Local 25, Electrical Workers

National Labor Relations Board - Board Decisions

Jun 10, 1974

211 N.L.R.B. 238 (N.L.R.B. 1974)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 25, International Brotherhood of Electrical
Workers, AFL-CIO and Charlane Electric Co.,
Inc., d /b/a Unity Electric Co. Case 29-CC-390
June 10, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On February 21, 1974, Administrative Law Judge
Sidney Sherman issued the attached Decision in this
proceeding . Thereafter , the Charging Party and
Respondent filed exceptions and supporting briefs.
Respondent also filed an answering brief to the
Charging Party's 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
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 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 dismissed
in its entirety.
DECISION
STATEMENT OF THE CASE
SIDNEY SHERMAN, Administrative Law Judge: The
instant charge was served on November 12, 1973,i and the
case was heard on January 3, 1974. After the heanng briefs
were filed by Respondent and the General Counsel. The
issues litigated involved alleged violations of Section
8(b)(4)(i) and (ii)(B) of the Act.
Upon the entire record, the following findings and
recommendations are made:
1. JURISDICTION
Charlane Electnc Co., Inc., d/b/a Unity Electnc Co.,2
hereinafter called "Unity," is a corporation with a
principal place of business in East Meadow, New York. It
is engaged in the business of electrical contracting in the
construction industry. Highland Construction Corpora-
tion, hereinafter called Highland, is a corporation with a
principal office in Plainview, New York, and is a general
1 All dates below are in 1973, unless otherwise indicated
2 The Charging Party's name appears as amended at the heanng
contractor in the construction industry. It annually
receives more than $50,000 worth of goods and materials
from out-of-state suppliers.
Since June 1, Unity and various other subcontractors
have been employed by Highland to perform services in
connection with the construction of a restaurant at the
Lake Grove Shopping Center in Smithtown, New York.
The alleged violations of Section 8(b)(4) occurred at that
site.
It is found that the Board has jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 25, International Brotherhood of Electrical Work-
ers, AFL-CIO, herein called Respondent, and Local 363,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter called
Teamsters, are labor organizations under the Act.
III. THE MERITS
The pleadings raise the following issue:
Whether Respondent violated Section 8(b)(4)(i) and
(n)(B) of the Act by threatening to picket , and picketing,
the jobsite involved herein?
A. Sequence of Events
Respondent and Teamsters have for many years compet-
ed with each other for representation of electricians in the
same area. Unity's electricians are covered by a contract
with Teamsters, which prescribes a lower rate than that
negotiated by Respondent with other area employers.
Since June, Respondent has picketed Unity at three
jobsites, including the one here involved-the Lake Grove
Shopping Center in Smithtown, New York. The picketing
at the other twojobsites-in June and August-resulted in
a complete work stoppage by all the other building trades
employees on the job and the cancellation of subcontracts
held by Unity. At all jobsites, including the instant one, the
picket signs bore the following legend:
TO THE PUBLIC ELECTRICIANS WORKING ON THIS JOB FOR
UNITY ELEC . CO. DO NOT RECEIVE WAGES AND WORKING
CONDITIONS AS GOOD AS THOSE ESTABLISHED IN
CONTRACTS OF LOCAL UNION 25 INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS. This Sign Is
Not Directed To Any Other Employer Or Employee
On This Job
AFL-CIO
The general contractor at the instant jobsite was
Highland Construction Co. On June 1, it retained Unity to
perform the electrical work on the job. About July 31,
Highland's job superintendent, John Melkum, Jr., here-
inafter called"Melkum," observed Kerbs, a business agent
of Respondent, taking pictures of thejob and proceeded to
question him. After identifying himself as a representative
of Respondent, Kerbs entered into a conversation with
Melkum, in the course of which reference was made to
211 NLRB No. 1
LOCAL 25, ELECTRICAL WORKERS 239
Unity and to picketing. Conflicting versions by the
participants of the exact nature and context of these
references will be considered below. About August 6, there
was another encounter between the two at the jobsite, in
the course of which some disputed remarks were passed.
On September 14, Respondent filed with the Board a
petition for an election among Unity's employees. The
petition was dismissed on October 29, and an appeal was
taken by Respondent on November 9. On November 12,
Respondent picketed the instant jobsite with signs bearing
the legend described above. The picketing continued for 2
weeks during which only Unity's employees reported for
work at the jobsite, and the picketing ceased only after
Unity was removed from the job by Highland.
Early in December a hearing was held in a Federal
district court in a proceeding under Section 10(1) of the Act
to enjoin further picketing by Respondent. Testimony
given at that hearing has been incorporated in the present
record by stipulation.
that the witness answered that Unity was supposed to
contact Kerbs; and that the latter declared that he did not
want to put a picket line up at "your job," but, if he had to,
he would. Thereafter, the following colloquy ensued
between the witness and the General Counsel:
Q. Do you recall him saying anything about who
might be hurt by this picketing?
A. He said that he didn't want to hurt Highland
Construction by setting up a picket line, but if he had
to, he will.
Q. Do you recall him saying that?
A. Yes. He didn't exactly say Highland Construc-
tion. He said, ". . . you guys .... " He said, "I don't
want to hurt you guys, but if I have to, I will."
Under cross-examination, Melkum repeated that it was
at this meeting that Kerbs uttered his threat to picket, and
Melkum reverted to his initial version of that threat, as
follows:
B. Discussion
1. The threat to picket
In all, there were four conversations between Highland's
job superintendent, Melkum, and Respondent's agent,
Kerbs, the first occurring in mid-June and the last on
August 6. The parties were agreed that only the second of
these conversations-on July 31-and the last one have
any significance here . Although considerable testimony
about those incidents was adduced at the injunction
hearing, it was agreed that, in view of the credibility
problems raised by the conflicting versions presented at
that proceeding, Kerbs and Melkum would testify again in
person at the instant hearing about the same matters, so as
to give this court an opportunity to observe their
demeanor, and that their testimony in the injunction case
be considered only insofar as it reflected on the credibility
of their testimony herein. All the other testimony in the
district court was by stipulation made part of the instant
record for all purposes.
As to the July 31 incident, Melkum testified at the
district court hearing that, after identifying himself as an
agent of Respondent, Kerbs asserted that he was having
trouble with Unity on other jobs because it did not
recognize Respondent, that something would have to be
done about it, that he had picket signs in the trunk of his
car, that, "if anything ever came of this conversation, he
would deny everything," that he would return in a week to
find out the outcome of their discussion, and that Melkum
promised to contact the interested parties and "straighten
this matter out." Melkum added that Kerbs returned about
a week later; that he asked if anything had been resolved;
3 He did acknowledge at the injunction heanng that at their second
encounter (on July 31) reference was made by Melkum to Respondent's
picketing of Unity at another job and that, in response to a query by
Melkum as to whether the instant job would be picketed , Kerbs answered
that he had picket signs in the trunk of his car. However, the record shows
that at the other job Respondent picketed with signs aimed only at Unity
and that those were the signs Kerbs was carrying in his car . Thus, Kerbs'
remark was in effect , at most, an indication of intent to picket Unity at the
instant jobsite with signs designating it as the target of the picketing There
was nothing unlawful in such a remark; for, it is well settled that a union
Well, he said . . . I believe this time he said I had . . . I
don't want, you know, to put a picket line up on the
job, but if I have to, I will.
In his subsequent appearance before this court Melkum
gave a materially different version of the above incidents.
He testified that it was in the course of their encounter on
July 31, and not on August 6, that Kerbs threatened to
picket, and again vacillated as to the exact wording of the
threat. Moreover, for the first time, Melkum asserted that
at this meeting Kerbs declared that Respondent was trying
to get rid of Unity because it was not a "Local 25
contractor." As for the August 6 incident, Melkum testified
that all that happened was that he asked Kerbs whether he
had heard anything yet and that the latter answered that he
had not and something would have to be done "about
this."
Kerbs denied uttering any of the above threats or
making any remark about getting rid of Unity., While
Kerbs himself was not a model of consistency, the
discrepancies and conflicts in Melkum's testimony were so
obvious and serious that his testimony must be deemed to
bear its own death wound. There being no other evidence
of an unlawful threat by Respondent, no violation of
Section 8(b)(4)(ii)(B) may be found here.
2. The picketing
As already related, on November 12, more than 3
months after the last conversation between Kerbs and
Melkum, Respondent began to picket the instant job with
signs charging Unity with paying lower wage rates than
those provided in Respondent's contracts and disclaiming
may lawfully disclose to a general contractor on a construction job an
intention to picket a subcontractor, with whom the union has a primary
dispute Howard Morris, Inc., 191 NLRB 840, and cases there cited (in fn. 3
of the Trial Examiner's Decision).
Kerbs acknowledged, also, in the district court heanng that he told
Melkum on July 31, that, if he reported their conversation, Kerbs would
deny that it had taken place. He explained that he said this because he was
violating the instructions of his superior , Cavanagh, by talking to Melkum
at all.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any appeal to any "other employer or employee on the
jobs ." The General Counsel does not dispute that there was
"literal compliance" here with the standards prescribed by
the Board in the Moore Dry Dock case4 for picketing,
which , as here, occurs at a situs shared by the primary
employer (in this case , Unity) with other employers. The
General Counsel contends only that such compliance
raises only a rebuttable presumption that the picketing was
not designed to bring pressure to bear on the neutral
employers at the common situs to cease dealing with the
primary employer . The Board has, in fact , held that such
presumption may be rebutted by evidence that the pickets
made oral appeals to neutral employees not to perform
services for their employer or physically interfered with
such services, or that agents of the picketing union made
statements avowing that the true purpose of the picketing
4 92 NLRB 547.
S E.g., Gulf Construction Company, 159 NLRB 563; Lechmere Sales, 173
NLRB 280; Catalano Brothers, Inc., 175 NLRB 459.
6 Even if it be thought that Kerbs ' reference to the picket signs in his
trunk could be construed by Melkum as an avowal of an intention to picket
in such a fashion as to exert impermissible pressure on the employees of
Highland and other neutrals at the jobsite , that would fall short of proving
that such was in fact Respondent 's intention. A more reliable guide to such
intention is afforded by the fact that the signs in Kerbs' car, and those
ultimately used by Respondent , met in all respects the Board 's requirements
for common situs picketing.
r Respondent's business manager, Cavanagh , testified that he selected
the date for the picketing because of the approaching expiration of Unity's
contract with Teamsters (on November 15) and in the hope of inducing
Unity to grant Teamsters more favorable terms in their upcoming
negotiations. However, elsewhere Cavanagh acknowledged that he had no
accurate information as to the wage rates in Unity 's expiring contract and
that they might have been even higher than those in Respondent's own
contracts . In view of this admission , it is inferred that Respondent was not
really concerned about pressuring Unity to raise the wage rates in a contract
was to force neutral employers to sever their relations with
the primary employer.5
Here, however, the General Counsel seeks to rebut the
foregoing presumption only through the evidence adduced
with respect to the Kerbs-Melkum conversations. It has
been found that such evidence does not suffice to prove
any intent by Respondent to picket Highland or any other
neutral employer .6
It follows that there was no violation of 8(b)(4)(i)(B) and
dismissal of the complaint will be recommended.?
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, there is issued the following:
ORDER8
The complaint herein is dismissed in its entirety.
with another union . The General Counsel contends that it should be
deduced from this that Respondent 's real purpose in picketing was to force
Unity off the job. However, upon the present record it is at least equally
valid to infer that Respondent 's true reason for picketing was to compel
Unity to cease recognizing Teamsters and to deal with Respondent, instead.
This purpose is indicated by the fact that on September 14, Respondent
filed with the Board a petition for an election among Unity 's employees.
Although the petition was dismissed on October 29, on the ground of the
inappropriateness of the single-employer unit sought , an appeal from such
dismissal was pending during the period of the picketing . It is not clear why
Respondent eschewed an open avowal of the recognitional object of its
picketing . The most likely explanation would seem to be that Respondent
was fearful of being caught in the toils of Section 8(bX7), with its restrictions
on picketing for recognition.
s 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.