Local 25, Electrical Wkrs.

National Labor Relations Board - Board Decisions

Feb 15, 1968

169 N.L.R.B. 856 (N.L.R.B. 1968)

856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 25, International Brotherhood of Electrical
Workers, AFL-CIO and Building Trades Em-
ployees Association . Case 29-CC-107
February 15, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On December 5, 1967, Trial Examiner David
London issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief and the General Counsel and the
Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
the complaint herein alleging that Local 25, International
Brotherhood of Electrical Workers, AFL-CIO (the
Union), had engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act, as amended (the Act). The Union
filed its answer denying the commission of any unfair
labor practice. The hearing herein was held before me at
Brooklyn, New York, on October 25-26, 1967, at which
all parties hereto were represented by counsel. On
November 27, 1967, the General Counsel and the Charg-
ing Party filed briefs which have been duly considered by
me.
Upon the entire record in the case,' and my observa-
tion of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
At all times material herein Dobson Construction
Company, Inc., was, and presently is, a corporation duly
organized under and existing by virtue of the laws of the
State of New York, maintaining its principal office and
place of business in Long Island, New York, where it is,
and has been continuously, engaged in performing general
contracting, construction, and related services. During
the past year, which period is representative of its annual
operations generally, it has derived gross revnues in ex-
cess of $5 million and purchased and caused to be trans-
ported and delivered to its Long Island, New York, place
of business, and to its various construction sites, building
materials valued in excess of $50,000 which goods were
transported and delivered to its aforesaid place of busi-
ness and construction sites in interstate commerce
directly from States of the United States other than the
State in which it is located. The complaint alleges, and I
find that at all times relevant herein Dobson Construction
Company, Inc., has been and is engaged in commerce,
and in an industry affecting commerce, within the mean-
ing of Sections 2(l), (6), and (7) and 8(b)(4) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner , and hereby
orders that Respondent , Local 25, International
Brotherhood of Electrical Workers, AFL-CIO,
Brooklyn , New York, its officers , agents, and
representatives, shall take the action set forth in the
Trial Examiner 's Recommended Order.'
' Delete from paragraph 2(a) of the Trial Examiner's Recommended
Order that part thereof which reads "to be furnished " and substitute
therefor "on forms provided."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID LONDON , Trial Examiner : Upon a charge filed
July 21, 1967, by Building Trades Employers Associa-
tion , the General Counsel, on August 24, 1967 , issued
II. THE LABOR ORGANIZATIONS INVOLVED
During all times relevant herein, the Union was, and
presently is, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Commencing in 1962 and continuing through the time
and events with which this proceeding is concerned, the
State of New York was engaged in the construction of a
huge project in Long Island , New York , known as Suf-
folk State School , an institution for retarded children. The
project , the cost of which will exceed $50 million , covers
an oblong area of approximately 450 acres and, when
completed , will consist of 70-80 buildings located as in-
dicated on a plat of the area attached hereto as Appendix
A.
There are four public entrances to the entire area in-
dicated on Appendix A as points A, B, C, and F . Points
B and C are at the extreme westerly boundary of the en-
tire area , point B at the extreme northwest corner, and
point C in the approximate center of the westerly border.
Motions, on which ruling was reserved, are disposed of in accordance
with the conclusions that follow.
169 NLRB No. 132
LOCAL 25, ELECTRICAL WKRS. 857
Points A and F are in the center of the east boundary, F
being approximately 1,500 feet south of the northwest
corner of the area and A approximately 1,500 feet north
of the southwest corner.
Among the general contractors engaged on the project
described above during the summer of 19672 was the
Dobson Construction Company, Inc. (Dobson), a
member of the Charging Party, engaged in the construc-
tion of a psychiatric hospital designated as building 80 on
Appendix A near the center of the southern border of the
entire area. In the performance of its approximately $2.5
million contract, Dobson employed laborers, masons,
wire lathers, carpenters, and sundry other employees, all
of them represented by some union. Also employed on
building 80 as prime contractors with contracts from the
State of New York, were Charles A. Mulligan, Inc. (Mul-
ligan), the electrical contractor, William J. Flood, Inc.
(Flood), the plumbing contractor, Dierks Heating Com-
pany (Dierks), the heating contractor, and F. W. Koehler
& Sons, Inc. (Koehler), the masonry contractor.3
During all times relevant herein, Pantel Contracting
Corporation, pursuant to a contract with the State of New
York, was engaged as prime electrical contractor for the
installation of the outside ground lighting near buildings
2, 3, and 4 located near the north central portion of the
entire area, and buildings 28, 29, and 30 at the area's
northwest corner. Insofar as the record discloses, Pantel
was a very small entrepreneur who began the per-
formance of its contract in June. During that month and
July, its only employees engaged in the performance of
the aforementioned contract was Irving Pantel and one
other employee. During that period, Pantel had a collec-
tive-bargaining contract with a union other than the
Union herein, pursuant to which employees had an 8-
hour day and a 40-hour week, with time and a half for
overtime.
Commencing during the early morning of July 5 and
continuing through every workday thereafter to and in-
cluding July 11, the Union placed pickets at the main en-
trances to the entire project designated as points A, B, C,
and F on Appendix A. During the same period, it also
placed one or more pickets carrying similar signs at the
point marked D on Appendix A, south of building 80
where Dobson was engaged in the construction of the
psychiatric hospital, the critical picketing post involved
herein. All the pickets bore signs carrying the following
legend:
To the public: The electricians of Pantel Electric are
not working under conditions established by Local
25 I. B. E. W., AFL-CIO (Respondent Union). We
have no dispute with any other contractor.
Joseph E. Cavanagh, business agent of Respondent
Union, testified that Pantel's "working conditions" which
Respondent Union was protesting were twofold, both of
which were allegedly contrary to and in violation of those
generally prevailing in the area and specifically prohibited
by Respondent Union's collective-bargaining agreements
with other employers. Thus, he testified, (1) that Pantel's
8-hour week, with time and a half for overtime, was con-
trary to the conditions prevailing in the area and to the
terms of the contract which Respondent Union "has in
the Nassau and Suffolk county area" requiring only a 7-
hour day, 35-hour week, with double pay for overtime,
and (2) that on one occasion he saw Pantel working "with
tools on the job," and that this also was in violation of
Respondent Union's collective-bargaining agreements
which contain "a prohibition [against] members of firms,
partnerships or corporations to work with tools."4
The principal thrust of the General Counsel's case
against the Union's picketing is directed to that activity
at point D on Appendix A, the only approach to the Dob-
son project at building 80, on which Flood, Dierks, Mul-
ligan, and an electrical contractor whose employees were
members of the Union, were also engaged. Point D was
located a short distance north of Half-Hollow Road, the
latter being a paved public road. From point D , running
north approximately 200-300 feet, was a dirt road leading
directly to building 80. There are no connecting roads
between building 80 and the remainder of the project.
John G. Ferguson, assistant superintendent of construc-
tion for the State of Ney York, testified, and I credit his
testimony, that this dil'ls` f`oad was used only by contrac-
tors working at building 80, and that it was impossible for
a truck "to go through point D on to any other point in the
complex." It would be done, he testified, only "at the risk
of getting stuck in the sand."
During June and July, the only work by Pantel and his
other single employee at the Suffolk State School project
was performed adjacent to buildings 2, 3, and 4 at the
northeast comer of the entire project. While so engaged
the only entrance Pantel ever used was at point B.
Neither Pantel, nor his employee, ever used, or had occa-
sion to use, the dirt road leading from point D to building
80 where the Union was picketing. Ferguson estimated
that it was between one-half and three-fourths of a mile
from building 80 to buildings 28, 29, and 30, and three-
fourths of a mile to a mile from building 80 to buildings 2,
3, and 4 where Pantel was then engaged.
About 7:50 a.m. on July 5, Willfried Hebmann, Dob-
son's superintendent, was informed that there were
pickets at the job entrance. Hebmann went to the pickets,
asked why they were picketing, but got no reply. About
11 a.m., the bricklayer-union delegate visited the site and
talked to the bricklayers employed by Koehler. All the
"tradesmen" on the job worked until lunchtime when
"everybody left the jobsite -the job was dead." No work
was performed on building 80 thereafter until July 12. In
the meantime, on July 10, Hebmann handed to the
pickets at point D a notice reading as follows:
To whom it may concern:
Please be advised that this entrance is for the em-
ployees of DOBSON CONSTRUCTION COM-
PANY, INC., and their subcontractors only and is
not used for any employees of Pantel Electric. We
therefore insist that the pickets be removed from this
entrance.
DOBSON
CONSTRUCTION CO.
INC.
2 Unless otherwise indicated, all reference to dates herein are to the
year 1967.
3 The Union's answer admits that all of these contractors were engaged
in commerce and in an industry affecting commerce within the meaning of
Sections 2(1), (6), and (7) and 8(b)(4) of the Act.
' Cavanagh testified that Kraker, Respondent Union's business
manager, told him "that on one occasion on a job in another State hospital
.. Mr. Pantel was observed working with his wife on Sunday pulling wire
and conduits "
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hebmann also posted the following sign at the entrance
to the building 80 site:
This entrance for Dobson construction employees
only and subcontractors, not for Pantel.
It being undisputed that none of the employees working
at building 80 were engaged in a dispute with their em-
ployer, and Pantel having no occasion to use the dirt road
leading exclusively to building 80, the Union, by picket-
ing at that entrance, violated Section 8(b)(4)(i) and ( ii)(B)
of the Act. 5
No one questions the right of the Union to publicize its
dispute with Pantel Electric Company wherever the latter
is engaged in the conduct of its business and thereby
seeking to impose economic pressure on Pantel to comply
with the Union's demands. International Brotherhood of
Electrical Workers, Local No. 11 [L. G. Electric Con-
tractors, Inc.], 154 NLRB 766. For that purpose, the
Union could unquestionably place its pickets at Pantel's
office or established place of business, or adjacent to the
work it was performing on buildings 2, 3, 4, 28, 29, and
30. There is, however, no testimony that it did so at any
of. these places. Its failure to do so indicates that its
objective was to enmesh neutrals in its dispute, rather
than exerting pressure on Pantel alone at the situs where
that pressure would normally be the most effective.
It may even be assumed, arguendo, and there is no con-
tention by the General Counsel to the contrary, that the
Union could, with the proper safeguards, publicize that
dispute at the public entrances to the entire school project
which could be used by Pantel in the performance of its
work on the six buildings aforementioned, a subject to
which reference is hereafter made. The Union could not,
however, picket building 80 or point D, the private ap-
proach thereto, an approach never used by Pantel, and
used only by those working on building 80, thereby en-
meshing neutral employers and employees in a dispute
with which they had no concern. In his closing argument,
the Union's counsel conceded that the approach to build-
ing 80 , point D, "is different in character than point A, B,
and C," the public entrances to the entire project. The
Union had no more right to picket at point D, than it
would have to picket at the inside dirt road approaches to,
or the immediate vicinity of, any of the other approxi-
mately 80 buildings within the entire school area where
only neutral employers were engaged. It was to avoid that
very result that Congress enacted Section 8(b)(4) of the
Act. N.L.R.B. v. Denver Building & Construction
Trades Council, 341 U.S. 675, 692.
At the opening of the hearing, counsel for the General
Counsel and the Union agreed that the Union's conduct
complained of must be appraised and adjudged by the
well-established and recognized standards laid down by
the Board in its Moore Dry Dock decision, Sailors Union
of the Pacific (Moore Dry Dock Company), 92 NLRB
547. In that case, the Board established a set of four stan-
dards which a picketing union is required to observe at a
common jobsite in order to demonstrate, as it must, that
it is attempting to limit its dispute with the primary em-
ployer working at the site and that it is not seeking to en-
mesh other neutral employees who are also working at
that site. The parties also agreed that, of the four stan-
dards prescribed by Moore Dry Dock, the only standard
which Respondent failed to comply with, and of which
complaint is made, is standard (c) which requires that
"the picketing [be] limited to places reasonably close to
the location of the situs."
Here, the specific situs of Pantel, the primary em-
ployer, was at the six buildings mentioned above, all
being at least half to three-quarters of a mile distant from
the picketing which the Union imposed at the approach
to building 80 and of which complaint is made. Such a
distance from the situs cannot be said to be a place
"reasonably close to the location of the situs."
Assuming, arguendo, as indicated above, that the en-
tire area of approximately 450 acres be considered to be
Pantel's situs, my ultimate conclusion concerning the
Union's violation of the Act would be no different. The
only entrance ever used by Pantel was at point B and it
may be assumed that picketing at that main public en-
trance, or any of the other main public entrances, was not
proscribed. It was, however, undisputed that, other than
employees engaged on building 80, no other employees
ever used, or had occasion to use, the private dirt road ap-
proach at point D leading to building 80. J. E. Cavanagh,
the Union's business agent who installed all the picket
lines, admitted that he made no inquiry to ascertain
whether Pantel was engaged on building 80.
Turning now to the objective of the Union's picketing,
and there being no direct evidence thereof, I can only ra-
tionalize with respect thereto. Its objective was certainly
not for the purpose of inducing or requiring any of the six
contractors engaged on building 80 to cease doing busi-
ness with Pantel, for none of them were then so engaged
with Pantel. Indeed, there was no showing or contention
that they ever did business with Pantel. In that state of
the record, and all of these six contractors and Pantel
having contracts with the State of New York, I can only
conclude that the Union's objective was to force the six
prime contractors engaged on building 80 to cease per-
formance of their contract with the State of New York,
i.e., cease doing business with the State of New York,
and to force the State to cease doing business with Pantel,
an objective which all of them "were powerless to effe-
ct."6 I can conceive of no other objective, nor has any
other objective, been established or suggested by the
record. By reason of all the foregoing I conclude that
Respondent Union by picketing at the entrance to build-
ing 80 it violated Section 8(b)(4)(i) and (ii) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The course of conduct chargeable to Respondent
Union, set forth in section III, above, since it occurred in
connection with the operations described in section I,
above, had a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States,
5 Section 8 (b)(4), insofar as relevant, makes it an unfair labor practice
for a labor organization or its agents:
... (i) to engage in, or to induce or encourage any individual em-
ployed by any person engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal in the course of his em-
ployment to ... perform any services ; or (ii) to threaten , coerce, or
restrain any person engaged in commerce or in an industry affecting
commerce , where in either case an object thereof is:... (B) forcing
or requiring any person ... to cease doing business with any other
person ....
6 American Broiler Mfg. Assn., 154 NLRB 285, 290, enfd . in relevant
part 366 F.2d 815, 822 (C.A. 8); Local 5, United Assn. of Journeymen
Plumbers [Arthur Venneri Co.] v. N.L.R.B., 321 F.2d 366, 371
(C.A.D.C.), cert. denied 375 U.S. 921; Ohio Valley Carpenters District
Council, 144 NLRB 91, enfd. 339 F.2d 142 (C.A. 6).
LOCAL 25, ELECTRICAL WKRS.
and, absent correction, would tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Union has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. In view of
the Respondent's repeated violations of the Act, particu-
larly with regard to 8(b)(4) violations,7 it may reasonably
be anticipated that Respondent will engage in similar un-
fair labor practices. I will therefore recommend that the
Respondent Union cease and desist from engaging in
such unfair labor practices in respect to any other person
engaged in commerce or in an industry affecting com-
merce.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Dobson, Mulligan, Flood, Dierks, and Koehler are
individual employers engaged in commerce or in an in-
dustry affecting commerce within the meaning of the Act.
3. By inducing and encouraging individuals employed
by the employers named immediately above, and other
employers, to engage in strikes or refusals in the course
of their employment to perform services, an object
thereof being to force the above-named employers, and
others, to cease doing business with each other and the
State of New York, the Union engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act.
4. By the acts described above in paragraph 3 for the
objects set forth above in said paragraph, the Union
threatened, coerced, and restrained persons engaged in
commerce and in an industry affecting commerce, and
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
' See Local 25, International Brotherhood of Electrical Workers,
AFL-CIO, [A.C. Electric], 148 NLRB 1560; Local 25, International
Brotherhood of Electrical Workers, AFL-CIO [New York Telephone
Company], 162 NLRB 703; Local 25, I.B.E W [Emmett Electric Co.],
157 NLRB 44, Local 25, I.B.E W. [Sarrow Suburban], 157 NLRB 715
8 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
RECOMMENDED ORDER
859
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that Respondent Local 25, International
Brotherhood of Electrical Workers, AFL-CIO, its of-
ficers agents, and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed
by Dobson, Mulligan, Flood, Dierks, and Koehler, or by
any other person engaged in commerce, or in an industry
affecting commerce, other than Pantel Contracting Cor-
poration, to engage in a strike or a refusal in the course of
his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services,
where an object thereof is to force or require the aforesaid
employers and others, or the State of New York, to cease
doing business with Pantel Contracting Corporation.
(b) Threatening, coercing, or restraining Dobson,
Mulligan, Flood, Dierks, and Koehler, or any other per-
son engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or require the
aforesaid employers and others, or the State of New
York, to cease doing business with Pantel Contracting
Corporation.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act.
(a) Post at its business office and meeting halls, copies
of the attached notice marked "Appendix B."8 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by a representative
of the Union, be posted by the Union immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Union to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Furnish to the Regional Director for Region 29
signed copies of said notice for posting by the five em-
ployers named above, if willing, in places where notices
to employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director, shall,
after being duly signed by Respondent, be forthwith
returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.9
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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
9 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 Re-
spondent has taken to comply herewith."
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
APPENDIX B
LOCAL 25, ELECTRICAL WKRS. 861
NOTICE TO ALL MEMBERS OF LOCAL 25 , !NTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO
Pursuant to the Recommended Order of a Trail Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our mem-
bers that:
WE WILL NOT induce or encourage any individual
employed by Dobson Construction Company, Inc.,
Charles A. Mulligan , Inc., William J. Flood, Inc.,
Dierks Heating Company , F. W. Koehler & Sons,
Inc., or any other person engaged in commerce or in
an industry affecting commerce , except Pantel Con-
tracting Corporation, to engage in a strike or refusal
in the course of his employment to use , manufacture,
process , transport , or otherwise handle or work on
any goods , materials, articles, or commodities, or to
perform any services where an object thereof is to
force or require any of the aforesaid employers, or
any other employer or person, to cease doing busi-
ness with each other or with the State of New York.
WE WILL NOT threaten , coerce, or restrain any of
the above -named employers or persons , or any other
person engaged in commerce or in an industry affect-
ing commerce, other than Pantel Contracting Cor-
poration , where an object thereof is to force or
require said employers or others to cease doing busi-
ness with the State of New York.
Dated By
LOCAL 25, 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, 16 Court
Street, 4th Floor Brooklyn, New York 11201, Telephone
596-5386.