Int'l Brotherhood of Electrical Workers, Local 861

National Labor Relations Board - Board Decisions

Jan 20, 1964

145 N.L.R.B. 1163 (N.L.R.B. 1964)

INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 1163
International Brotherhood of Electrical Workers , Local 861,
AFL-CIO and Brownfield Electric , Inc. Case No. 15-CC-181.
January 20, 1964
DECISION AND ORDER
Upon charges duly filed by Brownfield Electric, Inc., herein called
Brownfield, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Fifteenth Region, issued a
complaint dated May 7, 1963, against International Brotherhood of
Electrical Workers, Local 861, AFL-CIO, herein called the Respond-
ent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii) (B) and Section 2 (6) and (7) of the National Labor Relations Act
as amended. Copies of the charge, complaint, and notice of hearing
before a Trial Examiner were duly served upon the Respondent and
the Charging Party.
On May 15, 1963, Respondent duly filed its answer admitting cer-
tain allegations of the complaint but denying the commission of any
unfair labor practices.
On July 1, 1963, all parties to this proceeding entered into a stipula-
tion of the facts 1 and requested that the proceeding be transferred di-
rectly to the Board for findings of fact, conclusions of law, and decision
and order. The request states that the parties have waived a right
to a hearing before a Trial Examiner and to the issuance of an Inter-
mediate Report. This request also provides that the charge, com-
plaint, answer, and stipulation of facts constitute the entire record in
this case.
On July 9, 1963, the Board granted the parties' request to transfer
the case to the Board granting the parties the right to file briefs.
Thereafter, the General Counsel and the Respondent filed briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
Upon the basis of the parties' stipulation of facts and upon the en-
tire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Brownfield is a corporation duly organized under the laws of the
State of Louisiana, maintaining its office and place of business at
1 The parties stipulated that the transcript of proceedings in Civil Action No. 9491,
LeBus v. International Brotherhood of Electrical Workers, Local 861, AFL-CIO , before
the Honorable Richard J . Putnam, U.S . District Court Judge at Lafayette , Louisiana,
May 9, 1963, be made a part of the record in this case
145 NLRB No. 113.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11447 Cagle Avenue, Baton Rouge, Louisiana. Brownfield is engaged
in business at Baton Rouge, Louisiana, and vicinity, as an electrical
contractor in the building and construction industry. In the course
and conduct of its business operations, at all times material herein,
Brownfield was engaged pursuant to a subcontract in the performance
of electrical services for Mark C. Smith and Sons Construction Co,,
herein called Smith, on an apartment building being constructed by
Smith in Lafayette, Louisiana. Smith, a Louisiana corporation with,
its principal place of business at Baton Rouge, Louisiana, is a general
contractor in the building and construction industry. Smith is cur-
rently the general contractor for the construction of an apartment
building at Lafayette, Louisiana. During the past 12 months, in
performing construction work at said apartment project, Smith had
received goods and materials valued in excess of $50,000, which goods
and materials were shipped to Smith directly from points outside the
State of Louisiana.
The parties admit and we find that Brownfield and Smith are, and
have been at all times material herein, employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, andhas been at all times material to this case, a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On March 27, 1963, Brownfield began performance of its subcon-
tract to wire an apartment building located in Lafayette, Louisiana,
being constructed by Smith. While performing work at the site,
Brownfield employees stayed at a Lafayette motel from where they
reported directly to the site. Brownfield had no office in or around
Lafayette. The employees of several other subcontractors were also
working at the site. The normal workday on the project started at
7 a.m. and ended at 3:30 p.m.
The parties stipulated that at all times material herein Respondent
has been engaged in a labor dispute with Brownfield, and has had no
labor dispute with Smith. The record does not reveal the existence
of any labor dispute between Respondent and any other employer
engaged in business on the project.
On April 8 2 through April 18 and on April 23 with the exception
of Saturdays and Sundays, Respondent picketed the apartment proj-
ect with picket signs stating :
'Ali dates herein occurred in 193.
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 1165
Brownfield Electric does not observe AFL-CIO wages and work-
ing conditions. Dispute with no other employers. I.B.E.W.
Local Union 861
The picketing occurred from 6:45 a.m. through 3:30 p.m. each day
,on Myrtle Street where Brownfield normally parked its truck. This
location was adjacent to a parking lot where other subcontractor em-
ployees usually parked. It appears that this parking lot was next
to the construction site. Before and during the picketing Brown-
field employees worked continuously at the site except that no Brown-
field employees reported to work on the first 2 days the picketing
occurred, Monday and Tuesday, April 8 and 9, and on the following
.Monday and Tuesday, April 15 and 16. During the picketing many
of the subcontractors' employees refused to cross the picket line.
Other than by means of the picket line and the legend on the picket
.signs, Respondent and its pickets made no attempts to inform Brown-
field or any of the other contractors of the cause and nature of its
-dispute with Brownfield. When French, superintendent of the proj-
ect, and Jenkins, owner of Brownfield, sought to talk with Coleman,
the assistant business manager of Respondent, about the picketing,
Coleman declined to talk with them. At no time did French or
Jenkins ever inform Coleman or the pickets that Brownfield em-
ployees were absent from the project on certain days during the
,course of this dispute.'
The General Counsel contends that the Respondent's picketing
failed to conform to the Moore Dry Dock 4 standards requiring that,
.at the time of the picketing, the primary employer be engaged in its
normal business at the situs of the dispute,' and Respondent there-
fore violated Section 8(b) (4) (i) and (ii) (B). The General Coun-
sel asserts that the picketing failed to meet these standards because
the picketing was carried on while no Brownfield employees were
present at the site on the days indicated above. We disagree.
In the circumstances of this case, the absence of primary employees
on the 4 days indicated is an insufficient basis for finding that Re-
^spondent was not engaged in its normal business at the situs of the
dispute. Whether the absence of primary employees from a common
situs during picketing of that site means that the primary employer
8 The General 'Counsel contends that the pickets were informed by Superintendent
French that Brownfield employees were absent from the situs . We are not convinced that
Superintendent French did in fact inform the pickets that Brownfield was not working on
the site in view of his reluctance to answer the question whether lie informed anybody of
the fact that no Brownfield employees were scheduled to work on April 8, and in view
of his ultimate answer ". . . I believe I did tell them that he wasn't on the job that
,day . . .
* Sailors' Union of the Pacific ( Moore Dry Dock Company ), 92 NLRB 547.
s Clearly the other Moore Dry Dock standards were complied with, i .e., the picketing is
limited to places reasonably close to the situs ; and the picketing discloses clearly that
the dispute is with the primary employer.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not engaged in his normal business operation at the site, depends
in significant part on the reasons for this absence. Picketing which
is lawful primary picketing is not turned into unlawful secondary
picketing because the picketing is effective against the primary em-
ployer and its employees,' or because the primary employer is seek-
ing to prevent the picketing by turning out its employees.' Under
such circumstances, absent proof of an unlawful object beyond those
normal incidental effects of a primary picket line, a union may be
engaged in lawful primary picketing despite the absence of primary
employees.
Here, the record shows that Brownfield employees were not sched-
uled to work the first day of the picketing, but is silent as to the
reason for their absence from the situs on the other 3 days they
remained away. The only other evidence possibly bearing on the
reasons for their absence is testimony of French, Smith's superin-
tendent, that, at a later stage of the dispute when Respondent did
not picket and no Brownfield employees were present at the site, the
absence of Brownfield employees at that time was due to the fact that
he did not want any pickets, even though he could have used Brown-
field for a few days. These facts are as consistent with a conclusion
that Brownfield employees were absent because of the picketing and
that, hence, Brownfield was engaged in its normal business at the
situs during the entire course of the dispute, notwithstanding tem-
porary halts in its activities, as they are with the contrary conclusion.
In these circumstances, and as the absences of Brownfield's em-
ployees were temporary and intermittent, as Brownfield continued to
store materials and tools at the Smith project, and as Brownfield
admittedly had not completed its work on the project, we find that
Brownfield was, at all times material herein, engaged in its normal
operations at the situs of the dispute. Accordingly, we find that Re-
spondent picketed Brownfield's operations at the common situs here
involved in accordance with Moore Dry Dock standards. As there is
no other evidence that the picketing was actually aimed at achieving
unlawful secondary objectives over and beyond those incidental effects,
normally flowing from legitimate primary picketing, we cannot find
that picketing was unlawful.
In view of the foregoing, we shall dismiss the complaint in its
entirety.
O Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New Power
Wire and Electrac Corp ), 144 NLRB 1089.
7 Seafarers' International Union of North America, Atlantic and Gulf District, Harbor
and Inland Waterways, AFL-CIO v. N.L.R B. (Salt Dome Production Co ), 265 F. 2d 585
(C A.D C.). See also Local 2 8, International Organization of Masters, Mates and Pilots,.,,
AFL-CIO (Ingram Barge Company ), 136 NLRB 1175, 1185.
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 1167
CONCLUSIONS OF LAW
1. Mark C. Smith and Sons Construction Co. and Brownfield Elec-
tric, Inc., are Employers engaged in commerce or in an industry affect-
ing commerce within the meaning of Sections 2(6) and (7) and 8(b)
(4) of the Act.
2. International Brotherhood of Electrical Workers, Local 861,
AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
3. International Brotherhood of Electrical Workers, Local 861,
AFL-CIO, has not engaged in unfair labor practices within the mean-
ing of Section 8(b) (4) (i) and (ii) (B) and Section 2(6) and (7) of
the National Labor Relations Act, as amended.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein be, and it
hereby is, dismissed.
MEMBER LEEDOM, dissenting:
I am satisfied that at all times material herein, Brownfield was not
engaged in its normal business at the picketed common situs, as re-
quired by the pertinent Moore Dry Dock test ." Thus, on 4 of the days
on which the Respondent picketed this situs-Monday, April 8, the
day the picketing began, Tuesday, April 9, and Monday and Tuesday,
April 15 and 16-no Brownfield employees were working there, as the
Respondent well knew . On these facts , to hold, as do my colleagues,
that Brownfield was engaged in its normal business at the picketed
situs during these 4 days is to strip the test of much of its vitality. It
comes dangerously close to holding that the mere existence of a sub-
contract gives a union the unalloyed right to picket a construction
project in support of its primary dispute with the subcontractor at
any and all times until the subcontract has been fulfilled . This, I am
unwilling to do. Accordingly , as the picketing did not, in my view,
satisfy the pertinent Moore Dry Dock test,' I cannot find that it was
wholly without an unlawful secondary objective . I would find, in-
stead, that an object of the Respondent 's picketing was to enmesh
neutral employers in its dispute by inducing their employees to refrain
from working in order to bring pressure on Smith, the general con-
s Moore Dry Dock Company, 92 NLRB 547, 549
e Saebler Heating & Air Conditioning, 133 NLRB 650 ; International Brotherhood of
Electrical Workers, Local 861 (Cleveland Electric Co .), 134 NLRB 586 ; Han8berger Re-
frigeration & Electric Company , 135 NLRB 492 ; Albert K. Newlin , 143 NLRB 1169. See
also my dissenting opinion in New Power Wire and Electric Corp., 144 NLRB 1089.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor, to cease doing business with Brownfield. Such an objective
is violative of Section 8 (b) (4) (i) and (ii) (B), and I would issue an
appropriate order. Because my colleagues have failed to do this, I
must dissent.
Local 345, Retail Store Employees Union , Retail Clerks Inter-
national Association , AFL-CIO and Gem of Syracuse, Inc.
Case No. 3-CP-55. January 21, 1964
DECISION AND ORDER
Unfair labor practice charges were filed on behalf of Gem of Syra-
cuse, Inc., also referred to as Gem, on June 12, 1963, against the
Respondent, Local 345, Retail Store Employees Union, Retail Clerks
International Association, AFL-CIO. Thereafter, on July 15, 1963,
the General Counsel of the National Labor Relations Board, by the
Regional Director for the Third Region, issued a complaint and notice
of hearing, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8(b) (7) (C) and Section 2(6) and (7) of the Act.
On September 24, 1963, all parties to this proceeding filed a stipu-
lation of facts and a motion to transfer this proceeding directly to
the Board for issuance of a Decision and Order after the filing of
briefs and without further hearing. The stipulation states in sub-
stance that the parties waive their rights to a hearing before a Trial
Examiner and to the issuance of an Intermediate Report, and that
the charge, complaint, answer, and the transcript compiled and ex-
hibits received in evidence at a hearing before the U.S. District Court,
Northern District of New York, in the case of Merle D. Vincent, Jr.,
Regional Director for the Third Region of the National Labor Rela-
tions Board v. Local 345, Retail Store Employees Union, Retail Clerks
International Association, AFL-CIO, Civil Case No. 9595, should
constitute the entire record in the case. On September 30, 1963, the
Board approved the stipulation, ordered transferral of the proceed-
ings to the Board, and granted permission to the parties to file briefs.
Briefs have, accordingly, been filed by the Respondent and Gem.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
Upon the basis of the aforesaid stipulation and the entire record in
the case, and having considered the briefs of the parties, the Board
makes the following:
145 NLRB No. 118.