Jonel Construction Co.

National Labor Relations Board - Board Decisions

May 9, 1967

164 N.L.R.B. 455 (N.L.R.B. 1967)

JONEL CONSTRUCTION CO. 455
International Brotherhood of Electrical
Workers, Local No. 5, AFL-CIO and Jonel
Construction Co., Inc. Case 6-CC-388.
May 9,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On July 28, 1966, Trial Examiner A. Bruce Hunt
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief; and the General
Counsel filed cross-exceptions and a supporting
brief.
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 and the entire
record in the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below , and hereby orders that the
Respondent , International Brotherhood of Electrical
Workers, Local No. 5, AFL-CIO, Johnstown,
Pennsylvania , its officers , agents, and
representatives, shall take the action set forth in the
Trial Examiner 's Recommended Order , as herein
modified:
1. Delete paragraphs 1(a) and (b) and insert the
following:
"(a) Inducing or encouraging employees of Jonel
Construction Co., Inc., H. A. Sloan Plumbing
Contractor , and Griffith and Petz Heating and Air
Conditioning Contractors engaged on the Labor
Temple project in Johnstown , Pennsylvania, to
refuse in the course of their employment to perform
any service with an object of forcing or requiring any
person to cease doing business with Holsopple
Electric Supply Co., Inc."
"(b) Threatening , coercing , or restraining said
Jonel , Sloan , Griffith , and Petz, or the United
Steelworkers of America , AFL-CIO, with an object
of forcing or requiring any such person to cease
doing business with said Holsopple."
2. Amend the notice by (a) deleting from the first
indented paragraph "or any other individuals
employed in an industry affecting commerce"; and
(b) deleting from the second indented paragraph
"any other person engaged in an industry affecting
commerce ," and inserting in its stead "United
Steelworkers of America , AFL-CIO".
MEMBER FANNING , concurring in the result:
While I agree with the majority that the
Respondent has violated the Act, and join with them
in adopting the Trial Examiner 's Recommended
Order as modified , I do so for reasons other than
those as set forth by the Trial Examiner and adopted
by my colleagues.
In my judgment , the picketing of the electrical
subcontractor, with whom assertedly the
Respondent had a primary dispute, did not conform
to the standards required by our Moore Dry Dock
doctrine.2 The picket signs, which were introduced
into the record , did not identify Holsopple, the
primary employer, as the employer being picketed,
and, in addition , by identifying the Steelworkers as
the owners of the building under construction,
sought the enmeshment of a neutral to the dispute.
Accordingly , I would find Section 8 (b)(4)(i) and (ii)(B)
to have been violated3 in the respects found by the
Trial Examiner.
' The General Counsel has excepted to the failure of the Trial
Examiner to include as one of the "persons " threatened , coerced,
or restrained, the Steelworkers, owner of the budding undergoing
renovation For reasons stated in Local 895, International
Brotherhood of Teamsters , etc (Eastern New York Construction
Employers, Inc), 153 NLRB 993, Sheet Metal Workers
International Association , Local Union No 299, AFL-CIO (S M
Kisner), 131 NLRB 1196 , and Local 3, International Brotherhood
of Electrical Workers , AFL-CIO (Picker X -Ray Corporation), 128
NLRB 566, the General Counsel 's exception has merit and the
Recommended Order shall be modified accordingly
2 Sailors' Union of the Pacific (Moore Dry Dock Company), 92
NLRB 547
9 Cf. International Brotherhood of Electrical Workers, Local
Union No. 11 , AFL-CIO, etc (LC Electric Contractors), 154
NLRB 766 (dissenting opinion)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. BRUCE HUNT, Trial Examiner: This proceeding, in
which the charges were filed on January 5 and February 7,
1966, and the complaint was issued on February 18, 1966,
involves allegations that the Respondent, International
Brotherhood of Electrical Workers, Local No. 5,
AFL-CIO, violated Section 8(b)(4)(i) and (ii)(B) of the
National Labor Relations Act, as amended, 29 U.S.C., Sec.
151, et seq. On April 25, 1966, I conducted a hearing at
Johnstown, Pennsylvania, at which the Respondent and
the General Counsel were represented by counsel. Upon
164 NLRB No. 58
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record and my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE EMPLOYERS
Jonel Construction Co., Inc. (Jonel), the Charging Party,
is a Pennsylvania corporation which has its principal office
at Johnstown, Pennsylvania. It is a general contractor in
the building and construction industry. As will appear,
during December 1965 and the forepart of 1966, Jonel was
the general contractor on a project in Johnstown. The
materials which were shipped to the project from points
outside Pennsylvania exceeded $100,000 in value.
Holsopple Electric and Supply Co., Inc. (Holsopple), a
Pennsylvania corporation, has its principal office in
Holsopple in that State and is an electrical contractor in
the building and construction industry. As will appear, the
Respondent had a dispute with Holsopple to whom Jonel
subcontracted certain work. During 1965, Holsopple
purchased materials valued in excess of $50,000 which
were shipped to it from points outside Pennsylvania.
Additionally, during 1963, in an unreported case, Case
6-RC-3433, the Board asserted jurisdiction over
Holsopple's business,
H. A. Sloan Plumbing Contractor (Sloan) and Griffith
and Petz Heating and Air Conditioning Contractors
(Griffith) are contractors in the building and construction
industry who performed, respectively, plumbing and
heating work as subcontractors of Jonel at the project
discussed hereinafter.
I find that Jonel, Holsopple, Sloan, and Griffith are
employers engaged in commerce, or in an industry
affection commerce, within the meaning of the Act.
H. THE RESPONDENT
B. Holsopple 's Labor Relations
On November 19, 1963, in Case 6-RC-3433, the Board
certified International Hod Carriers ', Building and
Common Laborers Union of America , Local Union
No. 910, AFL-CIO (Local 910), as the exclusive
representative of Holsopple ' s electricians . Thereafter
Holsopple and Local 910 executed an agreement which
was in effect at the time of the hearing. Some of the
provisions of that contract are less favorable to
electricians than the provisions of agreements which the
Respondent has negotiated with electrical contractors.
Moreover , Holsopple paid one or more electricians on the
Labor Temple project less than the wage rates set forth in
the contract with Local 910. The question whether
Holsopple breached that contract at other projects was the
subject of an offer of proof by the Respondent , as recited
in the footnote.[
C. The Issues
The issues are whether the Respondent (1) orally
threatened Jonel in an effort to prevent the award of a
subcontract by Jonel to Holsopple, and (2) by picketing the
Labor Temple project after the award of such subcontract,
induced employees of Jonel, Sloan, Griffith, and other
employers to cease work with an object of forcing Jonel to
terminate its contract with Holsopple , all in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act.? The Respondent
denies that it threatened Jonel. It admits that it picketed
the project, but asserts that it engaged in lawfully
publicizing Holsopple's standard wages and working
conditions, seeking thereby to preserve the standards
which it had achieved in collective bargaining over the
years. The principal question to be answered is the object
or objects of the Respondent's conduct.
International Brotherhood of Electrical Workers, Local
No. 5, AFL-CIO, is a labor organization which admits to
membership electricians in the Johnstown , Pennsylvania,
area.
III. THE UNFAIR LABOR PRACTICES
A. The Project
At times material , Jonel was the general contractor
engaged in renovating a building, known as the Labor
Temple, which is owned by United Steelworkers of
America, AFL-CIO (Steelworkers), and which is located
on Main Street in the downtown section of Johnstown.
Holsopple, Sloan, and Griffith were subcontractors on the
project. During January 1966, the Respondent picketed
the project because of its dispute with Holsopple.
I Evidence concerning Holsopple's rates of pay at the Labor
Temple project was received Evidence concerning such rates at
other projects was rejected, following which the Respondent
offered to prove through Warren Everly, an investigator for the
Prevailing Wage Division, Pennsylvania Department of Labor and
Industry, that at a time material Holsopple was engaged on a
public project, that Holsopple did not pay its five employees the
minimum wages required by the State 's Prevailing Wage Act, that
Holsopple made an admission to that effect to Everly, that
Holsopple wrote checks to its employees in the amounts of back
wages due, that the checks were delivered to Everly, that
thereafter the checks were mailed to the employees by the State
Department of Labor and Industry, that only one employee
cashed his check, that the other four employees gave their checks
D. The Events
William H. Branthoover is assistant business manager
and vice president of the Respondent. John E. Gelormino
is president of Jonel. Glenn R. Yoder is general manager of
Holsopple. On December 7, 1965, Branthoover called at
Gelormino's office and asked the latter who would do the
electrical work at the Labor Temple. The two men
discussed the fact that Yoder's bid had been $7,500 less
than that of Church & Murdock, an electrical firm under
contract with the Respondent. Branthoover said that the
difference in the bids might be due to low wages paid by
Holsopple or to an error by Church & Murdock in
calculating their bid. Branthoover also said that Gelormino
should award the electrical work to "a fair contractor,"
that Yoder had been under contractual relations with the
Respondent upon three occasions within the last decade or
to Holsopple upon its representation that funds were not available
to cash the checks, and that the State Department of Labor and
Industry has charged Holsopple ' s general manager, Glenn
R Yoder, with fraud, perjury, and violations of the Prevailing
Wage Act
2 Section 8(b)(4) of the Act provides, insofar as it need be
recited, that shall be an unfair labor practice for a labor
organization (i) to induce or encourage any individual employed in
an industry affecting commerce to refuse in the course of his
employment to perform any services, or (ii) to threaten, coerce, or
restrain any person engaged in an industry affecting commerce,
where in either case an object is: (B) to force or require any
person to cease doing business with any other person.
JONEL CONSTRUCTION CO.
more, that Yoder had "violated every rule and regulation
of the working agreement and the wages that were
prescribed to be paid," and that Yoder's "word, his
signature , isn't any good ." Gelormino said that he would
talk with Yoder . Branthoover said that he would ascertain
whether there had been an error in the bid of Church &
Murdock, but the record does not disclose what
Branthoover learned . In the conversation , Branthoover
sought to persuade Gelormino to award the electrical work
to a "union contractor ," that is, one under contract with
the Respondent.3
On December 13, representatives of several building
trades unions, including Branthoover for the Respondent
and James Crotzer for Local 910, met with Gelormino and
Yoder in Gelormino's office. Insofar as there is evidence,
the meeting was arranged by Gelormino. The record
discloses little concerning remarks made at the meeting by
representatives of unions other than the Respondent and
Local 910. It also does not disclose the complete remarks
of anyone. It is clear, however, that relations between the
Respondent and Local 910 appear to have been pleasant
and that Crotzer expressed a willingness to transfer the
membership of Holsopple's electricians from Local 910 to
the Respondent, but Branthoover rejected the offer with
the remark that membership in the Respondent as a
journeyman required completion of an apprentice program
plus 5 years' experience. It is also clear that Gelormino's
effort to obtain agreement for Holsopple to do the
electrical work was unsuccessful . The principal question
concerning the meeting is whether Branthoover
threatened that there would be "trouble" if the award of
electrical work should be given to Holsopple. Gelormino,
Crotzer, and Yoder testified that Branthoover said that
there would be trouble in that event. On the other hand,
Branthoover denied that he spoke of "trouble." According
to Branthoover, he said that the Respondent "had had
previous experiences with" Yoder, that Yoder's
"signature isn't any good; neither is [Yoder 's] word; so
[Gelormino] could possibly expect repercussions."4 I
conclude that Branthoover spoke of trouble. I rely
particularly upon Crotzer's testimony. He impressed me
favorably. On the other hand, Yoder impressed me
unfavorably, and Gelormino had a faulty recollection at
times.
Jonel awarded the subcontract to Holsopple. During the
latter part of December, work on the project began. On
January 4, 1966, the Respondent commenced picketing.
One sign read:
We Protest
Sub Standard Wages
Paid to Electrical Workers
On This Job
Do You Know That The
Owner of the Labor Temple Is
United Steel Workers of America
Local Union No. 5, I.B.E.W., AFL-CIO
9 The findings of this paragraph are based upon Branthoover's
testimony for the Respondent
' Further testimony by Branthoover is that Gelormino asked
what Branthoover would do if Gelormino should give the electrical
contract to Holsopple and that
My answer was that he gave it to some person , or other-or
some contractor , or other, in signed relations with Local
No. 5, I didn't know whether the other trades would work
with him
This portion of the transcript is obviously inaccurate My trial
notes do not contain a basis for correcting the transcript and there
A second sign read:
To The Public
Would You Believe That
On This Job Sponsored
By Labor Temple
United Steel Workers of America
Sub Standard Wages Are
Being Paid to Electricians
457
WE PROTEST, L.U. NO. 5, I.B.E.W ., AFL-CIO
There is no evidence that any picket orally suggested to
any worker on the project that he cease work or to any
truckdriver that he not deliver materials to the project.
Nevertheless, various employees of Jonel and of
subcontractors other than Holsopple ceased work on the
project, and some truckdrivers did not make deliveries.
Laborers, who did not cease work, were laid off by
Gelormino when the time came that there was no work for
them. Within a week or two after January 4, Gelormino
held conversations with various representatives of
building trades unions. Work on the project was resumed.
About February 1, picketing ceased pursuant to any
agreement that with its cessation the General Counsel
would withhold further action in an injunction proceeding
which he had instituted under Section 10(1) of the Act.
E. Conclusions
The initial issue involves Branthoover ' s threat to
Gelormino on December 13 that there would be "trouble"
if the electrical contract should be awarded to Holsopple.
In Lafayette Building and Construction Trades Council, et.
al. (Southern Construction Corporation), 132 NLRB 673,
the Board held that a threat of "trouble ," made to a
general contractor with an object of forcing it to cancel a
subcontract , violated Section 8(b)(4)(ii)(B) of the Act. The
Respondent argues in its brief, however , citing Plumbers
& Pipefitters Local No. 471, etc. (Leo E. Murray, d/b/a
Wyckoff Plumbing), 135 NLRB 329, and Construction,
Building Material and Miscellaneous Drivers Local Union
No. 83, etc. (Marshall & Hoas), 133 NLRB 1144 , that the
mere giving of notice to a prime contractor of prospective
strike action against a subcontractor does not violate
Section 8(b)(4)(ii)(B). Thus, the Respondent would equate
Branthoover 's threat with such notice. The fact , however,
is that Branthoover testified specifically that he did not
threaten to picket the project or to cause any work
stoppage . Accordingly , upon the basis of Southern
Construction , I find that the Respondent violated Section
8(b)(4)(ii)(B).
Turning to the Respondent 's picketing after Holsopple
had begun work on the project , the General Counsel does
not dispute the accuracy of the representations on the
picket signs.5 I have no doubt that the Respondent sought
by its picketing to protest the fact that the working
conditions of Holsopple 's electricians tended to lower the
has been no motion by any party to correct it
' Although the General Counsel does not dispute the
representations , he asserts that the references in the signs to the
Steelworkers , owner of the Labor Temple being renovated, were
an invalid attempt by the Respondent to involve the "neutral"
Steelworkers On the other hand, the Respondent argues, inter
alia (1 ) that it was entitled to appeal to the Steelworkers in
protesting working conditions on the project , and (2 ) that Section
8(b)(4) was intended to protect neutral employers , not neutral
persons, and that the Steelworkers was, at most , a neutral person
This issue need not be discussed further or resolved
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standards which the Respondent had achieved in
collective bargaining. The question, however, is whether
the Respondent had an additional object, namely, to force
Jonel to cancel its contract with Holsopple. If there was
such additional object, the Respondent violated Section
8(b)(4)(i) and (ii)(B). The Building & Construction Trades
Council of Philadelphia and Vicinity, AFL-CIO, et al.
(Fisher Construction Company), 149 NLRB 1629, enfd.
359 F.2d 62 (C.A. 3). The testimony of Branthoover
alone establishes such additional object. Thus, as recited
on December 7, 1965, Branthoover sought to induce
Gelormino to award the electrical work to a firm under
contract with the Respondent, and Branthoover's remarks
to Gelormino about Yoder reflect that Branthoover
strongly opposed an award of the work to Holsopple. On
December 13, Branthoover refused to agree to Holsopple's
doing the work and threatened that there would be trouble
if Holsopple should do it. There is no evidence that the
Respondent anticipated any circumstances under which
Holsopple would become unobjectionable to it. I find that
the Respondent's invalid object continued after Holsopple
began work on the project and that the Respondent's
conduct violated Section 8(b)(4)(i) and (ii)(B).
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the
meaning of the Act.
2. Jonel , Holsopple, Sloan , and Griffith are employers
engaged in commerce , or in an industry affecting
commerce , within the meaning of the Act.
3. By inducing and encouraging individuals employed
in industries affecting commerce to refuse in the course of
their employment to perform services , with an object of
forcing or requiring Jonel to cease doing business with
Holsopple, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(b)(4)(i)(B) and Section 2(6) and (7) of the Act.
4. By threatening , coercing , and restraining Jonel,
Sloan , and Griffith , with an object of forcing or requiring
Jonel to cease doing business with Holsopple, the
Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.
requiring any such person to cease doing business with
said Holsopple.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix."6 Copies of said
notice, on forms provided by the Regional Director for
Region 6, shall be posted by the Respondent after being
duly signed by Respondent's representative, immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Promptly after receipt of unsigned copies of said
notice from the Regional Director, return to him signed
copies for posting by said Jonel, Sloan, and Griffith and
Petz, if those persons be willing, at their respective places
of business, including all places where notices to their
respective employees customarily are posted.
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.'
B 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 said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL OUR MEMBERS , OFFICERS , AND AGENTS AND
TO THE FOLLOWING PERSONS AND THEIR EMPLOYEES:
JONEL CONSTRUCTION CO., INC., H. A. SLOAN PLUMBING
CONTRACTOR, AND GRIFFITH AND PETZ HEATING AND AIR
CONDITIONING CONTRACTORS
RECOMMENDED ORDER
Upon the entire record in the case and pursuant to
Section 10 (c) of the Act, and in order to effectuate the
Act's policies, I hereby recommend that International
Brotherhood of Electrical Workers, Local No. 5,
AFL-CIO, its officers, agents, and representatives , shall:
1. Cease and desist from:
(a) Inducing or encouraging employees of Jonel
Construction Co., Inc., H. A. Sloan Plumbing Contractor,
Griffith and Petz Heating and Air Conditioning
Contractors , or any other individuals employed in an
industry affecting commerce , to refuse in the course of
their employment to perform any service with an object of
forcing or requiring any person to cease doing business
with Holsopple Electric and Supply Co., Inc.
(b) Threatening , coercing , or restraining said Jonel,
Sloan , Griffith and Petz, or any other person engaged in an
industry affecting commerce , with an object of forcing or
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to conduct the business of Local No. 5 as required
by the National Labor Relations Act, as amended, we
hereby notify you that:
WE WILL NOT induce or encourage employees of
Jonel Construction Co., Inc., H. A. Sloan Plumbing
Contractor, Griffith and Petz Heating and Air
Conditioning Contractors, or any other individuals
employed in an industry affecting commerce, to
refuse in the course of their employment to perform
any service with an object of forcing or requiring any
person to cease doing business with Holsopple
Electric and Supply Co., Inc.
WE WILL NOT threaten, coerce, or restrain said
Jonel, Sloan, Griffith and Petz, or any other person
engaged in an industry affecting commerce, with an
object of forcing or requiring any such person to cease
doing business with said Holsopple.
JONEL CONSTRUCTION CO. 459
Dated By
INTERNATIONAL This notice must remain posted for 60 consecutive days
BROTHERHOOD OF from the date of posting, and must not be altered, defaced,
ELECTRICAL WORKERS, or covered by any other material.
LOCAL No. 5, AFL-CIO If anyone has any question about this notice or
(Labor Organization) compliance with its provisions, he may communicate with
the Board's Regional Office, 1536 Federal Building, 1000
Liberty Avenue, Pittsburgh, Pennsylvania 15222,
(Representative) (Title) Telephone 644-2969.