Local 25, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Feb 23, 1966

157 N.L.R.B. 44 (N.L.R.B. 1966)

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or activities on behalf of United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or in any
other labor organization of our employees, by discharging or otherwise discrim-
inating in regard to their hire and tenure of employment or any term or condition
of employment of any employee.
WE WILL NOT interrogate our employees concerning their or other employees'
union affiliation or activities, or protected concerted activities, in a manner con-
stituting interference, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce any of
our employees in the exercise of their right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
-remaining, members of United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, or any other labor organization.
SAMSONITE CORPORATION,
Employer.
"Dated------------------- By----------------±--------------------------
(Representative) (Title)
NOTE: We will notify Dean Walls if presently serving in the Armed Forces of
the United States of his right to reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161.
Local 25, International Brotherhood of Electrical Workers, AFL-
CIO and Emmett Electric Company, Inc. and Industrial Work-
ers of Allied Trades, Local 199, affiliated with National
Federation of Independent Unions; United Construction Con-
tractors Association , Inc.; D-Lion Construction Co., Inc. Case
No. 29-CD-8 (formerly 2-CD-316). February 23, 1966
DECISION AND ORDER
On November 29, 1965, Trial Examiner Eugene F. Frey issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommen ding that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
157 NLRB No. 10.
LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 45
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
MEMBER FANNING, dissenting : %
As I indicated in my dissenting opinion in the Section 10(k) pro-
ceeding in this case (152 NLRB 671), I would have quashed the notice
.of hearing and now dissent from the majority's finding that a violation
of Section 8(b) (4) (D) has occurred for the reasons stated in my
dissenting opinion in Local 25, IRE TV, AFL-CIO (Sarrow-Suburban
Electric Co., Inc., et al.), 152 NLRB 531.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issue in this case is whether Respondent Local 25, International Brotherhood
of Electrical Workers, AFL-CIO, violated Section 8(b) (4) (i) and (Ii) (D) of the
National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq., herein called
the Act, by engaging in and inducing and encouraging employees of D-Lion Con-
struction Co., Inc., herein called D-Lion, and Emmett Electric Company, Inc.,
herein called Emmett, and other persons, to engage in a strike or concerted refusal
to perform services, and by threatening, coercing, and restraining D-Lion and Em-
mett and other persons, all in support of its claim for the assignment to its members
,of certain electrical work involved in the construction of a building in Long Beach,
Long Island, New York, and with an object of forcing and requiring D-Lion to
assign said work to contractors employing members of Respondent or to employees
who are members of or represented by Respondent, rather than to employees who
are members of or represented by Industrial Workers of Allied Trades, Local 199,
affiliated with National Federation of Independent Unions, herein called Local 199.
The issue arises on a complaint issued June 10, 1965, by the General Counsel of the
Board through the Board's Regional Director for Region 29,1 and answer of Respond-
ent which admitted the establishment of a picket line at the project aforesaid, but
denied the commission of any unfair labor practices.
A hearing on the issue was held before Trial Examiner Eugene F. Frey at New
York, New York, on August 12 and September 1, 1965, in which all parties (except-
ing D-Lion) participated fully through counsel. General Counsel and Respondent
presented oral argument at the close of the testimony and have submitted written
briefs, all of which have been carefully considered in preparation of this Decision.
Upon the entire record in the case, including my observation of witnesses on the
stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Emmett is a New York corporation engaged in business as an electrical contractor,
with its place of business in Levittown, Long Island, New York. In July through
September 1964, Emmett was working as an electrical subcontractor in the construc-
tion of a new building at the East End Synagogue, Long Beach, Long Island, New
York, where picketing and other events involving Respondent occurred as set forth
below. At all times mentioned herein, Emmett was a member of United Construc-
tion Contractors Association, herein called the Association, an organization which
'The complaint issued after Board Investigation following the usual 10(k) proceeding
resulting in a Decision and Determination of Dispute issued May 17, 1965, which is
reported In 152 NLRB 671.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargains and executes collective-bargaining contracts with labor organizations on a
multiemployer basis on behalf of its members. The Board found in its Decision and
Determination of Disputes aforesaid, involving all the parties herein, that the Associ-
ation was engaged in commerce within the meaning of the Act, and that while
Emmett's operation considered singly would not meet any of its jurisdictional stand-
ards, it would exercise jurisdiction over Emmett and its operations because of its
membership in the Association. As this decision is binding on me, I find that the
Association and Emmett are each engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties herein stipulated in the 10(k) proceeding that Respondent and Local
199 were labor organizations within the meaning of the Act. Respondent here
admits that status for itself, but now denies that Local 199 is such a labor organi-
zation. The record herein shows that since February 1963, the Association has had
a collective-bargaining agreement with Local 199 which indicates that said labor
organization has been and is representing employees of employer-members of the
Association for purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment. I find that
both Respondent and Local 199 are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The dispute and Respondent's conduct therein
During 1964 D-Lion was general contractor for construction of a new building
on premises of East End Synagogue, a Jewish house of workshop in Long Island,
New York. In July or August 1964, D-Lion engaged Emmett as subcontractor to do
the electrical work on the job. Emmett's employees were members of Local 199,
with which organization Emmett had executed a collective-bargaining contract some
time before, and Emmett, as a member of the Association, was also bound by the
terms and conditions of the contract previously executed between the Association
and Local 199 as found above. Emmett began work with its employees under its
subcontract at the site early in September. On September 14 or 15, Joseph Cav-
anaugh, business agent of Respondent, visited the project and asked Mario Tucci,
D-Lion general superintendent on the project, who was doing the electrical work
for him. When Tucci told him Emmett was, Cavanaugh took from his pocket and
referred to a list of electrical contractors who had signed contracts with Respondent,
saw that Emmett was not listed on it, and told Tucci he did not think Emmett was
signed up with Respondent or the "AFL Building Trades," and that the Emmett elec-
tricians did not belong to Respondent. At the same time he gave Tucci the list of
contractors aforesaid, and said that one of them should be doing the electrical work,
and that if D-Lion did not get one of them on the job, Cavanaugh would have pickets
on the site. Tucci reported this talk at once to his superiors in D-Lion and also to
Ely Emmett, owner of Emmett, asking the latter to "straighten it out" so that the
job would run smoothly. Emmett said he would "join up" or straighten it out
somehow.
On Wednesday, September 16, 1964, which was Yom Kippur, a holy day in the
Jewish religion, Respondent established a picket line on the jobsite, which was across
the street from the main temple in which members of the congregation were observ-
ing the holy day in the traditional manner. Two pickets paraded, carrying signs
stating-"To the Public: The electricians on this job-Emmett Electric-do not work
under wages or working conditions established by Local 25, IBEW, AFL-CIO. We
do not have any dispute with any other Employer. Local 25, IBEW, AFL-CIO."
No work was done on the job by any craft on Yom Kippur, but after the pickets ap-
peared the next day, plumbers and laborers did not work on the job when requested,
and none of these crafts returned to work until the picketing stopped about 10 days
later. However, Emmett's employees worked until his removal from the job. On
the 17th, a Mr. Milton Popper, chairman of the building committee of the synagogue,
talked to both Tucci at the 'site and another D-Lion official on the telephone, very
much upset, and demanded that D-Lion do something to have the pickets removed,
because his congregation had complained and was embarrassed by the pickets parad-
ing on the job during the holiday. A D-Lion officer, Frank Vincent, then talked to
Cavanaugh to find out how the pickets could be removed. Cavanaugh said they
would not be removed unless D-Lion hired electricians who were receiving wages
and benefits established by Respondent's contracts. He also said that the picketing
was started because "we are protecting what Local 25 has taken thirty some odd
LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 47
years to build up." D-Lion officers at once contacted Emmett, suggesting that he
sign up with Respondent to stop the picketing, but he would not consider that unless
Respondent accepted his employees as members. When nothing came of these dis-
cussions,2 Emmett went to the Board on September 18, 1964, in an effort to secure
an injunction against the picketing and to file the original charge herein. Shortly
before September 26, Vincent told Emmett he had to stop work on the job because
of the picketing by Respondent. About the same time D-Lion contacted several of
the contractors on the "approved" list left by Cavanaugh with Tucci, and on or about
September 26 removed Emmett from the job and shortly engaged M & M Electric, a
contractor on Respondent's list, to finish the electrical work. When employees of
M & M Electric started to work, the plumbers and other crafts returned to the job,
and the project proceeded without interruption. M & M performed the electrical
work for a while, and then D-Lion procured another contractor on the Respondent's
list (Electrical Construction Associates, called "ECA" in the record), to continue
the work .3
After Emmett filed the charge herein on September 18, 1964, alleging that
Respondent violated Section 8(b) (4) (D) of the Act, the Board conducted a hearing
pursuant to Section 10(k) of the Act to determine the dispute, and on May 17, 1964,
issued its Decision and Determination of Dispute, cited above, in which it found
reasonable cause to believe that Respondent was claiming the electrical work on the
project aforesaid for its members, that a jurisdictional dispute existed, and that there
was reasonable cause to believe that Respondent had engaged in conduct violating
Section 8(b)(4)(D) and that the dispute was properly before it for determination
under Section 10(k). On the merits, the Board determined that (1) employees then
represented by Local 199 were entitled to perform all electrical work connected with
the construction on the synagogue project aforesaid, and (2) Respondent was not
entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require
D-Lion to assign the aforementioned work to a contractor employing its members.
The Board directed Respondent to notify the Regional Director, in writing, whether
or not it would refrain from the proscribed conduct. On May 21, 1965, Respondent
advised the Regional Director that it would not comply with the Decision and De-
termination of Dispute. The complaint herein was issued on June 10, 1965.
B. Contentions of the parties, and ultimate findings and conclusions thereon
At the outset, it is settled that the award of the disputed work by the Board's De-
cision and Determination aforesaid cannot be reviewed by a Trial Examiner in a
proceeding on a Section 8(b)(4)(D) complaint,4 hence I adopt and make part of
these findings the decision of the Board that employees represented by Local 199
are entitled to perform all the electrical work in construction of the addition to the
East End Synagogue, Long Beach, Long Island, New York.
On the facts found above, it is clear that Respondent on September 14, 1965,
threatened to picket the project, and on and after September 16, 1964, actually
picketed the site, and thereby threatened and coerced D-Lion, an employer, and
2 There is no credible proof that Respondent ever discussed this subject with Emmett,
or its employees, or that in its discussions with D-Lion officials it ever indicated any
willingness to allow Emmett or its employees to continue on the job under any circum-
stances. For reasons considered below, I do not rely on testimony of Cavanaugh to the
effect that, in his talk with Vincent, he suggested the pickets would be removed if elec-
tricians already on the job were to receive wages and benefits fixed by Respondent.
3 The above facts are found from credited testimony of Tucci and Emmett, which is
mutually corroborative in essential aspects and is also corroborated by admissions of
Cavanaugh. Testimony of any of these witnesses at variance with these findings is not
credited. In crediting Tucci and Emmett, I have considered carefully their demeanor on
the stand, as well as their apparent self-contradictions and vagueness on some dates,
events, and other specific facts, including contradictions appearing in their testimony on
those points in the injunction proceedings in the United States district court about
10 months before, and I concluded that both men, particularly Tucci, were relatively
unsophisticated witnesses, who were trying sincerely to recall and state the true facts,
under the natural handicap that their memories of all the details were far more dim
than when they testified in October 1964, shortly after the event. Hence, in finding the
essential facts, I have also considered their testimony in the prior proceeding, to the
extent that they adopted and reaffirmed it under examination by counsel for both parties.
'Local Union No. 181, International Union of Operating Engineers (Service Elec-
tric Company), 150 NLRB 1353, and cases cited in footnote 1 of Trial Examiner's Decision
therein.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
induced and encouraged employees of other employers on the site to engage in a
work stoppage, with an object of forcing and inducing D-Lion to get rid of Emmett
and its employees, whom Respondent considered "non-union," and give the electrical
work to a contractor on Respondent's contract list whose employees were members of
Respondent, and that this conduct falls within the proscription of Section 8(b) (4) (i)
and (ii ) (D) of the Aet.5
Respondent presents two main defenses: (1) there was not a jurisdictional dispute
within the meaning of the Act, and (2) it conducted picketing at the site solely to
inform the public that the wages and working conditions paid by Emmett to its em-
ployees on the site were not the same as those established by Respondent, that the
facts on its picket signs were truthful, hence the picketing was purely for infor-
mational purposes and protected by the Act.
On the first point, Respondent says there is no proof that it sought or demanded
the electrical work for its members as a matter of right, nor that there were any
"competing" claims to it between employees of Emmett and members of Respondent,
but that the facts show at most only a "rival union" dispute. I find no merit in this
position, because the facts that members of Local 199 employed by Emmett were
doing the work, and continued to do it to the apparent satisfaction of the general
contractor until Emmett was forced off the job as found above, and that Emmett
filed the charge herein after that event, shows clearly that such employees claimed
and were doing the work. The competing claim is clearly shown by (1) Cav-
anaugh's statement to D-Lion that a contractor on Respondent's list (whose em-
ployees were members of Respondent) should be doing the work, and that if a
contractor from that list was not put on the job, it would be picketed, (2) the sub-
sequent picketing by Respondent which disrupted the job, (3) Cavanaugh's state-
ments to D-Lion during the picketing that the pickets could be removed only if
electricians receiving wages and benefits established by Respondent (which could
only mean employees of contractors paying such wages and benefits under a contract
with Respondent) were used on the job, (4) Cavanaugh's admissions that one of
his duties is to increase job opportunities for Respondent's members in the area of
its jurisdiction (which included the synagogue project), and to make sure that a
contractor signed up with Respondent does the work on jobs in its jurisdiction, and
that Respondent did not permit electricians other than its own members to do elec-
trical work in its jurisdiction, and would prevent them from doing so when it found
them doing it, and (5) on the synagogue job "it would have been fine" if, when
talking to Tucci, he had found Emmett on Respondent's approved list, because that
would have indicated that Respondent's members were working on the job and get-
ting the wages and benefits that "I believe is their due" (obviously the wages and
benefits in Respondent 's contracts ), and that since "that was not the case," the result
was the picket line. These circumstances, considered with others found above,
clearly show that Respondent was claiming the work on this job for its members as a
matter of right based on its admitted practice of seeking and procuring by any means
all electrical work in the area of its jurisdiction solely for its members, to the exclu-
sion of employees represented by any other labor organization (including Local 199),
and this presents the classic type of jurisdictional dispute between two "rival unions"
competing for the same work for their respective members, which falls within the
meaning of Section 8(b)(4)(D) of the Act.6
On the second phase of the defense, Respondent relies mainly on the wording of
the picket sign, that Emmett electricians were not working under wages and working
conditions established by Respondent, and argues that the picketing publicized these
true facts to the general public for informational purposes only. The record clearly
shows that Emmett employees on the job were receiving less in wages and benefits
than members of Respondent working under contracts between their employers and
Respondent , hence the picket signs stated true facts . In support of this claimed
5 There is no proof that at any of the times pertinent herein there existed an order
or certification of the Board determining that Respondent was the bargaining representa-
tive for employees performing the work in question , hence I cannot find that D-Lion was
failing to conform to any such order or determination in hiring Emmett and its em-
ployees to do the work.
6 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, IBEW
(Columbia Broadcasting System ), 364 U.S. 573, 579; Local 5, United Association of
Journeymen, and Apprentices of the Plumbing and Pipefitting Industry of the United States
and Canada (Arthur Venneri Company), 145 NLRB 1580; Local Union No 3, Interna-
tional Brotherhood of Electrical Workers ( Western Electric Company), 141 NLRB 888
I have carefully considered other authorities cited by Respondent, in which the Board
found no jurisdictional disputes , and consider them inapposite here on the facts.
LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 49
objective, Cavanaugh testified that, if Emmett had worked its employees on the job
under comparable wages and working conditions, he would have allowed them to
continue on the job, and would have been forced to withdraw the picket signs be-
cause they would not be truthful, and that he so advised Frank Vincent of D-Lion.
While I must credit this suggestion to D-Lion, as Vincent was not called to contradict
it, and it also appears from testimony of Tucci and Emmett that, in his talk with
Tucci, Cavanaugh probably made an alternate suggestion that Emmett could remain
on the job if it signed up with Respondent (which would require payment of rates
fixed by Respondent to its employees),? I am convinced that this suggestion and
method of solving the jurisdictional dispute was not bona fide and cannot support
the claim that the picketing was informational, for several reasons: Cavanaugh ad-
mits that he did not make this suggestion to Vincent, when the latter asked how the
pickets could be removed, saying, "I did not word it that way, but I told Mr. Vincent
the reason for the picketing was because we are protecting what Local 25 has taken
30-odd years to build up"; he did not explain to Vincent exactly what Respondent
was "protecting," but I am convinced from his own testimony as to his duty, among
others, of securing all electrical work for his members, and the corollary duty to
make sure they received the rates and benefits prescribed by Respondent's contracts,
that he had in mind only the job and wage security of his own members, so that the
only sincere suggestion in his talk with Vincent was the alternate one that he "hire
electricians that do get these wages and fringes," which obviously referred to con-
tractors signed up with Respondent whose employees were getting those wages and
fringes; and this is consistent with his earlier threat to Tucci, that pickets would be
set up unless a Local 25 contractor was used. If Respondent's purpose was solely
or mainly the upgrading of wages and fringes paid to Emmett's employees on the
job, it seems that Cavanaugh would have solicited Emmett or his employees, either
on or off the jobsite, to join up with Respondent, rather than leave such a suggestion
with the general contractor, for Emmett was the only employer with power to change
the wages and benefits of his employees. The fact that Respondent did not contact
Emmett is thus of great significance, and leads me to believe that Respondent did
not have any altruistic purpose of securing the payment of its wages and benefits to
all electricians working in its jurisdiction, whether or not they were members of
Respondent or a "rival union," but that it was interested solely in getting the work on
this site for its own contractors and members, who would be paid the higher rates
and benefits fixed by it. The fact that Respondent now claims the dispute here was
a "rival union" dispute, thus indicating it was an adversary of Local 199 per se,
further shows that Respondent never desired, or tried, at any time to upgrade the
wages and working conditions of Emmett employees, regardless of their affiliation,
but was solely interested in ejecting from the job the "non-union" contractor Emmett,
whose employees were members of the "rival" Local 199, and in procuring the work
for its own members, in accordance with its admitted general policy and objectives.
Another indication that this was the sole and real purpose of the picketing lies in
Cavanaugh's admission that, when he reported to Respondent's business manager,
Walter Kraker, that Emmett was on the synagogue job, Kraker replied at once that
he believed Emmett was a "Local 199 contractor" and, after confirming it, repeated
"that is a Local 199 contractor; take it from there," and told Cavanaugh the next
day that Respondent would picket with "informational" signs; but there is no proof
from Respondent that its officials talked about the difference, in wages, or getting
Emmett to sign up with Local 25 or pay Local 25 wages and fringes. Moreover,
Cavanaugh admits he later removed the pickets on order of Kraker, after Emmett
was off the job, on word from Kraker that the matter had been "resolved satisfactory
to him," which indicated to Cavanaugh, not that Emmett was paying Local 25 wages
and fringes, but that Emmett was off the job. A salient circumstance here is that
the picketing was stopped as soon as Emmett was off the job and replaced by a Local
25 contractor. See Local 25, International Brotherhood of Electrical Workers (Alex-
ander M. Cutrone d/bla A. C. Electric), 148 NLRB 1560, 1576. Another signifi-
cant circumstance is that, when it began picketing, Respondent apparently made no
attempt to apprise other crafts on the job specifically and clearly that, notwithstand-
7 Tucci was hazy on this subject, at first testifying that Cavanaugh claimed that
Local '199 rates were lower than those required by Respondent, but he recalls no detailed
discussion about it. However, in his testimony in the injunction proceeding, when his
memory was better, and he was reminded of the affidavit he gave the Board, he admitted
that Cavanaugh said, in effect, that Emmett should get in touch with him,, and that
Emmett had better sign up with Respondent, or he would have to get off ithe job, and a
Local 25 contractor would take it over Tucci passed this suggestion on to Emmett, who
said he would "join up" or "straighten it out somehow 11
5O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the wording of the signs, this was informational picketing only and that they
should continue to cross the picket line and work. Contrast Fruit & Vegetable Pack-
ers & Warehousemen, Local 760 (Tree Fruit Labor Relations Committee), 132
NLRB 1172, 1176, 1177. Considering all these circumstances, I must agree with the
claim of General Counsel that the wording and alleged purpose of the pickets and
their signs was purely sham, designed to conceal Respondent's real objectives of
getting the synagogue work for its members to the exclusion of Emmett and members
of Local 199 working for it. I therefore find Respondent's second claim without
basis in fact.8
Respondent also argues that no violation of Section 8(b)(4)(i)(D) of the Act
appears because there is no proof that Respondent talked to other craftsmen on the
job, or otherwise induced or encouraged them to refuse to work or stop work. This
claim is without merit because (1) the record shows no dispute between D-Lion and
employees of other subcontractors which would afford a basis for the failure or re-
fusal of such craftsmen to work during the picketing, hence I must infer that they
were satisfied with their own wages and working conditions and would have remained
on the job to earn a living, absent the picketing; (2) assuming that such craftsmen
as well as the public saw the picket signs on and after September 17, they were thus
advised not that Emmett as such was paying substandard wages, but that it was not
paying wages and fringes established by Respondent, an organization representing
one of the building trades crafts and an AFL-CIO affiliate, which was clear notice
to them that Emmett was not signed up with Respondent, hence was a "non-union"
contractor; 9 (3) when such building trades craftsmen engaged in a work stoppage
with that knowledge, the inference is compelling that they did so because the signs
told them there were "non-union" employees on the job, which is traditionally an
inducement or signal for a strike or work stoppage; 10 (4) it follows that the picket-
ing, with the signs worded as above, had the reasonable tendency to induce other
building trades craftsmen to refuse to cross the picket line and refuse to work so long
as the pickets were present and Emmett's employees were on the job. Respondent
did nothing to negate or neutralize this tendency, and the work stoppage actually
occurred. I must conclude that by establishing the picket line, Respondent also vio-
lated Section 8(b) (4) (i) for the object set forth in subparagraph (D) of that section.
In urging that coercion of employers within Section 8(b)(4)(ii)(D) has not been
proven, Respondent relies in part upon a conclusionary admission of Tucci on cross-
examination that he "guessed" Emmett was removed as a result of the request of the
synagogue and its members. However, it is clear from the facts found above that
before Popper's protests to D-Lion, Cavanaugh had already threatened D-Lion
directly with picketing if Emmett was not removed. This was the initial act of
coercion. Respondent admits that picketing on Yom Kippur was bound to embar-
rass the congregation, but says that this was a legitimate effect on the "public" which
"informational picketing is intended to have." Having found that the picketing was
not true informational picketing, but for a proscribed object, I must conclude that
Respondent's choice of Yom Kippur for the start of the picketing, when only the
congregation was sure to see it , was well calculated to upset them , and Respondent
8It has been held that sham informational picketing is illegal . Local 25, international
Brotherhood of Electrical Workers ( Alexander M. Cutrone d/b/a A.C. Electric) 148
NLRB 1560 , 1576, and cases cited in footnote 23 thereof.
Even if I found that publicity of the lower wages and fringes paid by Emmett was a
reason for the picketing , the circumstances noted above clearly establish that this reason
was an afterthought, following the clear threat of picketing for the proscribed object
found above, or at most a reason secondary to the main objective of reassignment of the
work to Local 25 members. That conclusion does not militate against a finding of viola-
tion where, as here, the removal of Emmett and its employees and reassignment of their
work to Respondent's members was the main purpose, or at least one of equal importance
with the matter of proper wages and fringes. See International Brotherhood of Electrical
Workers, Local 639 (Bendix Radio Division of The Bendix Corporation ), 138 NLRB
689, 694.
e It has been held that a picket line is a potent instrument, and that picket signs often
speak louder than words. Local 25, IBEW (A.C. Electric), supra, at 1577.
10 it is well settled that a picket line necessarily invites employees to make common
cause with the strikers and refrain from working behind it irrespective of the literal
appeal of the legends on the picket signs. Laundry, Linen Supply d Dry Cleaning
Drivers Local No. 928, at al. ( Southern Service Company ), 118 NLRB 1435, 1437, enfd.
262 F. 2d 617 ( C.A. 9) ; Local 254, Building Service Employees International Union
(Herbert Kletjian, d/b/a University Cleaning Co .), 151 NLRB 341 ( Trial Examiner's
Decision).
LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 51
thus used them to bring additional pressure on D-Lion to remove Emmett, which
in fact occurred . Thus, picketing on that day was not incidental , but was well
calculated to continue and intensify , through the use of the neutral and innocent
congregants , the pressure already put on D-Lion by Cavanaugh 's threat of a 'few
days ibefore, for the proscribed object. This strengthens the conclusion that Re-
spondent 's conduct violated Section 8 (b)(4)(ii )(D).11
In summary, I conclude that General Counsel has sustained the ultimate burden
of proving by a preponderance of credible evidence on the record as a whole, and I
find that by its threat of picketing to D-Lion and actual picketing of the project
aforesaid, Respondent violated Section 8 ( b) (4) (i) and ( ii) (D) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of the Employers described herein, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices affect-
ing commerce, I will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
General Counsel requests an order of the broadest type on the ground that Re-
spondent's unlawful action shown by the record herein, and its similar action in
earlier cases, demonstrate that it has served notice on the construction industry and
other employers on Long Island that it will not permit any electrical work on Long
Island to be performed by any employees other than its own members Admissions
of Cavanaugh noted above clearly show that Respondent's general policy and objec-
tives include the procurement of all electrical work for its members, to the exclusion
of employees represented by Local 199 and any others not represented by Respond-
ent, on all construction jobs in the area of its jurisdiction, which apparently covers
all of Nassau and Suffolk Counties, Long Island, New York. The Board considered
a similar claim made by Respondent in 1963 in Communications Workers of Amer-
ica, Local 1104 (Frederick Bond, d/b/a Bond Electric Company), 146 NLRB 388
(where it rejected the claim and awarded the work to another union, in determining
a dispute involving a Nassau County project in a 10(k) proceeding), but found in a
connected proceeding, 146 NLRB 1564, that Respondent had not implemented the
claim in that situation by conduct violative of Section 8 (b) (4) of the Act. The Board
found in Local 25, International Brotherhood of Electrical Workers, AFL-CIO
(A. C. Electric), 148 NLRB 1560, enfd. 351 F. 2d 593 (C.A. 2), that Respondent
had made the same claim on another Nassau County project and had successfully
caused the removal of a Local 199 contractor from the job by threats and picketing
in violation of Section 8(b)(4)(i) and (u) (D). In Local 25, International Brother-
hood of Electrical Workers, AFL-CIO (New York Telephone Company), 152 NLRB
723, the Board considered the same broad claim made by Respondent in 1963 and
1964 on various projects in the same area, found reasonable cause to believe that it
was seeking to implement it by unlawful secondary boycott activities, and made an
award contrary to Respondent's claim, to the same union involved in Bond Electric
Company, supra. Together, these cases and Respondent's similar conduct herein
indicate a continuing campaign by Respondent to achieve the objective found above
by unlawful means,12 and justify recommendation of an order which will make the
remedy coextensive with the continuing threat to disruption of commerce and the
policies of the Act. I shall therefore recommend that a broad cease-and-desist order
issue, which will prevent the above unlawful activity, not only against the secondary
employers named in the complaint, but also other primary and secondary employers
"I have carefully considered other corollary arguments and authorities submitted by
Respondent, and conclude that the arguments are without merit and the authorities cited
In support of them are not controlling on the issues here or inapposite on the facts
.2 In reaching this conclusion, I have discounted as irrelevant testimony of Cavanaugh
and Emmett indicating that during 1964 Respondent did not engage in picketing or other
persuasive activities on certain projects running under Federal Government supervision,
where wages and fringes comparable to those approved by Respondent were being paid
to electricians, for these facts do not establish that differing wages and benefits paid on
other projects, as here, were improper or Illegal, nor do they justify Resnondent's im-
plementation of its objectives aforesaid by means proscribed by the Act
221-374-66-vol. 157-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(which includes both general and subcontractors on construction projects, including
members of the Association), operating in commerce within the jurisdictional area
of Respondent.13 Notice of the Order should be posted by all such contractors, if
known, including all employers who are members of the Association aforesaid, if
said employers are willing, on all their projects presently operating and to be worked
on by them in the future in the area aforesaid.
CONCLUSIONS OF LAW
1. Respondent and Local 199 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
2. By threatening to picket, and actually establishing and maintaining a picket line
at, the building project aforesaid, and inducing and encouraging individuals em-
ployed by D-Lion and other employers engaged in commerce and in industries
affecting commerce, to engage in strikes and refusals in the course of their em-
ployment to perform services, and by threatening and coercing D-Lion, an em-
ployer, with an object of forcing or requirtng said Employer to assign electrical work
involved in construction of said project to employees represented by Respondent
rather than to employees represented by Local 199, Respondent has engaged in and
is engaging in unfair labor practices affecting commerce within the meaning of
Sections 8(b)(4)(i) and (ii)(D) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that Respondent, Local 25, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from engaging in, or inducing or encouraging any individual
employed by D-Lion Construction Company, Inc., Emmett Electric Company, Inc.,
or any other member of United Construction Contractors Association, or any other
person engaged in commerce or in an industry affecting commerce, to engage in, a
strike or a refusal in the course of his employment to handle or work on any goods,
articles, materials, or commodities, or to perform any services, and from threatening,
coercing, or restraining the above-named Employers or any other employer or per-
son engaged in commerce or in an industry affecting commerce, where in either case
an object thereof is to force or require D-Lion Construction Company, Inc., or any
other employer or person engaged in commerce or in an industry affecting commerce,
to assign electrical work on any construction projects presently in progress or to be
initiated in the future within the territorial jurisdiction of Respondent in the State of
New York, to employees who are members of or represented by Respondent rather
than to employees who are members of or represented by Industrial Workers of
Allied Trades, Local 199, affiliated with The National Federation of Independent
Unions, or any other labor organization, except insofar as any such action is per-
mitted under Section 8(b)(4)(D) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post in Respondent's business offices and meeting halls, copies of the attached
notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional
Director for Region 29, shall, after being signed by Respondent's authorized repre-
sentative, be posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its members are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Furnish to the Regional Director for Region 29 signed copies of said notice
for posting by D-Lion Construction Company, Inc., other general contractors oper-
ating in Nassau and Suffolk Counties, New York, if known, and all members of
United Construction Contractors Association, Inc., if said Employers are willing, in
18 International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, et at. (Overnite Transportation Company), 130 NLRB 1007, 1008-1010.
141n the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Circuit Court of Appeals, the words "a Decree of the
United States Circuit Court of Appeals, Enforcing an Order" shall be substituted for
the words "a Decision and Order".
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 53
places where notices to their employees are customarily posted. Copies of said no-
tice, to be furnished by said Regional Director, shall be signed by Respondent as di-
rected above and returned forthwith to said Regional Director for disposition by him.
(c) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondent has taken to comply herewith.I5
w In the event this Recommended Order is adopted by the Board, 'this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS, ALL EMPLOYEES OF D-LION CONSTRUCTION COM-
PANY, INC., AND TO ALL EMPLOYEES OF SUBCONTRACTORS OF D-LION CONSTRUC-
TION COMPANY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage any individual employed by
D-Lion Construction Company, Inc., or by Emmett Electric Company, Inc., or
any other member of United Construction Contractors Association, or any other
person engaged in commerce or in an industry affecting commerce to engage
in, a strike or refusal in the course of his employment to handle or work on
any goods, articles, materials, or commodities, or to perform any services; or
threaten, coerce, or restrain the above-named Employers or any other employer
or person engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is to force or require D-Lion Construction Com-
pany, Inc., or any other employer or person engaged in commerce or in an
industry affecting commerce, to assign electrical work on any construction proj-
ects presently in progress or which may in the future be initiated within the
territorial jurisdiction of our Union in the State of New York, to employees who
are members of or represented Eby our Union, rather than to employees who are
members of or represented by Industrial Workers of Allied Trades, Local 199,
affiliated with The National Federation of Independent Unions, or any other
labor organization, except insofar as any such conduct is permitted under
Section 8 (b) (4) (D) of the Act.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fourth
Floor, 16 Court Street, Brooklyn, New York, Telephone No. 596-5386.
Tennessee Packers, Inc., Frosty Morn Division and Amalgamated
Meatcutters and Butcher Workmen of North America, AFL-
CIO, Local No. 405. Cases Nos. 06-CA-2083, 26-CA-2103, and
36-CA-92103-4. February 23,1966
DECISION AND ORDER
On October 26, 1965, Trial Examiner Louis Libbin issued his
Decision in the above-entitled cases, finding that the Respondent had
157 NLRB No. 7.