Local 3, International Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Jul 18, 1962

137 N.L.R.B. 1401 (N.L.R.B. 1962)

LOCAL 3, INT'L BROTHERHOOD ELECTRICAL WORKERS 1401
In arriving at the findings and conclusions on which my recommendations herein
are based , I have carefully considered and reconsidered all of the evidence adduced
at the hearing and have based my findings and recommendations on the entire record
in this case.
Upon the basis of the foregoing findings of fact, and upon the 'entire record in this
case, •I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer as defined in Section 2(2) of the Act, is engaged
in commerce and in operations affecting commerce as defined in Section 2(6) and (7)
of the Act, and it will effectuate the policies and purposes of the Act to assert
jurisdiction in this case.
2. The Union is a labor organization as defined in Section 2(5) of the Act.
3. By interrogating employees Pate, Birchler, and Martin as to their membership
in and activities on behalf of the Union, on and after April 13, 1961, and by
bargaining with them directly on and after April 16, 1961, the Respondent interfered
with, coerced, and restrained them in the exercise of the Tights guaranteed them in
Sections 7 and 8 of the Act, in violation of Section 8(a)(1) thereof.
4. By failing and refusing, on April 11, 1961, and at all times thereafter, to
recognize and bargain with the Union as the exclusive collective-bargaining rep-
resentative of its employees in an appropriate unit of all over-the-road truckdrivers
employed by it at its Evansville, Indiana, establishment, excluding city truckdrivers,
office clerical employees, professional employees, guards, and supervisors as defined
in the Act, and by, on and after April 16, 1961, bargaining directly with the em-
ployees in said unit, the Respondent refused to bargain with the Union in violation
of Section 8(a) (5) and (1) of the Act.
5. The foregoing findings of violations, by the Respondent, of Section 8(a)(1)
and (5) of the Act, are findings of unfair labor practices, as defined therein, tending
to lead to a labor dispute or disputes which would have a substantial effect on the
Respondent 's business operations in commerce as defined in Section 2(6) of the Act.
[Recommendations omitted from publication.]
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO and Jack Picoult and Al Picoult d/b/a Jack Picoult.
Case No. 2-CP-122. July 18, 1962
DECISION AND ORDER
On April 23, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent 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 Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
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].
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 Inter-
137 NLRB No. 138.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent with its
decision herein.
1. We agree with the Trial Examiner's conclusion that Respond-
ent's picketing herein violated Section 8(b) (7) (C) of the Act.
Sometime in October 1961, and again on November 27, 1961, Dob-
bins, a business agent of the Respondent, requested the Employer to
sign an agreement covering electricians at work on a post office renova-
tion job. These requests were rejected and, on November 24, Respond-
ent began picketing Picoult.
The picket sign initially used by the Respondent stated that the
electricians working on the job were not members of the Respondent.
In the latter part of December 1961, or early in January 1962, the
Respondent changed the picket sign to state that the electricians were
receiving "substandard wages and inferior working conditions." On
numerous occasions, including the period subsequent to the change in
the picket sign language, picketing took place at the delivery en-
trances to the post office. A truckdriver assigned to deliver certain
electrical equipment to the Employer early in January 1962, testified
without contradiction that, when he drove up to the picket line, he
was stopped by one of the pickets who told him, "We're on strike.
Don't you see the picket sign?" The picket then summoned the picket
captain, who waved the driver away ; the delivery was not made.
On February 1, 1962, the Regional Director for the Second Region
petitioned the district court for an injunction against the picketing.
In the district court proceeding, the record of which was made a part
of the record herein, Dobbins testified that the picketing was intended
to protest the General Services Administration's action in awarding
the contract for the renovation of the post office to an unlicensed con-
tractor doing inferior electrical work. On cross-examination, how-
ever, he admitted that, if the Employer had a contract with the Re-
spondent, there would have been no picketing.' At the hearing, the
Respondent's attorney declared that the object of its picketing was,
first, to induce the employer to subcontract the electrical work to a
contractor who would sign a collective-bargaining agreement with
the Respondent and, failing that, to secure the cancellation of the
employer's contract by the,General Services Administration.
Like the Trial Examiner, we find that the Respondent picketed the
Employer herein with an object of forcing or requiring it to recognize
or bargain with the Respondent as the representative of its employees.
The Respondent's efforts to gain recognition from the Employer and
'The district court granted a preliminary injunction . Ivan C. McLeod v. Local No. S.
International Brotherhood of Electrical Workers, AFL-CIO (Jack Pacoult ), 49 LRRM 2695
(D.C.E.N.Y.).
LOCAL 3, INT'L BROTHERHOOD ELECTRICAL WORKERS 1403
the picket sign initially used by it plainly show that the picketing be-
gan with a recognitional object 2
In the circumstances of this case, the mere change in the legend of
the picket sign does not show a change in purpose of the uninterrupted
picketing. It should be noted that the picket sign as changed did not
reflect either of Respondent's purported objectives. This conflict be-
tween the asserted objectives and the picket sign strengthens our con-
clusion that the Respondent was at all times seeking recognition or
bargaining from the Employer.'
We need not determine whether the Respondent's second picket sign
would have satisfied the informational picketing proviso of Section
8(b) (7) (C) or, if so, whether the picketing had a prohibited effect,
because we find that the picketing was not "for the purpose of truth-
fully advising the public (including consumers ) that an employer
does not employ members of, or have a contract with a labor organiza-
tion. . . ." The picketing at delivery entrances of the post office and
the truckdriver incident related above demonstrate that it did not have
such an information purpose but, rather, was focused on the employees
of secondary employers .4
Upon the entire record, we find that Respondent picketed Picoult
for recognition for more than a reasonable time after November 24,
1961, without filing a timely petition, and that it thereby violated Sec-
tion 8(b) (7) (C) of the Act.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
2 Local 130 , Brotherhood of Painters, Decorators and Paperhangers of America, AFL-
CIO (Joiner, Inc ), 135 NLRB 876.
3 Automotive, Petroleum 6 Allied Industries Employees' Union, Local 618, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Waorehousemen & Helpers of America
(Charles Schmitt and Stephen A. Schmitt d/b/a Charlie 's Car Wash and Service), 136
NLRB 93'4.
4 See Philadelphia Window Cleaners and Maintenance Workers' Union , Local 125
(Atlantic Maintenance Co.), 136 NLRB 1104. Member Leedom concurs in the result
reached by his colleagues and their rationale therefor except that, in addition thereto,
he finds that the picketing itself did not qualify as publicity picketing within the first
proviso to Section 8 ( b) (7) (C) because of the independent evidence of unlawful object in
that the Respondent made a demand upon the picketed Employer that the Employer
enter into a contract with the Respondent . See the dissenting opinions in Local Joint
Executive Board of Hotel and Restaurant Employees, etc. (Leonard Smitley and Joseph
W. Drown d/b/a Crown Cafeteria , a Co-partnership , 135 NLRB 1183, and in Chefs, Cooks,
Pastry Cooks and Assistants , Local 89, Hotel and Restaurant Employees Union, AFL-CIO,
at al. ( Stork Restaurant, Inc.), 135 NLRB 1173.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A copy of the charge herein was served upon Local 3, International Brotherhood
of Electrical Workers, AFL-CIO,' on December 26, 1961 , and the complaint issued
' Hereinafter called the Respondent.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on February 1, 1962. The hearing was held on March 7 and 8, 1962,2 at New York
City. The issue litigated was whether the Respondent had violated Section
8(b) (7) (C) of the Act by the conduct described below. All parties filed briefs after
the hearing.
Upon the entire record, and my observations of the witnesses,3 I hereby adopt the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF PICOULT
Jack Picoult and Al Picoult, doing,business as Jack Picoult, hereinafter called Pi-
coult, is a partnership, with its principal office in New York City,4 and is engaged
in construction work in New York State and elsewhere. Picoult annually performs
services valued in excess of $500,000, of which services valued in excess of $50,000
are performed in States other than New York. During the past year Picoult caused
to be transported directly to the State of New York from other States goods and
materials valued in excess of $50,000.
I find that Picoult is engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The complaint alleges that Respondent began to picket Picoult on or about Novem-
ber 24 , 1961 , with an object of forcing Picoult to recognize and bargain with the
Respondent as the representative of Picoult 's electrical employees ; that Respondent
was at no time the certified representative of such employees ; that Respondent failed
to file a petition under Section 9(c) of the Act with respect to such employees within
a reasonable time after the commencement of such picketing ; and that the Re-
spondent thereby violated Section 8 (b) (7) (C) of the Act.
The record shows that in the summer of 1961 Picoult was awarded a contract
for the renovation of the United States Post Office Building in Brooklyn, New
York; that thereafter, about August 1, 1961,5 Picoult entered into a prehire agree-
ment with Local 199, Industrial Workers of Allied Trades, affiliated with
Confederate Unions of America (hereinafter called Local 199), covering such elec-
trical employees as it might hire; 6 that it subsequently hired a maximum of 12
electrical employees for work on the post office project ; and that these were its only
direct employees on that project.?
Sometime in October , Jack Picoult was approached by Dobbins , one of Respond-
ent's business agents, concerning representation of the electrical employees on the
2 The hearing was held open by Trial Examiner Sidney Sherman until March 14 to afford
the parties opportunity to file additional exhibits. None having been filed by that date,
I issued an order on March 21 closing the hearing.
8 At the hearing, Respondent offered to place in evidence as an exhibit the entire record
in the case of Ivan C. McLeod v. Local No. S, International Brotherhood of Electrical
Workers, AFL-CIO (Jack Picoult), Case No. 62-C-115 (49 LRRM 2695] (D.C E N.Y ),
which was an action brought to enjoin the same picketing which is the basis for the in-
stant proceeding. The General Counsel interposed certain objections to the introduction
of that exhibit. However, he conceded that except for one typographical error (which was
corrected by stipulation), the transcript offered was an accurate record of the testimony
given in the injunction case. I admitted the foregoing exhibit, subject to the right of any
party to adduce testimony supplementing, correcting, or clarifying that contained in the
foregoing exhibit. It was my belief that the admission of the exhibit subject to these
safeguards would be consistent with the interests of justice and would substantially ex-
pedite the hearing. While my opportunity to observe the demeanor of the witnesses was
curtailed to some extent by this ruling, no prejudice in fact resulted therefrom to the
General Counsel, as I have resolved the credibility issues herein in favor of his witnesses.
A A few weeks prior to the hearing this office was moved to Fort Lee, New Jersey.
5 All events hereinafter related occurred in 1961, unless otherwise specified.
8 As this prehire agreement was not a bar to a representation petition, the General Counsel
did not deem Section 8(b) (7) (A) of the Act to be applicable to the picketing discussed
below.
7 The nonelectrical work was subcontracted by Picoult to various other firms.
LOCAL 3, INT'L BROTHERHOOD ELECTRICAL WORKERS 1405
project by the Respondent. The conflicting testimony as to the exact nature of Dob-
bins' overture will be discussed later. However, there is no dispute that Jack
Picoult told Dobbins that he was already under contract to Local 199, and that the
conversation ended on that note. On November 24, Respondent began to picket
the post office job with signs reading as follows:
ELECTRICIANS
Working on this job
employed by
Picoult [sic]
ARE NOT MEMBERS
of the
ELECTRICAL WORKERS
LOCAL UNION NO. 3
International Brotherhood of
Electrical Workers
AFL-CIO
On November 27, Dobbins had another conversation with Jack Picoult, in which,
according to the latter, Dobbins asked him to sign a contract with Respondent cover-
ing the electricians on the post office job. This testimony was contradicted by
Dobbins.
Sometime in December or early January the picket signs were changed to signs
bearing the following legend:
ELECTRICIANS
working for PICOULT
on this job receive
sub-standard wages
and inferior working
conditions
LOCAL UNION NO. 3
International Brotherhood
ELECTRICAL WORKERS
AFL-CIO
Picketing with these signs continued until February 28, 1962,8 when it ceased
pursuant to a court injunction.
It is clear that the Respondent was at no time certified by the Board as the rep-
resentative of any of Picoult's employees, and that no petition was filed with re-
spect to such employees under Section 9(c) of the Act until January 4, 1962.9
B. Discussion
Section 8(b) reads:
It shall be an unfair labor practice for a labor organization or its agents-
* * * * * * *
(7) to picket or cause to be picketed, . . . any employer where an object
thereof is forcing or requiring an employer to recognize or bargain with a
labor organization as the representative of his employees, . unless such labor
organization is currently certified as the representative of such employees:
* * * * * *
(C) where such picketing has been conducted without a petition under sec-
tion 9(c) being filed within a reasonable period of time not to exceed thirty
days from the commencement of such picketing: Provided, That when such a
petition has been filed the Board shall forthwith, without regard to the provisions
of section 9(c)(1) or the absence of a showing of a substantial interest on the
part of the labor organization, direct an election in such unit as the Board finds
to be appropriate and shall certify the results thereof: Provided further, That
nothing in this subparagraph (C) shall be construed to prohibit any picketing
or other publicity for the purpose of truthfully advising the public (including
8 On January 6, 1962, several thousand pickets appeared at the post office job with vari-
ous signs, including some with the foregoing legend. However, this mass demonstration
did not continue beyond January 6.
9 On that date a petition was filed by Local 199, in Case No. 2-RC-11769 (not pub-
lished in NLRB volumes). On January 8, another petition, involving the same employees,
was filed by Picoult in Case No. 2-RMMM-1182 (not published in NLRB volumes). No peti-
tion was ever filed by the Respondent.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consumers ) that an employer does not employ members of, or have a contract
with, a labor organization, unless an effect of such picketing is to induce any
individual employed by any other person in the course of his employment, not to
pick up, deliver or transport any goods or not to perform any services.
The issues raised by the contentions of the parties are:
1. Did Respondent 's picketing at all relevant times have as one of its aims the
proscribed object of forcing Picoult to bargain with it or was the picketing solely for
a purpose not proscribed by the Act?
2. If Respondent's picketing was at all times for a proscribed object, was it never-
the less protected by the "publicity proviso" in Section 8(b) (7) (C)?
1. Object of the picketing
To .prove that an object of Respondent's picketing was, at least at its inception, the
exaction of a contract from Picoult for the electricians on the post office job, the
General Counsel cites the testimony of Jack Picoult that in both his October and
November conversations with Dobbins, the latter demanded that Picoult sign a con-
tract with Respondent for the electricians, and that when Jack Picoult protested in
the November conversation that he was bound by the contract with Local 199, Dob-
bins retorted that the picketing would be "going on for quite some time here."
Respondent, on the other hand, points to Dobbins' testimony that (1) in October
he did not ask Picoult to sign a contract, but only requested that Picoult subcontract
the electrical work to one of the many licensed electrical contractors who had
collective-bargaining relations with the Respondent,1° and (2) his conversation with
Jack Picoult on November 27 related only to the misspelling of "Picoult" on the
original picket sign. I have determnied to resolve the credibility issue thus raised in
favor of the General Counsel, and, in so doing, have relied not only on the demeanor
of the witnesses," but also on the following considerations:
a. Jack Picoult's version of the crucial November conversation was corroborated
by Bogstrom, a construction engineer in the employ of a private architectural firm,
who had been designated by the General Services Administration to supervise Pi-
coult's performance on behalf of the Federal Government. It is not disputed that
Bogstrom was present at the conversation of November 27. He testified that "the
highlight of the conversation was" that Dobbins asked Jack Picoult "to change over
from Local 199 to Local 3," assuring Picoult that any legal problems raised by the
existing contract of Local 199 could be resolved by their attorneys.12 Dobbins' con-
trary version of the November conversation in uncorroborated.
b. Dobbins testified that neither of the members of the Picoult firm was licensed
as an electrical contractor by the city of New York,13 that it was the policy of the
Respondent to deal only with such licensed operators, and that it was because of this
policy that Dobbins did not seek a contract from Picoult but sought only in Octo-
ber to have Picoult subcontract the electrical work to a subcontractor dealing with
Respondent. However, even if such policy existed, it is clear that it was not an
inflexible one. Thus, there is undisputed evidence that on March 30, 1960, the Re-
spondent had entered into a written "stipulation" with an unlicensed employer (one
of Picoult's subcontractors on a different job, at the "Morgan Annex") governing the
working conditions of his electricians, and that, previously on October 20, 1959, the
Respondent had filed with the Board a petition seeking represented of the foregoing
electricians 14 as employees of that employer. Both the foregoing incidents are in-
compatible with a firm policy of not dealing with unlicensed electrical contractors.15
Although Dobbins attempted to minimize his familiarity with the foregoing devia-
1° Jack Picoult denied that any such request was made by Dobbins.
11 While the bulk of the testimony on this point appears in the court record, it was
supplemented by testimony before me given by both Jack Picoult and Dobbins. I was
thus afforded an opportunity to observe their demeanor in this context.
12 Jack Picoult's testimony also refers to this assurance.
13 The Picoults were not , in fact, so licensed. However, such a license was not re-
quired by law in work on Federal buildings, such as the instant post office job
14 Case No. 2-RC-10329 The Respondent attempted to explain the foregoing stipula-
tion as a special concession granted by the Respondent to terminate a prolonged strike.
However, no explanation was offered for the representation petition filed over 5 months
earlier.
1s Nor is it clear from the wording of the picket signs that Respondent was averse to
Picoult's hiring its members directly. In fact, the ordinary connotation of the original
signs-protesting the employment by Picoult of nonmembers of Respondent would seem to
be that the Respondent desired employment of its members by Picoult.
LOCAL 3, INT'L BROTHERHOOD ELECTRICAL WORKERS 1407
tion from the Respondent 's alleged policy in the case of one of Picoult 's subcon-
tractors on the Morgan Annex job, he admitted that, sometime in the latter part of
November in talking to a Board agent investigating .the instant case, Dobbins alluded
to the fact that "Picoult" had hired Respondent's members on the Morgan Annex
job.16 Moreover, even more significant is Dobbins ' further admission that in the
same conversation he deplored the fact that, after having hired Respondent's mem-
bers on the Morgan Annex job, Picoult "had not come back to our local [ i.e., the
Respondent ] instead of 199." It is difficult to reconcile this testimony with Dob-
bins' protestations at the hearing that he did not seek a contract with Picoult, and
would not accept one even if offered.
c. Dobbins ' credibility as to both the October and November conservations is
further impaired by his evasiveness under cross -examination , and by various patent
inconsistencies in his testimony ,17 in addition to those already noted.
Accordingly, I find that both in the October and November conversations Dobbins
requested Jack Picoult to sign a contract with Respondent covering his electricians,
which request the latter rejected . The conclusion is inescapable therefor that at
its inception at least one of the objects of the picketing was the enforcement of
Dobbins' request for a contract.18
The picket signs were changed ( according to Respondent ) in mid-December or
(according to Picoult ) early in January to proclaim that Picoult's electricians worked
under substandard conditions . The Board has recently held that picketing with such
signs does not in itself constitute a demand for recognition within the meaning
of Section 8(b)(7)(C). 19 However , in that case , there was , unlike here, no prior
demand for recognition 20 Where, as here, there is such a prior demand , the appli-
cable rule would seem to be the one laid down by the Board in Valley Knitting
Mills,21 as follows:
It is well settled that a mere change in the wording of a picket sign , a union's
self-serving declaration of disclaimer , or even a combination of both, does not,
of itself, suffice to establish that a union 's motive in continuing to picket . . . has
been diverted from its original objective of recognition.
Under the foregoing rule, a change in the wording of picket signs would not suffice,
even if coupled with an express disclaimer . It follows, a fortiori, that such a change
in wording would not suffice where, as here , it is unaccompanied by any express
10 Dobbins explained that he was at the time under the (mistaken) Impression that it
was Picoult, rather than his subcontractor, who was involved in the dispute at the
Morgan Annex However, the fact remains that Dobbins' statement reflected an aware-
ness that the Respondent had dealt on that job with an unlicensed contractor, whether
Picoult or another
11 Thus, notwithstanding his prior testimony in the injunction proceeding that in
October 1961, Jack Picoult referred to Local 199's contract as precluding any contract
with Respondent, Dobbins asserted under cross-examination before me that the only refer-
ence by Picoult to Local 199's contract was made in January 1962.
is The legend on the first picket signs, described above, is not inconsistent with this
view. Those signs announced that Picoult did not employ members of the Respondent.
While such legend may have imported "a present object of organizing" (Local Joint
Executive Board of Hotel and Restaurant Employees, etc (Leonard Smitley and Joseph
W Drown d/b/a Crown Cafeteria, a Co-partnership), 135 NLRB 1183), it did not con-
stitute a sufficient disclaimer of Dobbins' two demands for recognition, particularly as the
second such demand was made after the picketing began (Of course, picketing for an
organizational object would also run counter to Section 8(b) (7) (C). However, the com-
plaint alleges only recognition picketing and the case was litigated on that theory alone.)
10Houston Building and Construction Trades Council (Claude Everett Construction
Company), 136 NLRB 321 ; cf International Hod Carriers, Building and Common Laborers'
Union of America, Local No. 41, AFL-CIO (Calumet Contractors Association and George
DeJong), 133 NLRB 512
20 Also, here, unlike the Houston case, there was no competent evidence that Picoult was
not conforming to prevailing working conditions (While there was admitted in evidence
a letter from the Respondent to the General Services Administration protesting against
the award of any contract to Picoult, and pinking adverse reference to Picoult's 'N,ege
scale, this letter was competent only to prove that such protest had been made (see
footnote 22, below) and not to prove the truth of the facts recited therein )
21 Local 222, International Ladies' Garment Workers' Union, AFL-CIO (Valley Knitting
Mills, Inc.), 126 NLRB 441, 443. See, also, Automotive, Petroleum & Allied Industries
Employees Union, Local 618, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (Charles Schmitt and Stephen A Schmitt
d/b/a Charlie's Car Wash and Service), 136 NLRB 934.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclaimer. Moreover, it obviously does not aid the Respondent's case that Respond-
ent in effect concedes that the new wording on the picket signs did not even reflect
the true object of the picketing 22
I conclude therefore, that the picketing at all times had as an object forcing
Picoult to recognize, and bargain with the Respondent.
2. Effect of the "Publicity Proviso"
There remains the question whether the picketing is saved by the second proviso
to Section 8(b)(7)(C), quoted above. This proviso permits picketing by a union
for recognition if it is for the purpose of truthfully publicizing its dispute with the
employer, and does not cause employees of other employers to refrain from per-
forming services or making deliveries.
The Respondent contends that this proviso is not applicable because the picketing
did not have recognition as an object, but was aimed only at securing the cancella-
tion of Picoult's contract. For reasons already stated, this contention is rejected.
The Respondent next contends that there is no proof that the picketing caused any
stoppage of work or deliveries by employees of employers other than Picoult.
There is evidence in the record tending to show generally that work scheduled
to be performed by various subcontractors of Picoult was not performed during
the period of the picketing, and that suppliers refused during that time to make
deliveries to the jobsite. However, the only direct evidence that neutral employees
were induced by the picket line not to perform services or make deliveries consists
of the following:
Applebaum, an employee of United Roofing, Picoult's subcontractor, testified, with-
out contradiction, that when he came to work on the morning of November 24, he
decided not to cross the picket line and, returning to his employer's premises, advised
his employer that he would not cross the line. Applebaum testified further that
fellow employees of United Roofing who had been working with him at the post
office also returned ,to their employer's premises that morning, and that he did not
resume work at the post office job until March 5, about a week after the picketing
ceased.
Isele, a driver for a hauling firm, testified, without contradiction, that early in
January 1962 he attempted to make a delivery to Picoult at the jobsite; that he saw
a picket line there, and asked one of the pickets for the whereabouts of Picoult; that
the picket retorted, "We're on strike," whereupon Isele returned to his truck; and
that the picket, after offering to call the "picket captain," returned with another
individual, who made a gesture indicating that Isele was not to cross the picket
line. Isele then decided not to attempt to effect delivery.
In December, Hunt, a truckdriver for Consolidated Edison, approached the job-
site with a consignment for Picoult, was apprised by one of Picoult's electricians that
the picketing was directed against Picoult, and called his dispatcher, who, upon being
advised of the picket line, instructed Hunt not to effect delivery.
Bogstrom, who was supervising Picoult's performance on behalf of the General
Services Administration, testified (before me) that in the morning of January 5, he
saw pickets patrolling in the vicinity of a compressor which was being operated by
an employee of one of Picoult's subcontractors, and that later in the morning the
employee stopped the compressor. Jack Picoult testified on February 8 (in the
injunction proceeding) that this employee and his two coworkers had not up to that
time returned to complete their scheduled work.
I believe that the General Counsel has sufficiently shown and I find, ,that Applebaum
failed to perform services and Isele failed to make a delivery, because of the picket
line. In the case of Hunt, however, it appears that it was his dispatcher's instruction
which caused him not to make delivery. While his dispatcher presumably so in-
22 That object, according to Dobbins, was to advise the public of the alleged inferiority
of the work being done at public expense on the post office job by an "unqualified" elec-
trical contractor, in the hope that such adverse publicity would result in cancellation of
Picoult's contract According to Dobbins, similar union pressure had resulted in cancella-
tion of Picoult's contract on another Federal job. Moreover, the record shows that in
June 1961, the Respondent had urged the General Services Administration not to award
the instant job to Picoult. While this evidence is persuasive that it was an object of
Respondent's picketing to secure removal of Picoult from the post office job, I find, in
view of Dobbins' demands for recognition and the absence of any convincing evidence that
such demands were abandoned , that it was at least an alternative object of Respondent to
force Picoult to bargain with it. In other words, it was Respondent's strategy either to
obtain a contract from Picoult or force his removal from the job. Either result would
have suited Respondent 's purpose.
LOCAL 3, INT'L BROTHERHOOD ELECTRICAL WORKERS 1409)
structed Hunt because of the presence of the picket line, it seems questionable whether
the picketing is deprived of the protection of the publicity proviso where the causal.
relation between the picketing and the disruption of deliveries is so indirect. In any
event, I do not deem it necessary to resolve this question, since, in view of the findings.
above with respect to the Applebaum and Isele incidents, any finding of inducement
of Hunt would be cumulative. For the same reason, it is not necessary to decide
whether the evidence concerning the compressor operator is, in view of its circum-
stantial nature, sufficient to warrant a finding of such inducement as is contemplated
by the proviso.
I conclude, therefore, on the basis of the Applebaum and Isele incidents, that the
Respondent's picketing was not saved by the publicity proviso, and that, since such,
picketing at all tunes had as an object recognition of Respondent by Picoult and con-
tinued for more than 30 days without any representation petition having been filed,
the Respondent by such picketing violated Section 8(b)-(7),(C) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Picoult set forth in section I, above, have a close, inti-
mate, 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 the Respondent engaged in certain conduct violative of the Act,
it will be recommended that Respondent be ordered to cease and desist therefrom and,
to take certain affirmative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of the Act.
2. Picoult is an employer engaged in commerce or in operations affecting com-
merce within the meaning of the Act.
3. Respondent picketed Picoult for more than 30 days with an object of forcing
Picoult to recognize and bargain with the Respondent, notwithstanding that Respond-
ent was not currently certified as the representative of Picoult's employees.
4. Such picketing had the effect of inducing at least one employee of an employer
other than Picoult not to perform services and of inducing another such employee
not to make a delivery.
5. Such picketing violated Section 8(b) (7) (C) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent , Local 3, International Brother-
hood of Electrical Workers, AFL-CIO, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from picketing or causing to be picketed the premises of Jack
Picoult and Al Picoult d/b/a Jack -Picoult , where an object thereof is forcing or
requiring said employer to recognize or bargain with the Respondent as the repre-
sentative of its employees , in violation of Section 8(b) (7) (C) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post in the Respondent 's business offices and meeting halls, copies of the
notice attached hereto marked "Appendix ." 23 Copies of said notice , to be furnished
by the Regional Director for the Second Region , shall, after being duly signed
official representatives of the Respondent , be posted by the Respondent immediately
upon receipt thereof, and be maintained 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 the Respondent to insure that said
notices are not altered , defaced , or covered by any other material.
za If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to
a Decision and Order."
64985E-63-vol. 137-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Mail to the Regional Director for the Second Region signed copies of the
aforementioned notice for posting by the Charging Party, the Charging Party being
willing, in places where notices to employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director for the Second Region, shall, after
being signed by the Respondent, as indicated, be forthwith returned to the Regional
Director for disposition by him.
(c) Notify the Regional Director for the Second Region, in writing, within 20
days from the date of receipt of this Intermediate Report, what steps the Respondent
has taken to comply herewith.24
24 If 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, TO ALL EMPLOYEES OF JACK PICOULT AND
AL PICOULT D/B/A JACK PICOULT AND TO WHOM IT MAY CONCERN
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor Management Relations
Act, we hereby notify you that:
-WE WILL NOT picket or cause Jack Picoult and Al Picoult d/b/a Jack Picoult
to be picketed where an object thereof is to force or require Picoult to recognize
or bargain with us or any other labor organization, as the representative of its
employees, in violation of Section 8(b) (7) (C) of the Act.
LOCAL 3, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone Number Plaza 1-5500, if they have any
questions concerning this notice or compliance with its provisions.
International Association of Heat and Frost Insulators and
Asbestos Workers and Local 24, International Association of
Heat and Frost Insulators and Asbestos Workers and Speed-
Line Manufacturing Co., Inc. Cases Nos. 5-CC-186 and 5-CC-
187. July 18, 1962
DECISION AND ORDER
On March 12, 1962, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief. The General Counsel
filed a memorandum in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
137 NLRB No. 142.