Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Northern Telecom, Inc.)

National Labor Relations Board - Board Decisions

Oct 26, 1982

265 N.L.R.B. 213 (N.L.R.B. 1982)

LOCAL 3, IBEW
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO and Northern Telecom,
Inc. Case 2-CC-1743
October 26, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On June 21, 1982, Administrative Law Judge
Thomas T. Trunkes issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision, and the Charging Party
filed an answering brief in response to Respond-
ent's exceptions.
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, find-
ings,' and conclusions2 of the Administrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Although the Administrative Law Judge found that Northern Tele-
com's branch operations manager, Michael Zafarano, first telephoned Re-
spondent's office on December 15, 1981, with regard to the work stop-
page by Kleinknecht's employees, it is not completely clear from the
record that Zafarano first called Respondent's office about that matter
any time prior to December 23. However, even assuming Zafarano did
not make his first call until December 23, such a finding would not affect
the results of our decision.
Additionally, we find it unnecessary to rely on the Administrative Law
Judge's finding, based on his adverse inference from Respondent's failure
to call as a witness Brown, Kleinknecht's electrician foreman and a
member of Respondent, that all other members of Respondent were
aware of art. XIII, sec. 12, of Respondent's bylaws, which embodies Re-
spondent's "total job" policy.
I In adopting the Administrative Law Judge's conclusion that Re-
spondent is responsible for the work stoppage of Kleinknecht's employ-
ees, we agree with his findings regarding Respondent's continued mainte-
nance of the above-mentioned bylaw embodying its "total job" policy,
Respondent's failure to discipline its members who participated in the
work stoppage, and Respondent's responsibility for the statements and ac-
tions of foreman-member Brown. Additionally, we rely on the pattern of
harassment by Respondent against Northern Telecom, preceding the
events in the instant case, which is shown by Zafarano's testimony that
on two occasions in 1980, at a different jobsite, Joseph Siedel, a foreman
for Pacesetter Communications and a member of Respondent, told Zafar-
ano, inter alia, that Respondent was not going to stop pushing Northern
Telecom until it had all of Northern Telecom's work. In prior cases in-
volving Respondent, we have held that evidence of a pattern of harass-
ment by a respondent against a primary employer may constitute evi-
dence of the respondent's inducement and encouragement of subsequent
unlawful secondary activity directed at that employer. See Local Union
No. 3. International Brotherhood of Electrical Workers AFL-CIO (Forest
Electric Corp.), 205 NLRB 1102, fn. 1 (1973), and Local 3., International
Brotherhood of Electrical Workers. AFL-CIO (General Dynamics Commu-
265 NLRB No. 29
Judge and to adopt his recommended Order, as
modified herein.3
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 modi-
fied below, and hereby orders that the Respondent,
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO, Queens, New York, its offi-
cers, agents, and representatives, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph 1(b):
"(b) In any other manner inducing or encourag-
ing any member employed by a person engaged in
commerce or in an industry affecting commerce to
engage in action proscribed by Section 8(b)(4)(i) or
(ii)(B) of the Act in connection with enforcing a
work jurisdictional claim involving telephone inter-
connect work on projects on which Northern Tele-
com, Inc., or any other manufacturer, distributor,
or installer of telephonic equipment is employed."
2. Substitute the attached notice for that of the
Administrative Law Judge.
nications Company), 264 NLRB No. 96 (1982). We also rely on our prior
holdings that Respondent's history before this Agency demonstrates its
proclivity to engage in unlawful secondary activity in support of its claim
to telephone interconnect work being performed by employees represent-
ed by the Communications Workers of America. See, e.g., Local 3, IBEW
(General Dynamics Communications Company), supra, and cases cited
therein at fn. 5.
I We have modified par. l(b) of the Administrative Law Judge's rec-
ommended Order in order to more appropriately remedy the violation
found.
In view of the Administrative Law Judge's provision for a broad order
against Respondent, the posting of notices, the publication of the notice
in Respondent's newsletter, "Electrical Union World," and the mailing of
the newsletter in which the notice is published to all Local 3 members at
their home addresses, Member Fanning finds it unwarranted, based upon
the circumstances of this case, to also require the publication of the
notice in a newspaper of general circulation in the New York metropoli-
tan are and would delete provision for such publication from the Order.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT apply our bylaws in such a
manner as to induce or encourage any member
employed by George Kleinknecht, Inc., or any
other person engaged in commerce or in an in-
dustry affecting commerce, to engage in a
strike or a refusal in the course of his employ-
ment to perform any service, or in such a
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner as to restrain or coerce George
Kleinknecht, Inc., or any other person en-
gaged in commerce or in an industry affecting
commerce, where, in either case, an object
thereof is to force or require George Kleink-
necht, Inc., Johnson & Higgins, and any other
subcontractors on the jobsite at 95 Wall Street,
New York, New York, to cease doing business
with Northern Telecom, Inc., or any other
employer or person.
WE WILL NOT in any other manner induce
or encourage any member employed by a
person engaged in commerce or in an industry
affecting commerce to engage in action pro-
scribed by Section 8(bX4)(i) or (iiXB) of the
National Labor Relations Act in connection
with enforcing a work jurisdictional claim in-
volving telephone interconnect work on proj-
ects on which Northern Telecom, Inc., or any
other manufacturer, distributor, or installer of
telephonic equipment is employed.
WE HEREBY NOTIFY each of our members
that no provision in our bylaws is intended to
suggest or require that any member refuse, in
the course of his employment, to perform any
services because work falling within our
claimed jurisdiction is assigned to, or is being
performed by, other tradesmen or other per-
sons not in the employ of his own employer or
over whom he has no control.
LOCAL 3, INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS,
AFL-CIO
DECISION
STATEMENT OF THE CASE
THOMAS T. TRUNKES, Administrative Law Judge:
This case was initiated by a charge filed on December
23, 1981, by Northern Telecom, Inc., herein called Tele-
com or Charging Party, against Local 3, International
Brotherhood of Electrical Workers, AFL-CIO, herein
called Local 3 or Respondent. The complaint, issued on
January 4, 1982, alleges that Local 3 violated Section
8(bX4Xi) and (iiXB) of the Act by inducing and encour-
aging its members employed by George Kleinknecht,
Inc., herein called Kleinknecht, to engage in a strike or
refusal in the course of their employment to use, manu-
facture, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform
services, and has threatened, coerced, and restrained
Kleinknecht and Johnson & Higgins, herein called J &
H, persons engaged in commerce or in industries affect-
ing commerce, to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of, and to
cease doing business with, Telecom. Local 3 filed an
answer denying the commission of any unfair labor prac-
tices.
The hearing on this matter was held before me in New
York, New York, on March 29 and 30, 1982. All parties
were accorded full opportunity to participate, adduce
evidence, examine and cross-examine witnesses, argue
orally, and file briefs. The General Counsel, Charging
Party, and Respondent all submitted extensive and well
prepared oral arguments. Subsequently, all parties filed
timely briefs which substantiated their oral arguments in
greater detail.
Upon the entire record of the case, including my ob-
servation of the demeanor of all witnesses, and after a
careful consideration of the briefs and oral arguments, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Telecom, a Delaware corporation, with an office and
place of business located at 747 Third Avenue, New
York, New York, and with other places of business at
various jobsites located in the State of New York, has
been engaged in the sale and installation of telephonic
equipment. Annually, Telecom, in the course and con-
duct of its business operations, purchased and received at
its various New York State jobsites products, goods, ma-
terials, and services valued in excess of S50,000 directly
from firms located outside the State of New York. Re-
spondent admits, and I find, that Telecom is engaged in
commerce within the meaning of Sections 2(2), (6), and
(7) and 8(bX4) of the Act.'
11. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Work in Dispute
William W. Standley, manager of office services for J
& H, testified as follows:
J & H is a tenant at 95 Wall Street, New York, New
York, occupying in excess of 10 floors of the building.
On August 17, 1981,2 J & H entered into a contractual
agreement with Telecom for the installation of a tele-
phone system at J & H's Wall Street address. Thereafter,
on November 24, J & H engaged Kleinknecht, an electri-
cal contractor in the construction industry, to perform
telephone on-site preparation work, which must be per-
formed in order for Telecom to complete its telephone
installation. Kleinknecht commenced the access work on
November 23, employing from four to eight employees
at the jobsite, all of whom were covered by a collective-
I For purposes of asserting jurisdiction, the Board has long held that, if
the operations of the primary employer alone meet its jurisdictional re-
quirements, it will assert jurisdiction over all secondary employers in-
volved in the case at hand. Truck DiWers Local Union Na 649, Irterna-
tional Brotherhood of Teamsters Chauffeur Warehousemen and Heoers of
Americao AFL (Jamestown Builders Exchange. Inc), 93 NLRB 386, 387
(1951). As Telecom is the primary employer, I find that the Board will
assert jurisdiction in this matter. Respondent's brief urging this court to
deny jurisdiction is inapposite, and its argument is rejected.
2 AU dates material herein refer to the year 1981.
214
LOCAL 3, IBEW
bargaining agreement with Local 3,3 including Stuart
Brown, herein Brown, who was stipulated by Respond-
ent to be a foreman of Kleinknecht. Robert Ortega, an
employee of Telecom working at the Wall Street jobsite
since November 9, testified that on November 10 Brown
requested that he and other coworkers show him their
union cards. They showed him union cards indicating
that they were members of Local 1109, Communications
Workers of America, herein CWA, a labor organization
which represents the employees of Telecom. Brown
asked these employees if they would like to "come over"
to Local 3. No one accepted the invitation. No further
conversations relating to switching union membership
occurred between Brown and Telecom employees there-
after. 4
Michael Zafarano, branch operation manager of Tele-
com, testified as follows:
He is responsible for overseeing all the installation and
maintenance of various customers of Telecom in the
New York City area. In a difficult job following the in-
stallation of private telephones, Telecom would survey
the location to ascertain the necessary material needed to
install the telephone system. According to Zafarano, it
would then "commence the pulling of cable, the placing
of telephone instruments, the building of the private
automatic branch exchange, which is the heart, the net-
work of the telephone system itself, and upon cutover to
the New York Telephone or the local operating compa-
ny, we would continue to maintain that." The system
that Telecom installs is multifloor and requires core drill-
ing and the insertion of sleeves through slabs, work that
is generally installed by electrical contractors under col-
lective-bargaining agreements with Local 3. In addition,
these electrical contractors install certain electrical speci-
fications for climatized switch rooms, and install conduits
through which the telephone cables run. The work in
telephone installation performed by members of Local 3
working for electrical contractors coming within its ju-
risdiction at a jobsite includes the entire installation; i.e.,
cable pulling, placement of telephone sets, cross-connect-
ing, pulling riser cables, terminating said cables, and
building the PABX. s
Brian Reilly, employed as an installation manager for
Telecom since January 1982, and previously a project su-
pervisor for Telecom, testified as follows:
As project supervisor, he was responsible to oversee
the installation at J & H. The work was to install a total
telephone system, as described previously by Zafarano.
This work was performed by Telecom's employees rep-
resented by CWA. In reference to the sequence of work,
Telecon started by pulling a station cable, and during
that time the contractor commenced its access work, so
that when Telecom was finished with the station cable it
was able to enter the closets and "run out risers to con-
The record is not clear whether Kleinknecht's collective-bargaining
agreement with Local 3 stemmed from Kleinknecht's membership in the
Association of Electrical Contractors. For the purposes of this case, it is
irrelevant and immaterial.
4 Henry Beverly, a coworker of Ortega's, verified this aspect of Orte-
ga's testimony.
I PABX means Private Automatic Branch Exchange, the piece of gear
that connects the outside world to the telephone instrument itself, which
is manufactured by Telecom.
nect all the floors together." After the electrical contrac-
tor's work was concluded, it was necessary for Telecom
to pull out larger riser cables from whatever floors the
telephones were on down to the switch room. When
Kleinknecht completed its electrical work in the switch
room, Telecom hooked up the PABX machine itself, and
did testing on it.
B. Local 3's Rules
Local 3's bylaws, article XIII, section 12, provides:
No member is to give away work coming under
the jurisdiction of this Local, or to allow any other
tradesmen to do work coming under this Local's ju-
risdiction.
The bylaws do not in themselves prohibit work stop-
pages, but the International's constitution which binds
the local prohibits Locals from causing or allowing a
work stoppage in any controversy of a general nature
before obtaining the consent of the International's presi-
dent (art. XVII, sec. 13) and characterizes as misconduct
for which members may be' penalized the causing of a
stoppage of work because of any alleged grievance or
dispute without having the consent of the Local or its
proper officers (art. XXVII, sec. 1(3).
The "total-job rule," a rule dictated by Local 3, states
that an electrical contractor cannot do any access work
or any other work unless it obtains the total installation
job, which includes the maintenance and the moves and
changes for the year after cutover.6
C. Local 3's Conduct Alleged To Be Unlawful
By December 11, access work performed by the em-
ployees of Kleinknecht, represented by Local 3, had
been performed on some of the floors at the jobsite at 95
Wall Street. Ortega, one of Telecom's employees at the
jobsite, testified that on December II he observed the
employees of Kleinknecht stop working on the 12th
floor. According to Ortega, the electrical workers left
equipment including pipes, tubings, tools, and gang
boxes, all equipment used for access work, by the freight
elevator. 7
Standley testified that on Monday, December 14, he
was in his office with Brown discussing another con-
struction project unrelated to the instant project. Stand-
ley stated that he had heard there had been a labor dis-
pute the previous Friday afternoon (December 11).
Brown responded, "Yes, that there had been a dispute,
and it was a jurisdictional problem between Local Union
3 and CWA." Upon hearing this, Standley called Kleink-
necht's office and spoke to Peter Kleinknecht, one of the
principals of that company. Peter confirmed that his men
* This information was obtained from Zafarano over strenuous objec-
tions by Respondent's counsel on the basis that Zafarano was not compe-
tent to testify with respect to the matter. Although offered an opportuni-
ty to rebut the information by its own witnesses. Respondent did not do
so, and I therefore credit Zafarano's understanding of the total-job rule to
be accurate, as testified to by him.
I Also verified by Beverly, a coworker of Ortega's
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not working on the Telecom installation as a result
of a jurisdictional problem.8
Zafarano further testified that on December 14 or 15
Reilly informed him that there was a work stoppage on
the access portion of the telephone system by Klein-
necht's employees. Zafarano immediately informed his
superiors after instructing Reilly to have Telecom's em-
ployees continue to work. The following morning, Za-
farano telephoned Local 3's office to speak to Bernard
Rosenberg, the business agent of Local 3 responsible for
problems occurring south of 42d Street in Manhattan
where the jobsite is located. Not succeeding in reaching
Rosenberg, Zafarano made several more telephone calls
to Local 3's office, the last one occurring on December
24. He asserted that he did leave messages for Rosenberg
to contact him with another business agent of Local 3,
Michael Takfor. Zafarano also testified that he stated to
Takfor that he needed to talk to Rosenberg in reference
to the work stoppage at the Wall Street jobsite. He re-
ceived no response to his telephone calls at any time
from Rosenberg.
Reilly testified that he became aware of the work stop-
page at the jobsite about December 10 or 11. As a result
of the work stoppage, a meeting was held in the office of
Darwin Ley, the manager of financial and administrative
systems of J & H, who has overall responsibility for co-
ordinating the project at 95 Wall Street. Present were
several employees of Telecom, Ley, Alf Flornes, and
Brown, the last two named being employees of Kleink-
necht. According to Reilly, Brown stated that it was
within Local 3's jurisdiction to pull out the cable on this
job, citing a precedent set at another jobsite where Local
3 members were utilized to pull cable of Telecom. Ley
denied that there had been a precedent set and asked him
if they were expected to pull cable at a jobsite of the
New York Telephone Company which also employs
members of CWA. Brown responded negatively, explain-
ing that an "arrangement" had been made. Standley
stated that this was a problem between the two unions.
Flornes agreed after which Standley, Brown, and
Flornes left the room. A few minutes later, Ley received
a telephone call from Standley, overheard by Reilly.
Standley informed Ley that he was with Brown and
Flornes, who advised him that they had spoken with the
management of Kleinknecht, who agreed that the juris-
dictional problem could be solved by employing only
one union on the job.
Standley testified that he first heard of the problem at
the jobsite on Monday, December 14, from Brown in his
office. (See supra for the conversation). The following
day, Standley was in his office with Brown and Flornes.
Brown again stated that a jurisdictional problem between
Local 3 and CWA existed. Upon hearing this, Standley,
accompanied by the two Local 3 members, joined a
meeting in the office of Darwin Ley. He confirmed that,
when Ley asked about the work stoppage, Brown stated
I Over Respondent's objections that the conversation between Peter
Kleinknecht and Standley was hearsay and Respondent was not bound, I
allowed the testimony to stand. Although by itself, Peter's comment does
not bind Respondent, it lends credence to what Brown had told Standley
that same day. For reasons discussed iafra, I find Brown to be an agent
of Respondent.
that the work stoppage was the result of a jurisdictional
problem between the two unions. Upon leaving the
meeting with Flornes and Brown, Standley telephoned
Peter who confirmed the labor dispute. Peter informed
Standley that he was prepared to complete the entire job
at no extra cost to J & H. Peter stated that he wanted
Ley to hear this, so a second call was made in which
Standley and Ley both heard Peter's statement. Standley
answered that he had no authority to award such a con-
tract and would call Peter at a later time.
On December 22, another meeting was held among at-
torneys and employees of J & H and Kleinknecht.9
When the Kleinknechts were asked if Local 3 had con-
tacted them, attorneys for Kleinknecht would not permit
the question or any other questions to be answered.
Darwin Ley testified that, at the December 15 meeting
in his office, he asked if Local 3 felt it should be doing
all the electrical work at the project, to which Brown
nodded affirmatively. He further testified that Peter told
him that he believed only one union should be utilized at
the job and that anything else would be impractical and
unreasonable, and would only create problems. Peter fur-
ther asserted that he would be happy to do the entire job
at no additional cost to J & H.
Ley attended the meeting of December 22 with var-
ious attorneys and representatives of J & H and Kleink-
necht. He testified that at this meeting the attorney for
Kleinknecht stated that "their contract with Local 3 re-
quired or did not allow them to work with any other
union in the building or words to that effect."
D. Respondent's Defense
Bernard Rosenberg testified that he was unaware of
any telephone calls from Zafarano to him in December.
He first discovered that Brown was not performing work
at the jobsite upon receiving a telephone call from his at-
torney the Sunday after Christmas (December 27).10 The
next day, unable to visit the jobsite himself, he asked
other coworkers to visit the jobsite, instructing them to
order the employees to return to work. The instructions
were related to the employees and they returned to their
assigned duties at the jobsite. ' 1
Rosenberg further asserted that it was Local 3's posi-
tion with respect to members refusing to do work as-
signed to them that it will condemn any electrician for
refusing to perform electrical work, as "the Union's
policy is that we would decide as to who would do
work and who would not do work and no member has a
right to usurp our policy." However, Rosenberg ac-
knowledged that no employee was disciplined by Re-
spondent as a result of the work stoppage. He claimed
that, as far as he was concerned, the case was closed.
With respect to the alleged telephone calls by Zafar-
ano, Rosenberg acknowledged that Takfor is employed
9 Both Peter and Richard Kleinknecht were present at the meeting.
'o The record contains no information to explain when or how Re-
spondent's attorney had become aware of the problem. However, Re-
spondent's attorney, in his brief, wrote that he received a telephone call
from a Board agent informing him of the problem.
" Zafarano and Ortega testified that Local 3 employees of Kleink-
necht returned to perform the access work about December 29. The job
was completed at the end of January 1982.
216
LOCAL 3, IBEW
as a business representative by Respondent. He stated
that he, Rosenberg, receives all telephone calls regarding
problems south of 42d Street in Manhattan and did not
know what happened to any phone calls allegedly made
by Zafarano for him. He further stated that he did not
necessarily know of all problems in his area because an-
other business agent, Bill Gillin, handles telephone inter-
connect work, and sometimes he would get a call, as
well as Rosenberg, to handle problems. He further
averred that, if difficulty on the jobsite involved a dis-
pute over telephone work, Gillin may well have been
told about it. 12
Rosenberg admitted that Local 3 aspires to have its
electricians do all the electrical work on a job. Accord-
ing to Rosenberg, the steps taken to fulfill the aspiration
is training members to be more productive,
E. Discussion and Analysis
The facts of this case are not in dispute. All the wit-
nesses presented by the General Counsel testified in a
straight, forthright, and sincere manner. None of the
facts testified to by the General Counsel's witnesses was
refuted by testimony of Respondent's witnesses. Re-
spondent chose only to call Rosenberg, principally for
the purpose of establishing that he did not receive tele-
phone calls from Zafarano in December, but that, upon
discovering the work stoppage, he instructed his mem-
bers to return to work. The record reveals that Rosen-
berg was attending a Christmas party on December 24,
and thus was not working most of that day. There is no
explanation from Respondent why Rosenberg was not
informed by Takfor of the telephone calls from Zafarano
on other occasions in December. Assuming, arguendo,
that Rosenberg did not receive messages from Takfor
that Zafarano had telephoned him, Respondent did not
refute Zafarano's testimony that Zafarano made the tele-
phone calls and spoke to Takfor. As Takfor is admittedly
a business agent of Local 3 whose job is to handle all
telephone calls, and no evidence was offered that he did
not receive the telephone calls, I find that said telephone
calls were made by Zafarano, and, therefore, Local 3
was placed on notice of the problem at the jobsite as
early as December 15, the date that Zafarano testified he
first called Local 3.
Assuming, arguendo, that Respondent's contention that
neither Rosenberg nor any other business agent or offi-
cer of Respondent was aware of the work stoppage of
Kleinknecht's electricians on December 11, I would still
be constrained to find that the continued maintenance by
Respondent of the provision in its bylaws is sufficient to
hold it responsible for inducing and encouraging the wal-
kout of its members from the Wall Street jobsite.' 3 As
I" Neither Oillin nor Taxfor were called as witnesses by Respondent
to further clarify this problem.
1 The Supreme Court concluded in International Brotherhood of Elec-
trica/l Workers et aL [Samuel Langer] v. N.L.R.B., 341 U.S. 694, 701
(1951), that "the words 'induce or encourage' are broad enough to in-
clude in them every form of influence and persuasion." See also N.LR.B.
v. Local Union Na 3. International Brotherhood of Electrical Workers
AFL-CIO [New York Telephone Companyl, 477 F.2d 260 (2d Cir. 1973),
enfg. 197 NLRB 328 (1972).
the Board stated as early as 1963 in Local 3, International
Brotherhood of Electrical Workers, AFL-CIO (New York
Telephone Company), 140 NLRB 729, enfd. 325 F.2d 561
(2d Cir. 1963), "The bylaw itself constituted an 'induce-
ment' or 'encouragement' to the action."
My conclusion that Local 3 is liable for the action
taken by the employees of Kleinknecht is buttressed fur-
ther by the fact that it took no action to discipline the
men who participated in the work stoppage. Rosenberg
insisted that, upon discovering the work stoppage, he im-
mediately instructed the employees, through other busi-
ness agents, to return to work, and therefore, as far as he
was concerned, "the case was closed." Rosenberg con-
ceded that he has no knowledge of any members of
Local 3 ever being disciplined for work stoppages in-
volving similar situations as found in this instant matter. I
can only conclude that the failure of Local 3 to ever dis-
cipline any of its members for unilaterally taking actions
contrary to the constitution of its International Union
which provides for discipline is a signal to its members
that such action taken by them will never result in any
penalties. The Board has held that the Union's failure to
discipline its members is reason for holding the Union re-
sponsible for its members' actions. 14
In her decision in Eastern States, Administrative Law
Judge Fannie M. Boyls stated:
It is well settled, moreover, that a complete stop-
page of work is not necessary to show unlawful re-
straint or a "cease doing business" object within the
meaning of Section 8(bX4XB) of the Act. N.LR.B.
v. Local 825, Operating Engineers, 400 U.S. 297,
304-305; Local 3, IBEW (New York Telephone Com-
pany), 140 NLRB 729, enfd. 325 F.2d 561 (C.A. 2).
Administrative Law Judge Boyls, in the same decision,
further stated:
The enforcement by a union of a bylaw which
obligates member not to permit their own employ-
ers to assign to other tradesmen employed by him
work falling within the work juisdiction claimed by
the union would not appear to be in violation of the
Act. The bylaw here in issue, however, is so broad-
ly worded as to obligate Local 3 members not to
permit any other tradesmen to perform work within
their claimed jurisdiction irrespective of the em-
ployer for whom such other tradesmen may be
working. Obedience to the bylaw in situations such
as that here presented therefore necessarily induces
and encourages employees to refuse to perform
services or to take other proscribed action with an
object of forcing or requiring persons to cease
doing business with other persons within the mean-
ing of Section 8(bX4Xi) and (ii)(B) of the Act.
This is not to say that the maintenance of the
bylaw is in itself a violation. Rather, it constitutes
'4 Local Union Na 3. International Brotherhood of Electrical Workers
AFL-CIO (Eastern States Electrical Contractora Inc.), 205 NLRB 270, 273
(1973); Local Union No. 3, International Brotherhood of Electrical Workers.
AFL-CIO (L M. Ericsson Telecommunications, Inc. New York Division),
257 NLRB 1358 (1981).
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the inducement and encouragement element of the
8(b)(4) violation which occurs when members,
acting in obedience to the bylaw, cease their work
for a proscribed object. Joliet Contractors Association
v. N.L.R.B., 202 F. 2d 606, 612 (C.A. 7, 1953), cert.
denied 346 U.S. 824 (1953).
Although Respondent contends that the statements and
action of Brown should not be attributable to Local 3, in
the circumstances of this case, I find that Brown was
acting on behalf of Local 3. As the foreman on the job
he was enforcing the Union's total-job policy. In Local
1016, United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL-CIO, et al. (Booher Lumber Co., Inc.), 117
NLRB 1739, 1744 (1957), enfd. in part 273 F.2d 686 (2d
Cir. 1960), the Board held that a foreman's actions in
carrying.out union rules bound the union. Similarly, in
International Association of Heat and Frost Insulators and
Asbestos Workers Local No. 53 (McCarty and Armstrong),
185 NLRB 642, 650 (1970), a foreman's statements were
binding on the Union where the foreman was carrying
out union policy. See also Local Union No. 3, Internation-
al Brotherhood of Electrical Workers, AFL-CIO (Western
Electric Company, Incorporated), 141 NLRB 888, 893
(1963), enfd. 339 F.2d 145 (2d Cir. 1964).
Responding to arguments made in Respondent's brief,
as I have credited Zafarano's testimony that he first noti-
fied Respondent of the work stoppage via a telephone
call on December 15, at which time he spoke with busi-
ness agent Takfor, I do not accept Respondent's position
that it was unaware of the work stoppage until Sunday,
December 27. Had Respondent demonstrated diligence,
the work stoppage could have been discontinued as early
as December 15, Respondent argues further that there is
no evidence that Brown ever heard of article XIII, sec-
tion 12, of its bylaws. As Brown is under control of Re-
spondent and was not called as a witness to deny said
knowledge, I make an adverse inference that he, as well
as all other members of Local 3, is well aware of this
section of Respondent's bylaws. Another argument of
Respondent that warrants a response is its position that
Kleinknecht, the employer of Local 3's members, re-
moved them from the job to perform other duties. As
both the General Counsel and Charging Party point out
in their respective briefs, if this were the case, how could
Respondent succeed in ordering the employees back to
work on December 28? The answer is obvious. He who
has the power to remove has the power to reinstate.
For the foregoing reasons, I find that Local 3 induced
and encouraged its members to engage in a strike or to
cease in the course of their employment to perform serv-
ices for Kleinknecht, and restrained and coerced Kleink-
necht, with whom Local 3 has no dispute, an object
being to force and require Kleinknecht and J & H to
cease doing business with Telecom. Accordingly, I find
that Local 3 has violated Section 8(b)(4)(i) and (ii)(B) of
the Act.
CONCLUSIONS OF LAW
I. Northern Telecom, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
and Section 8(b)(4) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By inducing and encouraging its members employed
by George Kleinknecht, Inc., to engage in a strike or re-
fusal in the course of their employment to perform serv-
ices, and restraining and coercing Kleinknecht, with an
object of forcing or requiring Kleinknecht and Johnson
& Higgins at the jobsite located at 95 Wall Street, New
York, New York, to cease doing business with Telecom,
Respondent, Local 3, has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(b)(4Xi) and (iiXB) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The unfair labor practices committed by Respondent
in the instant case were committed almost immediately
following the completion of a 6-day hearing, ending on
December 2, 1981, in Local 3, IBEW (General Dynamics
Communication Company), Case 2-CC-1734, in which
basically the same issues as those found in the instant
case were litigated. A decision was rendered by Admin-
istrative Law Judge D. Barry Morris on March 5, 1982
(JD-(NY)-26-82) [264 NLRB No. 96 (1982)], less than I
month prior to the hearing of the instant case. That case
is presently pending before the Board at this time. Con-
sidering the fact that the jurisdictional dispute involving
Local 3 and CWA has been continuing, almost without
interruption, since at least 1963, and that it has been 9
long years since the issuance of the Board decision in
Local 3, IBEW (Eastern States), 205 NLRB 270, and
slightly over I year since the issuance of Local 3, IBEW
(L.M. Ericsson), 257 NLRB 1358, it appears that the rem-
edies promulgated by the Board in those cases have had
little, if any, influence in deterring the unfair labor prac-
tices similar to those committed herein. Accordingly, in-
asmuch as the board has before it the recommended
Order of my learned colleagues, Administrative Law
Judge D. Barry Morris, and as I have studied carefully
his remedial sugestions, I find myself in full accord with
his recommendation, which is as follows:
General Counsel and the Charging Party urge
that Respondent's conduct herein, taken together
with its past history, requires the issuance of a
broad order prohibiting not only unlawful second-
ary activity directed to the secondary employers in
this case with regard to disputes with the primary
employers in this case, but also such activity direct-
ed to all secondaries with respect to all primaries. I
agree that such a broad order is necessary to effec-
tuate the policy of the Act. Such broad orders are
required where a respondent's conduct, both in the
record and in the past history of litigated cases,
warrants a finding that respondent has shown a pro-
clivity or a general scheme to violate the Act. See
General Service Employees Union Local 73 (Andy
Frain, Inc.), 239 NLRB 295, 310 (1978).
Citing prior cases in which Respondent violated
Section 8(b)(4) of the Act, the Board issued a broad
218
LOCAL 3, IBEW
order in Local Union 3, IBEW (New York Tele-
phone), 197 NLRB 328, 332-3 (1972), enfd. 477 F.2d
260 (2d Cir. 1973). Since that time Respondent has
continued to violate the same section of the Act.
See Local 3, IBEW (Hylan Electric Ca), 204 NLRB
193 (1973); Local 3, IBEW (Mansfield Contracting
Corp), 205 NLRB 559 (1973); Local 3, IBEW (East-
ern States), 205 NLRB 270 (1973); Local 3, IBEW
(Wickham Contracting Ca), 220 NLRB 785 (1975),
enfd. 542 F.2d 860 (2d Cir. 1976); Local 3, IBEW
(New York Electrical Contractors Association), 244
NLRB 357 (1979). In addition, the evidence ad-
duced with respect to Two Broadway shows an-
other instance in which Respondent has continued
to adhere to its total job policy. In these circum-
stances, it is reasonable to anticipate future viola-
tions and it is necessary to prohibit such unlawful
conduct directed against all persons in connection
with disputes with any and all primary employers
or persons.
I also find it necessary to insure that notice of
Respondent's conduct and the Board's remedy
reach all interested and potentially affected persons.
Traditionally notice posting at places where em-
ployees of the parties involved herein or members
of Respondent congregate is insufficient to notify all
potential primaries and secondaries or members. I
therefore will recommend that Respondent publish
the notice at its own expense in a newspaper of gen-
eral circulation in the New York metropolitan area.
See General Service Employees (Andy Frain, Inc.),
supra, 239 NLRB at 310-11. In addition, I will rec-
ommend that the notice be published in Respond-
ent's publication, "Electrical Union World," with
copies mailed to all Local 3 members at their home
addresses. See Local 3. IBEW (Eastern States),
supra, 205 NLRB 270; L M. Ericsson, supra, 257
NLRB No. 167, sl. op. at 34.
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:
ORDER'
The Respondent, Local 3, International Brotherhood
of Electrical Workers, AFL-CIO, Queens, New York,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Applying its bylaws in such a manner as to induce
or encourage any member employed by George Kleink-
necht, Inc., or by any other person engaged in com-
" 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 shll, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its fmdings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
merce or in an industry affecting commerce, to engage in
a strike or a refusal in the course of his employment to
perform any services, or in such manner as to restrain or
coerce George Kleinknecht, Inc., or any other person
engaged in commerce or in an industry affecting com-
merce, where, in either case, an object thereof is to force
or require George Kleinknecht, Inc., Johnson & Higgins,
and any other subcontractors on the jobsite at 95 Wall
Street, New York, New York, to cease doing business
with Northern Telecom, Inc., or any other employer or
person.
(b) In any other manner inducing or encouraging any
member employed by a person engaged in commerce or
in an industry affecting commerce to engage in action
proscribed by Section 8(bX4Xi) or (iiXB) of the Act in
connection with enforcing a work jurisdictional claim in-
volving work in or on any building occupied by, or to
be occupied by, Johnson & Higgins or any other em-
ployer or person.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Publish the complete text of the attached notice
marked "Appendix" in a conspicuous place in its semi-
monthly publication, "Electrical Union World," or suc-
cessor publication, however named, and mail a copy of
said publication to each member of Local 3 and post
copies of said notice in conspicuous places in its business
offices, meeting halls, and all places where notices to
members are customarily posted. ' Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by Local 3's representatives, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily displayed. Reasonable steps
shall be taken by Local 3 to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Deliver to the Regional Director for Region 2
signed copies of said notice for posting by George
Kleinknecht, Inc., if willing, at places where notices to
its employees or Local 3 members are customarily
posted.
(c) Publish at its expense the terms of the notice, in a
form and size approved by the Regional Director for
Region 2, in a daily newspaper of general circulation in
the New York metropolitan area. Publication is to be
made on three separate days within a 3-week period at a
time designated by the Regional Director.
(d) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Local 3 has taken to comply herewith.
'" In the event that this Order is enforced by · 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 Purnu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
219