Local 3, IBEW

National Labor Relations Board - Board Decisions

Sep 12, 1975

220 N.L.R.B. 249 (N.L.R.B. 1975)

LOCAL 3, IBEW 249
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO and Wickham Contracting Co.,
Inc. Case 29-CB-1992
that the resolutions are incorrect. Standard Dry Wa/I Products, Inc, 91
NLRB 544 (1950), enfd 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
APPENDIX
September 12, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On May 28, 1975, Administrative Law Judge Anne
F. Schlezinger issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and orders that Respondent Local 3, Interna-
tional Brotherhood of Electrical Workers, New York,
New York, its officers , agents , and representatives,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 1(a):
"(a) By threats and picketing, restraining and
coercing Wickham Contracting Co., Inc., in the se-
lection of its representatives for the purposes of col-
lective bargaining or the adjustment of grievances,"
2. Substitute the attached notice for that of the
Administrative Law Judge.
'Although we find, in agreement with the Administrative Law Judge,
that Respondent violated Sec . 8(b)(IXB) of the Act, we do so solely on the
grounds that the effect of Respondent's threats and picketing was to restrain
and to coerce Wickham Contracting Co, Inc, in its retention of the United
Construction Contractors Association as its designated representative for
the purpose of collective bargaining and the adjustment of grievances.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, by threats or picketing, restrain
and coerce Wickham Contracting Co., Inc., in
the selection of its representatives for the pur-
poses of collective bargaining or the adjustment
of grievances.
WE WILL NOT in any like or related manner
restrain or coerce Wickham Contracting Co.,
Inc., in the selection of its representatives for the
purposes of collective bargaining or the adjust-
ment of grievances, in violation of Section
8(b)(1)(B) of the National Labor Relations Act,
as amended.
LOCAL 3, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge: Upon
a charge filed on December 6, 1974, by Wickham Con-
tracting Co., Inc., referred to herein as Wickham or the
Charging Party, the General Counsel, by the Regional Di-
rector for Region 29, issued a complaint and notice of
hearing on January 6, and an order amending the com-
plaint on January 7, 1975 , alleging in substance that Local
3, International Brotherhood of Electrical Workers, AFL-
CIO, herein called the Respondent, restrained and coerced
the Charging Party in the selection of its representatives for
the purposes of collective bargaining and the adjustment of
grievances, in violation of Section 8(b)(1)(B) of the Act.
The Respondent, in its answer duly filed, admits some of
the factual allegations of the complaint, but denies the un-
fair labor practice allegations.
Pursuant to notice, a hearing was held before me at
Brooklyn, New York, on March 5 and 6, 1975. All the
parties appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine wit-
nesses , and to introduce relevant evidence. Counsel made
opening statements at the beginning of the hearing and
closing remarks at the end of the hearing, and, subsequent
to the hearing, briefs were filed by the General Counsel
and the Respondent on or about March 31, 1975, all of
which have been fully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I make the following:
220 NLRB No. 51
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
Wickham is, and at all times material herein has been, a
corporation duly organized under, and existing by virtue
of, the laws of the State of New York, with its principal
office and place of business in the city of Pelham, County
of Westchester, State of New York, herein referred to as
the Pelham office. It is, and at all times material herein has
been, engaged in providing electrical installation, contract-
ing, and related services at various construction jobsites in
the State of New York. During the calendar year 1974,
Wickham's total income for services performed as an elec-
trical contractor was approximately $3 million, its services
performed for firms located outside the State of New York
had a total value of approximately $1,150,000, and it pur-
chased from firms located outside the State, and caused to
be transported to jobsites in the State, supplies valued at
over $200,000 for certain Wickham-Perone joint ventures,
and supplies valued at over $50,000 for its operations.' The
Board, in a representation case involving the parties herein,
designated Wickham as one of the employer-members of
an association. I find, as the complaint alleges, that Wick-
ham is, and at all times material herein has been, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the Respondent in its answer ad-
mits, and I find that the Respondent is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act. I also find that the
Teamsters, which was an intervenor and appeared on the
ballot in the representation case, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that, at all times material herein,
Wickham has been represented by the United Construc-
tion Contractors Association, herein called the Associa-
tion,2 for the purposes of collective bargaining and the ad-
justment of grievances with Local 363, International
Brotherhood of Teamsters, herein called the Teamsters, as
the representative of Wickham's employees; that Wickham
and other members of the Association were parties to a
collective-bargaining agreement with the Teamsters effec-
tive from November 15, 1970, to November 14, 1973, con-
taining an annual automatic renewal clause;3 that on Au-
1 Anthony Biele, who purchases supplies for Wickham and for the Wick-
ham-Perone joint ventures, testified that he makes no purchases for Perone
separately The Wickham- Perone relationship is further discussed in sec
II1,C,below
2 Counsel for the Charging Party stated at the hearing that he was counsel
also for the Charging Party as a member of the Association
7 Local 819 of the Teamsters, which was signatory to this agreement, was
succeeded by Local 363 about a year ago
gust 17, 1973, the Respondent filed a petition for certifica-
tion as the representative of the employees of all the em-
ployers party to the Association-Teamsters agreement; that
an election was held in such multiemployer unit on Sep-
tember 19, 1974, the result of which awaits resolution of
the determinative challenges and the objections to the elec-
tion filed by the Respondent; that on various dates in or
about July, October, and December 1974, the Respondent,
by its agents Van Arsdale and Rosenberg, demanded that
Wickham recognize and bargain with the Respondent on
an individual basis, and has since about these dates been
picketing Wickham locations, with an object of forcing and
requiring Wickham to abandon the Association as its bar-
gaining representative, and to force or require Wickham to
recognize and bargain collectively with the Respondent on
an individual basis; and that the Respondent by such con-
duct restrained and coerced an employer in the selection of
his representatives for the purposes of collective bargaining
and the adjustment of grievances, and thereby engaged in
and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(I)(B) and Sec-
tion 2(6) and (7) of the Act.
The Respondent, in its answer duly filed, admits that
Van Arsdale and Rosenberg, business manager and busi-
ness agent of the Respondent, are, and at all times material
herein have been, agents of the Respondent acting on its
behalf; states that it lacks knowledge or information suffi-
cient to form a belief as to the truth of the allegations
regarding Wickham's business operations; denies that
Wickham has been represented by the Association at all
times material herein; denies the unfair labor practice alle-
gations; and demands that the complaint be dismissed.
B. The Representation Case
Pursuant to the petition filed by the Respondent seeking
representation of the employees in a multiemployer unit of
Association members, the Board issued a decision finding
that the record lacked sufficient information as to the iden-
tity of the Association members, and remanded the case
for further proceedings. Thereafter the Board, in a Supple-
mental Decision, named a number of "individual employ-
ers whose employees are included" in the associationwide
unit,5 one of whom was Wickham. An election was direct-
ed in this unit, and was held on September 19, 1974. At the
time of the hearing herein, issues as to determinative chal-
lenges and objections to the election filed by the Respon-
dent were not yet resolved.
C. The Wickham -Perone Relationship
Anthony Biele, referred to herein as Biele, is the presi-
dent of Wickham. The only other officer of Wickham is his
brother, Albert, who is the secretary. Biele testified that
Wickham has been a member of the Association since
Wickham was established about 7 years ago, first as a part-
nership and later as a corporation; that he attends meet-
ings of, and pays dues to, the Association, and has at all
4 United Construction Contractors Association , 210 NLRB 61 (1974).
5 United Construction Contractors Association, 212 NLRB 767 (1974).
LOCAL 3, IBEW
times been a member in good standing ; and that the Asso-
ciation bargains collectively with the Teamsters for the
Wickham employees, Wickham is a party to the Associa-
tion collective-bargaining agreements with the Teamsters,
and Wickham has no individual contract with any union.
Ralph Perone is a licensed electrician and the sole owner
of his electrical contracting business . He is not a member
of the Association, but his employees are members of the
Teamsters , and he is party to separate collective -bargaining
agreements with that organization.
Biele testified that Wickham contracts to perform elec-
trical work on construction projects which it performs with
its employees . He also testified that on certain municipal
projects, the city of New York requires that the work be
done by a licensed electrical contractor; that as Wickham
does not have such a license while Perone does , on work
for the city of New York agencies within the city, Wick-
ham and Perone operate as a joint venture , with Wickham
providing the funds and bonding capital, and Perone per-
forming the work with its employees ; but that , on state and
Federal Government jobs within or beyond city limits,
Wickham operates separately. Wickham and Perone have
offices at the same location in Pelham , but maintain sepa-
rate payrolls and separate personnel, although some of
their employees , including some of Biele's brothers , switch
back and forth between Wickham and Perone jobs, de-
pending upon the need for their services at a particular
jobsite , at times within the same week , in one instance in
the course of I day. The employees are paid separately,
however, by Wickham or by Perone, on the basis of the
jobsite on which their work was performed.
D. Respondent 's Demands on Wickham for Recognition
1. The first demand by Rosenberg
Albert Biele, secretary of Wickham, testified that Rosen-
berg, an admitted agent of the Respondent , came to the
Wickham office one day in about April, May, or June; that
Comins , an electrical engineer , Biele, and possibly Perone,
were present ; that Rosenberg during the discussion said
the Respondent had a pool of good men and a good train-
ing program, Wickham would be better off with the Re-
spondent than with the Teamsters, and Wickham would
not have the troubles it was then having if it joined the
Respondent; that Rosenberg asked if the Bieles would
agree to a meeting with the Respondent to discuss this; and
that he agreed.
Comins , an electrical engineer , who testified that he has
been employed by Wickham for 2 years and is not a mem-
ber of the Teamsters , also testified that Rosenberg came to
the office in about May or June, and said it would be
better for Wickham to have members of the Respondent in
lieu of members of the Teamsters,6 the Respondent had
men available with better training, and Wickham was hav-
6 Counsel for the Respondent cross-examined Comms at length about use
of the phrase "in lieu of," and Rosenberg, called as a witness for the Re-
spondent , testified that this phrase is not part of his vocabulary Comms
testified , however, that he used the phrase not as a quotation but in stating
the substance of what Rosenberg said.
251
ing various job problems it would not have with employees
who were members of the Respondent; that he, Comins,
pointed out Wickham could not do this because of the
Association contract; and that, at Rosenberg's request,
there was agreement to have a meeting to discuss the mat-
ter with the Respondent.
Perone testified that Rosenberg's visit to the office was
in May; that Rosenberg said there would be fewer prob-
lems, and the benefit of a pool of trained men, if Wickham
joined the Respondent; and that no agreements were
reached.
Rosenberg, who has been a business representative of
the Respondent about 8 years, testified that he visited the
Pelham office in the spring and met with Biele and his
brother Albert; that he thought Perone and Comins were
also there; that "I discussed ... to the best of my recollec-
tion, the advantages of Wickham Electric signing an agree-
ment with Local Union 3. That we have their men, some of
their men, who we feel want to come into Local Union 3.
We represent some of their men. I spoke to them about the
advantages of Wickham Electric signing an agreement with
Local Union 3." He also testified that "What I said was,
that the men who are employed by Wickham, that want to
come into 3, we consider them as part of Local Union 3,
and I never said to Mr. Biele , and his associates, that they
should replace their men with our men." Rosenberg also
testified that the answer made to him was that "We're real-
ly not ready, at this time, to come into Local 3"; and that
he concluded the discussion by stating that this was their
first meeting, that "Part of my job as a business representa-
tive is meeting with employers and the men, and trying
to-and have the employer think about coming into our
labor organization," and that there would be further meet-
ings . Rosenberg admitted that he knew at the time of this
meeting that Wickham was a member of the Association.
2. The second demand by Rosenberg
Biele testified that Rosenberg telephoned his office and
asked for a meeting, each to appear alone; that he wanted
to ask Rosenberg why Wickham had been notified on July
22 that it could no longer perform certain school construc-
tion work it had been doing for the Board of Education in
the city of New York, so agreed to the meeting; and that
they met in a restaurant on July 24. Biele testified further
that Rosenberg urged him to sign a contract with the Re-
spondent, and stated that if he did the Respondent would
provide a well-trained crew to complete the work at the
Board of Education jobsites, and would give Wickham fair
treatment; but that he replied he could not do this as he
was a member of the Association, his men were members
of the Teamsters, and he could not select another union for
his employees.
Rosenberg testified that during this meeting at the' res-
taurant, which lasted for hours,? "I told Mr. Biele that I
represented the men working for him, a good many of the
men working for him, perhaps dozens of men who were
i Counsel for the Respondent asked a number of questions of Biele and of
Rosenberg about how much wine was consumed by Biele with the dinner,
but Rosenberg testified that "I was drinking the wine with Mr Biele," and
that neither he nor Biele was drunk
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Wickham Electric, and that these men told
me that they want to come into Local 3, that I represented
these men, and that I asked Mr . Biele if he would consider
coming into Local 3, signing an agreement with Local
Union 3, being that I represented his men, most of his
men." Rosenberg also testified that Biele asked questions
about how his men would be classified by the Respondent,
and that he replied they would be classified according to
whatever designation was given them by Biele , that the
Respondent does not classify these men and does not even
know if they are electricians. He testified further that dur-
ing that conversation with Biele, "I often asked him when
do you think he'd be ready to come into Local 3, and he
said it might take him a year or two"; and that he told
Biele, "We had Wickham 's men out on strike , and we con-
sidered their men our men, and what we wanted is for Mr.
Biele to sign an agreement with Local Union 3, and then
the men who were out on strike would then go back to
work for Wickham Electric. At no time did I say to him
that we'll take away his men and give him our men." Ro-
senberg also testified that, while he knew Wickham was a
member of the Association, he did not mention Associa-
tion bargaining when he asked Biele to sign an agreement
with the Respondent.
An Excelsior list of names was submitted in connection
with the Board election on or about August 6, 1974. Rosen-
berg testified that when he noticed that the list did not
contain the names of all the Wickham employees the Re-
spondent had out on strike he made inquiries of the em-
ployees and learned "there was a Wickham Electric, and a
Wickham-Perone Electric, and that the men that we had
out on strike, who were employed by Wickham, their
names did not appear on the list, because , after investiga-
tion, we found that they were also employed by Wickham-
Perone, and Wickham-Perone is not a-an Association
Employer"; that when "these electrical workers were em-
ployed on City jobs, and where a license was needed, they
would be employed by Wickham- Perone . When they were
working on jobs where no license was needed, they would
be employed by Wickham"; and that he was at the Pelham
office only once and "when I was there, I had the under-
standing that . . . Wickham was the Employer there."
Rosenberg also testified that when he learned about the
Wickham-Perone setup he directed, shortly after the elec-
tion, which was held on September 19, 1974, that a picket
line be set up with signs stating that Wickham-Perone em-
ployees were on strike.
3. The demand by Van Arsdale
After the Respondent had been picketing the Pelham
office for about a week, one of the pickets came up to the
office and asked if Biele would meet with Van Arsdale,
business manager of the Respondent, and offered, if Biele
agreed, to discontinue the picketing in good faith. Biele
agreed, and a meeting with Van Arsdale took place at a
restaurant on October 7, 1974. Albert Biele and Perone
accompanied Biele.
Biele testified that Van Arsdale said that the Respondent
had all Wickham's men so Wickham presumably was
ready to join the Respondent; that he said that was not
true as only about three of his men quit Wickham and
apparently joined the Respondent; that Van Arsdale said a
lawsuit Biele and Perone had filed against the Board of
Education for removing them from certain school con-
struction jobs was "a waste of time" but could be contin-
ued after Wickham joined the Respondent; that Van Ars-
dale argued that it would be a good idea for Wickham to
join , and sign a contract with, the Respondent, which had
a pool of well-trained men; that he responded that he was
a member of the Association, that the election vote in
which his employees participated was being evaluated by
the Board, and that it was not for him to decide his em-
ployees should be in the Respondent; that Van Arsdale
said Wickham could quit the Association and have the
Wickham employees vote again, separately, to go into the
Respondent; and that, when it appeared that Wickham
was not going to join the Respondent, Van Arsdale raised
a question about Wickham conforming with city job speci-
fications.
Albert Biele testified as to this meeting that Van Arsdale
said that the Respondent had all the Wickham employees,
and that Wickham would be better off with the Respon-
dent, which had good men available, and asked if Wick-
ham was willing to sign a contract with the Respondent.
He also testified that Biele in reply said Wickham belonged
to the Association, which had a contract with the Team-
sters, so he could not join the Respondent except through
the Association, and a representation election had been
held by the Board but the results were not yet known; and
that Van Arsdale then said Wickham could pull out of the
Association and have a separate election.
Perone testified that Van Arsdale at this meeting com-
mented that this matter must be important as he never
meets with contractors but has business agents to do so;
that he then said he guessed they were ready to sign up;
and that, when one of the Bieles asked what he meant, Van
Arsdale said the Respondent had all their men. Perone also
testified that Van Arsdale argued that Wickham would
benefit in a number of ways by going with the Respondent,
which had many trained and experienced men; and that
Wickham could tell its men to vote for the Respondent and
go over legally as an individual contractor. He also testified
that Van Arsdale, upon learning that Perone had a sepa-
rate contract with the Teamsters, asked if Perone would
consider coming into the Respondent, but he replied that
he already had an excellent pool of men, that his men were
represented by the Teamsters, and that he could not select
a different representative for them. Perone testified further
that when he or the Bieles pointed out that they were
harmed by being thrown off the school jobs, Van Arsdale
assured them they could continue their lawsuit as a mem-
ber of the Respondent; and that Van Arsdale also said he
could make it "very beneficial" if they went with the Re-
spondent "because there were specs written up for City of
New York jobs, and certain things could be done to make
sure the letter of the spec was done on every job, and that
he was going to have a meeting with certain people to make
sure all contractors in the City of New York, not specifical-
ly stating us, were living up to the letter of the spec." Per-
one also testified that nothing was agreed on at this meet-
ing.
LOCAL 3, IBEW 253
Van Arsdale was not called as a witness. Counsel for the
Respondent explained at the close of the hearing: "Mr.
Van Arsdale did not appear here to controvert the testimo-
ny with respect to his conversation because whatever inac-
curacies there were in the account of that conversation,
and a conversation did take place, were not factually suffi-
cient to affect the legal position of the Respondent in this
case. So, we decided to obviate Mr. Van Arsdale spending
time here. We do have a 35,000 man Union involved, and
Mr. Van Arsdale also has other matters that go beyond the
scope of this particular Local Union."
E. Respondent's Picketing of Wickham
Wickham entered into a contract to perform electrical
work for Downstate Medical Center, a New York State
institution, and Wickham employees began work there in
about January 1973. Wickham-Perone as a joint venture
contracted to do electrical work on Kings County Hospital,
a New York City institution, and Perone employees began
work there in July 1974. These two projects are located in
Brooklyn across the street from each other.
Rosenberg testified that, when he saw the Excelsior list
submitted by Wickham for the Board election, "I noticed
the employees of Wickham Electric on the list, and it did
not include all the names of the people that we had out on
strike"; that he made inquiries; and that "I found that
there was a Wickham Electric, and a Wickham-Perone
Electric, and that the men we had out on strike, who were
employed by Wickham, their names did not appear on the
list, because, after investigation, we found that they were
also employed by Wickham-Perone, and Wickham-Perone
is not a-an Association Employer. So that there was no
Excelsior List for Wickham-Perone, just for Wickham."
Rosenberg testified further that, shortly after the Board
election held on September 19, he directed that a picket
line be placed in front of the Pelham office, and "I in-
structed that the signs say that, regular picket signs, Wick-
ham-employees of Wickham-Perone are out on strike."
He continued, however, that "We have various signs. Some
of the signs indicate that the Employer, Wickham-Perone,
does not pay fair wages. There's many different types of
signs that we use in our various picketing duties. . . . We
have many types of signs. . . . Some are printed commer-
cially, and some we print by hand." Rosenberg testified
that he did not recall any signs referring only to Wickham,
but admitted that he had difficulty recalling what the vari-
ous signs said after more than a year, and explained that "I
really didn't know the relationship between Wickham and
Perone."
Biele testified that the Respondent began picketing at
the Pelham office in early October, a few weeks after the
Board election. He testified further, as Perone did also,
that there were hundreds of pickets in front of the office
one day, but that other than that one day there were only
about 10. Biele also testified that picketing went on from
about 10 a.m. to 4 p.m. every day except when the weather
was bad. Biele and Comins testified that some of the signs
carried by the pickets at the office said Wickham employ-
ees were on strike. Biele also testified that none of his em-
ployees were on strike at that time.
As noted above, a picket at the Pelham office promised
that the picketing would be discontinued in good faith if
the Bieles agreed to meet with the Respondent to discuss
the situation. The picketing did stop when the Bieles prom-
ised to do so, and met, as described above, with Van Ars-
dale. Biele testified that a few weeks later the Respondent
resumed picketing at the Wickham office; that, at the time
of the hearing herein, this picketing was still going on from
about 10 a.m. to 2 p.m. every day except on holidays and
in bad weather; and that the picket signs carried in front of
the office varied, with some saying "Employees of Wick-
ham on strike," some saying "Employees of Wickham-Per-
one on strike," some saying the strike was for recognition
and decent wages, and all carrying the Respondent's name
and some also the Respondent's address.
Biele testified also that the Respondent began picketing
at the Downstate Medical Center and Kings County Hos-
pital jobsites on or about December 3. Biele, Perone, and
Schlau, a Perone employee, testified that on or about De-
cember 3 there were approximately 100 pickets at these
jobsites. Other than that one day, the picketing has contin-
ued, in accord with a police order, with about 6 to 10 pick-
ets. Biele testified further that the picketing was at the main
entrance to the Downstate Medical Center, a Wickham
project, and at the entrance to the building at the Kings
County Hospital where the electrical work was being per-
formed, a joint venture jobsite, and that some of the signs
used at the jobsites indicated employees of Wickham-Per-
one were on strike for recognition and decent wages. There
is evidence that some Wickham employees left their jobs
and became members of the Respondent, but, Biele testi-
fied, none of the Wickham employees were on strike at this
time, and all of the Wickham employees continued to work
during the picketing.
The Respondent introduced into evidence photographs
of a group of 11 pickets, shown in front of the Downstate
Medical Center and the Kings County Hospital jobsites,
carrying signs stating that "The Electricians of Wickham
Perone Co. on strike, Pays Sub-Standard Wages, we want
all Electrical Workers to be paid decent wages," followed
by the Respondent's name. The Bieles and Perone stated
that they did not see these signs, and Biele testified that
prevailing wages were paid at both jobsites.
Concluding Findings _
I found Anthony Biele, Albert Biele, and Perone candid
and straightforward witnesses. Any discrepancies in their
descriptions of events appeared to result from memory
lapses due to the passage of time, not from any desire to
misrepresent what occurred. Moreover, one of the
Respondent's agents here involved, Van Arsdale, did not
testify, and the other, Rosenberg, in large part confirmed
the testimony of the Bieles and Perone. To the extent that
Rosenberg's testimony is in conflict with theirs, I found
them more convincing witnesses, and I credit their testimo-
ny.
The Board in the representation case found Wickham to
be an employer-member of the Association whose employ-
ees were involved in the election, and Biele testified credi-
bly that Wickl am has continued at all times to be a mem-
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her in good standing of the Association. Perone has never
been a member of the Association, and his employees were
not included in the election unit.
The Respondent urges that Wickham could withdraw
from the Association, that most of the Wickham employees
had become members of the Respondent, and, therefore,
that its agents could lawfully demand recognition by Wick-
ham. Wickham, however, chose to remain a member of the
Association, the evidence does not establish that most of
the Wickham employees were members of the Respondent,
and the question concerning representation of the Wick-
ham employees was before the Board. The Respondent
also argues in its brief that Biele produced no exhibits
showing picket signs that referred to Wickham separately,
and also that Biele never showed the Respondent docu-
ments as to which were Wickham and which were joint
venture jobsites. I credit Biele 's testimony as to the picket
signs , however, and, further, I find no obligation on Biele's
part, in the circumstances of this case, to have shown the
Respondent documents identifying whose jobsites these
were. Counsel for the Respondent stated at the hearing
that he does not question the correctness of the Board's
finding that Wickham was an employer and a member of
the Association, and he admitted that Rosenberg knew
this. Rosenberg's testimony shows that he knew this, and
also that he was aware of the Wickham-Perone relation-
ship. The Respondent urges nevertheless that the evidence
does not show that Wickham has at all times continued to
be a member of the Association, and argued at the hearing
and in its brief that Wickham and Perone should be found
to constitute a single employer, so that the Respondent
could not picket one without picketing the other. The Re-
spondent, however, presented no credible or probative evi-
dence showing that Wickham's employer status has
changed since the Board decision, or showing that Wick-
ham and Wickham-Perone constitute a single employer for
purposes of this proceeding.
It is apparent, from the credited testimony and the rec-
ord as a whole, and I find, that Wickham, Perone, and
Wickham-Perone as a joint venture, are separate entities,
and that Wickham has been an employer and a member of
the Association at all times material herein. The record
also establishes, and I find, that the Respondent's agents,
although aware of Wickham's status, nevertheless demand-
ed that Wickham, without awaiting a Board determination
of the representation case issues , withdraw from the Asso-
ciation, direct its employees in a separate election to desig-
nate the Respondent, and enter into a contract with the
Respondent. I find, further, that the Respondent's agents
threatened that Wickham would continue to be faced with
certain problems if it refused to comply with these de-
mands whereas these problems would be resolved if Wick-
ham agreed to enter into a contract with the Respondent.
It is also apparent, and I find, from the credited testimony
as to statements made by the Respondent's agents and as
to the picketing, that the Respondent sought to force Wick-
ham to comply with its demands by picketing Wickham's
office, on one occasion with hundreds of pickets, and by
picketing a Wickham jobsite, on one occasion with about
100 pickets.
In conclusion, therefore, I find that the Respondent, by
the conduct of its agents Rosenberg and Van Arsdale,
knowing that Wickham was a member of the Association
which bargained collectively with the Teamsters on behalf
of Wickham's employees, and knowing that the question as
to their representation was before the Board, nevertheless,
on various dates, beginning in about June 1974 and contin-
uing to date, demanded that Wickham recognize and bar-
gain with the Respondent as the exclusive collective-bar-
gaining representative of the Wickham employees, on an
individual basis, threatened continuing problems if Wick-
ham refused, and picketed Wickham at its office and job-
site, as a separate entity and as part of a joint venture, with
an object of forcing Wickham to abandon the Association
as its bargaining representative and to force Wickham to
recognize and bargain with the Respondent on an individ-
ual basis, and that the Respondent, by such acts and con-
duct, restrained and coerced an employer in the selection
of his representatives for the purposes of collective bar-
gaining or the adjustment of grievances, in violation of Sec-
tion 8(b)(1)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, and found to constitute unfair labor practices, oc-
curring in connection with the business operations of the
Charging Party set forth in section I , above , 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(b)(1)(B)
of the Act, I shall recommend that the Respondent be or-
dered to cease and desist therefrom and in any like or relat-
ed manner restraining or coercing Wickham Contracting
Co., Inc., in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of griev-
ances, and that it take certain affirmative action designed
to effectuate the policies of the Act.
The General Counsel urged, at the hearing and in its
brief, that the Respondent be ordered not only to cease
and desist from the violations found with regard to Wick-
ham, but also with regard to any other employer member
of the Association, while the Respondent argued that such
an order was not appropriate. I do not find such a broad
order warranted by the evidence in this case.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Wickham Contracting Co., Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local 3, International Brotherhood of Electrical
Workers, AFL-CIO, and Local 363, International Brother-
LOCAL 3, IBEW
hood of Teamsters , are labor organizations within the
meaning of Section 2(5) of the Act.
3. By restraining and coerceing Wickham Contracting
Co., Inc., in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of griev-
ances , the Respondent has violated Section 8(b)(1)(B) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, Local 3, International Brotherhood of
Electrical Workers, New York, New York, its officers,
agents, and representatives , shall:
1. Cease and desist from:
(a) By demands for recognition , threats , and picketing,
restraining and coercing Wickham Contracting Co., Inc.,
in the selection of its representatives for the purposes of
8 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
255
collective bargaining or the adjustment of grievances.
(b) In any like or related manner restraining or coercing
Wickham Contracting Co., Inc., in the selection of its rep-
resentatives for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix." 9 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by one of its author-
ized representatives, shall be posted immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Return to the Regional Director for Region 29, by
mail or otherwise, signed copies of said notice for posting
by Wickham Contracting Co., Inc., if willing, at its busi-
ness offices and jobsites where notices to its employees are
customarily posted.
(c) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
9In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"