Local 25, Electrical Workers

National Labor Relations Board - Board Decisions

Jan 10, 1974

208 N.L.R.B. 337 (N.L.R.B. 1974)

LOCAL 25, ELECTRICAL WORKERS
Local 25, International Brotherhood of Electrical
Workers, AFL-CIO and Eugene lovine, Inc. Case
29-CC-368
January 10, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 15, 1973, Administrative Law Judge
Eugene F. Frey issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a reply 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions I of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
In affirming the Administrative Law Judge 's conclusion that Respon-
dent's picketing was not violative of the Act, we do not rely on his
additional conclusion that the General Counsel failed to sustain his burden
of proof because the picketing was ineffective as to various secondary
employers and their employees
DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Administrative Law Judge: This case
was tried before me on due notice, on August 27, 1973, at
Brooklyn, New York, with General Counsel and Respon-
dent, Local 25, International Brotherhood of Electrical
Workers, AFL-CIO, participating through counsel, and
Charging Party, Eugene lovine, Inc. (herein called Iovine),
appearing by its president, Eugene Iovine, after pretrial
proceedings in compliance with the National Labor
Relations Act, as amended, 29 U.S.C. § 151, et seq. (herein
called the Act). The issue is whether or not Respondent,
which has a labor dispute with lovine, the primary
employer, by picketing a construction job located on a
facility of Long Island Lighting Company (herein called
I The issue arises on a complaint issued June 18, 1973, by the Board's
Regional Director for Region 29, after Board investigation of a charge filed
by lovine on May 22, 1973, and answer of Respondent denying the
commission of any unfair labor practices
337
LILCO), a secondary employer , at which Peter Peterson
Construction Company (herein called Peterson ), another
secondary employer , was engaged as general contractor for
LILCO, and lovine was engaged in electrical work as a
subcontractor to Peterson , thereby inducing and encourag-
ing employees of said employers to strike or refuse to do
work for their employers , and coercing and restraining
Peterson , LILCO and other persons in commerce , with an
object of forcing and requiring the secondary employers to
cease doing business with lovine and to force other persons
doing business with LILCO to cease doing business with it,
in violation of Section 8(b)(4)(i ) and (ii)(B) of the Act.'
At close of the testimony , Respondent moved to dismiss
the complaint on the merits . That motion is now granted
on the basis of the findings and conclusions in this
Decision . General Counsel and Respondent gave oral
argument at the end of the case , and have filed written
memoranda which have been carefully considered in
preparation of this Decision which was signed and released
by me on October 9, 1973, for distribution to the parties in
the usual course.
Upon the entire record in the case , including observation
of witnesses on the stand , and consideration of arguments
of the parties , I make the following:
FINDINGS OF FACT
1. STATUS OF THE EMPLOYERS , AND RESPONDENT
lovine is a New York corporation with its principal
office and place of business in the Borough of Queens,
New York, where it is and has been engaged as an
electrical contractor in the building and construction
industry, providing and performing electrical wiring and
equipment installation and repair and related services at
various building and construction sites in the State of New
York. In course of its business in the past year lovine has
had direct inflow of goods and materials to such jobsites
valued in excess of $50,000.
Peterson is a New York corporation with its principal
office and place of business in East Rockaway, New York,
where it is and has been engaged as a general contractor in
the building and construction industry on various con-
struction sites in the State of New York.
LILCO is a New York corporation with its principal
office and place of business in Mineola, Nassau County,
New York, and has been continuously engaged as a public
utility in the production and distribution of electricity and
gas and related products at various plants, including a
facility in Hicksville, New York, which is the only one
involved in this case.
I find that Iovine, Peterson, and LILCO are employers
engaged in commerce and in an industry affecting
commerce within the meaning of Sections 2(l), (6), and (7)
and 8(b)(4) of the Act.2
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2 Respondent did not answer the jurisdictional allegations of the
complaint, hence under Board Rule 102 20 those allegations "shall be
deemed to be admitted to be true "
208 NLRB No. 55
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES3
During 1973 Peterson has been engaged as general
contractor in constructing a transformer maintenance
building (herein called TMB) for LILCO at the Hicksville
facility. Since November 1972, lovine has held and
operated under a subcontract for Peterson, for electrical
wiring and equipment installation in said building, and
since that date has actually performed such work there.
Since 1970 and to the date of trial Respondent has been
engaged in a labor dispute with Iovine, in course of which
Iovine has filed at least five prior charges with the Board
alleging that Respondent has in various ways violated
Section 8(b)(4) of the Act on other jobsites where lovine
was working.4 During this period and at the time of the
events stated below, lovine had a collective-bargaining
agreement with Local 263, International Brotherhood of
Teamsters, Chauffeurs and Warehousemen of America,
under which it has been employing electricians who are
members of that union, and has afforded such employees
wages and working conditions which were not equal to
those received by employees who are members of Respon-
dent.
On or about May 2, 1973, Charles W. Fisher, business
agent of Respondent, in course of his duties visited the
Hicksville facility, which is located within the territorial
jurisdiction of Respondent, to find out who was perform-
ing the electrical work at the TMB jobsite, and whether
that person was under contract with Respondent or was a
nonunion contractor. Fisher could not observe the jobsite
from either of the two public streets bordering the
Hicksville facility, because it covers over 50 acres of
ground, and the TMB jobsite was located toward the rear
of the tract and hidden from view by other buildings.
Hence , Fisher entered the main office of LILCO at the
facility, identified himself to the receptionist, and asked if
he could talk to someone familiar with the construction
site . The woman dialed the phone extension of George
Christiansen, assistant construction superintendent of
LILCO, and connected him with Fisher, telling the latter it
was Christiansen. Fisher asked Christiansen if he knew
about the construction. Christiansen said he did. Fisher
asked him who the electrical contractor was. After first
inquiring and learning that Fisher was business agent of
Respondent, Christiansen said he did not know about the
contracts, but would find out and call him back. After 5 or
10 minutes , Christiansen called the receptionist, she put
Fisher back on the phone, and Christiansen told Fisher the
electrical contractor was lovine. Fisher asked him if he
knew that Iovine was "not with" Respondent or "with" the
Building and Construction Trades Council of Long Island
(of which Respondent is a member). Christiansen said he
did not know. Fisher asked him "what LILCO was going
to do about it." Christiansen replied, "nothing," saying
that LILCO did not let the contracts on the job, that
Peterson did that as general contractor. Fisher indicated
that he "wanted LILCO to remove lovine from the,lobsite
as contractor." Christiansen replied that this was not the
3 All dates stated herein are in 1973, unless otherwise noted
4 Three of the charges were withdrawn or dismissed before trial
(29-CC-250, 29-CC-151, and 29-CC-362) and two others resulted in
issuance of a complaint which was dismissed by the Board , 201 NLRB 531
responsibility of LILCO, that if lovine or any other
contractor was removed it would have to be done by
Peterson. Fisher said that if Iovine was on the site, he still
worked for LILCO, that he (Fisher) was not interested in
Peterson, but only in having LILCO remove lovine.
Christiansen said Fisher should talk to a Mr. Knab of
Peterson, because Iovine worked for Peterson. Fisher still
insisted he was not interested in Peterson, only in what
LILCO would do. Christiansen then said he would look
into the situation further and call Fisher at his office.
Christiansen at once reported the discussion by phone to
Knab of Peterson, and also to his immediate superiors at
the plant. That afternoon, he telephoned Respondent's
office and left a message for Fisher to call Knab if he had
any questions about lovine. Fisher got the message that
day, but did not call or otherwise contact Peterson, nor did
he communicate again with Christiansen. Instead, he spent
some time in the next 2 weeks trying to find a location
outside the Hicksville facility from which he could
personally observe the construction site . On May 17, he
finally located a vantage point on a railroad trestle outside
the tract from which he observed a tool locker and
electricians actually working on the site. That afternoon he
set up a picket line at the two entrances to the facility and
TMB site used by employees of LILCO, Peterson and the
subcontractors working on the job. The pickets carried
signs stating
To the public: Electricians working on this job for
Eugene lovine, Inc. do not receive wages and working
conditions as good as those established in contracts of
Local 25, IBEW. This sign is not directed to any other
employers or employees on this job. AFL-CIO
The picketing with these signs continued until about June
8, 1973. During this period the operation of the Hicksville
facility by LILCO and its employees and actual progress of
the TMB construction by Peterson, its subcontractors and
their respective employees was not stopped or even
hindered in any way. In the same period the operating and
clerical employees of LILCO at the Hicksville facility were
represented by two locals of the IBEW, other than
Respondent.5
Contentions of the Parties, and Final Findings and
Conclusions
General Counsel's argument is that (1) Fisher's remarks
to Christiansen on May 2 clearly show that Respondent
was unlawfully pressuring LILCO to remove lovine as the
electrical subcontractor because that concern was nonun-
ion in the eyes of Respondent, since it had no collective
bargaining contract with Respondent and was not a
member of the Long Island Building and Construction
Trades Council, with which Respondent was affiliated,
hence its "objective" was to have LILCO cease doing
business with lovine for that reason, and (2) when these
remarks are considered with the ensuing picketing at a
S The above facts are found from stipulated facts, documentary proofs
and a composite of credible testimony of Fisher and Christiansen
Testimony of either of the witnesses in conflict therewith is not credited for
reasons noted below
LOCAL 25, ELECTRICAL WORKERS
common situs on the L1LCO property, the violation of
Section 8(b)(4) as alleged has been proven,6 even though
the picket signs in terms proclaimed a lawful "area-
standards" objective and the picketing itself may have
complied with the standards set forth in the Moore Dry
Dock Company case.? I have found from Christiansen's
testimony that Fisher clearly told that official that he
"wanted" LILCO to get lovine off the TMB fob, after
reminding him that Iovine was in effect "non-union" and
asking what LILCO would do about it. I do not credit
Fisher's denial of this part of the talk, in light of his
admission that he came to the TMB job specifically to find
out whether a contractor affiliated with Respondent, or a
"non-union" contractor, was on the job, pursuant to
Respondent's policy of trying to have all electrical work on
jobs in its jurisdiction done by contractors employing its
members. Hence, Fisher's explanation that lovine was
"non-union" is consistent with his ensuing inquiry about
what action LILCO would take and his expressed desire
that LILCO get lovine off thejob ; and since Fisher admits
he did not explain to Christiansen that Iovine, as a
nonunion contractor, was not paying the prevailing union
rates for electricians, Fisher's remarks are just as probative,
if not more so, of an objective to have LILCO cease doing
business with lovine by getting him off the job, than of the
"area-standards" objective stated by Fisher in testimony
and noted on the picket signs. This conclusion is further
strenghtened by Fisher's rather garbled admission that he
explained lovine's nonunion status to Christiansen "to
make him aware that he had someone on the job who
might not be there under a situation that they would want
them there." The main purpose of this evasive answer is
clarified somewhE t by Fisher's admitted knowledge of the
fact that the Hicksville facility was manned by operational
and clerical workers who were members of two sister locals
of the IBEW, from which I can only infer that Fisher was
thus telling Christiansen obliquely but clearly that LILCO
might not want nonunion electricians working in the same
facility with plant employees who were members of the
parent IBEW, a situation which traditionally has been
denounced and resisted by unions in the construction
trades and has often led to strikes or work stoppages by
their members in order to compel the ejection of nonunion
contractors and workers from jobs 8 Hence, I conclude that
Fisher's remarks to Christiansen sufficiently show that
Respondent's objective on May 2 was unlawful ; i.e., to
have a neutral employer, LILCO, take steps to have the
primary employer , lovine , removed from the TMB site
because he was a nonunion contractor.
6 The Board has corsistently held in these cases that picketing is not to
be considered in isolation but must be viewed as part of the entire course of
conduct of the union International Brotherhood of Electrical Workers Local
Union 11 (L.G E(ectr,c Contractors. Inc. ), 154 NLRB 766, 767, 768
7 Sailors Union of the Pacific, AFI_ (4foore Dry Dock Company ), 92
NLRB 547, 549 The Beard has held that if an unlawful objective is proven,
a violation can be found, even though the union had a second, lawful
objective IBEW Local II (LG ilectric Contractors, Inc ), supra.
8 Examples of this type of action in the past by Respondent and sister
locals appear in Local ?5, International Brotherhood of Electrical Workers
(Emmett Electric Company, Inc), 157 NLRB 44,51; Loca125, International
Brotherhood of Electrtcai Workers (Sarrow-Suburban Electric Co., Inc), 457
NLRB 715, 722, and IBEW Local II (L G Electric Contractors, Inc.), supra
9 Christiansen admits that Fisher made no mention of picketing or
339
However, while Fisher had this illegal objective in mind
when he spoke to Christiansen, in hopes that LILCO would
feel lovine was undesirable and take action to get rid of
that contractor, his expression of a desire for LILCO
action in this direction, without contemporaneous or later
remarks to any official of LILCO or any of the contractors
on the TMB site, or to employees of any of them, which
would directly or indirectly advise, promise, warn, or
threaten that Respondent would strike or take other action
to stop or delay operations at the Hicksville facility or the
TMB job if lovine continued to work there and was not
removed, as desired by Respondent,9 falls far short of a
direct or indirect threat to picket or engage in other
conduct tending to induce or encourage employees to
strike or stop work, or to threaten, coerce, or restrain
neutral employers to make them cease doing business with
primary employers, such as has been found violative of
Section 8(b)(4) of the Act. 10
Furthermore, picketing did not begin immediately after
the refusal of Christiansen to do anything about lovine,
but weeks later and only after Fisher satisfied himself by
observation that lovine was in fact working on the TMB
job. The picket signs in terms conformed to the standards
of lawful informational or "area-standards" picketing
under the Act. Although it has been held that a picket line
is a potent instrument, that picket signs often speak louder
than words (Local 25, International Brotherhood of Electri-
cal Workers (A.C. Electric ), 148 NLRB 1560, 1577) and
that picket lines necessarily invite employees to make
common cause with the strikers and to refram from
working behind the lines, irrespective of the literal appeal
of legends on the picket signs (Local 25, International
Brotherhood of Electrical Workers (Emmett Electric Compa-
ny, Inc. ), 157 NLRB 44, 50 (fn. 10)), it is significant that
the picket line here did not have such effect on workers in
the main facility, where members of the IBEW continued
to work, nor did it stop work on the TMB site. In the
absence of prior words or conduct from Respondent
denoting threats or coercion within the meaning of Section
8(b)(4), the total lack of success of the picketing in causing
any stoppage cannot be ignored but looms important and
tends to support the inference that its purpose and effects
from start to finish was directed only at the primary
employer, rather than toward enmeshing neutral employers
or their employees in the primary dispute. Lacking any
proof to show why other union employees at the facility
did not take the picket line as a signal to make common
cause with Respondent and refuse to cross it, it is a fair
inference that they and workers on the TMB site took the
stoppage of the TMB job or any other LILCO operation, nor did he ask
LILCO to replace lovine with another contractor affiliated with or
acceptable to Respondent.
i'i See Carpenters District Council of Houston and Vicinity (Astrodomain
Corporation), 202 NLRB 744, where a complaint was dismissed despite
union language indicating a "problem" and possible damage to a jobsite
Contrast other cases where violations were found on language directly or by
clear implication indicating probable shutdown of or damage to ajobsite by
picketing, Si: Local 445, International Brotherhood of Teamsters, Chauffeurs
and Helpers of America (Edward L Nezelek, Inc), 194 NLRB 579, 581. 588,
enfd 473 F.2d 249 (C A 2, 1973), Edwin A Wells, d/b/a Wells Electrical
Construction Co v N LR B, 148 NLRB 757. reversed 361 F.2d 737 (C A 6,
1966), and see cases in fn 8 above.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket sign words at face value and concluded they were
not being drawn into the dispute. The same inference is
strengthened by the strange and significant total lack of
overt direct or indirect approach to Peterson, any of his
other subcontractors, or their respective employees or
suppliers, on the job. This unusual lack of action, at
variance with normal union practice, also suggests that
Respondent may have abandoned its original unlawful
objective in favor of the lawful one denoted by the picket
signs. In these circumstances, the lack of such appeal,
particularly to union members at the facility, and the
failure of the picket line to stop or hinder LILCO's own
operation or the TMB construction militates strongly
against any finding of inducement or encouragement by
the picketing of the secondary employers or their employ-
ees in the statutory sense.ii
After careful appraisal of all the pertinent facts and
circumstances noted above, I am constrained to find and
conclude that Fisher's remarks to Christiansen on May 2
did not reach the status of threats, coercion, or restraint of
a neutral employer within the meaning of Section
8(b)(4)(ii). Although an object of those statements was
probably to persuade LILCO to cease doing business with
Iovine, attempts by proper means to seek to persuade that
neutral employer to cooperate in achieving even a
11 Cf Local 1016, United Brotherhood of Carpenters & Joiners of America
(Booher Lumber Co, Inc), 117 NLRB 1739, 1747, Local 825, International
Union of Operating Engineers v N L R B, 400 U S 297, 304, 305 (1971),
Glaziers Local No 558 v N L R B, 408 F 2d 197, 201 (C A D C, 1969),
enfg 165 NLRB 182, 184.
11 1 have considered -other authorities and arguments thereon made by
General Counsel, but do not find them inconsistent with the above findings
proscribed objective is not unlawful. See N.L.R.B. v.
Servelte, Inc., 377 U.S. 46, 53, 54; General Drivers,
Chauffeurs, and Helpers Local Union No. 886 (The Stephens
Company), 133 NLRB 1393, 1396. In light of the ineffectu-
ality of the later picketing vis-a-vis the various secondary
employers and their employees, I also find and conclude
that General Counsel has failed to meet his ultimate
burden of establishing that Respondent resorted to
unlawful inducements of employees or restraint or coer-
cion of secondary employers to achieve that objective. I
therefore grant Respondent's motion to dismiss the
complaint in its entirety.12
CONCLUSIONS OF LAW
Respondent Union. has not violated Section 8(b)(4)(i)
and (ii)(B) of the Act, as alleged in the complaint.
RECOMMENDED ORDER i3
Upon the basis of the foregoing findings of fact and
conclusions of law and on the entire record in the case, it is
ordered that the complaint herein be dismissed in its
entirety.
and conclusions or controlling on the facts
1d in the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order , and all objections thereto shall be
deemed waived for all purposes