Local 25, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Oct 6, 1964

148 N.L.R.B. 1560 (N.L.R.B. 1964)

1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. No you didn 't. But you have already told me. You know why he wanted it?
H. Certainly . As far as outsiders are concerned , far as knowing why , he knows I
didn't, as I still don't know . . . far as know the fact of why, I don 't know.
S. I don 't know that we are going to fire the individual that started all of this.
I don 't know because I don't make that decision by myself. But I do know I can
help you if you want to help me, but it requires your helping me.
H. If it's just the timekeeping department you are interested in, I don 't know who's
involved in that . Maybe you're right on it . . . I still don't know whether they told
you or not.
S. Okay, I'm going to leave it this way with you, Charles . You want to not say
anything about it and I 'm not going to say anything about it and you let me go on
about my investigation and I 'm going to come back to you to see what you have
decided.
H. How long is it going to take you to get through?
S. It may not take me long because I'm not far from it. I haven 't told you every-
thing I knew.
H. You, you have done went to 30-35?
S. I been working on it several days . You just got in on the tail end.
H. You might not know what you knowed when you started.
S. What you talking about , boy? Now I've got friends out here.
H. I have too.
S. Whether you got the right kind or not.
H. I must not because you were told I had one and all that , but it doesn 't matter
to me.
S. I'm not going to tell you how I found out you were involved . You don't know
how we found out.
H. Yeah, I do.
S. You think you do.
H. I know, but that doesn 't matter.. Probably just as bad.
S. Huh?
H. Cause firing somebody is bad. I don 't want to make anybody mad or anything.
S. I'm not mad.
H. I know . I'm not talking about you. I 'm talking about me for one of them-
and . . . individuals . He didn 't tell you-you found out further didn't you?
S. Boy, I've been working on this for several days . . .. Huh?
H. Not as far as concerning me.
S. You didn 't get started on it until this morning. But you would be surprised
how we found out you were involved.
H. That what I am talking about . I know how you found out.
S. No you don't , you just think you do. You are just thinking now.
H. No, it don 't take no F .B.I. agent to figure it out.
S. O.K., Charles.
H. O.K., you did what we said.
S. O.K., you do what I said.
H. I said , don't you make no rounds this evening . I said don't you make no
rounds this evening.
S. You want me to?
H. No. I don't want you to.
S. O.K., be talking to you.
Local 25, International Brotherhood of Electrical Workers,
AFL-CIO and Alexander M. Cutrone d/b/a A .C. Electric.
Case No. 2-CC-833. October 6, 1964
DECISION AND ORDER
On February 14, 1964, Trial Examiner William Seagle issued his
Trial Examiner's Decision in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, as set forth in the attached Decision. He
148 NLRB No. 152.
LOCAL 25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1561
further found that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended dis-
missal as to them. The Trial Examiner further recommended that an
order be entered dismissing the complaint as to the unfair labor prac-
tices found, and that disciplinary proceedings be taken against coun-
sel for the Charging Party. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed exceptions to the Trial
Examiner's Decision together with supporting briefs.
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 Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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 finds merit in certain exceptions of the General Coun-
sel and the Charging Party. Accordingly, the Board adopts the Trial
Examiner's findings, conclusions, and recommendations insofar as
they are consistent herewith.'
1. The Trial Examiner found, and we agree, that the Board has
jurisdiction over this proceeding. The Trial Examiner, however,
predicated his jurisdictional findings solely on Supermarket Operat-
ing Company's operations and found it unnecessary to consider
Roosevelt Field, Inc.'s, shopping center operation. We are of the
opinion that the operations of both of these employers should be fully
considered for jurisdictional purposes.
The complaint alleges, in effect, that the Respondent violated Sec-
tion 8(b) (4) (i) and (ii) (B) of the Act by picketing and threatening
to picket, among others, Supermarket Operating Company, herein-
after called Supermarket, International Originals of Huntington,
Inc., hereinafter called International, and Roosevelt Field, 'Inc., here-
inafter called Roosevelt, with an object of forcing or requiring these
secondary employers to cease doing business with A.C. Electric, the
primary employer.2 The alleged unlawful conduct occurred at one
of Supermarket's grocery stores located in a shopping center at
Hicksville, New York, and also at a store leased by International
from Roosevelt and located in Roosevelt's shopping center at Garden
City, New York. A.C. Electric, an electrical contractor, was engaged
in performing electrical work at both of these stores which were being
i The Charging Party's request for oral argument before the Board is hereby denied as
the record, the exceptions, and the briefs adequately present the issues and positions of
the parties
2 we hereby correct the inadvertent error of the Trial Examiner in stating International
was a primary employer
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
readied for operation. A.C. Electric's business, however, did not, in
itself, meet any of the Board's discretionary standards for asserting
jurisdiction. Under the rules of the Jamestown 3 and McAllister 4
cases, where secondary activities by a union may be violative of Sec-
tion 8(b) (4) of the Act, and where, as here, the primary employer
does not meet the Board's jurisdictional standards, the Board will
take into consideration for jurisdictional purposes not only the oper-
ations of the primary employer, but also the entire operations of the
secondary employers at the locations affected by the alleged conduct
involved.5
Turning now to these operations, the record shows that Super-
market operates a chain of grocery stores in several States and does
'an annual gross business of approximately $90 million. Between the
first week in October 1963, when construction work on its Hicksville,
New'York, store began, and November 7,1963, when this store opened
'for business, Supermarket purchased on behalf of this store $197,000
-worth of goods, materials, and supplies which originated outside the
'Sla'te of 'New York. In addition, it is not disputed that although the
Hicksville store has been in operation only a few months, this store's
gross volume of business has totaled almost $500,000, and that at the
current rate, if projected over a 1-year period, would exceed a mini-
mum gross volume of business of $500,000.6 Accordingly, we find
that Supermarket's purchases of goods, materials, and supplies orig-
inating from outside the State of New York affects commerce under
the Act and brings its operations within the Board's statutory juris-
diction,7 while its gross volume of business, projected on an annual
basis, meets the dollar-volume test in the Board's standard for assert-
ing' jurisdiction over retail enterprises."
As to Roosevelt, this employer is engaged in the real estate business
and, among other industrial sites, operates and manages Roosevelt
Field Shopping Center located at Garden City, New York. It is
3 Truck Drivers Local Union No. 649, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL (Jamestown Building Exchange, Inc.),
93 NLRB 386.
4International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, General Drivers and Helpers Local No 554, and Chauffeurs , Teamsters and Help-
ers Local No 608 , AFL (McAllister Transfer, Inc.), 110 NLRB 1769
5 Madison Building & Construction Trades Council, at at. (Wallace Hildebrandt & John
Kiefer, d/ b/a H d K Lathing Co ), 134 NLRB 517, 51(8 See also Local No. 4, Inter-
national Brotherhood of Electrical Workers, AFL-CIO (Charles H. Norman at at, d/b/a
Tri-Cities Broadcasting Company), 138 NLRB 239, 243 ; Terrizzi Beverage Company, 137
NLRB 495, 497; E. W. Jemison et at, d/b/a Jemcon Broadcasting Company, 135
NLRB 362.
BBuilding and Construction Trades Council of San Bernardino at at (Goldmng and
Jones, Inc), 139 NLRB 1370, 1372. See also City Line Open Hearth, Inc., 141 NLRB
799, 800.
'N L.R.B. v. Reliance Fuel Oil Corporation , 371 U.S. 224.
$ Carolina Supplies and Cement Co., 122 NLRB 88.
LOCAL 25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1563
conceded that the annual gross rentals received by Roosevelt from
tenants situated at this shopping center exceed $200,000. It is also
undisputed that among such tenants are F. W. Woolworth Co. and
Kresge, each of whom pays annual rentals of $55,000, Grand Union,
who pays an annual rental of $70,000, and Walgreen, who pays an
annual rental of $35,000.
The Trial Examiner failed to determine whether Roosevelt' s shop-
ping center operation met any of the Board's jurisdictional standards,
concluding that Carol Management Corporation,9 a representation
proceeding where the Board applied its office building standards to
shopping center operations, was inapplicable to this secondary boy-
cott case. We find no merit in the Trial Examiner's position. We
indicated in Mistletoe Operating Company 1° that the Board would
assert jurisdiction over employers engaged in operating office build-
'ixigs on the grounds that disputes involving such employers affect
commerce "because they interfere, or tend to interfere, with the con-
duct of the interstate activities carried on within the buildings." We
stated, in Carol, that the rationale expressed in Mistletoe is equally
applicable to shopping centers in that "a labor dispute involving em-
ployees of the operator of a shopping center would interfere with the
interstate commercial activities of those tenants of the shopping cen-
ter which are engaged in commerce." Accordingly, we held in Carol
that we would apply our office building standards to shopping centers
and assert jurisdiction over employers engaged in the management of
shopping centers if the gross annual revenue from such shopping cen-
ters amounts'to $100,000, of which $25,000 is derived from organiza-
tions whose operations meet any of the Board's jurisdictional stand-
ards exclusive of indirect outflow or indirect inflow. We perceive no
reason why the rationale expressed in the Carol case is not equally" as
applicable to the instant case involving alleged secondary activity.
Accordingly, since Roosevelt's Garden City' shopping center operation
meets the Board's office building standards for assertion of jurisdic-
tion,11 we shall also assert jurisdiction in this proceeding on this
ground.
6 Carol Management Corporation, 133 NLRB 1126.
io Mistletoe Operating Company, 122 NLRB 1534
11 The Board has, for example , previously exercised jurisdiction over Grand Union in
the Grand Union Company, 123 NLRB 1665 , and over Woolworth in F. W. Woolworth
Co, 109 NLRB 196.
Among other evidence introduced to establish jurisdiction was the contract between the
Association and Local 199, Industrial Workers of Allied Trades. The Trial Examiner
found that this contract contained an illegal union-security clause contrary to the proviso
to Section 8(a) (3) of the Act in that it required employees to become union members
after the seventh day of employment or the effective date of the contract, whichever is
later . Inasmuch as the security clause is not germane to the jurisdictional issue in-
volved herein , we find it unnecessary to pass upon this finding.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. We agree with the Trial Examiner, for the reasons stated in the
Trial Examiner's Decision,12 that by picketing Supermarket's store
and by threatening to picket and otherwise coercing Supermarket's
director of store planning, the Respondent violated Section 8(b) (4)
(1) and (ii) (B) of the Act.
3. We also agree with the Trial Examiner's findings that the Re-
spondent did not violate Section 8(b) (4) (i) and (ii) (B) of the Act
in connection with its activities at Roosevelt's shopping center. The
record shows in this regard that the sole evidence of the events occur-
ring at this location consists of the discredited testimony of Pinn,
Roosevelt's shopping center superintendent. Absent any other evi-
dence in the record to support these charges or to show that this cred-
ibility resolution was incorrect, we shall adopt the Trial Examiner's
credibility findings, and his findings of fact based thereon.13
4. The Trial Examiner found that Attorney Turchin, counsel for
A.C. Electric, engaged in misconduct at the hearing and recom-
mended that disciplinary proceedings be taken against Turchin pur-
suant to Section 102.44(b) of the Board's Rules and Regulations 14
We disagree with this recommendation.
In view of the serious nature of the charges leveled against Turchin
by the Trial Examiner, we have very carefully considered the record
in this proceeding and have concluded that disciplinary proceedings
are not warranted. With regard to Turchin's position on the request
that he produce certain Association documents, we find, in light of the
grounds advanced by Turchin for not producing,15 of his status as an
attorney for the Association, of the fact that not all of the documents
were in his possession, and of the fact that Turchin was not under a
subpena to produce those documents, that Turchin did not engage in
misconduct. As to Turchin's departure from the hearing and the
abortive service of the subpoena daces tecum, we, unlike the Trial
Examiner, cannot infer from these events misconduct on Turchin's
part. As to the former, the record merely shows that Turchin left
the hearing during a recess and that following that recess the Re-
spondent rested its case without calling any witnesses and, along with
the General Counsel, engaged in oral argument. In their briefs to
11 Additionally , we note that the picketing signs did not clearly disclose that Respond-
ent's dispute was with A.C. Electric, the primary employer See Moore Dry Dock Com-
pany, 92 NLRB 547. It is also unnecessary for us to consider the Trial Examiner's
anaiyeis of The Stephens Company case
13 Standard Dry Wall Products , Inc, 91 NLRB 544, enfd . 188 F 2d 362 (CA 3)
14 Section 102 44 of the Board's Rules and Regulations pertains , in pertinent part, to
misconduct at a hearing before a Trial Examiner . Section 102 .44(b) thereof provides
that "Stich misconduct of an aggravated character , when engaged in by an attorney or
other representative of a party, shall be ground for suspension or disbarment by the
Board from further practice before it after due notice and hearing."
15 Turchin objected on the grounds of materiality , relevancy , privileged communication,
and lack of possession of some of the documents.
LOCAL '25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1565
the Board, however, the General Counsel states that Turchin left the
hearing at this time because he did not wish to present oral argument,
while the Charging Party asserts that Turchin, having informed the
Trial Examiner of his wish to leave the hearing because the testimony
had been completed, was told by the Trial Examiner that he could
do so if he wished.
As to the matter of the subpena, the record clearly shows that
Turchin had nothing whatsoever to do with the failure to procure the
documents by this means. The record shows instead that the subpena
was not served on the Association solely because service was at-
tempted but once, and then at a place of business after normal busi-
ness hours when no one was present at this time to accept service.
In view of the foregoing, we find, contrary to the Trial Examiner,
that Turchin did not engage in misconduct by refusing to produce
the Association documents, by departing from the hearing, or because
of the failure of service of the subpoena daces tecum2. Nor do we find
the evidence sufficient to support the Trial Examiner's suspicion that
A.C. Electric and its counsel perpetrated a fraud upon the Board.
There remains for our consideration the matter of Turchin's re-
moval of the wage scale from the copy of the Association's contract
with Local 119. While Turchin's act here is not to be condoned, he
subsequently produced the wage scale, and we do not believe that dis-
ciplinary action is warranted on this account.
5. The Trial Examiner, although finding that the Respondent vio-
lated Section 8(b) (4) (i) and (ii) (B) of the Act, concluded that the
policies of the Act would not be effectuated by the issuance of a
-remedial order in this case and recommended that the complaint
herein be dismissed. We do not agree.
In arriving at this conclusion, the Trial Examiner appears to
equate the public policy and purposes of a remedial order with the
benefits or detriments such an order would confer upon private
parties. However, the purpose of an 8 (b) (4) order is only to re-
strain a union from engaging in certain statutorily proscribed con-
duct. In issuing such an order, the Board is not concerned with
private benefits or detriments, but acts in a public capacity to give
effect to the declared policy of the Act to eliminate and prevent ob-
structions to interstate commerce 16 This would be so even if, as the
Trial Examiner found, the Respondent has not been a persistent vio-
lator of the Act and herein engaged only in a "transitory episode."
Since there is no assurance that Respondent's unfair labor practices
will not recur in the future, the discontinuance of these unfair labor
practices neither dissipates their effects nor obviates the need for a
1e National Licorice Company v . N.L.R.B., 309 U . S. 350 , 362-363; Herman . Sawage Co.,
Inc., 122 NLRB 168, 169.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedial order.17 Accordingly, our review of the substantive merits
in this case convinces us that the policies of the Act can best be
effectuated by a Board order requiruing remedial action.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Local 25, International Brotherhood of Electrical Work-
ers, AFL-CIO, its officers, agents, representatives, successors, and
assigns, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging any individual em-
ployed by Supermarket Operating Company, or any other employer
other than A.C. Electric, to engage in a strike or a refusal in the
course of their employment to perform any services, where an object
thereof is to force or require Supermarket Operating Company, or
any other employer, to cease doing business with A.C. Electric.
(b) Threatening, coercing, or restraining Supermarket Operating
Company, or any other employer or person, where an object thereof
is to force or require Supermarket Operating Company, or any other
employer, to cease doing business with A.C. Electric.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in New York,
New York, copies of the attached notice marked "Appendix." Copies
of said notice, to be furnished by the Regional Director for Region 2,
shall, after being duly signed by an authorized representative of
Respondent Union, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, 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) Sign and mail copies of said notice to the Regional Director
for Region 2 for posting by Supermarket Operating Company, if
willing, at all places where notices to employees are customarily
posted.
(c) Notify the Regional Director for Region 2, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
IT IS FURTI3F.R oRDERED that the complaint herein be, and it hereby
is,' dismissed insofar as it alleges violations not found herein.
17 Wright Line Division of Barry Wright Corporation , 146 NLRB 71 ; Chefs , Cooks,
Pastry Cooks & Assistants, Local 89, et al. (Stork Restaurant , Inc.), 130 NLRB 543,
546; Acme Paper Company, at al., 121 NLRB 702, 703
LOCAL 25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1567
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 25, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO
Pursuant to a Decision and Order of the National Labor Rela-
tions Board and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in, or induce, or encourage any individual
employed by Supermarket Operating Company, or any other
employer other than A.C. Electric, to engage in a strike or a
refusal in the course of their employment to perform any services
where an object thereof is to force or require Supermarket
Operating Company, or any other employer, to cease doing busi-
ness with A.C. Electric.
WE WILL NOT threaten, coerce, or restrain Supermarket Oper-
ating Company, or any other employer or person , where an object
thereof is to force or require Supermarket Operating Company,
or any other employer, to cease doing business with A.C.
Electric.
LOCAL 25, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(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.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,
New York, Telephone No. 751-5500, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF,THE CASE
Upon a charge filed on October 15, 1963, a complaint dated November 19, 1963,
was issued against the Respondent charging it with violating Section 8 (b) (4) (i) and
(ii) (B) of the Act.
Issue having been joined , a hearing was held before Trial Examiner William Seagle,
at New York, New York, on December 11, 12, and 13, 1963. Counsel presented
oral argument at the hearing, in connection with motions to dismiss , and a post-
hearing brief was filed by counsel for the Respondent
Upon the record so made, including my observation of the demeanor of the wit-
nesses, I hereby make the following:
FINDING OF FACT
1. THE RESPONDENT
Local 25, International Brotherhood of Electrical Workers, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE EMPLOYERS AND THE JURISDICTIONAL PROBLEM
The primary employer in the present case is an electrical contractor, Alexander
M. Cutrone, d/b/a A. C. Electric, at Plainview, Long Island, New York., During
the calendar year 1962, the gross volume of Cutrone's business was about $86,000,
but all of this business, except a very small job in New Jersey in connection with
which about $400 was spent on material, was done wholly in the State of New York
It is obvious, therefore, that Cutrone's business does not meet the jurisdictional stand-
ard of the Board, which in this case would be the nonretail standard, requiring a
$50,000 outflow or inflow, direct or indirect.
However, in the month of October 1963, Cutrone was performing the electrical
work in connection with the remodeling of a store to be operated by the Supermarket
Operating Company (hereinafter referred to as Supermarket) and to be known as
its Shop Rite store. This store is in the Mid-Island Plaza Shopping Center in Hicks-
ville, Long Island, New York. It is in connection with the remodeling of the Shop
Rite store that one of the two incidents occurred that form the basis of the present
complaint.
The complaint as amended contains allegations concerning the nature and location
of the businesses of five secondary employers involved in the remodeling of the Shop
Rite store. These are Grodsky & Roeders, alleged to be partnerships of Hewlett, New
York, engaged in installing the plumbing; Irving Marchew, alleged to be an individual,
of Babylon; New York, engaged in doing the painting; Almor Corporation, alleged
to be a , Michigan corporation, of Detroit, Michigan, engaged in performing the
carpentry work, consisting of the installation of the shelving; Engineering & Refrigera-
tion, Inc, alleged to be a New Jersey corporation, of Jersey City, New Jersey, engaged
in the installation of the refrigeration equipment and fixtures; and Max Cantor, Inc ,
alleged to be a New York corporation of Freeport, New York, engaged in the in-
stallation of the glass. Although it is also alleged in the complaint that these employers
are engaged in commerce, there are no factual allegations in the complaint concerning
the nature and extent of this commerce. In any event, counsel for the General
Counsel offered no evidence whatsoever concerning the commerce of these five sec-
ondary employers, and no other evidence concerning them, except that they had
contracts with Supermarket. It is evident, therefore, that the jurisdiction of the
Board cannot be predicated upon the operations of these employers.
As for Supermarket itself, the principal secondary employer, it is a New Jersey
corporation that operates also in the States of New York and Pennsylvania. Super-
market does a business grossing approximately $90 million a year in selling groceries.
Albert Alter, director of store planning for Supermarket, testified that the con-
struction of the Shop Rite site had as its purpose "to develop and to fixture a site for
the purpose of creating a new supermarket"; that the construction work, which began
in the first week of October 1963 had been completed; and that the store had been
opened to the public on November 7. Alter then testified further as follows:
Q. With regard to this particular supermarket construction site, Mid Island
Plaza, did Supermarket purchase and cause to be transported into the State of
New York from outside New York and any goods and materials and supplies?
A. Yes
Q. In what amount?
A. $197,000.
Q. Since the opening of the store on November 7th you have laid an oppor-
tunity to evaluate what the gross revenues are likely to be and you probably
also have some plans on what they are expected to be.
At this location is gross revenues-are gross revenues in excess of $500,000
annually?
A. Yes.
Q. Have they surpassed that figure already?
A. Not quite. Close to it.
'In the month of November 1963, Cutrone incorporated his business, however, in New
York State as A.C Electrical Contracting Corp. and the corporation took over all of
Cutrone's assets. The directors and stockholders of the corporation are Cutrone and his
wife The corporation is, obviously, the successor of the individual business. Before the
business was incorporated, it was conducted from Cutrone's home After incorporation,
Cutrone acquired a shop and warehouse in Woodhaven, New York. It seems to me
apparent that the incorporation of Cutrone's business neither makes the case moot, nor
ousts the Board of jurisdiction.
LOCAL 25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1569
Alter testified further that in connection with the, construction work on the Shop
Rite store Supermarket had entered into contracts with an engineering and refrigera-
tion firm in the amount of $44 , 111; with Almor Corporation in the amount of
$44,468; with Grodsky & Roeder in the amount of $5,896; with Marchek in the
amount of $4,000; with Cantor Glass in the amount of $ 1,500; and with Alexander
M. Cutrone , d/b/a A . C. Electric in the amount of approximately $ 11,000.2
Alter's testimony would seem to be lacking , however, in clarity , so far as his com-
merce data are concerned . In the first place, Alter did not specify the period of time
during which the $197,000 worth of "goods , materials and supplies" were transported
into the State of New York from points outside the State. In the second place, he
did not identify the nature of these goods , materials , and supplies , which could have
been either the goods, materials , and supplies that went into the remodeling of the
Shop Rite store , or the goods , materials and supplies that were delivered to the store
for sale or use after the store was opened for business on November 7. From the
context in which his testimony was given-it occurs between a mention of the date
when the store was opened to the public and its subsequent gross revenue-it would
seem reasonable to suppose that the goods , materials, and supplies of which Alter
was speaking were those that were delivered to the store for sale or use after the store
opened for business on November 7. Since the construction work was done, more-
over, on an existing building which was remodeled in a period of little over a month,
it is highly improbable that $197,000 worth of materials could have gone into the
remodeling , especially when it is considered further that less than $111 ,000 was
involved in the subcontracts , and that the subcontractors would, presumably , supply
the materials which they themselves installed.
There is, thus , no evidence to indicate any direct or indirect inflow of materials into
the construction site during the construction period , which in itself would satisfy
jurisdictional requirements .3 It seems permissible , however, to consider also any
commerce data subsequent to the commission of an unfair labor practice and the
issuance of a complaint .4 In view of the inflow of goods and supplies into the Shop
Rite store even prior to issuance of the complaint ; the extent of the business of the
store up to the time of the hearing , which , if projected on an annual basis , would be
more than sufficient to satisfy the jurisdictional standard of $500 ,000 per annum for
retail businesses ; and the general magnitude of the Supermarket operations, I con-
clude that the Board should assert jurisdiction.
It appears further that in the month of October 1963 Cutrone was also performing
the electrical work in a store located in the Roosevelt Field Shopping Center at
Garden City, Long Island , New York . This shopping center was operated and man-
aged by Roosevelt Field , Inc., a New York corporation , which is in the real estate
business and which had sublet one of its stores to a firm known as International
Originals . This firm was planning, apparently , to open this store as an art gallery
after suitable alterations had been made . The International Originals art gallery
was to sell original paintings priced under $ 100 framed . At this art gallery site
occurred the second of the incidents that form the basis of the complaint.
There is nothing to show that the business of International Originals , the primary
employer in the case of the Roosevelt Field incident , would satisfy the Board 's juris-
dictional standards . There is, indeed , nothing to show that the art business which
was to be conducted by International Originals is in commerce.
Michael Pmn, superintendent of operations at Roosevelt Field , testified that the
gross, annual rentals of the shopping center exceeded $200,000 a year, and that among
the tenants of the shopping center were Woolworth and Kresge , each of which paid
annual rentals of $ 55,000 ; Grand Union, which paid an annual rental of $70,000,
and Walgreen , which paid an annual rental of $35,000.
'Actually, the precise amount involved in Cutrone's contract was $10,840, as Cutrone
himself testified
' See Local 3, International Brotherhood of Electrical Workers at at (Peter Di Gangi,
d/b/a Di Gangs Electrical Services ), 130 NLRB 1458 , Carpenters Local Union No. 1028,
United Brotherhood of Carpenters it Joiners of America, AFL (Dennehy Conatiuction
Company), 111 NLRB 1025
4 See Calera Mining Company, 97 NLRB 950, in which, however, there actually was an
inflow of out -of-State materials during the construction period
760-577-65-vol . 148-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Carol Management Corporation, 133 NLRB 1126, the Board applied its office
building standard to shopping centers.5 The Carol case was, however, a representa-
tion proceeding, and I know of no cases involving a secondary boycott in which the
Board has taken jurisdiction merely because it occurred in a shopping center. As the
stores of shopping centers would seem to be more autonomous than the offices in
office buildings, and a secondary boycott could easily occur which would tend to affect
none of the interstate businesses located in the shopping center, the rationale of the
Carol case may not be applicable.
In view of the conclusion I have reached that the Board should exercise jurisdiction
by reason of the activities of Supermarket, I consider it unnecessary to determine
whether jurisdiction could also be asserted by reason of the involvement of the
Roosevelt Field Shopping Center.6
III. THE UNFAIR LABOR PRACTICES
A. The Supermarket episode
On Friday, October 11, two employees of Cutrone, Thomas Sullivan and John
Csengeri, were performing electrical work in the Shop Rite store.? Both of these
employees were members of Local 199, Industrial Workers of Allied Trades, affiliated
with the National Federation of Independent Unions, with which Cutrone had a
contract.8 However, Local 25 did not consider Local 199, apparently, to be a bona
fide labor organization.
Walter Kronimus, the business agent of Local 25, in the course of his reconnais-
sance of construction jobs in his area, went into the Shop Rite store on October 11.
Without introducing himself to Sullivan, who was at work in the store at the time,
Kronimus asked him who his employer was, and was told that he worked for A. C.
Electric. Kronimus then approached a guard in the store, and inquired who was in
charge of the construction work. The guard pointed out a man who was on the
telephone at the time, and who turned out to be Alter. Kronimus introduced him-
self to Alter, and had a brief conversation with the latter concerning A. C. Electric.
Alter explained to Kronimus that he had assumed that A. C. Electric was a union
contractor because the construction contracts provided that the work was to be per-
formed by union subcontractors but Kronimus expressed doubt that A. C. Electric
was a union contractor. Thereupon Alter, who thought that Cutrone was still in the
store, attempted to locate him. But, after he had gone out to the parking lot, he
came back and told Kronimus that he must have just missed Cutrone.9
'Under this standard, enunciated in Mistletoe Operating Company, 122 NLRB 1534,
the Board asserts jurisdiction over office buildings which have a gross revenue of $100,000
per annum, when at least $25,000 of such revenues are derived from organizations which
meet any of the Board's standards.
d I should point out, however, that the record does not even affirmatively establish that
Roosevelt Field, Inc , was actually the secondary employer in the dispute of the Respond-
ent with Cutrone While the management of the shopping center would doubtless have
charge of the construction of any new stores, it does not necessarily follow that it would
perform every kind of alteration work in an existing store While Pinn intervened to
help the Respondent's business agents, he may have been asked only to use his influence
with the tenant. Even if the approval of alterations by the management of the shopping
center was necessary, this alone would not make it the secondary employer.
7 Cutrone only had a total of three or four employees
8 Paragraph 5 of this contract contained an illegal provision that employees had to be-
come members of the union "after the seven (7) day [sic] following the beginning of
such employment or the effective date of this agreement, whichever is later." This is
contrary to the proviso to Section 8(a)(3) of the Act, which permits agreements requir-
ing union membership only "on or after the thirtieth day" following the beginning of
employment or the effective date of the agreement, whichever is the later
9 Sullivan testified that after Kronimus left Alter spoke to him and told him excitedly
that "if you fellows don't straighten this out, you will have to get off the job." Sullivan
struck me, however, as an oversophisticated witness who was ready to testify to anything
he thought necessary or desirable, and I do not believe that Alter spoke to Sullivan at
all that day Alter himself did not mention any such conversation In his own testimony,
and it is hardly likely that he would talk to Sullivan about the matter even before he
had contacted Cutrone, his employer.
LOCAL 25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1571
On Monday, October 14, Kronimus again visited the Shop Rite store. In testifying
about his involvement in the events of that day, Kronimus attempted to represent
his role in the activities as extremely casual. Thus he testified that while he walked
into the store, he merely followed a diagonal course, walking in one door and out
another . If he took any action , it was only to light his pipe. If he talked to anyone,
it was only to say "Good morning" to Alter. He was quite sure that he had talked
to no one else that day.
Later that day, Kronimus further testified , he had a conversation with Cutrone
himself. This conversation occurred when Cutrone telephoned him after he had
returned to his office at Local 25 about 4 o'clock in the afternoon. According to
Kronimus, being unfamiliar with Local 199, he asked Cutrone questions about it,
and ascertained from the latter that the wages paid to members of Local 199 were
$3.50 an hour downwards, and that there was no apprentice training program.'°
Kronimus even testified that Cutrone asked him if Local 25 would be interested in
signing him up . But this, according to Kronimus , was the whole extent of the
conversation.
I do not credit the testimony of Kronimus concerning his participation in the
events of October 14. His objective was to get rid of Cutrone because he regarded
him as a nonunion contractor. His attempt to cast himself in the role of an earnest
seeker after information was sheer pretense. There is little truth in his account of
his telephone conversation with Cutrone on October 14. Asked to relate this con-
versation with Cutrone, Kronimus testified: "Yes. I asked him-he told me he was
a member of Local 199 and I asked him a little bit about 199 because I was com-
pletely unfamiliar with it, questions as to their organization, and he started to read me
part of their charter or something, but that was the end of of it." [Emphasis supplied.]
It was at this point, Kronimus claimed, that Cutrone had asked him if he would be
interested in signing him up. Yet a little later, when asked the question: "When did
you first hear of Local 199?" he replied: "Months ago, years ago," and further con-
tradicted himself by admitting that he had even heard of contractors who were
members of Local 199.11
The testimony of Alter does not agree at all, moreover, with that of Kronimus.
Alter testified that he had two conversations with Kronimus on October 14-one in
person in the meat preparation room of the store in the late morning, and the other
over the telephone between 4 and 5 p.m. when he telephoned from the store to Kroni-
mus in his office. In the meat preparation room, Alter got one of Cutrone's em-
ployees to get his employer on the telephone, and then told the latter in no uncertain
terms that he wanted the dispute settled promptly, and that he did not want anything
to happen that would delay the progress of the work. He then put Kronimus on the
telephone so that he could talk to Cutrone. Alter, who was then called away, did
not hear more than a snatch of the conversation between Kronimus and Cutrone.
When Alter called Kronimus in the late afternoon, it was to find out whether he and
Cutrone had been able to straighten things out.
The testimony of Alter is quite baffling in some respects. This is not due to the
fact that he was not a credible witness. Indeed, I regard him as the only fully
credible witness in the case. It is due rather to the fact that he did not always seem
to understand the questions being put to him, and that sometimes his answers to
questions were given in garbled forms. Badgered constantly by three lawyers, he
sometimes confused the events of the morning with those of the afternoon of October
14, and sometimes even seemed to contradict himself. Nevertheless, I entertain no
doubt whatsoever that he correctly testified that sometime on October 14-whether it
was in the morning or in the afternoon or in person or over the telephone-Kronimus
told him that if he did not get rid of Cutrone by the following day he would picket
the Shop Rite store. Alter so testified at least five times in answer to questions whether
Kronimus had said anything about picketing the next day or the next morning:
Well, at this time I think that the discussion came to the fact that if this thing
had to be resolved this day to find out the information to whom A. C. Electric
10 Actually Cutrone's contract with Local 199 provided for a top wage of $3 40 an hour.
"Indeed, as an IBEW business agent in the New York area, Kronimus could hardly
have failed to encounter Local 199, which was also involved in a case heard by me in
August 1960: Local 3, International Brotherhood of Electrical Workers (Peter Di Gangi,
d/b/a Di Gangs Electrical Services ), 130, NLRB 1458.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was, or else there would be pickets in front of our store to force or to-to force
the issue, and actually find out just what the situation was.
Well, the situation was that there would be pickets on-in front of our store
the following day if the entire thing hadn't been straightened out.
Well, he told me that he wanted to find out just exactly what union they be-
longed to and whether or not-who they were and that if he couldn't find out
and couldn't get this thing settled, that he would pick up pickets for information
and try to find out. [Emphasis supplied.]
* * * * * * *
He told me that if he didn't have this thing settled between him and Al Cutrone,
that he would put out pickets.-
* * * * * * *
He told me on the 14th that he would have the pickets out and that it would
be up to the individual trades to decide whether or not to cross his picket line 12
Furthermore, Alter also testified that he was so worried about the possibility that
the store might be picketed the following morning that he called Cutrone the night
of October 14 to discuss the possibility. According to Alter, he told Cutrone "in no
uncertain terms" that operations had to continue, and Cutrone "volunteered to stay
off the job," whereupon Cutrone assured him that there would be no pickets but
stated that if there were pickets "he would stay off the job and relinquish his part
of his order."
Cutrone's own testimony concerning his telephone conversations with Alter and
Kronimus on October 14 seems to indicate that he may have originated the three-way
conversation in the meat preparation room in the morning, as well as the telephone
conversation with Alter that night. So far as the morning conversation is concerned,
the testimony of Cutrone is in substantial agreement with that of Alter and I credit it.
According to Cutrone, Kronimus pressed him about the status of Local 199, and he
tried to persuade him that it was a recognized union but without success. Thus,
Cutrone testified:
He (Kronimus) said as far as he knew, it was not a recognized AFL-CIO
union. He said that if we did not straighten it out by the next day, that we would
have to leave the job.
So I said, "Well, as far as I knew, I was union, I'd no intentions of leaving the
job the next day."
He said, "Well, if you don't leave, there will be a picket line around here." I
said, "Well, how will that effect me"
He said, "It may not affect you, but it will affect other people." Words to that
effect.
And I says, "What, other trades, may walk off because of this picket?"
He said, "Maybe."
So far as Cutrone's testimony concerning his conversation with Alter the night of
October 14 is concerned, it seems to go considerably beyond that of Alter in making
explicit what was implicit in what Alter told him. Thus, Cutrone testified that Alter
told him that "if there were pickets there, he would not permit me to work on the
job." I do not believe that Alter told Cutrone that in so many words; he came close
to it, however.
Two pickets duly appeared at the Shop Rite store early in the morning of Octo-
ber 15. Kronimus had made arrangements for the picketing the previous evening, and
he had instructed the two pickets to report at 7:30 o'clock the following morning.
One of the pickets arrived at the store at 7:30 a.m. but the other did not put in an
appearance until about 7:45 a.m. Kronimus, who was also on hand, instructed the
pickets to commence picketing, although he actually did not know whether there
were any electricians inside the store. In fact, there were none. The starting time
of all the employees in the various trades on the job was 8 a.m.
The Mid-Island shopping center, in which the Shop Rite store is located, fronts on
Broadway in Hicksville, and the street runs north and south. A mall runs west
through the shopping center from the eastern side of Broadway, the stores being
located on either side of this mall. There were parking areas all around the shop-
L The question concerning what the other trades might do may have been raised, how-
ever, by Alter rather than by Ironimus.
LOCAL 25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1573
ping center except where it fronts on Broadway . The Shop Rite store is the last
store to the rear of the shopping center, facing its western side, and directly across
the mall is a Food Fair supermarket. The public or customer entrances to the Shop
Rite store are at its northwest and southwest corners. A receiving door, through
which employees would normally enter, and through which deliveries would be
made, is also located at the southeast corner of the store. There are also fire doors
at the southwest and southeast corners.
Along the west wall of the Shop Rite store which is about 150 feet in length there
is a walk, and the pickets walked along this west wall. They were thus passing only
the public entrances to the store. The legends on their picket signs read: "To the
Public, electricians on this job are not working under wages and conditions estab-
lished by Local Union No. 25, IBEW, AFL-CIO." 13 There was thus no explicit
statement on the picket signs that the dispute was with Cutrone, or with A. C. Elec-
tric, the primary employer. In fact, the picket signs had not been designed for this
particular occasion. Kronimus carried ready-made picket signs around with him in
his automobile and used them indiscriminately as needed.
Alter had arrived at the store at 7 o'clock on the morning of October 15. When
he saw the first picket, he became very angry, and, rushing out of the store, he asked
him to leave. The picket ignored Alter, however, and then the latter noticed the
second picket donning his placard, and Kronimus nearby. Kronnnus, who intended
to drive to the police station to report the picketing, was about to get into his car.
Alter ran to the car, and told Kronimus to remove the pickets; that there were no elec-
tricians in the store, and that under such circumstances the-picketing was illegal. The
response of Kronimus to this declaration was, as Alter described it, as follows:
So he condescended to come out of the car, he walked with me back to the
front of the building,-and as we were walking along I just kept repeating there
are no electricians in the store.
We got to the front door. There are two sets of doors. He walked into the
front set.14 Then he turned to me and he said, "Al, I believe you," and he
walked out and he removed the pickets.
Kronimus testified that the picketing on the morning of October 15 lasted about
10 minutes , and that the pickets were recalled prior to 8 a.m. I credit Kronimus'
testimony concerning the duration of the picketing because it agrees fully with
Alter's testimony on the same subject. Since Alter rushed out as soon as he saw the
second picket, which would be about 7:45, and since it is apparent from his testi-
mony that the pickets were removed almost immediately, the picketing must have
ceased before 8 a.m. Kronimus conceded, however, that during the period of the
picketing there were 15 to 20 employees "in the immediate vicinity of the pickets
around the entrances to the Shop Rite store ...."
Crediting as I do the testimony of Alter and Kronimus concerning the picketing,
I reject the testimony of Cutrone and his employee, Sullivan, concerning it. Thus, I
do not credit the testimony of Cutrone that none of the employees of the secondary
employers ever went into the Shop Rite store; that he saw some of these employees
just standing around without changing their clothes, and in an attitude that signified
that they were awaiting instructions; that the pickets did not leave until sometime
between 8:15 and 8:30 a in., and that the workers in the other trades were still mill-
ing around at almost 9 a.m. The only part of the testimony of Sullivan that I credit
is that he arrived on the scene at about 8 : 15 a.m . By this time the picketing had
ceased, and he could not possibly have been a witness to what he undertook to report.
Thus, I do not credit his testimony that he was prevented from entering the Shop
Rite store by "Bunny," the Supermarket security guard, or his testimony that he saw
Kronimus in conversation with the plumbing foreman , after which "all the trades
started to work."
It remains only to record that Cutrone and his employees never resumed work at
the Shop Rite store. The electrical work there was completed by another firm by
the name of Gowtoner that had a contract with Local 25. Kronimus had thus
achieved his object.
13 The testimony of Cutrone with respect to the wording of the picket signs Is in agree-
ment with that of Kronimus, except that Cutrone did not include the words "to the
public."
14 Kronimus did not actually walk Into the store proper. When he walked through the
entrance door, he was in a foyer from which, apparently, he must have taken a peek.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Roosevelt Field episode
The alteration work on the art gallery store was being performed by Cutrone
about the same time as he was working at the Shop Rite store. Kronimus was also
a party to the dispute which arose in connection with the art gallery job but another
business agent of Local 25 by the name of Frank Costello, who, however, did not
testify at all at the hearing, was also involved.
According to the testimony of Kronimus, before he first appeared at the Shop
Rite job on October 11 he had seen Michael Pinn, who was superintendent of opera-
tions at Roosevelt Field. But all that he did was to ask Pinn to find out for him who
the electrical contractor was on the art gallery job. Pinn promised to do so.
According to the testimony of Pinn, however, on October 14 he received a tele-
phone call from Costello, who informed him that he had information that nonunion
electricians were working on the art gallery job, and asked him to do whatever he
could to stop it. In testifying about this telephone conversation, Pinn did not pur-
port to be giving Costello's exact words, and he went on to state that what Costello
had asked him to do was to check on the job and determine whether the nonunion
electricians were working there. Pinn promised to do so.
Later in the afternoon of that day, Pinn, therefore, went to the art gallery store
where he found a man whom he believed to be the general superintendent. There
were no electricians working in the store at the time of Pinn's visit. Nevertheless,
he informed the man in the store that he had heard that there were nonunion elec-
tricians working in the store, and suggested that he notify the owner or the contractor
that "we could not tolerate a condition like that."
In the evening of the same day Pinn had a second conversation over the telephone
with Costello. Pinn's initial testimony with respect to this second conversation was:
"I believe I had a further conversation with Mr. Costello informing him-at which
time I called, informing him of what I did; period." But asked further about this
conversation, Pinn also testified: "I believe there was a phrase used something like
we may have to march at the store if the nonunion electricians are still working
there." [Emphasis supplied.] But towards the close of his testimony, Pinn was
asked, "Did Mr. Costello tell you where they would start marching?" and he re-
plied- "I don't recall if he specified any location. I assumed it would be at the
store."
According to Pinn also, Kronimus came to his office the next day to see him and,
in talking about the various jobs in progress at Roosevelt Field, he stated that "he
was quite concerned over the art gallery job"; he then told him that he would follow
it up. This apparently was the same conversation as to which Kronimus testified.
But the latter thought that this conversation occurred prior to October 11, and it is
more likely that it occurred earlier than Pinn supposed.
In any event, Pinn testified that the same afternoon Cohen, the leasing manager of
the shopping center, asked him to come to his office because two Local 25 electri-
cians were there. After some conversation about the electricians who were working
at this time in the art gallery, he accompanied the leasing manager to the art gallery
store. The two Local 25 electricians remained outside the store. However, when
he entered the store with the leasing manager, one or two electricians were there,
and a Mr. Fish, the manager of the store for International Originals. He then told
Fish that nonunion electricians could not work there but Fish told him that what he
was doing was illegal, and one of the electricians present offered to leave the job if
he would sign a paper which he had in his hand.15
According to Pinn's further testimony, he then left the art gallery store; told the
Local 25 electricians who were waiting outside what had happened; and then went
and telephoned to Costello to report what had happened. All that Costello said was:
"Thanks very much. We will take it from there."
However, Local 25 did not "take it from there." There never was any picketing
or even any threat of picketing in connection with the art gallery job,ls and the
electrical work there was completed by Cutrone and his employees.17 During the
whole episode Pinn apparently never even got to know who the electricians working
on the art gallery job really were, or who their employer was!
15 It appears from the testimony of Sullivan that he was the electrician with the paper.
It contained a handwritten statement which Sullivan had prepared, and addressed to him-
self, and which if signed by Pinn would have been a request to leave the job because he
was not a member of an electricians' local
16 In talking to Fish, Plan testified, he himself may have expressed a fear that there
might be picketing but that was all.
17 Cutrone himself so testified but he indicated that he had not been paid.
LOCAL 25, INT 'L BROTHERHOOD ELECTRICAL WORKERS 1575
C. Concluding findings
Counsel, in arguing the Shop Rite aspect of the case, base their contentions upon
factual assumptions which I cannot always adopt. I share the confidence which
counsel for the Respondent has in Alter as a witness but not his confidence in
Kronimus. Thus, I do not draw the same inferences from their testimony. I do
not believe, therefore, that: Kronimus was unfamiliar with Local 199; Kronimus
really knew exactly what wage rates Cutrone was paying; Kronimus never indicated
to Alter that he would like to have Cutrone removed from the job as a nonunion
contractor; Cutrone voluntarily abandoned the job; and if Kronimus did mention the
possibility of picketing, he made it clear that he would resort only to purely informa-
tional picketing. On the other hand, since I do not have too much faith in the testi-
mony of Cutrone, and even less in that of Sullivan, his employee, I do not share the
conviction of counsel for the General Counsel that picketing occurred after 8 a.m.;
that prior to 8 a.m. employees who would otherwise have gone into the store to pre-
pare for work failed to do so; or that Sullivan was prevented from entering the
store by the Supermarket security guard, either on the latter's own initiative, or on
Alter's orders.
Nevertheless, even upon this view of the evidence, it seems clear to me that the
Respondent, through the activities of Kronimus, violated Section 8(b) (4) (ii) (B) of
the Act by coercing Alter to cease doing business with Cutrone. That this. was ac-
complished by mere persuasion, or by a mere request not backed by any threat, is
not consistent with the evidence. It is true that Alter was in an extremely vulner-
able position with the store scheduled to open within a few weeks, and that it would
not take too much of a threat, therefore, to get him to remove Cutrone from the job.
But the evidence also clearly shows that he was loathe to do so, and made every
effort to get Cutrone and Kronimus to "straighten the matter out" (one of his favor-
ite expressions). This very effort, however, convinced Kronimus that more than
persuasion was required, and he threatened, therefore, to picket the job. This threat
clearly worked, for Cutrone was removed from the job, although Alter had every
reason and desire to retain him. It is true that Cutrone himself in the end "volun-
teered" to remove himself from the scene but this action was no more "voluntary"
than is the surrender of the victim's wallet in a holdup. Cutrone finally fell in with
Alter's wishes, apparently, only because, as he put it, he wished to keep him as a
customer.
In one of Alter's five formulations of the picketing threat there is an indication
that Kronimus may have told Alter that the picketing would take the form of in-
formational picketing,ls and counsel for the Respondent, relying on General Drivers,
Chauffeurs and Helpers, Local Union No. 886 (The Stephens Company), 133 NLRB
1393, argues that the communication by Kronimus to Alter of an intention to engage
in informational picketing was perfectly legal.
In the Stephens case, the union wrote two letters, dated about 2 weeks apart, to a
secondary employer in both of which it expressed its intention to picket. In the first
letter, this expression was wholly unqualified. In the second letter, however, it was
stated by the union that if the secondary employer were picketed, the picketing would
be conducted strictly in accordance with Moore Dry Dock standards.19 The Board
held that the sending of the first letter constituted a threat in violation of Section
8(b) (4) (ii) (2) of the Act but that the second letter, which manifested only an inten-
tion to engage in lawful picketing, was not a violation of this provision of the Act.
I must confess sorrowfully that I do not understand the rationale of this decision. I
have always thought that what makes a threat to picket a secondary employer illegal
is not that picketing itself is illegal under any and all circumstances but rather that
being directed at a neutral employer it puts pressure upon him to take action in a
cause not his own. From the point of view of the secondary employer a threat to
picket in accordance with Moore Dry Dock standards, or any other standards, must
seem just as calamitous as a wholly unqualified threat of picketing. If what makes a
threat to picket illegal is the neutral character of the employer to whom it is addressed,
it would seem to be no less illegal if qualified.
In any event, I do not consider that I am compelled in the present case to give effect
to the two-letter decision, for I assume that the Board would at least hold that an
announcement of an intention to engage in legal picketing, which would have been
18 Actually, what Kronmus told Alter may have been only that if he did not obtain the
information which he was seeking about the status of A C. Electric he would picket
This would be only another example of Alter's inability always to express himself very
clearly.
19 As set forth in 92 NLRB 547.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible in this case since it involved a common situs situation, must be shown to be
genuine and sincere. I am convinced, however, that if Kronimus actually said that
he would engage in informational picketing, he was only attempting to prepare the
basis of a sham defense.
The evidence strongly indicates that the picket signs, although addressed, seemingly,
to the public, and stating that the electricians on the job were working under sub-
standard wages, were actually intended to be a signal to the employees of the
secondary employers to walk off the job. This evidence is that: (1) Kronimus did not
actually know what wages were paid by Cutrone; (2) the picket signs were ready-
made, suggesting that Kronimus was accustomed to use "informational" picketing as
a dodge; (3) the picketing was ordered by Kronimus the night before it took place,
when he did not know whether there would be any electricians on the job the next
day, and that the picketing commenced the next day in the same state of methodical
ignorance; (4) the picketing, supposedly directed to the public, occurred before the
starting time of the various trades on the job, and more than an hour before the
various mercantile establishments in the shopping center would open for business, so
that there was scant chance of reaching any member of the public, except perhaps
early morning coffee drinkers in a coffeeshop, which was, in any event, several
hundred feet away from the west wall of the Shop Rite store; (5) the early morning
picketing would be perfectly designed to catch the secondary employees as they
reported for work; (6) the Shop Rite store, which was still undergoing alterations,
was not yet open for business, and hence there would be no customers entering the
store to constitute a public; and, finally, (7) Kronimus actually discussed with
Cutrone the effect of the picketing on the other trades.
I am also of the opinion that the Respondent violated also Section 8 ((b) (4) (i) (B )
of the Act by virtue of the activities of Kronimus during the early morning of Octo-
ber 15. Counsel for the Respondent contends that picketing is not per se illegal, and
that there must be presented, therefore, some affirmative evidence that the picketing
had an illegal object. This is true 20 but this affirmative evidence is the same evidence
which indicates that Kronimus was not really engaged in informational picketing but
that he was, on the contrary, attempting to reach the members of the other trades
working at the Shop Rite store. One of the strongest elements in that evidence is that
it shows that Kronimus was attempting to force Cutrone off the job,21 and that he
terminated the picketing as soon as he was assured that his objective had been accom-
plished.22 Sham informational picketing is, of course, illegal.23
I also do not consider it to be material that the precise identity of the secondary
employees who were present at the Shop Rite site the morning of October 15 is not
established, or that neither Kronimus nor his pickets spoke to any of these employees
directly, or that there is no credible evidence that any of the secondary employees
present actually failed or refused to get ready for work, or that the picketing was of
such brief duration that it almost could be described as instant picketing which
actually did not cause any interruption to the work at the Shop Rite site.
While the evidence relating to the activities of the secondary employees during the
picketing is doubtless somewhat vague, they must have been working for the em-
ployers with whom Supermarket had contracted to do the work, and the existence of
these contracts is established by Alter's evidence. This is all that is essential. The
complaint alleges, moreover, that the picketing induced and encouraged not only the
employees of the secondary employers named therein but also other persons to with-
hold their services.
24 See Upholsterers Frame & Bedding Workers, etc. (Minneapolis House Furnishing
Company), 132 NLRB 40, 41; Fruit & Vegetable Packers, etc., Local 760 (Tree Fruits
Labor Relations Committee, Inc ), 132 NLRB 1172, 1176.
"See N L.R B v Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp.),
226 F. 2d 900 (CA 2) ; Truck Drivers and Helpers Local Union 728 etc. v. N.L.R.B
(Campbell Coal Co.), 249 F 2d 512, 514 (C.A.D C.) ; N.LR.B. v. Local 294, International
Brotherhood of Teamsters (K-C Refrigeration Transport Co.), 284 F. 2d 887, 892 (C.A. 2).
sa N L R.B v. Local 294, International Brotherhood of Teamsters (Bonded Freight-
ways), 273 F. 2d 696, 698 (CA. 2) ; N.L R B. v. Associated Musicians, supra.
27 See Brewery and Beverage Drivers and Workers (Washington Coca-Cola Bottling
Works, Inc ), 107 NLRB 299, 302, enfd. 220 F. 2d 380 (CA.D.C ) ; Douds v. Local 50,
Bakery & Confectionery Workers International Uivion (Arnold Bakers), 224 F. 2d 49, 51
(C A 2) ; N L R B v Laundry, Linen Supply & Dry Cleaning Drivers, Local 928 (Southern
Service Co.), 262 F 2d 617 (C.A. 9). N.L.R B v. Dallas General Drivers, Warehousemen
& Helpers, Local No 745 (Associated Wholesale Grocery of Dallas), 264 F 2d 642, 647-
648 (C.A 5).
LOCAL 25, INT'L BROTHERHOOD ELECTRICAL WORKERS 1577
As for the failure of Kronimus to speak to any of the secondary employees before
Alter spoke to him as he was about to depart from the scene, he had left behind him
two instrumentalities to speak for him, namely the picket signs, and picket signs speak
louder than words.24 As for the fact, too, that the picketing was brief and actually
did no damage, it has been frequently held that a proscribed inducement need not be
shown to have been successful, or to have resulted in an actual work stoppage. Sec-
tion 8(b) (4) (i) (B) of the Act prohibits not only actual inducement or encourage-
ment but also attempts to induce or encourage.25
So far as the Roosevelt Field episode is concerned, I find no substantial evidence
that the Respondent violated either Section 8(b) (4) (i) or (ii) (B) of the Act. Any
request made to Pinn by either Kronimus or Costello not to use nonunion electricians
was privileged, since Pinn was the top management representative at Roosevelt
Field 26 Pinn was so anxious and willing to cooperate with the business agents of
Local 25 that he told the man in the art gallery store that nonunion electricians would
not be tolerated. If this was his attitude, I simply cannot understand how any threats
would be necessary. It is for this reason that I doubt that Costello, in his second
telephone conversation with Pinn, even said anything about marching anywhere,
whether at the International Originals store or at any other place. Since his first
version of this conversation, he did not mention the marching business at all, and
since in his second version of the conversation he expressed only a belief that a phrase
had been used that had something to do with marching, and since the context in which
the phrase allegedly occurred is wholly obscure, there is insufficient evidence from
which a threat may be inferred. Pinn impressed me as a witness whose memory was
so bad, and whose consciousness of the events in which he was involved was so vague,
that great reliance cannot be placed upon his testimony. In the end Costello must
have decided that the game was not worth the candle-that the job was too trivial-
and they neither picketed nor threatened to picket the art gallery store. There is
therefore, no basis for any finding of inducement or encouragement.
IV. THE REMEDY
Although I have found that the Respondent violated Section 8 (b) (4) (i) and (ii) (B)
of the Act, I shall not recommend the issuance of any remedial order. I hasten to
point out that my reason for not doing so has nothing to do with the fact that Cutrone
is a party to an illegal union-security agreement. The Board has declared: "One unfair
labor practice does not excuse another," 27 and has therefore refused to apply the
equitable doctrine of clean hands. Its refusal has long had, moreover, court ap-
proval.28 But the Board has also recognized that, like every enforcement agency,
it is not required to proceed upon every charge, or to furnish a remedy in the case
of every violation. The Supreme Court of the United States has declared that the
Board may decline to be imposed upon, or permit its processes to be abused.29 It
seems to me, moreover, that even these broad categories do not exhaust the scope
of the Board's discretion. Section 10(c) of the Act confers upon the Board the power
u As the Fifth Circuit said In Superior Derrick Corp . v N L R.B , 273 F. 2d 891, 896
"A picket line is a potent instrument."
u See N.L R B . v. Denver Building & Construction Trades Council ( Grauman Co.), 193
F. 2d 421 , 424 (C A. 10) ; N L.R B . v. Associated Musicians , supra ; N L.R.B. v. United
Steelworkers of America ( Barry Controls , Inc.), 250 F. 2d 184, 187 (C.A. 1) ; NL.R.B. v.
Laundry, Linen Supply & Dry Cleaning Local No. 928 , supra; N L R .B. v Dallas General
Drivers, 264 F. 2d 642 , 648 (C.A. 5 ), cert . denied 361 U.S. 814; N.LR .B. v Knitgoods
Workers' Union , Local 155, ILGWU (James Knitting Mills ), 267 F 2d 916 , 920 (C.A. 2) ;
Highway Truck Drivers & Helpers , Local 107 v. NLRB. ( Virginia-Carolina Freight
Lines ), 273 F. 2d 815 , 818 (CAD.C.),.
20 See Local 505, International Brotherhood of Teamsters , etc. (Carolina Lumber Com-
pany , 130 NLRB 1438
n Plumbers Union of Nassau County , Local 457, etc. (Jerry Bady, d/b/a Bomat Plumb-
ing and Heating ), 131 NLRB 1243 , 1246. Another recent case is Local 20, Sheet Metal
Workers International Association ( Bergen Drug Company, Inc ), 132 NLRB 73.
2' See N.L R.B v. Remington Rand, Inc., 94 F. 2d 862, 872 ( C.A 2), cert. denied 304
US. 576 ; N.L R B v. Carlisle Lumber Co , 99 F 2d 533 , 540 (C.A. 9 ), cert. denied 306
U S 646; Republic Steel Corporation v N L.R B , 107 F. 2d 472, 479 ( C.A. 3), modified
on other grounds , 311 U S. 7 ; Eichleay Corporation v. N L.R B., 20'6 F. 2d 799, 806
(CA. 3).
40 See N.L.R B. v Indiana & Michigan Electric Company, 318 U.S. 9, and N.L.R.B. v
Donnelly Garment Company, 330 U S 219
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to enter such remedial orders "as will effectuate the policies of. the Act." It must,
therefore, also have the power to decline to enter a remedial order when such action
would not effectuate the policies of the Act. The Board has in fact made use of this
-negative power although infrequently.30
In the present proceeding, the chief problem of counsel for the General Counsel
seems to have been jurisdictional. He struggled manfully to establish the jurisdiction
of the Board upon as many alternative theories as he could possibly think of. In
addition to those already discussed, he was seeking to show that Cutrone, the Charg-
ing Party, was a member of an employer association which bargained collectively for
its members, namely, the United Construction Contractors Association, Inc., and
that the businesses of some of these members satisfied the Board's jurisdictional
requirements. In the course of the cross-examination of one of these members who
had appeared as a witness, counsel for the Respondent developed that counsel for the
Charging Party, N. George Turchin, who was also counsel for the Association, had
detached from the contract between the Association and Local 199 a wage scale
that had been attached to it, and that counsel for the General Counsel, apparently in
ignorance of that fact, had offered the document in evidence as the complete con-
tract. Contending that the Association was not a genuine organization and that it
did not really exist for the purposes of collective bargaining , counsel for the Respond-
ent also demanded the production of the articles of association , the constitution and
bylaws, and a list of the members of the Association. I directed Turchin to produce
these documents and he agreed to do so, although he contended that they were not
material. But when , the next day , the time came for him to honor his undertaking
and produce the documents, he refused to do so. He left the hearing, moreover, and
never , thereafter returned . After he disappeared , a subpoena duces tecum was issued
to the president of the Association but one of the Respondent's counsel, who attempted
to serve the subpena that evening at the supposed address of the Association in Brook-
lyn, found only a warehouse belonging, apparently, to a firm called Trojan Electric
and Machine Company, Inc. Although there was a light inside the building, and an
automobile parked alongside the building , nobody responded to repeated knocks on
the door.
When this was reported to me the following day, I directed all evidence relating to
the Association and its membership to be stricken from the record. In view of this
action , the alleged membership of the Charging Party in the Association could not be
considered as the basis of jurisdiction. While I have concluded that the Board should
exercise jurisdiction , the matter is not free from doubt , and certainly , while the hear-
ing was in progress , it could never be said at any time that the jurisdictional problem
had been solved.
The present proceeding was brought at the instance of the Charging Party and
his counsel. Apart from Supermarket, in the case of the Shop Rite store, and
Roosevelt Field , in the case of the art -gallery store , none of the secondary em-
ployers seem to have been interested enough in the proceeding to want to appear
and testify, and, so far as record evidence is concerned, their very whereabouts are
unknown. Although Alter and Pinn did appear and testify at the hearing, it was
evident from their demeanor-if it is not evident from their evidence-that they
were most reluctant witnesses . It is easy enough to understand their attitude, since
the construction work about which they were concerned had been completed with-
out any interruption or delay, and they stood to gain nothing directly, therefore,
from any remedial order . The only parties who would benefit from such an order
in the future are Cutrone and his counsel. But the latter is precisely the one who
engaged in conduct which was not only defiant and unprofessional in itself but was
also calculated to frustrate the establishment of the Board 's jurisdiction . The record
raises the strongest suspicion, moreover, that the Charging Party and his counsel
were engaged in perpetrating a fraud upon the Board in seeking-to show the genuine-
ness of the Association as an instrumentality of collective bargaining . In these cir-
cumstances, and taking into further consideration that the violation of which Local
25 was guilty represents a transitory episode, and that Local 25, so far as I can dis-
cover from the published decisions of the Board, has not been a persistent violator,
30 See Vaughn Bowen, 93 NLRB 1147, in which the Board refused relief in an 8(a) (3)
proceeding because the discharges were fictitious, and designed to advance the cause of
one of two competing unions engaged in a jurisdictional dispute In Threads Incorpo-
rated, 132 NLRB 451, 468, in which I was the Trial Examiner, I recommended that re-
instatement be refused to an employee because of his conduct in offering information to
an executive of the respondent concerning the preparation of the General Counsel's case,
and the Board adopted this recommendation.
MILLER CHARLES AND COMPANY 1579
I cannot convince myself that it would effectuate the policies of the Act to issue
any remedial order in this case. Such an order would set a bad example that would
only encourage others to like action.
CONCLUSIONS OF LAW
1. Local 25, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. Alexander M. Cutrone, d/b/a A. C. Electric; his successor , A. C. Electrical Con-
tracting Corp.; and Supermarket Operating Company are employers engaged in com-
merce or in an industry affecting commerce within the meaning of Sections 2(6) and
(7) and 8(b)(4) of the Act.
3. By inducing and encouraging employees of various secondary employers per-
forming services at the Shop Rite store of the Supermarket Operating Company in
the Mid-Island Plaza Shopping Center at Hicksville, Long Island , New York, to
engage in a strike or refusal in the course of their employment to perform such serv-
ices, and by threatening , coercing, or restraining Supermarket Operating Company and
such other persons with the object of forcing and requiring them to cease doing
business with Alexander M. Cutrone , d/b/a A. C. Electric, the Respondent has en-
gaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)
(B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. By the activities of its agents at the Roosevelt Field Shopping Center at Garden
City, Long Island , New York, the Respondent has not engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(b) (4) (i) or (ii) (B) of
the Act.
RECOMMENDED ORDER
I recommend that an order be entered dismissing the complaint.
I also recommend that proceedings be taken against counsel for the Charging
Party pursuant to Section 102.44 (b) of the Board 's Rules and Regulations.
Harold Miller , Herbert Charles and Milton Charles, Co-Partners,
d/b/a Miller Charles and Company and Local 463, Interna-
tional Union of Electrical , Radio and Machine Workers, AFL-
CIO. Case No. 2-CA-9720. October 8, 1964
DECISION AND ORDER
On July 10, 1964, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Decision. The Trial
Examiner also found that the Respondent had not engaged in certain
other unfair labor practices and recommended that the complaint be
dismissed as to such allegations. Thereafter, the General Counsel and
the Respondent filed exceptions to the Trial Examiner's Decision and
supporting briefs.
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].
148 NLRB No. 158.