for these employees. We believe
such negotiated achievements represent the standard
in this area in the industry involved.
For example, our wages for journeyman electri-
cian are $12.23 per hour; our time worked over
eight (8) hours a day or forty (40) hours per week is
paid at the rate of double the regular hourly rate:
Saturday and Sunday are paid on a double time
basis. The employers provide health, welfare, tem-
porary disability, 3% of gross payroll to the NEBF,
60¢ to a local pension, 1% to the industry fund and
2¢ per hour to the apprenticeship program.
We have information which indicates that you
are paying your employees wages and fringe bene-
fits which are below or substandard to the area
standards which we have been successful in negoti-
ating. Your activity thus has the effect of undercut-
ting those established area benefits or their cost
equivalents. We do not request that these economic
benefits be provided in the same manner or form in
which they are set forth in our collective bargaining
agreements. We merely request that you pay the
cost equivalents of those benefits set herein.
It is our understanding that employees that you
are employing on the NAFEC job are not receiving
wages and benefits comparable to the area standards
which we have established. We will therefore, ac-
cordingly, publicize such facts to the public.
The letters were read to Jaden Vice President Pierce
on March 30 and delivered to him the next day. Similar
letters, dated April 2, were sent to Fuller by Local 334
Business Manager Joseph Menardy. Dennis Pierce testi-
fied that he received the Local 334 letter sometime after
April 25.
From April 2 until it was enjoined on May 15 Local
211 picketed gate 13 with signs reading as follows:
I.B.E.W. Local 211 AFL-CIO
We are are Picketing Jaden Electric For Failure to
Maintain Union Conditions and Standards
The sole purpose of this picketing is informational.
We do not attempt to induce any employees work-
ing on this site to respect this picket line. o
Local 211 employed as pickets its members and members
of other labor organizations including Local 334. The
fact that members of Local 334 accepted employment as
pickets for Local 211 without more does not establish
that Local 334 as an organization engaged in picketing at
gate 13.
On several occasions during the time gate 13 was pick-
eted, drivers of trucks carrying goods or supplies for de-
livery to Jaden at the NAFEC site refused to enter gate
13 and make their deliveries. In addition, the employees
of Command Co., a subcontractor for Jaden, refused to
cross the picket line to work at the project.
On April 12, Local 211 picketed gates 18 and 18(a)
with signs identical to those used at gate 13 and on April
25 Local 334 picketed gates 18 and 18(a) with the same
o Juaden Projectl Ntanager Barr} Fahnesto..k tetifled hat on March 30
lzocal 211 picketed gates I. 18, 18(a), and 20 hut did nol picket gate 13
,As he reserse gate signs had no been postled as of hat dae. Gellerall
Counel doe not contend that picketilg these gate, on Miarch 30 ionll-
cd Sec 8h)(4)
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signs except that the name Local 334 was printed in the
place of Local 211. The complaint alleges that the pick-
eting on these days violated Section 8(b)(4)(i) and (ii)(B).
The defense is that the reserve gate status of gates 18
and 18(a) had been contaminated by the use of those
gates by employees or suppliers of Jaden. The evidence
adduced by Respondents in support of this defense was
wholly incompetent. I find that no competent evidence
was adduced at the hearing to establish that after March
30 any Jaden employees, or suppliers of Jaden, or per-
sons making deliveries to Jaden used gates 18 or 18(a) or
any gate to the NAFEC project other than gate 13.
As the result of the picketing of gates 18 and 18(a) on
April 12 and 25, employees of the various union contrac-
tors who were then scheduled to do work at the
NAFEC project refused to cross the picket lines and did
not work on those days.
D. Conclusions
Mindful of "the dual congressional objectives of pre-
serving the right of labor organizations to bring pressure
to bear on offending employers in primary labor disputes
and of shielding unoffending employers and others from
pressures in controversies not their own," with respect
to so-called common situs situations, the Board in Moore
Dry Dock 2 developed guides to aid in determining
whether a union's object in picketing was primary and
therefore lawful or whether it was really secondary, that
is, calculated to enmesh neutral employers and employ-
ees in the union's dispute with the primary employer and
therefore in contravention of the Act. The tests set forth
in Moore Dry Dock, designed to minimize the potential
for unnecessarily involving neutrals in a dispute of no
concern to them, have been refined by the so-called re-
serve gate doctrine which recognizes the right of em-
ployers at a common worksite to reserve an entry and
departure gate for the exclusive use of the primary em-
ployer, his employees, suppliers, and materialmen, and to
establish other gates for use by neutral employers, their
employees, and others having business relationships with
them.' t Where separate gates are designated and main-
tained, the union must confine its picketing activities to
the primary gate and avoid implicating neutrals by pick-
eting the gates set aside for the neutrals' sole use. Picket-
ing by the union at the neutrals' gates normally will be
viewed as an attempt to enmesh the neutral employers
into the union's dispute with the primary employer and
therefore will be deemed unlawful secondary activity
proscribed by Section 8(b)(4)(B) of the Act. Of course,
the integrity of the neutral gates must not be compro-
I i L R B Deaver Building and C(i'oru rion Trades Conci rl[Goldd
& Prem'ier], 341 U S. 675, 692 (1951)
12 Sailors' Union of the P'acific, FL (Moore Dry I)ock C llpaly.
92 NlRB 547 (1950)
la local 761, Internalional Union of llectrical, Radio & Machine
Workers,. AFI CIO Gencral lccltric Companll \ .VL R. B, 366 U S
667 (1961) See NLR. B. .ii Ih BuidiXg and Coolliorlliion lrades
Council [flrkel/ & Hlartz. Inc.] . 3X3 F 2d 562. 564 6th Cir 1967) "[ I he
'relatedness' test estahlished in CGt'ri El etric does rlot appl) I cmlpl)y-
crs at a common cntructiol itus '" Iil.Rih Conrolilli (C'olpratit X
NL R B, 55() F 2d 311. 316 (5th Cir 1977)
mised by their use by primary personnel or suppliers.'4
Valid reserve gates were established at the NAFEC job-
site for the respective exclusive use of Jaden and the
neutral employers and their respective employees and
suppliers. No competent evidence was adduced by Re-
spondents that the gates reserved for the use of the neu-
trals were at any relevant times used by Jaden, its em-
ployees or its suppliers. Accordingly, I find that Local
211 by picketing gates 18 and 18(a) on April 12, and
Local 334 by picketing gates 18 and 18(a) on April 25,
violated Section 8(b)(4)(i) and (ii)(B) of the Act.
As Local 211 is not currently certified as the represen-
tative of any of Jaden's employees and as it picketed
Jaden at the NAFEC project for more than 30 days
without having filed a petition under Section 9(c) and as
such picketing induced individuals employed by other
persons in the course of their employment not to deliver
goods to Jaden, a violation of Section 8(b)(7)(C) has oc-
curred if an object of the picketing was to force or to
require Jaden to recognize or bargain with Local 211 as
the representative of its employees.
Respondent Local 211 contends that its picketing of
Jaden was not for a proscribed object, but to inform the
public that Jaden was not maintaining union conditions
and standards and to protest the fact that Jaden was
using employees on the NAFEC project who were not
local residents. The latter alleged object is a makeweight
contrived for this litigation. The March 30 letter from
Local 211 and the April 2 letter from Local 334 state
only that the Unions objected to the fact that Jaden was
paying its employees "wages and fringe benefits below
or substandard to the area standards" which the Unions
had been successful in negotiating and informed Jaden
and Fuller that they will "publicize such facts to the
public." The signs which Respondents' pickets wore
when they patrolled the gates at the NAFEC project
made reference only to the alleged failure of Jaden to
maintain union conditions and standards. 5 Thus, al-
though at the meetings with NAFEC officials in March
Respondents asserted that it was unfair for Jaden to
come into Atlantic County and use nonresident electri-
cians, it directed no such complaint to Jaden or to Fuller
and it did not attempt to publicize this complaint to the
public. In these circumstances, I find that protesting the
employment of nonresidents by Jaden was not an object
of the picketing by Local 211.
Although Local 211 contends that it picketed the
NAFEC project to publicize the alleged failure of Jaden
to pay wages and fringe benefits comparable to those es-
tablished under the Unions' contracts, the evidence is
that at no time did Local 211 inquire of Jaden or of any
other responsible party what wages and fringe benefits
4 Inrirntional L'itiow o Operutinig Engineers. Local Union (o. 450
-ILl-10 (Linlecck Constrlucion Corporation). 219 Nl.RB 997, 998 (1975).
lff'd 550 F 2d 311 (5th Cir 1977)
'm A refereince to "union condliti ls" implies a recognitional and tirga-
nizatil al ohjcctie. San Fran(i iio Jointl E.c(ulrie Board of Culaliurv
w-orkers. Brtuderi. Ioci.L M.orc ad Clih, Servoe Workers. .4I. CIO
(oodmliaer. Inc. d'hla J l- Ili-Borl 203 NRB 744, 746 (1973)
\' 1 . I IRB llcirnaiil Brotherhood o Elccirical WIorkers. Local 265 [R
P & t Elcrri], 6)4 F2d 1091 (8th Cir 1979), affg 236 NI RB 1333
(1'78)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 211 173
were being paid by Jaden to its employees on the
NAFEC job. As the Board recently restated:
Area standards picketing can only be justified
where, in fact, the picketed employer's mode of op-
eration can be shown to be substandard in compari-
son with the negotiated area standsards. This neces-
sarily means that there must have been an investiga-
tion and an evaluation of comparative standards
carried out with as great a degree of thoroughness
as the circumstances will permit. "0
Not only did Local 211 fail to investigate what was the
level of wages and benefits being paid by Jaden to its
employees at the NAFEC project and not only did Re-
spondent fail to establish by competent evidence that
Jaden in fact was undercutting the so-called union stan-
dards, but the testimony of Local 211 Business Manager
George Stockinger shows that he had determined to
picket Jaden before he had any opportunity to learn
what wages and benefits Jaden intended to pay its em-
ployees. Stockinger testified that in February by reading
the Dodge report he learned that Jaden was the low
bidder for the electrical contract on the NAFEC project.
He further testified:
Q. Did you make a decision you were going to
picket Jaden Electric?
A. I don't know what time I made a decision. I
was going to picket Jaden Electric but I have to say
that I knew in my mind that if Jaden was awarded
the contract, I have to do everything I can. That is
my job as business manager to try to get that work
for my people. So, I would eventually have to
picket.
This testimony not only refutes Local 211's alleged area
standards object but, conversely, indicates a recogni-
tional object.
I find Local 211's assertions regarding its objects for
picketing Jaden; namely, to publicize Jaden's failure to
maintain union conditions and standards and to protest
its hiring out-of-town employees to work at the NAFEC
project are specious. On the other hand, on March 9,
when NAFEC officials asked Stockinger what could be
done to prevent any interruption of operations at the
NAFEC site, according to the credited testimony of
Frank Munroe, "Mr. Stockinger said that the only thing
he could recommend was that Jaden Electric sign a
work agreement with his union and therefore there
would be no disruption on the job." Accordingly, I fur-
ther find that an object of the picketing was to force or
require Jaden to recognize or bargain with Local 211 as
the representative of its electricians at the NAFEC pro-
ject and therefore, as alleged in the complaint, Local 211
has violated Section 8(b)(7)(C) of the Act.
16 T 'lmo(sr, l 4 locl 1' m \I V, 1 ;Jfih ,d( i h It twl rl), l tu/ [ tth ,
hsood of 'amlrls'h a Cs tditro . S4Iroilul W ,'htto l,',?h I .d] tlipc / ,, ,,,
(.at Bl Rhahlc bit L. 224 NI R 388 (I 7h)
IL. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section II,
above, occurring in connection with the operations of
Jaden and Fuller described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondents have engaged in unfair
labor practices in violation of the Act, I shall recom-
mend that they cease and desist therefrom and that they
take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By picketing gate 13 at the NAFEC project be-
tween April 2 and May 15, 1979, Respondent Local 211
has engaged in unfair labor practices proscribed by Sec-
tion 8(b)(7)(C) of the Act in that an object of such pick-
eting was to force or to require Jaden to recognize or
bargain with Local 211 as the representative of its em-
ployees, notwithstanding the fact that Local 211 was not
the certified representative of such employees and a peti-
tion under Section 9(c) had not been filed within 30 days
from the commencement of such picketing.
2. Local 211 by picketing on April 12, and Local 334
by picketing on April 25, gates 18 and 18(a) at the
NAFEC jobsite, which gates were reserved for the use
of contractors other then Jaden, its suppliers and em-
ployees, have engaged in unfair labor practices in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act as an
object of such picketing was to force or require Fuller,
ACIA, and other contractors performing work at the
NAFEC project to cease doing business with one an-
other and to force or require ACIA to cease doing busi-
ness with Jaden and as such picketing (a) induced and
encouraged individuals employed by the contractors on
the NAFEC project to engage in strikes and refusals in
the course of their employment to perform services and
(b) coerced and restrained Fuller, ACIA, and other con-
tractors engaged in the performance of work at the
NAFEC project.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 7
The Respondents, International Brotherhood of Elec-
trical Workers, Local Union No. 211, and International
Brotherhood of Electrical Workers, Local Union No.
334, located in Atlantic City, New Jersey, their respec-
tive officers, agents, and representatives, shall:
1. Cease and desist from:
(a) By picketing or otherwise, (i) inducing or encour-
aging any individual employed by Fuller, ACIA, or any
other person engaged in commerce or an industry affect-
ing commerce to engage in a strike, or a refusal in the
course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, ar-
ticles, materials, or commodities or to perform any ser-
vices; or (ii) threatening, coercing, or restraining Fuller,
ACIA, or any other person engaged in commerce or in
an industry affecting commerce, where in either case an
object thereof is forcing or requiring any person to cease
using, selling, handling, transporting, or otherwise deal-
ing in the products of Jaden, or to cease doing business
with Jaden.
(b) Picketing, causing to be picketed, or threatening to
picket Jaden where an object thereof is forcing or requir-
ing Jaden to recognize or bargain with Local 211 as the
representative of its employees in circumstances which
would violate Section 8(b)(7)(C). The cease and desist
provision set forth in this subparagraph (b) is limited to
Local 211 and is not directed to Local 334.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at their respective business offices and meeting
halls copies of the attached notices marked "Appendix A
and Appendix B." 8 Copies of said notice, on forms pro-
vided by the Regional Director for Region 4, after being
duly signed by authorized representatives of Respon-
dents, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by them for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondents
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for Region 4 signed
copies of said notices for posting by Jaden, Fuller,
ACIA, and other employers engaged in work at the
NAFEC project, if such organizations shall be willing to
post such notices, at places where notices to their respec-
tive employees are customarily posted.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
'; 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.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT by picketing or otherwise (i)
induce or encourage any individual employed by
George A. Fuller Co., or by Atlantic County Im-
provement Authority, or by any person engaged in
commerce or in an industry affecting commerce to
engage in a strike or a refusal in the course of his
employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any ser-
vices; and WE WILL NOT (ii) threaten, coerce, or re-
strain George A. Fuller Co., Atlantic County Im-
provement Authority, or any other person engaged
in commerce or in an industry affecting commerce
where, in either case, an object thereof is forcing or
requiring any person to cease using, selling, han-
dling, transporting, or otherwise dealing in the
products of Jaden Electric, a Division of the Far-
field Company, or to cease doing business with
Jaden Electric, a Division of the Farfield Company.
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL UNION NO. 334
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT by picketing or otherwise (i)
induce or encourage any individual employed by
George A. Fuller Co., or by Atlantic County Im-
provement Authority, or by any persort engaged in
commerce or in an industry affecting commerce to
engage in a strike or a refusal in the course of his
employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any ser-
vices; and WE WILL NOT (ii) threaten, coerce, or re-
strain George A. Fuller Co., Atlantic County Im-
provement Authority, or any other person engaged
in commerce or in an industry affecting commerce
where, in either case, an object thereof is forcing or
requiring any person to cease using, selling, han-
dling, transporting, or otherwise dealing in the
products of Jaden Electric, a Division of the Far-
field Company, or to cease doing business with
Jaden Electric, a Division of the Farfield Company.
WE WILL NOT picket or cause to be picketed
Jaden Electric, a Division of the Farfield Company,
where an object thereof is to force or to require
Jaden Electric, a Division of the Farfield Company,
to recognize or to bargain with us as the representa-
tive of its employees in violation of Section
8(b)(7)(C) of the National Labor Relations Act.
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL UNION No. 211