International Brotherhood of Electrical Workers, Local 98 (Post General Contracting, LLC d/b/a Post

National Labor Relations Board - Administrative Judge Opinions

May 6, 2020

04-CC-229379 (N.L.R.B. May. 6, 2020)

JD-20-20
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 98,
Respondent
and Case 04-CC-229379

POST GENERAL CONTRACTING, LLC, d/b/a
POST BROTHERS,
Charging Party

Jun S. Bang, Esq.,
for the General Counsel.
Cassie R. Ehrenberg, Esq., and
William T. Josem, Esq.,
for the Respondent.
Daniel Sobol, Esq., and
Brandon Shemtob, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Robert A. Giannasi, Administrative Law Judge. This case was tried on February
25-26, 2020, in Philadelphia, Pennsylvania. The complaint, as amended, alleges that
Respondent violated Section 8(b)(4)(ii)(B) of the Act by repeatedly broadcasting a
recording of a crying baby at a high volume near the entrance of a construction site
located at 260 South Broad Street in Philadelphia (the Broad Street site). The work at
the site was being performed and supervised by the Charging Party (Post Brothers), the
general contractor with whom Respondent did not have a dispute. The Broad Street
site included work by Major Electric Systems Inc. (Major Electric), a subcontractor of
Post Brothers, with whom Respondent did have a dispute, as well as other neutral
subcontractors. The complaint alleges that the above conduct, which was undertaken in
connection with peaceful handbilling by several of Respondent’s agents, constituted
both picketing (para. 6(c) of complaint) and a threat, restraint or coercion (para. 6(d) of
complaint) within the meaning of subsection (ii) of Section 8(b)(4)(B). It is also alleged
that one of Respondent’s agents made a separate oral threat in violation of subsection
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2
(ii). The Respondent denied the essential allegations in the complaint, but admitted that
its conduct had a secondary object of causing a cessation of business between Post
Brothers and other neutrals and Major Electric, thus presenting the sole issue of
whether its conduct was undertaken by unlawful means—that it amounted to coercion
under subsection (ii).15
The parties filed post-hearing briefs, which I have read and considered. Based
on those briefs and the entire record in the case, including the testimony of the
witnesses and my observation of their demeanor, I make the following2
10
FINDINGS OF FACT
I. Jurisdiction
It is admitted that Respondent Union is a labor organization within the meaning of 15
Section 2(5) of the Act. Post Brothers is a Pennsylvania limited liability company
engaged in the construction of apartment and condominium buildings in the
Philadelphia area. Major Electric is a corporation engaged in providing electrical
contracting services. It is admitted that Post Brothers and Major Electric are employers
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.20
II. Alleged Unfair Labor Practices

Background and Overview
25
Post Brothers was gutting and rehabilitating the Atlantic Building, which formerly
housed offices, at the Broad Street site in preparation for its future use as residential
apartments with commercial space on the first floor. The 23-story building sits on the
northwest corner of Broad and Spruce Streets in a mixed residential and commercial
use area of Center City Philadelphia. The Wilma Theater is across the street to the east 30
and the Kimmel Center is across the street to the south. On the southeast corner
across from the Atlantic building was a vacant lot and next to that lot to the east sits a
30-story residential condominium called Center City One. Spruce Street, which runs
east and west, is one way and Broad Street is a very busy thoroughfare running north
and south. See G.C. Exh. 12.35
For an undetermined number of weekdays, Monday through Friday, from
September 17 through October 19, 2018, Respondent engaged in protests against the
use of Major Electric by Post Brothers at the Broad Street site. 3 The protest, on the
1 The General Counsel’s April 13, 2020 unopposed motion to correct transcript is granted.
2 The parties entered into a stipulation of facts that was received into evidence as Jt. Exh. 1. The
stipulation provides much of the background and includes references to exhibits that were received in
evidence with the agreement of the parties. I have relied on that stipulation in setting forth many of the
facts in this case.
3 Although there had been earlier and different protests by Respondent and other unions, the specific
protest discussed herein was the only protest at the Broad Street site in September and October of 2018.
Tr. 59-60.
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3
public sidewalk in front of the entrance to the Broad Street site, involved the distribution
of handbills and the operation of an amplified recording and broadcast system. At the
time, there were other contractors in addition to Major Electric and Post Brothers
working at the site. Tr. 237. Business Agents John Donohoe and Brian Eddis, admitted
agents of Respondent, were in charge of the protest. But other individuals also 5
participated on behalf of Respondent at the site. The handbills, which were distributed
by members of Respondent, stated that Post Brothers “polluted the community” by
hiring Major Electric, which was accused of not paying fair wages and benefits. The
handbills also asked interested parties to contact a named official of Post Brothers to let
him know that they did not want Major Electric to “pollute this community.” G.C. Exh. 7.410
The Crying Baby Recording and the Effects of its Noise Level
The amplified recording system was set up on the sidewalk in front of the
entrance to the Atlantic Building construction site on the Broad Street side. It consisted15
of a recording device connected to two speakers that faced the entrance to the
construction site and about 5 feet away from and inside the subway grate that was
situated between Broad Street and the sidewalk. The recording was on a repeating
loop which consisted mostly of a crying baby as well as a separate voice occasionally
stating, “your community is crying for jobs, participation and fair wages.” Jt. Exh. 1, no. 20
5. The crying baby portion of the loop lasted some 30 seconds; it was followed by the
voice message for 6 seconds and then the crying baby was repeated for another 30
seconds. Then the loop continued repeating itself. G.C. Exhs. 3(a) and 8(a). The
speakers were pointed directly in front of the entrance to the Atlantic Building, some 5
feet away from another entrance through which the contractors and employees entered 25
the building. Tr. 85-88. The amplified recording of the crying baby was at a high
volume and would be playing continuously for about 4 to 6 hours per day. See G.C.
Exhs. 8(a) and (b) and Tr. 84-89.
Business Agent Eddis testified that, when the recording was first utilized on 30
September 17, it was set at a “very high volume.” The setting was at level 7 of the
recording device utilized by Respondent. Tr. 237-238. The recording was so loud that it
could be heard above the noise of the subway as it traveled below the grate at street
level. Tr. 28,133, 178, G.C. Exh. 13. It could also be heard from inside the Atlantic
Building where the construction work was being performed, including on some of the top 35
floors. Tr. 120-121,191-192, 198-201. There was testimony that, even within 3 feet,
someone near the recording equipment had to speak at pretty much a “yelling tone” to
be heard over the crying baby. Tr. 107. This is confirmed by my own assessment of the
video and audio evidence that I heard and viewed during the trial. Indeed, pedestrians
passing by the entrance of the Atlantic Building complained and covered their ears as 40
4 Respondent’s sign-in sheets for the protest indicate that 2 or 3 individuals in addition to Donohoe
and Eddis were present at the Broad Street site either handbilling or otherwise aiding Respondent’s
efforts. The sheets show their presence on September 18, 19, 20, 21 and 24 and October 3, 2018. But
these sheets do not accurately reflect all of Respondent’s presence at the site. It is admitted, for example,
that Respondent was also present at the Broad Street site on October 18 and 19. Tr. 280-283.
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4
they passed. See Tr. 49-50, 107, 121-122, 169-173, 264-268, 275-276, 301-304, G.C.
Exhs. 2, 4, 5, 7, 9 and 23.
The loud noise level at the Broad Street site interfered with activity at the site, as
shown by the following credible and uncontradicted testimony. Patrick Steffa, the Post5
Brothers security official on the scene, mostly testified about the noise level outside the
entrance to the Atlantic Building. But he also testified about its loud volume that could
be heard on the inside when he entered the building. For example, he could hear the
crying baby recording from the rest room on the Fifth Floor. Tr. 120-121.
10
Post Brothers Security Guard Brandon Byrd, who was at the Broad Street site for
the entirety of Respondent’s protest, testified that the noise level was always loud and
that he and other guards had to use ear plugs, which did not adequately mute the
sound. Tr. 175-176, 180-181. Byrd also testified that pedestrians passing by the
entrance of the Broad Street site on the public sidewalk covered their ears with their 15
hands as they walked by. This was supported by a photograph of an individual doing
what Byrd described. Tr. 182, G.C. Exh. 9. He further testified that the crying baby
recording was so loud that he could hear it when, at the end of his workday, he went
below street level to take the subway home. Tr. 177-180, 185-186, G.C. Exh. 13.
20
Vitale Vasilevich, the inventory manager for Post Brothers, was also on site
during the entire protest by Respondent. Vasilevich had difficulty, because of the noise
level of the recording, in communicating by phone with drivers from neutral employers
who were making deliveries to the construction site. At the time, Post Brothers had 2 or
3 major deliveries and 3 to 4 smaller ones per day at the site. Tr. 193. Vasilevich25
testified that, if he was on Broad Street, “it was nearly impossible to hear, understand
someone over the phone. Oftentimes, I had to relocate myself to another part of the
building or even come around to the back side of the building.” Tr. 193. Sometimes he
was forced to communicate with delivery drivers in person and with hand gestures. Tr.
194-196. Finally, he also testified that subcontractors and their employees within the 30
building itself adjusted and relocated their worksites because of the noise level. Tr.
199-201.
Neighborhood Complaints Confirm the Loud Noise Level
35
Four residents of the Center One condominium, diagonally across the street from
the Atlantic Building, testified about the loudness of the crying baby recording. All
testified that the noise level was very loud and could be heard from inside their
apartments, even with double-paned windows and balcony doors closed. They called
police to complain, protested to their local government officials, and even went to the 40
Atlantic Building site to complain to Respondent’s agents on the scene, all to no avail.
Finally, shortly after complaints to a local councilman, the loud recording stopped. That
was in mid-October. All of the witnesses were neutral and disinterested (actually some
identified themselves as pro-union). Their testimony was mutually corroborative,
credible and reliable.45
JD-20-20
5
Retiree Pamela Bona lives on the 22nd Floor, facing north. She described the
sound of the crying baby as “horribly blasting” and “very distressing.” Tr. 34-36. She
also heard words with the sound but could not distinguish the words. Tr. 39-40. The
noise continued over a period of days and weeks for hours per day. She often called
the police to complain. Sometimes the volume would diminish when the police came to 5
the scene, but, when the police left, the volume would increase. Tr. 40-41. She could
also hear the loud noise of the crying baby for blocks away from its source when she did
her regular neighborhood walks and errands. Tr. 51-53. Bona, who described herself
as pro-union, also told Respondent’s agents at the protest site that the loud recording
hurt their cause. Tr. 47-49. On October 18, she contacted her local councilman to 10
complain about the noise and, shortly thereafter, the noise stopped. Tr. 43-44.
Adam Klein, a resident on the 25th Floor, confirmed Bona’s assessment of the
noise level. He described the noise as “very disruptive” and a “constant barrage” in his
own home. Tr. 63. Klein, another retiree, spends most of his time in his apartment, but, 15
because of the constant noise, he often had to leave to seek relief. Tr. 64. He testified
that the crying baby recording could be heard hours a day for weeks. Tr. 65-66. He
also testified that he could hear the recording even above the Broad Street traffic. Tr.
65. He would play very loud music to drown out the noise. Tr. 67. He also called the
police and contacted his councilman. Tr. 68-70. Klein further testified that he could 20
hear the recording when walking the neighborhood, blocks away from the Atlantic
Building. Tr. 70-72.
Howard Paull, a tour guide, testified about hearing the “very, very loud piercing
recording on a loop of a crying baby” from the interior of his 11th Floor apartment. He 25
said that the recording went on “for weeks” and for “hours, and hours, and hours” each
day. Tr. 136. This was with all the windows shut. Tr. 137. He occasionally works from
home and, on those occasions, “[i]t was like torture.” Tr. 138. He compared the noise
to what the Government reputedly did to torture Panamanian dictator Noriega with
“loud, blistering music.” Tr. 140. Like the others, he heard the noise when he went 30
elsewhere in the neighborhood, blocks away from its source. Tr. 139-140, 143. He also
contacted his councilman’s office. Tr. 141-142. He once went to the protest site and
talked to John Donohoe complaining about the noise level. Donohoe replied that he
had a First Amendment right to protest. Paull replied that that right is limited and “you
can’t yell fire in a crowded theater.” The recording was not lowered after this encounter. 35
Tr. 145-148.
Maria Vickers, another resident and a retired lawyer, lives on the Ninth Floor, but
facing south, on the opposite side of the Atlantic Building. Tr. 153-154. But, even at
this distance, she could hear, from the inside of her apartment, what she described as a 40
“screeching noise.” Tr. 155-156. Like other concerned residents, Vickers talked to
John Donohoe on the scene and told him that, as a union supporter, she did not believe
that the use of the loud recording was helping Respondent’s cause. Tr. 161-164.
A City Official Tests the Noise Level45
JD-20-20
6
On September 18, because of concern over the noise level of the crying baby
recording, representatives of Post Brothers contacted the Civil Affairs Division of the
Philadelphia police department and eventually the Air Management Department that
handles noise complaints for the City of Philadelphia. Tr. 89-92. 5 The Air Management
representative who appeared that day was Gary Everly. He took noise readings and 5
engaged in conversations with Patrick Steffa, the Post Brothers representative. 6
The conversations, part of which were recorded and transcribed, make clear that
the first noise readings were out of compliance. At one point, Everly admitted that the
noise level was “out of compliance,” but, in response to Steffa’s plea to enforce the 10
noise level requirements, Everly said “I want them to be able to protest.” G.C. Exh.
3(b). Steffa was able to see the readings as he followed Everly around and he
protested that Everly was not asking that the Respondent turn down the audio level and
enforcing the noise ordinance. See G.C. Exhs. 3(a) and (b) and Tr. 92-100. Steffa took
a photograph of Everly with a reading device, which was received in evidence along 15
with Steffa’s testimony, that showed a reading of 93.7, which was well above normal
readings of 60-70 decibels. Tr. 104-107, G.C. Exhs. 3(a) and 15. According to Steffa,
during their conversations, Everly assured him that a citation was going to be issued for
excessive noise, but, on the next day, when Everly again came to the site, he indicated
that a citation would not be issued. Tr. 113-117. The findings set forth above are 20
supported by Steffa’s credible testimony about the above conversations, much of which
was supported by video and documentary evidence. It also was uncontradicted
because Everly did not testify.
Eddis testified in general terms about the conversations between Everly and 25
Steffa, but, since he was not directly involved in the conversations, his testimony is not
as reliable on the details as Steffa’s. Eddis testified that his understanding was that
Everly had decided on September 18 not to issue a citation and that Steffa tried to talk
him into issuing one. See Tr. 243-244. That is not accurate, based on the documentary
evidence of that conversation discussed above and the credible testimony of Steffa. 30
Nor did Eddis testify as to the basis of his “understanding,” which was speculative in any
event. Moreover, as shown below, a subsequent exchange between Eddis and
Donohoe confirms that Respondent believed that a citation was forthcoming based on
what took place on September 18. In these circumstances, I cannot credit Eddis’s
testimony in this respect.35
Eddis also testified that, on September 18, Everly instructed him to turn down the
volume of the recording, which had been set at level 7 on Respondent’s machine that
day, as it had the day before, to level 4. Eddis testified that he did as instructed. Tr.
244-245. Eddis further testified that he kept the volume at level 4 the remainder of the 40
time that Respondent utilized the crying baby recording. Tr. 245-247. Donohoe likewise
5 The dates of some of the following events are unclear since the stipulation provides that the first day
of the recording was September 17. But the documentary evidence supports the finding, which I make,
that the first date that Air Management visited the site was September 18.
6 Everly returned the next day, September 19, to take additional readings and Steffa seemed to be
confused as to which day the above conversations between him and Everly took place. See Tr. 100, 104.
I find, after considering all of the evidence, that they took place on September 18.
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7
testified he kept the volume at 4 during the entire period of the protest “except once or
twice,” when he made a “quick adjustment” and “touched it real quick” because a
passerby complained. Tr. 286-287, 292, 298-300. I do not credit their testimony in this
respect for the reasons set forth below.
5
Credibility
I found both Donohoe and Eddis to be unreliable witnesses so I generally
discredit their testimony unless it constitutes an admission against interest or is
corroborated by other reliable evidence. As indicated above, Eddis testified unreliably 10
about whether Everly’s reading was in compliance or not. I also found Eddis less than
fully forthcoming based on my assessment of his demeanor. Donohoe particularly had
an unimpressive demeanor. He was often curt in his answers and demonstrated a
unique lack of candor while testifying. I found most significant in evaluating the
credibility of both witnesses a text exchange between the two on the night of September 15
18, which was subpoenaed and came into evidence as G.C. Exh. 21. As shown below,
it contradicts their testimony that they abided by the instructions to turn down the noise
level of the crying baby and supports the finding, which I make, that they intentionally
turned it up to provoke and interfere with the operations of Post Brothers and other
neutrals.20
On the night of September 18, Donohoe and Eddis exchanged text messages. It
is clear from those exchanges that Eddis believed that Air Management was going to
issue a violation citation based on noise level readings from that day at the Broad Street
site. It is also clear that Eddis and Donohoe intended to manipulate the location of the 25
speakers to minimize the decibel levels that Air Management was going to test the
following day. At one point, Donohoe stated “We did good today. We got to them and
that’s what we wanted to do. I can just imagine how pissed they were last night w the
volume on 7 lol.” Eddis responded with his own “Lol!! [“laugh out loud” in textspeak]”.
He continued: “People were seriously crying…it was way more contentious 30
yesterday…Steffa was not taking it well…along with me going back & forth.” Donohoe
answered with 3 thumbs up emojis. G.C. Exh 21. At one point, Eddis stated that he
would move the speakers in response to certain actions of Post Brothers. Donohoe
stated that the speakers should be positioned “away from building so that the reading
across street will be higher and benefit us when they take close reading.” G.C. Exh. 21. 35
These exchanges belie the testimony of Donohoe and Eddis concerning the noise level
of the recording, its effects and its purposes. It also confirms that Respondent was
willing to change the direction of the speakers to avoid adverse readings by Air
Management.
40
In accordance with the above analysis, I also find that the volume was often set
well above level 4 and likely at level 7, as it was on the first day of the protest. Further
support for that finding is the credible testimony of witnesses Steffa, Byrd and
Vasilevich, discussed above. All were regularly present in front of the Broad Street site
near the speakers. I also rely on the credible testimony of the residents of the Center 45
City One condominium. They not only testified about the high volume of the noise level,
but also that it did not subside even after they complained to Respondent’s officials on
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8
the scene. Their testimony about the noise level from the inside of their apartments and
even when walking in the neighborhood supports the other testimony about the noise
level at the source of the crying baby recording and its effect on the neutrals working
inside the Atlantic Building. All of this testimony also supports my finding as to the lack
of credibility of Donohoe and Eddis to the extent that they denied that the noise level 5
was kept low and never or almost never changed.
It is also clear that the speakers for the recording were almost always facing the
entrance of the Broad Street site. My finding in this respect is based in part on the
above testimony of Steffa, Vasilevich and Byrd, as well as the photographic evidence10
demonstrating the placement of the speakers, but also on G.C. Exh. 21 mentioned
above. Indeed, Donohoe admitted as much, testifying that the speakers always faced
the Atlantic Building, except “sometimes they were maybe a couple of degrees off on
the north/south direction.” Tr. 287. Significantly, and also adversely reflecting on the
credibility of both witnesses, Eddis testified to the contrary, namely, that the direction of 15
the speakers was changed “regularly” for no particular reason. Tr. 247. See also Tr.
272-273. Donohoe’s testimony about the direction of the speakers is also put in doubt
by his statement in G.C. Exh. 21 that he wanted to position the speakers away from the
building in order to affect the noise readings. Based on the above, I also find that
Respondent intentionally set the speakers in such a way as to interfere with or even 20
disrupt operations at the Broad Street site. Thus, also considering their general
unreliability as witnesses, I reject the self-serving testimony of both Donohoe and Eddis
that their intention in using the crying baby recording at a high volume was to attract
public attention to their protest.
25
The Air Pollution Inspection Reports
Two air pollution inspection reports signed by Everly were subpoenaed and
received in evidence; they covered noise levels measured on September 18 and 19,
2018.7 The first, for September 18, was signed on September 21, 2018 and states that 30
readings could not be used for compliance due to weather conditions. The time span
for the activity, presumably when Everly was on the scene and doing readings, was
listed as from 11 am to 4:30 pm. The second for September 19 was signed on October
18, 2018. That report, which measured activity from 1:30 pm to 3 pm, states that
“readings taken on Broad St. where you could not hear source of complaint (a crying 35
baby) were 62.0-68.3 dBA. At entrance to 260 South Broad where you could hear the
source sound level readings were 78.5-80 dBA. Because of the increase in background
noise from work going on in 260 South Broad sound was less than 10 dBA.” R. Exhs 1
and 2. 8
40
I find that these reports have no reliability in determining the real noise levels in
this case. First of all, the reports themselves only cover parts of two days (actually the
7 Air Management did not come to the site on any other days and no readings were taken on the other
days of the crying baby recording. See Tr. 118-119.
8 I find it odd that the official report for September 19 was signed a month after the reading, while the
one for September 18 was signed 3 days later.
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second and third days) of the crying baby recording, the only times Air Management
was on the scene. But the crying baby recording was utilized on many other days from
September 17 through October 19. Everly did not testify in this proceeding to explain
either the meaning of the readings or the circumstances under which they were taken.
This is especially important because the credible testimony of Steffa and consideration 5
of G.C. Exh. 21, the contemporary exchange between Donohoe and Eddis, casts
considerable doubt on Everly’s readings. As discussed above, I have found that Everly
admitted to Steffa that the noise level on September 18 was out of compliance, but he
would not enforce the regulations on that occasion because he wanted Respondent to
continue its protest. Indeed, even Donohoe and Eddis expected the readings on that 10
day to show a noise violation. Thus, the noise level was out of compliance on
September 18. The official record of that day’s readings is not to the contrary since it
simply states that accurate readings could not be verified because of the weather.
Moreover, it is admitted that all day on the first day, September 17, when no 15
official readings were taken, the noise level was set at level 7. That was clearly out of
compliance because Eddis admitted that, the next day, he was told by Everly to lower
the noise level to level 4. As I have found, the noise level was not kept at level 4
throughout the rest of the crying baby protest, contrary to the discredited testimony of
Donohoe and Eddis and in accordance with the testimony of many other witnesses. In 20
the last analysis, neither Everly’s reports nor the alleged reading of the Respondent’s
recording machine captured the real noise level of the crying baby and its effects during
the lengthy period it was utilized. Based on my credited findings, the noise readings
were out of compliance on September 17 and 18. On those occasions, and on many
other occasions over the next month, when no official noise level readings were taken,25
the noise level was loud enough to interfere with the operations of the neutrals at the
Broad Street site.9
The Alleged Threat
30
Early in the crying baby protest, Steffa had an exchange with one of
Respondent’s officials on the scene, Brian Eddis. They spoke near the entrance of the
Atlantic Building and over the crying baby recording so the conversation was fairly loud.
At first there was an exchange about Steffa being a former union member. Tr. 107-109.
Then, according to Steffa, Eddis said he “knew where Bridesburg was and that fires 35
happen all the time.” Tr. 109. At that point the conversation turned “heated.” Tr. 111.
Steffa owns a bar in the Bridesburg section of Philadelphia and he testified there was a
fire at a nearby bar the year before. Members of Respondent, including Donohoe, who
was Steffa’s cousin, frequent Steffa’s bar. Tr. 109-111. Steffa testified that he felt
threatened by Eddis’s statement and he increased security by installing cameras at his 40
bar as a result. Tr. 110-111,128. Also, according to Steffa, throughout the day, Eddis
9 As indicated, I do not rely on the official report for September 19 as an accurate reflection of the
noise level on that day. But even assuming it was accurate for the hour and half covered by the report, the
noise levels the remainder of that day and other days of the protest were well beyond normal, based on the
overwhelming evidence in support of my findings and credibility determinations.
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10
informed him that, if Major Electric left the location, “the crying baby would leave too.”
Tr. 111.
Eddis admitted having a tense exchange with Steffa at the outset of the protest
but denied making the threat related by Steffa. According to Eddis, the exchange took 5
place shortly after the recording equipment was set up. Tr. 239-242. At first, Eddis
testified that he made reference in the conversation to Steffa’s bar and acknowledged
that he knew about the bar Steffa owned. Tr. 239. Later he testified to the contrary
about referring to the bar. 241, 242. Eddis did not refute Steffa’s testimony about the
recent fire near Steffa’s bar. Nor did Eddis deny telling Steffa that, if Major Electric left,10
so would the recording of the crying baby.
I credit Steffa over Eddis. Steffa’s uncontradicted testimony about his
interactions with Everly, which was supported by video and photographic evidence,
demonstrated his reliability as a witness. His testimony about the Eddis conversation 15
was straightforward and similarly believable, based also on his truthful demeanor. In
contrast, Eddis was not a credible witness on a number of other issues, as mentioned
above. I did not find his testimony on this issue any more credible, especially in view of
his apparent contradictory testimony as shown above and his failure to deny aspects of
Steffa’s testimony. Accordingly, I credit Steffa’s testimony that Eddis did indeed make 20
the threat as related by Steffa.
Discussion and Analysis
The Crying Baby Recording is Not Picketing25
Paragraph 6(c) of the complaint alleges that, by repeatedly broadcasting the
crying baby recording at a high volume, Respondent “engaged in picketing” in violation
of subsection (ii) of Section 8(b)(4)(B) of the Act. However, it is clear that such conduct
does not constitute picketing as a legal matter. In the lead case rejecting an allegation 30
that a union’s use of a stationary banner in connection with peaceful handbilling
constituted picketing, the Board set forth the following definition of picketing:
The core conduct that renders picketing coercive under Section 8(b)(4)(ii)(B)
is . . . the combination of carrying picket signs and persistent patrolling of35
the picketers back and forth in front of the entrance to a work site, creating
a physical or, at least, a symbolic confrontation between the picketers and those
entering the worksite. This element of confrontation has long been central to
our conception of picketing for the purposes of the Act’s prohibitions.
40
Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB 797, 802 (2010).
The use of the crying baby recording in this case, in connection with the peaceful
handbilling, is clearly not within the legal definition of picketing set forth above. There
was here no use of picket signs and no patrolling and certainly there was no physical or 45
symbolic barrier that sought to prevent (or actually prevented) neutrals from entering the
workplace. The General Counsel does not seriously contest either the facts on the
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11
crying baby recording or the definition of picketing set forth in the Eliason case. Instead,
the General Counsel relies on the dissent in Eliason to argue a novel and expansive
definition of picketing. G.C. Br. 32-36. But I must apply existing Board law.
Accordingly, I dismiss the allegation in paragraph 6(c) of the complaint that the crying
baby recording constituted picketing in violation of Section 8(b)(4)(B)(ii) of the Act.5
The Crying Baby Recording Constituted Coercion
Section 8(b)(4)(ii)(B) of the Act makes it an unfair labor practice for a union “to
threaten, coerce, or restrain any person engaged in commerce or in an industry 10
affecting commerce,” who is not involved in a primary dispute with the union, where an
object is to force that person “to cease doing business with any other person.” Since
the secondary “cease doing business” object of Respondent’s conduct is admitted here,
the main issue on this part of the case is whether the conduct was coercive. In that
respect, the Board has found non-picketing conduct to be coercive “when the conduct 15
directly caused, or could reasonably be expected to directly cause, disruption of the
secondary’s operations.” Eliason, cited above, 355 NLRB at 805.
I find that the Respondent’s repeated use of the crying baby recording at an
excessive volume meets the Board’s definition of coercion in Eliason and thus violated 20
Section 8(b)(4)(ii)(B) of the Act. See Carpenter’s (Society Hill Towers Owners’ Ass’n.),
335 NLRB 814, 815, 820-823, 826-829 (2001), enforced, 50 Fed, Appx. 88 (3d Cir.
2002), a case that was cited with approval and distinguished in Eliason, 355 NLRB at
806. In Society Hill, the recording, which was repeated over a considerable period of
time, contained only a worded message explaining the union’s dispute. But the 25
message was meant to enmesh a neutral owner of a residential building in the union’s
dispute with another entity. The evidence of excessive volume included testimony of
the residents of the neutral as well as other witnesses. There were also citations of
violations of the noise regulations of the City of Philadelphia, but, since those were
being appealed at the time of the hearing, they were not relied upon by the 30
administrative law judge or the Board. The Board also relied on a warning system
utilized by the union to lessen the volume of the recording when the authorities
appeared on the scene to take noise readings, thus interfering with the taking of valid
readings.
35
Contrary to Respondent’s attempt to distinguish this case from Society Hill (R. Br.
20-21), the facts in this case are remarkably similar to those in Society Hill, and, in
some ways, present a more serious degree of coercion. For example, here, the crying
baby part of the recording was far more disturbing and contained less of a relevant
verbal message than the spoken words that made up the entire message in Society Hill. 40
As I have found, it had no purpose but to interfere with the neutral employers working at
the Broad Street site. Moreover, unlike the situation in Society Hill, where the Board did
not rely on noise level citations, the noise level here was in violation of the
Philadelphia’s noise regulations. As I have found, on one occasion, the Air
Management representative admitted that the noise level was not in compliance, and, 45
on other occasions, the noise level was at level 7, which was admittedly not in
compliance because Respondent had been told that the recording should be turned 3
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12
levels lower. But even apart from those findings, the testimony about the excessive
volume of the crying baby recording came from a number of credible witnesses, just as
it did in Society Hill. And the broadcast here lasted over a lengthy period of time, even
though perhaps not as long as in Society Hill. Most importantly, the exchange between
Donohoe and Eddis, as reflected in G.C. Exh. 21, as well as my credibility resolutions 5
show that Respondent manipulated the volume of the recording and even the direction
of the speakers to avoid proper readings by the authorities, just as the union did in other
ways in Society Hill. G.C. Exh. 21 also shows, most disturbingly, an intent to interfere
with and disrupt the operations of Post Brothers at the Broad Street site, something that
was not the case, at least not in such an explicit way, in Society Hill. 10
Also contrary to Respondent’s suggestion (R. Br. 21), there was indeed evidence
of the impact of the noise on those working in the Atlantic Building: The credited
testimony of Steffa, Byrd and Vasilevich makes such impact quite clear. Nor, contrary
to Respondent (R. Br. 21, n. 9), does it make any difference that the Center One 15
residents were not persons engaged in interstate commerce. They were simply
witnesses testifying about the excessive noise level of the crying baby recording. The
persons engaged in interstate commerce who were subjected to the coercive noise
levels were Post Brothers and the other neutrals—as well as their employees—who
were trying to work at the site. That was the essence of the violation.1020
Respondent’s contention (R. Br. 27-30) that the crying baby recording was
protected by the First Amendment is without merit. The crying baby aspect of the
recording was its most prominent part, eclipsing by far the brief worded message which
did not even mention the name of the entity with whom Respondent had its primary 25
dispute. The crying baby part of the recording had no real message and was utilized to
interfere with neutrals at the Broad Street site. But what made it coercive was its
excessive volume. And the Board made it clear in Society Hill that such excessive
noise making is not protected by the First Amendment. 335 NLRB at 826, citing and
discussing Kovacs v. Cooper, 336 U.S. 77 (1949). It is also clear that secondary 30
boycott activity does not have First Amendment or statutory Section 8(c) protections.
See IBEW Local 501 v. NLRB, 341 U.S. 694, 703-705 (1951); and United Brotherhood
of Carpenters v. Sperry, 170 F.2d 863, 869 (10th Cir. 1948).
With respect to the First Amendment claim, perhaps Tour Guide and Center City 35
One resident Howard Paull said it best. When Paull complained about the excessive
volume of the crying baby recording directly to Business Agent Donohoe at the scene,
Donohoe said he had a First Amendment right to play the recording. Paull replied that
that right was limited and stated, “you can’t yell fire in a crowded theater.” Justice
Holmes may have said it first,11 but Paull’s rejoinder is the perfect coda for this part of 40
the case, as was Donohoe’s failure to lower the volume after Paull’s complaint.
10 All parties in their briefs cited to my decision in International Brotherhood of Electrical Workers,
Local 98 (Fairfield Inn), 2019 WL 2296952 (May 28, 2019), where I found the Respondent violated
Section 8(b)(4)(ii)(B) by using a bullhorn at an excessively loud volume elsewhere in the City of
Philadelphia. But I do not rely on that decision in support of the violation here because that decision is
pending review by the Board.
11 Schenck v. United States, 249 U.S. 47, 52 (1919) (“The most stringent protection of free speech
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13
Eddis’s Threat Violated the Act5
As shown in the factual statement, early on during the crying baby protest, in a
conversation at the protest site, Eddis told Steffa that he knew where Steffa’s privately
owned bar was located and that fires happen there “all the time.” There was indeed a
recent fire near Steffa’s bar and Steffa clearly took this as a serious matter since he 10
thereafter upgraded security at the bar, which was frequented by members of
Respondent, including Business Agent Donohoe. This was at least an implied threat of
physical harm or harm to the property of a representative of a neutral to the
Respondent’s dispute at the Broad Street site.
15
The only remaining question is whether the threat was sufficiently related to the
Respondent’s admitted secondary objective, namely, to have Steffa’s neutral employer,
Post Brothers, stop doing business with Major Electric. I find that it was. In context the
only explanation for the threat was Steffa’s relationship with Post Brothers, a neutral in
Respondent’s dispute with Major Electric. As the security officer on the scene for Post 20
Brothers, Steffa was objecting to the volume of the crying baby recording and he dealt
with Air Management urging that it find a violation of applicable noise regulations. In
contrast, Eddis was defending the noise level of the recording. The threat took place
very near the crying baby recording, which made speaking above it difficult. And,
significantly, later that day, Eddis made clear that the crying baby recording was the 25
source of his displeasure with Steffa by telling Steffa that, if Major Electric left the Broad
Street site, the crying baby would leave also. The record contains no other reason for
Eddis’s displeasure with Steffa on this occasion that would precipitate the threat that
was made. Thus, the nexus and connection between the threat and the Respondent’s
labor dispute is clear. Accordingly, the threat amounted to coercion under subsection 30
(ii) of Section 8(b)(4)(b) of the Act.
Remedy
Having found violations in this case, I shall issue a recommended order that 35
requires Respondent to cease and desist from its unlawful conduct and to post an
appropriate notice. As I have found, based on my credibility determinations and the
musings of Respondent’s agents Donohoe and Eddis in G.C. Exh. 21, Respondent
intentionally used the loud crying baby recording not to call attention to the public about
its dispute with Major Electric, but to disrupt and interfere with the operations of Post 40
Brothers and other neutrals in order to force them to cease doing business with Major
Electric. Indeed, Donohue testified that Respondent has used the crying baby recording
at other locations after the incidents set forth in this case. Tr. 305-306. Accordingly, the
order will provide that Respondent cease using the recording at an excessive volume
not only against Post Brothers but other persons and the cease doing business object 45
would not protect a man in falsely shouting fire in a theatre and causing a panic.”).
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14
should be prohibited insofar as it applies to other persons besides Major Electric. Thus,
this is a broad order insofar as it protects persons other than those involved in this case,
but it is narrow in that it applies only to the crying baby recording at an excessive
volume and prohibits only “like or related” conduct. Such an order is justified solely on
the evidence in this case.125
Conclusions of Law
1. By playing an amplified crying baby recording at an excessively loud level
in front of the Broad Street site, Respondent coerced Post Brothers and other neutrals 10
working at the site with an object of forcing those entities to cease doing business with
Major Electric, thus violating Section 8(b)(4)(ii)(B) of the Act.
2. By threatening an official of Post Brothers that his personal bar might be
subjected to a fire with an object of forcing Post Brothers to cease doing business with15
Major Electric, Respondent violated Section 8(b)(4)(ii)(B) of the Act.
3. The above violations constitute unfair labor practices affecting commerce.
4. The Respondent has not otherwise violated the Act.20
On these findings of fact and conclusions of law, and on the entire record herein,
I issue the following recommended13
ORDER25
Respondent, International Brotherhood of Electrical Workers, Local 98, its
officers, agents, successors and assigns, shall
1. Cease and desist from:30
(a) Threatening, coercing or restraining Post Brothers or any other person
engaged in commerce or in an industry affecting commerce by playing an amplified
recording of a crying baby at an excessively loud volume where an object is to force
Post Brothers or any other person engaged in interstate commerce or in an industry 35
affecting commerce to cease doing business with Major Electric or any other person
engaged in commerce or in an industry affecting commerce.
12 Both the General Counsel and the Charging Party ask that the notice be mailed to Respondent’s
members and the Charging Party asks that the notice be read to the members and that Respondent be
required to attend training on the Philadelphia noise regulations. I do not think those suggested remedies
are necessary. The most effective remedy in this case would be for the Board to expeditiously obtain a
court order prohibiting the unlawful conduct, particularly because there was no earlier attempt to obtain
an injunction under Section 10(l) of the Act.
13 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be waived for all purposes.
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15
(b) Threatening any representative of Post Brothers with property damage or
other harm where an object is to force Post Brothers to cease doing business with
Major Electric.
(c) In any like or related manner violating Section 8(b)(4)(ii)(B) of the Act.5
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Within 14 days after service by the Region, post at its business offices and 10
meeting places copies of the attached notices marked as “Appendix”.14 Copies of the
notice, on forms provided by the Regional Director of Region 4, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to members are customarily posted. In addition to physical posting of paper 15
notices, the notices shall be distributed electronically, such as email, posting on an
intranet or an internet site, and/or other electronic means, if Respondent customarily
communicate with members by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any
other material.20
(b) Within 21 days after service by the Region, file with the Regional Director
a sworn statement of a responsible official on a form provided by the Region attesting
to the steps the Respondent has taken to comply.
25
It is also ordered that the complaint is dismissed as to the allegations not found
violative of the Act herein.
30
Dated, Washington, D.C. May 6, 2020

35
Robert A. Giannasi
Administrative Law Judge
40
14 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
~~~~,~-----
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16
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APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the secondary boycott
provisions of Federal labor law and has ordered us to post and obey this notice.
WE WILL NOT threaten, coerce or restrain Post Brothers or any other person by playing an
amplified recording of a crying baby at an excessively loud volume where and object is to force
Post Brothers or any other person to cease doing business with Major Electric or any other
person.
WE WILL NOT threaten any representative of Post Brothers with property damage or other
harm where an object is to force Post Brothers to cease doing business with Major Electric.
WE WILL NOT, in any like or related manner, violate Section 8(b)(4)(ii)(B) of the Act.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 98
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
Wanamaker Building, 100 Penn Square, East, Suite 400, Philadelphia, PA 19007
(215) 597-7601 Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CC-229379 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
JD-20-20
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (215)597-5354.