Intl. Brothd. of Electrical Wkrs, Local 134

National Labor Relations Board - Board Decisions

Oct 17, 1969

179 N.L.R.B. 202 (N.L.R.B. 1969)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
AFL-CIO; Local 134, International Brotherhood
of Electrical Workers, AFL-CIO; Local 165,
International Brotherhood of Electrical Workers,
AFL-CIO and Illinois Bell Telephone Company.
Case 13-CC-619
October 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On June 11, 1969, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondents' had
engaged in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision Thereafter,
the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief, the
Charging Party filed cross-exceptions to the Trial
Examiner's Decision, a brief in support of
cross-exceptions and in reply to the Respondents'
exceptions, and a brief in support of the Trial
Examiner's Decision. The Respondents filed a brief
in answer to cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the
cross-exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings,I
conclusions, and recommendations of the Trial
Examiner
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondents , Local 134,
International Brotherhood of Electrical Workers,
AFL-CIO, and Local 165, International
Brotherhood of Electrical Workers, AFL-CIO, their
officers , agents, and representatives , shall take the
At the hearing, the Trial Examiner granted the General Counsel's
motion to dismiss the complaint insofar as it applied to the International
Accordingly, "Respondents" hereinafter is used to refer to Locals 134 and
165
'We hereby correct the Trial Examiner's inadvertent reference to the
"1200" Bell employees to read "12,000," in section III, A, of his Decision
action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
SAMUEL M SINGER, Trial Examiner This proceeding,
tried before me in Chicago, Illinois, on March 26 to 27,
1969, pursuant to a charge filed on August 28 and
complaint issued on September 12, 1968, concerns
allegations that Respondents violated Section 8(b)(4)(i)
and (ii)(B) of the National Labor Relations Act, as
amended, by engaging in certain secondary boycott
activities. In essence, the complaint alleges that
Respondent Locals 134 and 165,' by picketing a
construction project (Winston Tower No. 3, in Chicago),
induced and encouraged employees to engage in work
stoppages, and threatened, restrained, and coerced persons
engaged in commerce, with an object of forcing or
requiring Winston Gardens, Inc., Winston-Muss
Corporation, their subcontractors, and other neutral
employers to cease doing business with the Charging
Party (Bell Telephone).
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses
Briefs were received from all. Upon the entire record' and
from my observation of the witnesses, I make the
following.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Bell Telephone, an Indiana corporation, with its
principal office and place of business in Chicago, Illinois,
and branch offices and places of business in Illinois and
Indiana, is engaged in the business of providing telephone
services as part of a nationwide telephone system. During
the 1968 calendar year, a representative period, it derived
gross revenues in excess of $1 million from
communication services between points within Illinois and
Indiana and points in other States.
Winston Gardens, an Illinois corporation, with its
principal office and place of business in Palatine, Illinois,
is a wholly owned subsidiary of Winston-Muss, the owner
of the Winston Tower No 3 construction project.3 During
the calendar year 1968, Winston and its subcontractors at
that construction project received and used there materials
and supplies valued in excess of $50,000, shipped directly
from points outside Illinois
I find that Bell Telephone, Winston-Muss, and Winston
Gardens at all material times have been persons engaged
in commerce or industries affecting commerce within the
meaning of the Act, and that assertion of jurisdiction here
is proper.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Locals 134 and 165 (herein collectively
referred to as the Union) are labor organizations within
the meaning of Section 2(5) of the Act.
At the hearing I granted General Counsel 's motion to dismiss the
complaint insofar as it applied to the International (International
Brotherhood of Electrical Workers, AFL-CIO)
'Transcript corrected by my order on notice dated May 16, 1969
'Because of the identity of their interests, Winston Gardens and
Winston-Muss will usually be referred to collectively as Winston
179 NLRB No. 33
INTL. BROTHD . OF ELECTRICAL WKRS , LOCAL 134 203
III. THE UNFAIR LABOR PRACTICES
A. Background, Bell's Work at the Construction
Project'
On May 8, 1968,' the approximately 1,200 Bell
employees represented by the Union commenced a strike
against Bell in support of economic demands in
mid-contract negotiations under the wage reopener clause
in the subsisting collective agreement. Bell's main facilities
in Chicago, "as well as other projects" where Bell did
business , were picketed until September 23. As presently
indicated, the picketing of the project here involved
(Winston Tower No. 3) began on August 27 and ended on
September 6.6
Winston Tower No 3 is one of a complex of four
apartment condominiums, costing an estimated $5 to $6
million to build. Owners of the apartment ("tenants")
began moving into the building on July 1 By August 24,
100 to 150 of the 251 apartments were occupied, none
with telephone connections. Winston Project Manager
Speer credibly testified that prior to that time he had
received "numerous calls from occupants of the building
that they had heart trouble and so forth" and wanted
telephones, but that he advised the tenants that "due to
the fact that there was a strike on, there was nothing [he]
could do for them."
After a preliminary investigation of the project on
Friday, August 23, Bell Plant Engineer Brown and 11
other supervisory employees went to the project on
Saturday and Sunday (August 24 and 25) to complete the
necessary work to provide telephone service. During the
12 hours (starting at 8 a.m.) on each of these days, the
crew uncoiled the "main" cable (previously installed,
infra) and fastened it to a basement wall. They then
proceeded to do the cable and conduit work, preparatory
to installing telephone instruments . This work and that
presently described (infra) admittedly was of the type
ordinarily performed by the strikers.
Bell had undertaken to prepare and provide telephone
service for the Winston project as early as March 1967,
when Winston's architect (Barbanel) requested Bell Plant
Engineer Maierhofer "for a conduit recommendation "
The latter thereupon visited the project and conferred with
Winston's then Project Superintendent (Sussman) "at
least a couple dozen times" regarding the layout of the
work to be done - including the location of the main
cable and time of its installation . Winston's architect and
Bell personnel would exchange diagrams and blueprints
and discuss the problems that came up. Thus, after
consultations , it was agreed to relocate the path of the
underground service ("main") cable from one end of the
project to another, in order to save on the amount of
trenching Winston in effect gave Bell an "easement" for
the main cable and dug the trench for it without charge. It
also furnished (free of charge) interior space, closet space,
user shafts, and conduit. The cable and other telephone
equipment remained Bell property. These arrangements
'The findings in this and subsequent sections are based on
uncontradicted testimony and stipulations Respondents did not call any
witnesses , but cross -examined witnesses called by General Counsel.
'Unless otherwise indicated , all dates are 1968
'Prior to September 6, the Regional Director filed, pursuant to Section
10(1) of the Act, a petition with the United States District Court for the
Northern District of Illinois (Eastern Division ) to enjoin the picketing
Without taking evidence, the Court, on assurances from the parties that
the picketing had ceased , ordered "the cause stricken from the calendar
without prejudice and with leave to reinstate on motion of any party "
between Winston and Bell were in keeping with practices
followed by Bell at other projects involving other builders
On Monday, August 26, at around 5:30 p.m , the Bell
crew returned to the project. By 1:30 a.m. (Tuesday) they
had completed the cable work, placed the conduits going
to the apartments, and installed telephones for six
occupants whom Winston regarded as "emergency" cases:
two physicians, a pharmacist, and three cardiacs. Bell
Plant Engineer Brown testified that he purposely got to
the project after 5.30 p.m. so that his crew "wouldn't be
there when the trades are there." No employees of other
employers were on the scene when the work was
performed.
B The First Day's (August 27) Picketing, the
Union's "Threat" to Winston
Between 8 . 30 and 8:45 a.m. on Tuesday (August 27),
pickets from Locals 134 and 165 began to patrol the
intersection of Kedzie Avenue and the private driveway,
the sole vehicular entrance to Winston Tower No 3,
wearing apron -type signs , reading
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
AFL-CIO
ON STRIKE
AGAINST
ILLINOIS BELL
TELEPHONE
COMPANY
The pickets stopped to talk with drivers bringing supplies
(such as kitchen equipment), telling the drivers that they
were "on strike against Illinois Bell" and requesting them
to "recognize their picket line " The drivers "backed off
and went on [their] way," without making deliveries. The
pickets also spoke to drivers of trucks servicing residents
of Winston Tower No. 3, including cleaning, diaper
service, and maintenance truckdrivers. Some of these,
however, crossed the picket line Employees of the general
contractor (Winston Gardens) and of its subcontractors
(electricians, tilemen, etc.), who had commenced working
before the pickets arrived, continued to work the entire
day. The pickets remained at the project until 4.15 or 5
p.m No Bell employees worked at the project during
these hours. Winston Project Superintendent Speer
credibly testified that after the picketing started he "made
certain" that no telephone work "would be done," by
requesting Bell not to further schedule such work.
At around 11 a.m. on the same day (August 27), Speer
telephoned the Union's "strike director" Ahern, asking
him "the reason" for the picketing. Ahern said that "work
was done by the Bell people over the weekend, and that
was the reason for the pickets being out there." When
Speer explained that the six telephones installed were for
cardiacs, physicians, and pharmacists, Ahern stated that
his "main complaint" related to the cable work done over
the weekend "which was permanent installation."
Around 3 p.m., Speer again telephoned Ahern,
complaining that he "was bottling up the job and putting
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[him] in a bad condition " He offered "to send [Ahern] a
letter guaranteeing, from this time on, until such time as
the strike ended, that there would be no . Bell .
employees allowed on my property." Ahern answered that
he was "very sorry, but he could not go along with that,"
adding that "the pickets would continue . until the
permanent installation that the Bell people had installed
on the previous Saturday and Sunday was disconnected
and removed from the job." He went on to say that he
would have had "no complaint" about the telephone
installations for the six individuals if the Company had
hung only "temporary cable from . . the main line on
Kedzie, through the windows of the individual
apartments "
Speer again telephoned Ahern at around 6 p m., asking
"if there was any possibility about . . removing the
pickets the following morning" Ahern replied, "No, that
they would be there." Thereupon Speer made "a
proposal" that if Ahern or one of his men "would come
out and give an estimate of a time, manhours, costwise . .
. that was spent by Illinois Bell during this two-day
period, [Speer] would reimburse it into the Union fund or
strike fund." Ahern replied, "Positively not, that no deals
could be made," repeating his earlier statement that "the
only way the pickets could be removed would be to
remove the permanent installation from the job."
C. August 28 -- September 6 Picketing
The Union again picketed the project on the next day
(Wednesday, August 28) from around 7 15 a.m. to 4 30
p m Close to 100 employees of the general contractor
(Winston Gardens) and its subcontractors were scheduled
to work on that day 15 to 20 carpenters and laborers for
Winston, 35 to 40 for M Ecker (painting and drywall
contractor), 15 or 16 for Coleman Floor (ceramic and
resilient tile contractor), 5 or 6 for Nadolna Brothers
Plumbing; 5 or 6 for R. Martin and Company (heating
and ventilating contractor); and 12 to 15 for United Light
(electrical contractor) However, only Nadolna's five or
six plumbers, already on the project when the pickets
arrived, worked that day. The others, who arrived after
the pickets (between 7.30 and 8 a.m.), "just didn't attempt
to cross the picket line." As on the previous day, no Bell
employees were at the project.
As previously noted, the Union continued to picket
through Friday, September 6. No craftsmen worked on
Thursday, August 29; 15 to 20 percent of those scheduled
to work on the next day (August 30) were on the job By
the end of that week (September 6) half of the men
scheduled on the project reported for work Apparently in
the meantime,' Speer, who had been under "pressures"
from cardiac patients and other tenants for telephone
service, prevailed upon Ahern (the Union's strike director)
to approve telephone installations in emergency cases
Ahern agreed "to cooperate" as regards those "that are
desparately [sic] in need of phone service . providing
the customer would contact Mr Ahern or one of his
assistants and get approval " Under the agreed procedure,
the Union would notify Speer's office of its "approval"
and it, in turn, would convey the information to Bell
Telephone which would then make the installation. Bell
Plant Engineer Brown testified that his crew alone
installed 25 or 30 telephones in "emergency cases" - all
during regular daytime hours 6
'Project Superintendent Speer could not fix the date, but the context
indicates that it was before the picketing ceased on September 6
D Analysis and Conclusions
As found, after unsuccessful contract negotiations, the
Union on May 8, 1968, called a strike against Bell. On
August 24 through August 26 (Saturday through
Monday), Bell managerial employees completed the cable
work and installed six telephones at the Winston project
(Winston Tower No. 3). From August 27 through
September 6, the Union picketed the project, the common
worksite of various secondary or neutral employers,
including Winston Gardens (general contractor) and its
subcontractors. As a result, employees of these secondary
employers refused to perform services. In issue here is
whether the picketing and other conduct engaged in by the
Union constituted proscribed secondary activity within the
meaning of Section 8(b)(4)(i) and (u)(B) of the Act. For
reasons stated below, I find that they did
1. Section 8(b)(4)(i) and (n)(B), insofar as here relevant,
prohibits a union or its agents from inducing or
encouraging employees of a secondary employer to refuse
to handle products or perform services, and from
threatening, restraining, or coercing secondary employers,
where an object of such conduct is to force or require a
secondary employer to cease doing business with the
primary or disputing employer. Thus, a violation under
these statutory provisions requires two elements (1) an
object to bring about cessation of business between the
primary and secondary employers; and (2) inducement of
secondary employees and coercion of secondary employers
to achieve the proscribed objective.
2. Based on the entire record, I find that an object of
the picketing was the involvement of neutrals such as
Winston Gardens and its subcontractors in the Union's
dispute with Bell, in order to force Winston to cease doing
business with the primary employer by bringing illegal
pressures on Winston and its subcontractors. In Moore
Dry Dock Company,' the Board set down the criteria,
which since have been "widely accepted by reviewing
federal courts" (Local 761, IUE v. N L.R B, 366 U S.
667, 677), for determining when picketing at a common or
mixed situs may be presumed to be for a primary or
secondary objective In order to qualify as primary
picketing under these established criteria, it must appear,
among other things (a) that the "picketing is strictly
limited to times when the sous of dispute is located on
the secondary employer's premises", and (b) that "at the
time of the picketing the primary employer is engaged in
its normal business at the situs "10 The picketing here
failed to meet both of these requirements The undisputed
evidence establishes that no Bell employees were on the
jobsite and that Bell was not engaged in its normal
business there during the picketing (August 27 to
September 6) Indeed, as soon as the picketing
commenced, the general contractor (Winston Gardens)
The record does not disclose the total number of installations (including
those pursuant to Union "approval") made by Bell during the strike
Project Superintendent Speer testified , and counsel for Bell (in explaining
Bell's inability to comply with a subpena calling for records ) maintained,
that no such records were available-Speer averring that Winston never
kept records thereon and Bell's attorney asserting that work orders on
special jobs were later replaced by new work orders (since "all of this work
has been redone since then "), the original orders then being destroyed in
accordance with "routine" procedure Respondents produced one work
order showing installation of two telephones around September 4 for the
building manager handling maintenance (Arthur Rubloff Company) which
Speer regarded as special work, and "very important" for emergencies as
in the case of "a fire " Bell Plant Engineer Brown testified that this
installation was done after 5 30 p.m when no pickets were around
'Sailor's Union of Pacific (Moore Dry Dock Co ). 92 NLRB 547, 549
"The other requirements are that the picketing be limited to places
INTL BROTHD. OF ELECTRICAL WKRS,LOCAL 134
"made certain" that no Bell work was to be performed on
the premises by requesting the primary employer not to
schedule additional work Cf. Painters District Council
No 38 (Edgewood Contracting Co ), 153 NLRB 797, 800.
The Union nonetheless insisted on picketing the project
even though the project superintendent offered to
"guarantee" that no Bell personnel would be allowed
thereon until the strike ended. Nor did the Union accept
the project superintendent's offer to reimburse the Union
for the financial loss its members might have incurred
because of Bell's cable work during the strike, insisting
that the secondary employer (Winston) dismantle and
remove it as a condition to withdrawing the pickets. The
Union thus brought home to the secondary employer the
danger of doing business with Bell, demonstrating thereby
that it was being punished for allowing the primary
employer to work on the jobsite, irrespective of time and
circumstances Apart from disclosing a secondary
objective, the Union's action was tantamount to a threat
to continue the picketing unless the permanently installed
cable was removed - a threat in itself constituting a
violation of Section 8(b)(4)(n)(B). See International Hod
Carriers, Local No 1140 (Gilmore Construction
Company), 127 NLRB 541, 545, Local 575, International
Brotherhood of Teamsters (Dierickx Vending Co , Inc ),
141 NLRB 592, 597, Local No 41, International
Brotherhood of Electrical Workers (New York Telephone
Company), 162 NLRB 620, 624
Under all the circumstances I find that an object of the
picketing was to implicate neutral employers in the
Union's dispute with Bell, in violation of Section 8(b)(4)(i)
and (ii) (B) of the Act.
3. It is equally clear that by its picketing and verbal
appeals to secondary employees to respect the picket line,
the Union induced and encouraged employees of
secondary employers to withhold their services. "The
normal purpose of a picket line is to persuade employees
not to cross it." N L R B v Dallas General Drivers,
Local No 745, 264 F.2d 642, 648 (C A 5) See also'
Printing Specialties Union v LeBaron, 171 F 2d 331, 334
(C.A. 9) The Union's conduct also constituted restraint
and coercion of neutral employers doing business at the
jobsite, particularly of neutrals whose employees engaged
in work stoppages which prevented the employers from
carrying on their usual business at the jobsite See
International Hod Carriers, Local No. 1140 (Gilmore
Construction Co ), supra, 127 NLRB 541 Indeed, the
picketing here would have constituted unlawful
inducement and coercion even if it had failed of its
objective, i e , if the secondary employees had not
withheld their services See N L R B v. Associated
Musicians, Local 802, 226 F.2d 900, 904-905 (C.A. 2).
4. The Union's major contention (br. pp 8-10) is that
Section 8(b)(4) of the Act is inapplicable here since no
"cease doing business" object was present The Union
argues that this section was designed "to protect the
commercial relationships between competitive entities who
reasonably close to the situs of the dispute, and the picketing disclose
clearly that the dispute is with the primary employer Although the Moore
Dry Dock standards "are not to be applied on an indiscriminate 'per se'
basis" (International Brotherhood of Electrical Workers, Local Union 861
(Plauche Electric, Inc ), 135 NLRB 250, 255), noncompliance of the
picketing therewith "justifies a presumption or an inference that the
picketing at the mixed situs has an illegal secondary object," thus placing
the burden on the union to rebut the presumption Glass Workers Local
Union 1892. Brotherhood of Painters, Paperhangers and Decorators of
America, AFL-CIO (Frank J Rooney, Inc), 141 NLRB 106, 115
205
face the rigors of the market place" and not "a
monopoly," like Bell, "with no competition in the field of
telephonic communications " It claims that Bell was doing
business "with the apartment owners who subscribed to
the telephone service" and not with Winston (br. p 10).
In short, the Union contends that this case does not
present "a typical common situs situation" (br p 13) to
which the Moore Dry Dock criteria apply.
I do not agree. As the Board and courts have
repeatedly indicated, the term "doing business" must be
construed broadly, in order to effectuate the
Congressional intent of "shielding unoffending employers
and others from pressures in controversies not their own"
N L R B v Denver Building & Construction Trades
Council, 341 U.S 675, 692.u "The Board and courts have
held that `the victim's neutrality' is `conceived to be the
central element of Congressional concern in this area' and
that Congress did not intend to confine Section 8(b)(4) to
a strict and precise definition of terms which would limit
its application in protecting neutral employers " Salem
Building Trades Council, supra, 163 NLRB No 9 That a
"business relationship" existed between Bell (the primary
employer) and Winston (the secondary employer) is
established by the frequent consultations and dealings
between them Even before the telephone subscribers
became known, representatives of the two employers
conferred about the location of the Bell telephone cables
and equipment on the project Plans and diagrams were
prepared by Bell engineers and submitted to Winston's
architect for approval. As the iob progressed, employees
of Winston and its subcontractors used the wiring and
other work specifications set out on the diagram in
guiding and laying out their own work. In accordance
with custom, Winston did the trenching for the main cable
and furnished interior space, riser shafts, and conduit for
Bell equipment and cables while Bell supplied the
materials (including telephone instruments) Bell also did
the cable work, wiring, and other installation. To be sure,
neither paid the other for materials and services, but this
does not mean that they were not "doing business" with
one another The mutual benefits they derived furnished
adequate consideration for their arrangement Insofar as
Winston was concerned, telephone service to prospective
tenants was an important factor in renting or selling its
apartments
To exclude dealings with a public utility such as Bell
from the protective scope of Section 8(b)(4), as the Union
would do, would indeed carve an important exception to
the section. Neither legislative history, decisional
precedent, or logic warrants such construction.' 2 To the
contrary, the Board has in the past found labor
organizations in violation of Section 8(b)(4) for disrupting
or interfering with dealings between neutrals and public
utilities, such as telephone companies. See Local No 41,
International Brotherhood of Electrical Workers,
AFL-CIO, (New York Telephone Company), 162 NLRB
620; International Brotherhood of Electrical Workers,
Local Union No. 11 (General Telephone Company), 151
NLRB 1490; Local No 3, International Brotherhood of
Telephone Workers (Campanella Corporation), 175
NLRB No. 118.
"See also Salem Building Trades Council, AFL-CIO (Cascade
Employers Association . Inc ), 163 NLRB No 9, enfd 388 F 2d 987 (C A
9), Sheet Metal Workers International Association , Local Union No' 295,
131 NLRB 1196, 1199, International Brotherhood of Electrical Workers,
Local 501 v NLRB B. 181 F 2d 34, 37 (C A 2), affd. 341 U S 694
"As stated in Department Specialty Store Employees ' Union, Local
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event, assuming, arguendo, no "business
relationship" between Bell and Winston, the picketing
here nonetheless was secondary -and unlawful, an object
thereof having been to disrupt Winston's business relations
with its subcontractors. A business relationship between
primary and neutral employers is not a sine quo non for a
secondary boycott. As stated in Miami Newspaper
Pressmen's Local No. 46 v. N L R B , 322 F. 2d 405, 410
(C.A D C ), affg. 138 NLRB 1346, 1353: "Although it is
frequently true that the object of secondary picketing is to
obstruct dealings with the primary employer, Congress did
not so limit its language. . [T]he central legislative
purpose . . was to confine labor conflicts to the employer
in whose labor relations the conflict had arisen, and to
wall off the pressures generated by that conflict from
unallied employers . Many secondary employers would
have no occasion to have commercial intercourse with the
primary employers "
Accordingly, I reject the Union's contention that the
picketing here was privileged because a "cease doing
business object" did not exist 11
5 The Union also contends (br.p.l l)that here "there,is
an ally situation between Winston . and Illinois Bell
which would take the picketing outside the prohibition of
8(b)(4) " Pointing to the "cooperation" between Bell and
Winston in drawing "plans for the locations of the
telephone property," in placement of such property
(cables, wires, and telephones) "throughout the facilities of
Winston Tower No 3" by "easement," in scheduling Bell
work "at the convenience of both companies before the
strike began," and in Winston's permitting "the
strikebreakers" to perform during the strike, the Union
argues (br p. 12) that Winston "voluntarily allowed itself
to become enmeshed in the labor dispute by knowingly
assisting the struck work "
The contention is without merit The "ally" doctrine
has heretofore been applied to situations. (1) where a
secondary employer performs "struck work," i.e., work
which, but for the labor dispute, the primary's employees
would ordinarily perform; or (2) where the operations of
the secondary and primary employers are commonly
owned and controlled to such an extent that the two may
be regarded as a single-employing enterprise.1d In these
cases the secondary employer loses its protected neutral
status under Section 8(b)(4). Neither situation is present
here. Common ownership and control is not claimed and
there is not a scintilla of evidence that Winston
performed, attempted to perform, or was capable of
performing the struck work. The fact that Winston may
have "cooperated" with Bell in providing telephone service
to the tenants - by scheduling the Bell work and allowing
Bell management employees access to the property during
the strike - is not crucial. Winston' s interest in
1265 v NLRB B. 284 F 2d 619, 626 (C A 9) "We must keep in mind
that this type of legislation is remedial in character and is to be broadly
and liberally construed to accomplish its intended purpose It is the
judicial responsibility of the courts to find that interpretation , in this type
of legislation , which can most fairly be said to be imbedded in the statute
in the sense most harmonious with its theme and with the general purposes
which Congress has manifested In construing a statute the mischief
sought to be remedied should be considered "
"In view of the above findings , I need not pass upon the further question
whether the picketing was unlawful because an object thereof was to cause
a cessation of business between Bell (the primary employer ) and occupants
of the building (apartment purchasers in the condominium ) who ordered
telephone service It would appear, however, that these tenants qualify as
"persons" entitled to be free from the coercive pressures proscribed by
Section 8(b)(4) See fn 11, supra
completing the job was no different from that of any other
victim of a secondary boycott who deals at arm's length
with a disputing employer (e.g , a general contractor doing
business with a picketed nonunion subcontractor on a
construction site). Nor, in the circumstances of this case,
is it determinative that Winston sanctioned placement of
Bell property "throughout" the plant and, as is customary
in telephone installations, that Winston granted Bell
certain "easements " Although "there are many situations
in which the answer to a dispute under [8(b)(4)(B)] is
easily derived by the application of such legalistic
formulae as `independent contractors,' `co-employers,' or
`allies .' . . . it is equally clear that there is a zone of
dispute in which such formulae are useless, and the answer
must be derived by applying the intent of the statute to
the facts in the case." Local No 24, international
Brotherhood of Teamsters v. N L R B., 266 F 2d 675, 680
(C.A.D.C.), Building Service Employees International
Union, Local 32-J v NLRB , 313 F.2d 880, 883
(C.A D.C.) Effectuation of the statutory intent here
dictates the conclusion that Bell was a neutral employer
rather than an "ally" of Winston.
6. The Union' s remaining contentions require only brief
treatment. Its claim that the Winston project was the
"primary situs of Bell" (br. p. 7), because Bell retained
title to property (cables, wires, etc.) incorporated into the
building, is tantamount to a claim that public utilities such
as telephone companies (and others such as gas and
electric companies retaining possession or title to similar
equipment) fall outside the protective scope of Section
8(b)(4), a claim already rejected. In any event, common
situs picketing when no primary employees are on the
scene does not become primary action merely because
property of the primary employer is present. The
Columbus Building and Construction Trades Council,
AFL-CIO (Merchandise Properties, inc ), 149 NLRB 82,
91, enfd. sub nom International Brotherhood of Electrical
Workers Local Union No 688, 359 F.2d 385 (C.A 6),
International Brotherhood of Electrical Workers, (Plauche
Electric, Inc ), 142 NLRB 1106, 1109, enfd 353 F.2d 736
(C A. 5)
As to the Union 's claim (br pp 13-14) that its
picketing after Bell personnel ceased working at the
project (on Monday, August 26) was lawful - because
the Union was allegedly "unable to ascertain" when Bell
personnel would reappear, particularly since they traveled
in unmarked vehicles - it is evident that the Union was
in truth indifferent and unconcerned about Bell's work
schedule. To begin with, it made no attempt to learn if
Bell scheduled further operations. Cf Local Union 469 of
the United Association of Journeymen (Hansberger
Refrigeration & Electric Co ), 135 NLRB 492, 493;
Office & Professional Employees, Local No. 3 (American
President Lines, Ltd ), 156 NLRB 1342, 1344 (1966).
More importantly, it had no reason to believe that the
Bell work, previously confined to weekend and weekday
evening hours, would be continued during daytime (7:30
a.m to 5 p.m.) hours when the craftsmen of the secondary
employers were on the job. Other factors, including the
Union's refusal to discontinue the picketing until the
completed Bell cable work was dismantled and removed,
point to a secondary objective The instant case does not
present a situation, like that relied on by the Union, where
"See N L R B v Business Machine and Office Appliance Mechanics,
Local 459, 228 F 2d 553, 557-559 (C A 2), Bachman Machine Co v
N L R B, 266 F 2d 599, 603-605 (C A 8), Miami Newspaper Pressmen's
Local No 46 v N L R B, 322 F.2d 405, 409-410 (C.A D C.)
INTL. BROTHD. OF ELECTRICAL WKRS,'LOCAL 134, 207
the primary employer continued to engage in normal
operations at the common situs during intermittent and
temporary absences of primary employees 15
Finally, for reasons already indicated, I reject the
Union's contention (br. p. 10) that the objective of its
picketing "was in reality" nothing more than "one of
advertising to the public the fact of its dispute with the
primary employer, Bell " See Local Union No 519,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry (H L Robinson and
Associates) v. NLRB, 70 LRRM 3300, 3304
(C.A.D.C.). Moreover, it is clear that "an object" of the
picketing, even if not the sole one, was secondary and
unlawful. See N L R B v. Denver Bldg & Constr Trades
Council, 341 U.S 675, 689.
For all of the foregoing reasons I find and conclude
that the Union violated Section 8(b)(4)(i) and (ii)(B) of the
Act
CONCLUSIONS OF LAW
1. Local 134 and Local 165 are labor organizations
within the meaning of Section 2(5) of the Act
2. Bell Telephone, Winston Gardens, and
Winston-Muss are employers engaged in commerce or
industries affecting commerce within the meaning of
Sections 2(2), (6), and (7) and 8(b)(4) of the Act
3. By engaging in, inducing or encouraging individuals
employed by persons engaged in commerce or in an
industry affecting commerce to engage in, a strike or a
refusal to perform services, and by threatening, coercing,
or restraining persons engaged in commerce or in an
industry affecting commerce with the object of forcing or
requiring Winston Gardens and Winston-Muss to cease
doing business with Bell Telephone, the Respondents have
violated Section 8(b)(4)(i) and (ii)(B) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i)
and (ii)(B) of the Act, I shall recommend the customary
cease-and-desist order and the usual affirmative relief
ordered in cases of this nature, including posting of
notices
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make the
following:
the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on goods,
articles, materials, or commodities, or to perform any
services, where an object thereof is to force or require
Winston Gardens, Inc., Winston-Muss Corporation, or
such other person to cease doing business with Illinois Bell
Telephone Company.
(b) Threatening, coercing, or restraining Winston
Gardens, Inc., Winston-Muss Corporation, or any other
person engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or require
Winston Gardens, Inc., Winston-Muss Corporation, or
such other person to cease doing business with Illinois Bell
Telephone Company
2 Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at their offices and meeting halls copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by their authorized
representatives, shall be posted by Respondents
immediately upon receipt thereof, and be maintained by
them for 60 consecutive 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) Furnish said Regional Director with signed copies of
the aforesaid notice for posting by Winston Gardens, Inc.,
and Winston-Muss Corporation, they being willing, at
places where they customarily post notices to their
employees
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith "
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 13 , in writing , within 10 days from the date of this Order, what
steps Respondents have taken to comply herewith "
APPENDIX
RECOMMENDED ORDER
Local 134, International Brotherhood of Electrical
Workers,, AFL-CIO, and Local 165, International
Brotherhood of Electrical Workers, AFL-CIO, their
officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by
Winston Gardens, Inc., Winston-Muss Corporation, or
any other person engaged in commerce or an industry
affecting commerce, to engage in a strike or a refusal in
"See Plauche Electric , supra . 135 NLRB 250, 255, International
Brotherhood of Electrical Workers , Local 861, AFL-CIO (Brownfield
Electric. Inc ). 145 NLRB 1163, New Power Wire & Electric Corp v
NLRB,340F2d71,74(CA 2)
NOTICE TO ALL MEMBERS OF LOCAL 134, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO,
AND LOCAL 165, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage employees of
Winston Gardens, Inc., Winston-Muss Corporation, or
any other person engaged in commerce or in an
industry affecting commerce to strike, picket, or refuse
to perform services, where an object thereof is to force
or require such corporation or person to cease doing
business with Illinois Bell Telephone Company.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten, coerce, or restrain Winston
Gardens, Inc., Winston-Muss Corporation, or any other
person engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or
require such corporation or person to cease doing
business with Illinois Bell Telephone Company.
LOCAL 134,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Oorganization)
Dated By
(Representative ) (Title)
Dated By
LOCAL 165,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
(Representative) (Title)
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
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-353-7570