Local 3, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Oct 14, 1963

144 N.L.R.B. 1089 (N.L.R.B. 1963)

LOCAL 3, INT' L BROTHERHOOD OF ELECTRICAL WORKERS 1089
The bargaining unit is:
All out-of-town and city bundle-delivery drivers, including bundle drivers
who operate from substations and all tube or mounted motor distributors
employed at our Danville , Illinois, plant, but excluding all other employees
and supervisors as defined in the Act.
WE WILL reinstitute our delivery system as it existed prior to September 4,
1962, and will offer to Frances Arrasmith , James Frye , Flossie Frazee , Eugene
Hurley, Bernice Pollitt , Don Reed, Eulah Swift, Loretta Turner , Harold Young-
blood , and Winifred Youngblood immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights and privileges , and make each of them whole in the manner
provided in the Trial Examiner 's report for any loss of pay he may have suf-
fered as a result of our discrimination against him.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of the above-named or any other labor organization.
NORTHWESTERN PUBLISHING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Midland
Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660,
if they have any questions concerning this notice or compliance with its provisions.
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO and New Power Wire and Electric Corp. and P & L Serv-
ices, Inc. Cases Nos. 2-CC-703 and P2-CB-3417. October 14, 1963
DECISION AND ORDER
On October 10, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceedings finding that
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 attached Intermediate
Report. Thereafter, the General Counsel and the Respondent filed
exceptions and supporting briefs.
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 entire
record in these cases, including the Intermediate Report, exceptions,
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
The Company, an electrical contractor, is engaged in the business
of electrical rewiring of residential apartment buildings throughout
144 NLRB No. 100.
1090 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
the New York City area.' The Company and the particular apart-
ment house owners or managers enter into contracts providing that
the Company shall do the rewiring work.
Prior to November 1961, the Company employed electricians who
were members of Respondent Union. After November 1961, however,
they were replaced with nonunion electricians. As a consequence,
Respondent Union began to organize the Company' s nonunion elec-
tricians. About February 12 and 28, Respondent's business repre-
sentative, floe Smith, held meetings with about 35 of the electricians
employed by the Company, asked them to solicit union membership of
the other employees, and advised them that they might have to go out
on strike, and that if a strike occurred, they were expected to engage
in no misconduct. At the February 2S meeting, the employees and
Smith elected a strike committee, including two individuals employed
by the Company named Petilli and Brurnmer. On March 5, 1962,
32 of the Company's 58 employees went out on strike. It is not dis-
puted that the object of the strike was to secure recognition of
Respondent as the exclusive bargaining agent of the Company's
electricians.
The strikers started picketing on March 5 in front of most of the
buildings in which the Company was currently engaged in the per-
formance of its contracts. Strikers also picketed in front of the
Company's headquarters. The pickets carried signs stating that elec-
tricians employed by the Company at the particular apartment houses
were not members of Respondent Union a
At the beginning of the picketing the Company' s employees were
actively engaged in rewiring work at each of the sites, and the pickets
went into basements of the buildings in an effort to persuade them to
The Trial Examiner in determining jurisdiction in Case No 2-CC-703 states that
although the Company meets the $50 ,000 direct and indirect inflow test for nonretall
concerns , he must also find under Sheet Metal Workers International Association, Local
Ur4on No. 299, etc . iS. M Kisner & Sons ), 131 NLRB 1130, 1200 , that the secondary
employers are engaged in an industry affecting commerce before the Board may assert
jurisdiction . A careful reading of the Kisser case shows that no such requirement is
made as a prerequisite to the Board's assertion of jurisdiction . Accordingly , we do not
adopt the Trial Examiner' s jurisdictional holding in this limited respect.
a The exact legend was as follows:
ELIdCPRTCIANS EMPLOYED ON THIS TOB BY
NEW POWER WIRE AID ELECTRIC CORP.
ARE NOT MI;_1LBERS OF LOCAL UNION NO. 3
I.B.E W.
AND ARE EMPLOYED BY NEW POWER WIRE AND
ELECTRIC CORP
IN 'VIOLATION OF ITS AGREEMENT WITH
ELECTRICAL WORKERS LOCAL UNION NO. 3
At times the pickets also carried a sign reading in pertinent part as follows:
New Power & P & L Services V
on strike
Electrical Workers Local Union No. 3
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1091
join the strike. During this period considerable misconduct occurred,
as set forth in the Intermediate Report.
Apparently, during its later stages, the picketing was confined
generally to two pickets pacing back and forth in front of each build-
ing involved. As found by the Trial Examiner, picketing continued
during periods when no Company employees were working at some
of the apartment houses. However, Company employees not on strike
reappeared intermittently to work at the sites.
The record also shows that the Company left some materials at the
sites. Further, company supervisors visited the sites "almost daily,"
either to check for vandalism, to remove materials, or to observe the
picketing. The Company's service manager, Levine, testified in es-
sence that the absence of its employees was due to the fact that most
of the employees were on strike. Its remaining employees were in-
sufficient in number to cover all the apartment houses where the Com-
pany was under contractual obligation to do the work. Though the
Company hired some replacements, at least three of them, according
to Levine, joined the picket line.
It appears that once the Company had completed operations at any
of the various apartment buildings, the picketing promptly ended at
that particular site,' and the employees moved to another site.
1. Case No. 2-CB-3417.-The Trial Examiner found that members
of Respondent's strike committee, Petilli and Brummer, engaged in
various coercive acts against the non-striking company employees.
Further the Trial Examiner found that picket Weisberg's threats
to a company supervisor conformed to a pattern of conduct established
by Petilli and Brummer and occurred in the presence of Petilli. The
Trial Examiner found that Respondent was responsible for this con-
duct because its agent , Smith, had specifically authorized Petilli and
Brummer, among others, to solicit the Company's employees to join
the Respondent. He concluded that Respondent, having made them
its agents for carrying out its organizational activities, was respon-
sible for all their conduct which was in furtherance of that organi-
zational purpose.
We agree that Respondent is responsible for the conduct of Petilli,
Brummer, and Weisberg, found by the Trial Examiner to have been
coercive; however, we do not rest our finding solely on the narrow
8 The record shows one occasion where the picketing ceased a few days after the Com-
pany represented to a building superintendent that the work was finished. However, the
record shows that, in fact , the work had not been finished at the time of the statement ;
and the picketing did cease about the time of its actual completion Further, we base this
finding on testimony in the record that the picketing ceased when the Company completed
all of its work at a site and that the picketing continued at the sites only while rewiring
work was still to be performed . Neither the record nor the General Counsel's offer of
proof shows that the picketing continued after the Company had completed its work at
any of the apartment buildings.
727-083-64-vo1 111 70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis he relied upon. In addition to the organizational duties dele-
gated to the "strike committee," Smith gave them authority to over-
see the picket lines. Thus they were to function as a channel of
communication between the pickets and Smith, reporting all signifi-
cant developments; they were to monitor the picket lines, distribute
picket signs, and determine which of the pickets should be placed
at particular locations. It is clear that the "strike committee" was
established in order to keep Smith informed at all times of all signifi-
cant developments on the picket line, and of the progress of the strike,
as that progress was affected by picket line activities. Smith, accord-
ing to his own testimony, visited the picket lines about three times
a week. In these circumstances, we find that Smith had delegated
significant elements of control to the "strike committee." We further
find that Smith must have known of the coercive conduct of the
"strike committee" members, but failed to take any steps to disavow
such conduct. We find that in either event Respondent is legally
responsible for such conduct. We therefore affirm the Trial Exam-
iner's conclusion that Respondent violated Section 8(b) (1) (A) by
the conduct of Petilli, Brummer, and Weisberg.
The General Counsel excepted to the Trial Examiner's failure to
find additional violations of Section 8(b) (1) (A). The Trial Exam-
iner refused to consider additional allegations of Section 8(b) (1) (A)
violations because such findings would be cumulative and would not
affect the remedy. The record does, however, support the finding of
an additional violation which does affect the remedy. Thus, the record
shows through the testimony of the Company's employee Tacktickus,
who was credited by the Trial Examiner as to other testimony, that
on March 9, at 266 Washington Avenue, he saw Petilli and others
ripping down meter boards that Tacktickus had just installed and also
cutting cables , wrecking troughs, and damaging meter equipment.
Petilli, whom the Trial Examiner discredited in other respects, denied
committing any sabotage of the Company's properties. On the record
and in view of the Trial Examiner's other credibility resolutions, we
accept Tacktickus' testimony and find that Petilli engaged in sabotage
of the Company's properties. Further, we find that this conduct was
such as to have a coercive effect on the employees who observed it- and
that Respondent thereby violated Section 8(b) (1) (A) of the Act.4
2. Case, No. 2-CC-703.-Contrary to the conclusion of the Trial
Examiner, we find that Respondent Union did not violate Section
8(b) (4) (i) and (ii) (B) by picketing the apartment buildings, be-
cause the picketing complied substantially with Moore Dry Dock con-
ditions for permissible primary picketing at a common situs 5 In so
North Electric Manufacturing Company, 84 NLRB 136, 155.
Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547. The
conditions are: (a ) The picketing is strictly limited to-times when the situs of dispute is
located on the secondary employer 's premises ; (b ) at the time of the picketing the pri-
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1093
finding, we disagree with the Trial Examiner's conclusion that the
absence of primary employees from some of the sites of picketing for
substantial periods of time demonstrates that Respondent's picketing
was directed toward the unlawful inducement of employees of second-
ary employers, and the restraint sand coercion of their employers. In
a situation such as this, the absence of the primary employer's em-
ployees is merely one of the factors to be evaluated in determining
whether the situs of the primary dispute is located at the common
situs during the picketing, and whether the primary employer is then
engaged in his normal business at the site. In the circumstances of
this case the absence of these employees, standing by itself, does not
require a finding that the Company is not engaged in its normal
business at the common situs or that the common situs is not the situs
of the primary dispute. In International Brotherhood of Electrical
Workers, Local Union 861 (Plauche Electric, Inc.), 135 NLRB 250,
the Board stated that the Moore Dry Dock conditions "are not to be
applied on an indiscriminate `per se' basis, but are to be regarded
merely as aids in determining the underlying question of statutory
violations." In the General Electric case,6 the Supreme Court stated
with reference to a determination of whether picketing at a separate
gate is lawful primary picketing or proscribed secondary picketing:
The nature of the problem as revealed by unfolding variant
situations inevitably involves an evolutionary process for its
rational response, not a quick definitive formula as a comprehen-
sive answer.
The Trial Examiner and Member Leedom in his dissent cite Hans-
berger Refrigeration c€ Electric C0.7 as authority for finding that the
picketing herein violated Section 8(b) (4) (i) and (ii) (B). But
Hansberger, carefully read, reveals that the two situations are wholly
dissimilar. In Hansberger the absence of primary employees during
the common situs picketing was not the sole basis for finding an un-
lawful secondary boycott. The Board considered that factor as part
of the total evidence which showed that, unlike the situation involved
herein, the picketing was confined to times when no primary employees
were present; and the union made no attempt to communicate with the
primary employer or his employees. Further, the union picketed at
a time when, for reasons unrelated to the picketing, the primary em-
ployer was not engaged in performing work at the site. We find,
contrary to the Trial Examiner and Member Leedom, that this case
involves only primary picketing; and that the Hansberger decision in-
mary employer is engaged in its normal business at the situs ; ( c) the picketing is limited
to places reasonably close to the location of the situs ; and (d ) the picketing discloses
clearly that the dispute is with the primary employer
9 Local 761, International Union of Electrical, Radio and Machine Workers , AFL-CIO v.
N.L.R.B. ( General Electric Co.), 366 U.S. 667.
7 135 NLRB 492.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved secondary picketing and does not compel the finding of a viola-
tion here. If anything, Hansberger points to an opposite result be-
cause of the significant factual difference in the two situations.
In deciding this case, we must evaluate the absence of company em-
ployees in the light of: (a) the Company's contractual obligation to
perform the rewiring work at each of the picketed apartment houses;
(b) the fact that the Company was engaged in performance of its
contracts at each of the sites and company employees were working
at the sites when the picketing started; (c) the visits to the sites by
company supervisors, made almost daily; (d) the fact that work was
intermittently resumed at each of the sites; (e) the Company's efforts
to recruit new employees for work at the sites; (f) the cessation of
picketing when the Company completed its contracts at a particular
apartment building; (g) the fact that the picketing occurred during a
normal workday; (h) the further fact that the picketing was not con-
ducted at a construction site where substantial complements of other
employers' employees were working. We also consider it significant
in this case that the absence of company employees was attributable
to the fact that a majority of them were on the picket lines, in support
of the Respondent's organizational efforts directed at the other com-
pany employees. These factors demonstrate that the apartments were
the situs of the dispute and that the Company was in fact engaged in
its operations at the situs of the dispute e or would have been so en-
gaged but for the picketing, and that the object of the picketing was
to force a shutdown of the Company's operations in furtherance of a
primary dispute with the Company. Of course, the Company's opera-
tions were not "normal," but only because the picketing was suc-
cessful in depleting the Company's employee complement at the sites
to the point where all the Company could do was to engage in a frac-
tion of its normal operations. However, Congress did not intend to
outlaw all picketing, or even such picketing as was successful,9 but
intended only to outlaw secondary picketing (whether successful or
unsuccessful)." On the facts in this case we find, as stated above,
that the picketing was primary, and not secondary."
In reaching this conclusion, we have considered the fact that pickets
requested superintendents of at least two of the apartment buildings
8 Clearly, the other Moore Dry Dock conditions are met, i.e., the picketing was limited
to places reasonably close to the location of the situs and the picketing disclosed clearly
that the dispute was with the primary employer.
9 Seafarers International Union of North America , Atlantic and Gulf District, Harbor
and Inland Waterways Division, AFL-CIO v. N.L.R.B. (Salt Dome Production Co.), 265
F. 2d 585 (C.A.D.C.).
10Local 1976 , United Brotherhood of Carpenters and Joiners of America, AFL, and
Los Angeles Country District Council of Carpenters and Nathan Fleisher v . N.L.R.B.
( Sand Door ct Plywood Co.), 357 U.S. 93.
u The picket misconduct which we have found to be in violation of another section of
the Act, supra, does not make the picketing secondary . International Rice Milling Co.,
Inc. v. N.L.R.B., 341 U.S. 665 . If anything , such misconduct, directed as it was against
the Company 's employees, emphasizes the primary objective of Respondent.
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1095
not to admit company electricians to the buildings when they appeared
for work. To the extent that such appeals sought to induce the su-
perintendents not to perform their normal duties, i.e., admit persons
having proper reasons to enter the apartment buildings, they did so
only with respect to duties which involved direct contact between the
superintendents and employees of the Company. In essence, this
would not differ from appeals to secondary employees not to cross
a primary picket line. Though such appeals seek to induce u cessation
of business between the secondary employer and the primary employer
at the picket line, they are a permissible incident of such a picket
line, not prohibited by Section 8 (b) (4) .12
In view of the foregoing, we shall dismiss the complaint, insofar
as it alleges violations of Section 8(b) (4) (i) and (ii) (B).
REMEDY
Having found that Respondent violated Section 8(b) (1) (A) by
the conduct detailed herein , we shall , in view of the serious nature
and extent of such conduct , issue a broad order requiring Respondent
to cease and desist from engaging in such conduct and from in any
other manner restraining and coercing employees in the exercise of
their Section 7 rights.
ORDER
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Boardhereby orders that Respondent, Local 3, International
Brotherhood of Electrical Workers, AFL-CIO, its officers, agents,
representatives, successors, and assigns, shall :
1. Cease and desist from restraining or coercing employees of New
Power Wire & Electric Corp. and P & L Services, Inc., in the exercise
of their rights as guaranteed in Section 7 of the Act (including the
right to refrain from self-organization and concerted activities, and
from joining or assisting Local 3, International Brotherhood of Elec-
trical Workers, AFL-CIO) by threatening loss of employment; by
threatening or inflicting physical harm; by threatening the Employer's
supervisors with physical harm; by tearing out equipment; by cutting
cables or otherwise destroying property; or in any other manner.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
ii International Rice Milling Co, Inc. v . N L.R B., supra ; see Local 761 , International
Union of Electrical, Radio and Machine Workers, AFL-CIO v. N L . R.B. (General Electric
Co.), supra. We also find no merit in the allegation that the two instances of oral
appeals to deliverymen or tradesmen having business with the apartment houses or their
tenants not to cross the picket line , considered in the light of the long period of time
covered by the picketing, converted a picket line, which demonstrably was established for
achievement of lawful primary objectives , into a picket line having unlawful secondary
objectives.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at Respondent's business offices and meeting halls copies
of the attached notice marked "Appendix." 13 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by official representatives of the Respondent, be
posted by it immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Mail to the Regional Director for the Second Region signed
copies of the aforementioned notice for posting by New Power Wire
& Electric Corp. and P & L Services, Inc., in places Where notices to
their 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 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
FURTHER, IT IS HEREBY ORDERED that the complaint in Case No.
2-CC-703 be, and it hereby is, dismissed.
MEMBER LEEDOM, concurring in part and dissenting in part :
I agree with the majority's findings that the Respondent violated
Section 8(b) (1) (A). However, unlike the majority but like the Trial
Examiner I would also find that Respondent's picketing violated Sec-
tion 8(b) (4) (i) and (ii) (B).
The Company was doing electrical work on a number of apartment
houses when the Union called its strike and commenced picketing all
the various apartment jobsites. Although the Company did not, for
extended periods of time after the strike commenced, have its em-
ployees working at a number of the apartments, the Union neverthe-
less continuously picketed all the apartment sites, whether the Com-
pany's employees were present or absent. Further, the record shows
that at all times union representatives could have entered the apart-
ments to see if the Company's employees were working there, but that
they made no attempt to do so or otherwise to determine if the Com-
pany was actually performing work at the apartments being picketed.
In these circumstances I can only infer, to paraphrase the Board
in the Hansberger case cited above,14 that an object of the picketing
13 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be sub,tituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order"
14 See footnote 7 We are not dealing here with the picketing of a "common" situs
during the temporary absence of primary employees which a majority of the Board held
not unlawful in Plauche Electric, Inc, 135 NLRB 250, 255 Thus , there were no pri-
mary employees working at the picketed sites for periods of a few days up to 2 months,
and during such periods the primary employer was not engaged in active operations at
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1097
was the inducement of employees other than those of New Power at
the various apartment jobsites to cease work with the further objec-
tive of requiring other employers to cease doing business with New
Power. Certainly nothing in the majority decision affords any sub-
stantial basis for ruling out such an inference, which the Board found
warranted in a similar situation in the Hansberger case.
MEMBERS BROWN and JENKINS took no part in the consideration of
the above Decision and Order.
these sites In my opinion these were the salient considerations in Hansberger; con-
sequently , I cannot agree with the majority that there is any meaningful distinction
between the facts in Hansberger and the facts herein
APPENDIX
NOTICE TO ALL OUR MEMBERS, AND TO ALL EMPLOYEES OF NEW
POWER WIRE & ELECTRIC CORP. AND P & L SERVICES, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT, by threatening loss of employment; by threaten-
ing or inflicting physical harm ; by threatening the Employer's
supervisors with physical harm; by damaging property; or in any
other manner restrain and coerce employees of New Power Wire
& Electric Corp. and P & L Services, Inc., in the exercise of their
right not to engage in concerted activities.
LOCAL 3, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza
1-5500, if they have any question concerning this notice or compliance
with its provisions.
INTERMEDIATE REPORT
Copies of the charges herein were served upon the Respondent on or about
March 30, 1962, and the hearing was held before Trial Examiner Sidney Sherman
on June 11 and 12, and from July 16 to 20, at New York City. The issues litigated
were whether the Respondent had violated Section 8(b) (1) (A) by coercion of non-
strikers, and Section 8(b) (4) (i) and (ii) (B) by picketing in front of various apart-
ment buildings. Respondent filed a brief after the hearing.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record,' and my observation of the witnesses, I hereby adopt
the following, findings and conclusions:
I. THE LABOR ORGANIZATION INVOLVED
Local 3, International Brotherhood of Electrical Workers, AFL-CIO, herein re-
ferred to as the Respondent , is a labor organization within the meaning of Section
2(5) of the Act.
II. THE BUSINESS OF THE COMPANY; THE JURISDICTIONAL ISSUE
New Power Wire & Electric Corp., hereinafter called New Power, and P & L
Services, Inc., hereinafter called P & L, are New York corporations, with a common
principal office and place of business in New York City. It was stipulated at the
hearing that both corporations are under common management and control, and
are otherwise so integrated that they may be treated as a single employer for the
purposes of the Act, and I so find. Hereafter, both corporations will be referred
to collectively ,as the Company.
The record shows, and I find, that the Company is engaged in installing electrical
wire, cable, and other electrical equipment in apartment buildings and other struc-
tures in New York City; that it annually receives from out-of-State sources $30,000
worth of materials and tools; and that it annually purchases more than $50,000
worth of goods from suppliers within the State of New York, who in turn obtain
such goods directly from out-of-State manufatcurers.
I find therefore that the Company is engaged in commerce within the meaning
of the Act, and that there is sufficient basis for the assertion of jurisdiction by the
Board in Case No. 2-CB-3417, which alleges violations of Section 8(b)(1)(A) of
the Act. However, with respect to Case No. 2-CC-703, which alleges violations
of Section 8(b) (4) (i) and (ii) of tht Act, the Board may not assert jurisdiction
unless it appears that the secondary employers involved were "person(s) engaged
in commerce or in an industry affecting commerce." 2 (The term "person" as here
used is defined in Section 2(l) of the Act as including, inter alia, individuals,
partnerships, or corporations.)
The secondary employers named in the amended complaint are engaged in the
management of residential apartment buildings located in New York City. In
determining whether such employers are in an industry affecting commerce it is
appropriate to consider that apartment buildings house a relatively large segment
of our population,3 and that it is inevitable that a substantial part of the supplies
purchased by apartment house managers in the course of their operations will come
to them directly or indirectly from out-of-State suppliers. The most striking ex-
ample of this is fuel oil used for heating which, in a State like New York, that
produces little or no oil,4 must be imported from other States. Indeed, in the instant
case, the record shows that one of the secondary employers (Cosmopolitan Asso-
ciates) purchases at least $60,000 worth of fuel oil annually from a local supplier,
who obtains such oil directly from ouVof-State sources; that another secondary
employer (Columbia Management Corporation), annually purchases about $50,000
worth of fuel oil; and that still another secondary employer (Henry Moskowitz)
annually buys more than $100,000 worth of fuel oil for all buildings managed by
it in New York State.
'The transcript of testimony taken herein Is hereby ordered corrected in the following
respects:
Page 208, line 19, change "indicate" after "will" to "receive"; page 332, line 16,
change "22nd" to 222nd"; line 18, same change ; page 656, line 15, Insert "not" be-
fore "be"; page 708, line 9, change "4869" to "4816"; page 757, line 19, change "I"
to "He"; page 1009, line 9, change "May" to "March".
2 See, 8 M. Kisner & Sons, 131 NLRB 1196
8 According to the Statistical Abstract of the United States for 1962 (p. 760,), published
by the U.S Department of Commerce, aboh t 40'percent of all housing units in this coun-
try are rental units It seems safe to assume that the bulk of these rental units are in
apartment buildings as opposed to single-family or two-family dwellings This is attested
by the fact that between 1940 and 1961, alone, nearly 2,000,000 housing units were con-
structed in buildings occupied by 3 or more families (ibid., p 754) and that the total
value of all 5 or more family units for which building permits were issued in this country
in 1960 and 1961 alone approached $31/2 billion (ibid., p. 746)
4 Respondent stipulated at the hearing that no oil is produced in New York State
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1099
I find , therefore , that the secondary employers named in the amended complaint,
whatever their individual involvement in commerce , are engaged in an industry which
in the aggregate substantially affects commerce.
Moreover , even if the more specific statutory test ("person engaged in commerce")
were applied here, it is clear that some , at least, of the named secondary employers
would qualify thereunder . Reference has already been made to the evidence con-
cerning purchases by three of the secondary employers of fuel oil which concededly
was not produced in New York State . Moreover , as to one of these secondary
employers ( Cosmopolitan Associates ), the record shows that it purchases annually
$20,000 worth of brass pipe , which is manufactured in Missouri , and shipped in part
(at least $5,000 worth ) directly to Cosmopolitan , and in part to a New York supplier
who delivers the pipe to Cosmopolitan .5 As to another of the secondary employers
mentioned above (Henry Moskowitz ), the record shows that he manages altogether
45 buildings or groups of buildings of which at least 10 are located in States other
than New York. In addition , as to Hong, Kelmar Realty Corporation , and Village
Realty, the record shows purchases of fuel oil. I find, therefore , that the foregoing
six secondary employers are persons engaged in commerce , within the meaning of
Section 8 (b) (4) of the Act.
Finally, under the alternative rationale of the Kisner case,6 I find that all the
secondary employers listed in the amended complaint are engaged in an "industry
affecting commerce" by virtue of their dealing with the primary employer-the
Company. As pointed out in that case , "industry affecting commerce" is defined in
Section 501 ( 1) of the Act as applicable to an "activity . . . in which a labor dispute"
would burden or tend to burden the free flow of commerce . Here the record shows
that all the secondary employers have contracted with the Company for electrical
work to be done on premises owned or managed by them, and may therefore be
deemed to be engaged together with the Company in an activity in which a labor
dispute would tend to burden commerce , inasmuch as it would tend to interfere with
the operations of the Company, which , it has been found, is engaged in commerce.
For all the foregoing reasons, it is concluded that the jurisdictional requirements
of the Act, as well as those of the Board,7 are met in Case No . 2-CC-703.
III. THE UNFAIR LABOR PRACTICES
A. Case No. 2-CB-3417
The complaint in this case alleges that on various dates in March 1962 8 certain
individuals , alleged to be agents of the Respondent , (a) threatened to inflict, and
inflicted, bodily harm upon various employees of the Company; (b) threatened to
inflict, and inflicted , bodily harm upon "supervisors , agents and representatives" of
the Company, in the presence of employees of the Company ; (c) threatened em-
ployees of the Company that Respondent would cause their discharge ; and (d) in
the presence of employees of the Company , threatened to inflict , and inflicted, dam-
age to property belonging to, or entrusted to, the Company . The complaint fur-
ther alleges that the Respondent engaged in the foregoing acts in order to induce
the employees of the Company to join, support , and assist the Respondent , and that
the Respondent thereby violated Section 8(b) (1) (A) of the Act.
1. Sequence of events
The Company contracts with owners and managers of apartment buildings for
the installation of "adequate wiring"-that is, electrical wiring in addition to that
already in place, where such existing wiring has become inadequate to service all
the electrical appliances and equipment in the buildings.
For some time prior to November 1961, the Company employed electricians who
were members of the Respondent . Between November 1961 and March 5, 1962,
the Company replaced these electricians with others who were not members of the
Respondent , and on March 5 the Company had 58 such electricians in its employ.
s Moreover, Cosmopolitan annually buys $10,000 to $15,000 worth of paint In New
Jersey through an affiliated company
9 S If . Kisner & Sons , supra, at 1200
'The Board 's Jurisdictional standard with respect to secondary boycott cases Is satisfied
here by virtue of the fact that the primary employer herein, as already found, has an
annual indirect inflow in excess of $50,000
sAll events hereafter related occurred In 1962, unless otherwise stated
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On that date , 32 of these electricians struck at the behest of the Respondent. Dur-
ing the ensuing months others joined the strike. It is not disputed that the object
of the strike was to secure recognition of the Respondent as the exclusive representa-
tive of the Company's electricians . The strike continued until the commencement
of the instant hearing .9 Pickets patrolled in front of the Company 's office and in
front of various apartment buildings where the Company had begun to install elec-
trical wiring.
2. The incidents
One of the apartment buildings picketed was located at 515 West End Avenue.
On March 5 Poirier, an electrical foreman , was assigned to work at that address.
He reported to Haber, who was in charge of the job, and thereafter , according to his
testimony , the following occurred:
He was invited by Haber to ride with him in the elevator of the apartment build-
ing. Upon entering the elevator , Poirier found Petilli and Buono already there.
The others took the elevator up and down four or five times, while they solicited
Poirier to sign an authorization card for the Respondent , warning him that he had
"better sign up" or he would be "without a job." Poirier did sign a card.
Haber admitted giving Poirier a card to sign on the foregoing occasion, but
denied, at least by inference , that there was any solicitation of Poirier in an elevator.
He also denied generally that he threatened any employee of the Company on
March 5. Petilli also denied generally that he had told any employee of the Com-
pany that he would lose his job if he "continued to work." However , Poirier's
testimony was that the threat in the elevator was conditioned on his not signing
the card and not on his continuing to work , and he did not attribute the threat
specifically to Petilli or to Haber. Buono, although present at the hearing and
called to testify on another matter, was not asked to testify about the foregoing in-
cident. Accordingly , there is at most merely a denial by Haber that he solicited
Poirier in an elevator, and the general denial by Haber and Petilli noted above
with respect to the alleged threat. In view of the meagerness of Respondent's re-
buttal of Poirier's testimony , and since , for reasons discussed below , I deem Poirier
to be a more credible witness than Haber or Petilli , I credit Poirier 's version of the
foregoing incident . In connection with that incident , the General Counsel con-
tends that Poirier was coerced in that he was confined in an elevator until he signed
a card. However, there is no evidence that Poirier entered the elevator involuntarily
or that he made any effort to leave, or that he signed the card because of any intimida-
tion by reason of the fact that he was alone in the elevator with the others . Indeed,
the fact that the others threatened only that he would lose his job if he did not sign
a card would tend to negate any intention on their part to resort to other, more violent
reprisals . Accordingly , I find no coercion in the fact that Poirier was solicited
during the course of a protracted elevator ride . However , I find coercive in the
foregoing threat that Poirier would lose his job if he did not sign a card for
Respondent.lo
Poirier testified further that on March 8, while working in the basement of 266
Washington Avenue with Tacktickus , he was approached by a group of strikers,
about 15 in number , including Brummer, Petilli , and Haber , and that Brummer
stated , "You better get off this job and don 't come back or we'll kill you " Poirier
left the job and reported to Respondent's office.
Poirier's account was substantially corroborated by Tacktickus, who testified that
he was working with Poirier at the time,il that a group of 13 to 15 strikers , includ-
ing Brummer , Petilli , and Haber , approached them, and that Brummer said to Poirier,
"You better get off the job or else you are going to wind up in the hospital."
Tacktickus testified also that Brummer warned another employee 12 on the same
occasion , "If I see you again in any of the buildings , I'm going to break your head."
The strikers then accompanied Tacktickus and some other employees when they left
the building for lunch , and returned to the building with them after lunch . Accord-
ing to Tacktickus , as the group approached the building , Brummer admonished the
9 However , picketing at some of the buildings here involved ceased late in May or early
in June
" Central Veneer, Incorporated, 131 NLRB 189 ; Harbor Carriers of the Port of New
Fork , 136 NLRB 815 ( IR), and cases there cited.
11 Although Tacktickus gave the date of this incident as Wednesday ( March 7), he
placed it as occurring the day before the fracas between Poirier and Brummer , discussed
below, which it is clear occurred on Friday ( March 9 ). Accordingly , I find that Tacktickus'
testimony set forth above in the text relates to the March 8 incident.
12 Identified by Tacktickus as "Santos " Brummer's testimony indicates that this em,
ployee's name was Santos Castelluzzo
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1101
employees , "I don't want you to go back in the building or else you will wind up
in the hospital just like I told Joe," 13 and, brandishing a pair of pliers, Brummer
added, "I got my little persuader on me."
Brummer denied uttering any of the foregoing threats attributed to him by Poirier
and Tacktickus.
On March 9 an incident occurred at the Washington Avenue job which produced
another sharp conflict in testimony . On that date , according to Poirier , who was
corroborated by three of his fellow employees ( Barnes, Tacktickus , and Carroll), a
group of about 15 pickets entered the basement of the Washington Avenue build-
ing, and one of them, Brummer , attacked Poirier while Petilli held him, striking
Poirier in the face with a pair of steel pliers, punching him, and knocking him to
the floor. Tacktickus testified that when he attempted to intervene he was also
thrown to the floor, and Brummer bade him pack his tools or he would "get the
same medicine."
Brummer 's version , corroborated by four of his fellow strikers ( Haber, Petilli,
Ventura, and Viera ), was that Brummer , accompanied by eight strikers, accosted
Poirier in the basement of the building and called him a scab because he had con-
tinued to work despite having signed a union card , whereupon Poirier attacked
Brummer; and , after a few blows were exchanged , Haber and Petilli pulled Poirier
away, while Ventura and Viera restrained Brummer.
I have determined to credit Poirier's version of the foregoing incident , principally
because of the inherent unlikelihood that Poirier would have attacked Brummer, a
considerably larger man,14 while surrounded by a group of at least eight strikers.
While it is conceivable that a quick -tempered or pugnacious individual might so act,
Poirier did not impress me as that sort of person.
As I do not credit Brummer 's testimony with respect to the March 9 episode, even
though corroborated , I am not disposed to credit his uncorroborated denials of the
threats on March 8 attributed to him by Poirier and Tacktickus.
Accordingly , I find that on March 8 , Brummer threatened Poirier, Tacktickus,
and other employees with bodily injury if they did not make common cause
with the strikers , and that on March 9 Brummer, aided by Petilli, assaulted Poirier
in reprisal for his refusal to join the strike, and threatened Tacktickus with similar
treatment
Colon, an electrician 's helper, testified that on March 5 , while working at one of
the picketed buildings , Petilli warned him that if he did not sign a card for Re-
spondent he would not be able to work any more. The foregoing testimony is
contradicted only by Petilli's general denial that he ever threatened an employee
with loss of employment if he continued to work . He was not asked, however,
whether he had threatened loss of employment for failure to sign a card . For reasons
stated above in connection with a similar threat to Poirier , I credit Colon and find
that Petilli uttered the foregoing threat.
Errigo , who worked during the strike as the Company 's electrical supervisor , testi-
fied without contradiction , 15 and I find, that on April 3 he encountered several pickets
at one of the picketed apartment buildings , and one of them, Weisberg, threatened
to "bust" his head if he did not join the strike , that Petilli and Haber were in the
vicinity when this threat was uttered ; and that on April 5 certain pickets threatened
to turn his car over if he parked at one of the picketed buildings.
Levine, one of the Company's supervisors , testified that on April 10, as he ap-
proached a picketed building in his car, one of the p ickets (Wierl) banged on the
windows of his car and threatened to beat him up; that on March 9 Levine saw
Haber in the Company's warehouse, and Haber advanced upon him and threatened
to "get" him; and that about a week later , as he attempted to drive into the Com-
pany's warehouse , a group of pickets blocked his path, and one of them (Wierl)
banged on the car window , spit at him , causing Levine to close the window, and
threatened to beat him up.
Wierl did not testify, and Haber , while denying generally any threats to the
Company's "employees ," was not asked specifically about the Levine incident. In
view of this , and as I have rejected Haber 's testimony with respect to the attack
on Poirier , I do not credit him here . I find , therefore , the threats by Haber, the
"This presumably had reference to the threat addressed earlier that day to Poirier,
whose first name was Joseph.
111` , rummer was 4 inches taller than Poirier and outweighed him by more than 30 pounds
While Petilli observed that Poirier was a "muscular" individual, Brummer also appeared
to me to be well endowed in that respect
15 Although Weisberg testified about other matters , he was not asked about the April 3
incident
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threats and assaults by Wierl, and the debarring incident in the warehouse driveway,
as related by Levine.
Agency Issue
Respondent contends that, even if it be found that the pickets engaged in coercive
acts, such conduct may not be imputed to it. - To meet this contention, the General
Counsel relies, in part, on the roles played by the members of the so-called strike
committee 16 in the conduct of the strike.
Smith, Respondent's business agent, testified that the strike committee consisted
of Haber, Brummer, Petilli, Buono, and Henderson; that this committee was selected
on February 28 by the Respondent's adherents; that their duties were to advise
Smith as to how many pickets were required at each location, to select the pickets
to be posted at a particular location, to inform Smith when a picket failed to report
for picket duty, and of any personal problems of the pickets that affected their
availability, and to report to him when the Company completed its work in a picketed
building. Smith's testimony was in the main corroborated by Petilli, Haber, Buono,
and Brummer. However, Brummer and Buono admitted that, in addition to the
foregoing duties, they distributed picket signs and Brummer and Haber acknowledged
that it was their function to see that the pickets were carrying out their assignments
in an orderly fashion. While Petilli and Buono denied that the latter was one of
their duties as committee members, I do not credit such denial in the face of the
foregoing admissions.
Under cross-examination Haber admitted that he had testified in a court proceed-
ing, under Section 10(1) of the Act, that he was "in charge of' the picketing at a
particular location, but explained that he meant only that he was responsible for
ascertaining that the picket line at the job was fully manned and for apprising
Smith of the financial needs of the pickets. Kozlowski, a picket, testified that Haber
distributed picket signs to him and others at one of the buildings and instructed them
to picket peacefully and stay out of the buildings.
I find from the foregoing that Smith determined the overall strategy of the strike
and the task of the committee members was to function as a channel of communi-
cation between the pickets and Smith, to monitor the picket lines, to distribute picket
signs, to report to Smith any significant developments on the picket lines, and that
they had discretion only to determine which of the pickets should be posted at a
particular location. The question remains whether it fell within the scope of the
committee members' authority, as delineated above, to engage in the coercive con-
duct which I have attributed to certain members of the committee. This is an
intriguing question, and, so far as I can determine, a novel one. However, I do not
deem it necessary to resolve it, in view of my finding below that the Respondent
is responsible for such coercive conduct on other grounds.17
Smith testified that in February he had 2 meetings with 30 to 35 of the Company's
electricians; that Petilli was the prime mover in arranging these meetings, and in
stimulating interest in the meetings among the employees; and that at the first of
these meetings Smith gave several authorization cards to most of those attending,
including Petilli, Buono, and Haber, which were to be used in soliciting other
employees to pledge their support of the Respondent. In addition, Haber and
Brummer admitted that during the strike they carried with them cards furnished by
Smith, and solicited signatures on such cards. I find, therefore, that Haber, Buono,
Brummer, and Petilli, among others, were authorized by Respondent to solicit the
Company's employees on behalf of the Respondent. The question remains whether
the Respondent was responsible for the particular coercive tactics resorted to by
Petilli and Brummer in connection with such solicitation, as described above. In
the Central Veneer case,18 the Board majority held that the respondent union was
responsible for coercive statements by a "rank-and-file union member" who solicited
19 Also referred to in the record as the shop committee.
171 attach no weight to testimony by witnesses for the General Counsel that various
committee members admitted that they were "in charge of" the picketing or were "super-
vising" the picketing Such conclusionary statements are not necessarily inconsistent
with the testimony of Respondent's witnesses as to the specific duties of the committee
members with respect to the management of the picketing. Nor do I attach any sig-
nificance to Polansky's testimony, denied by Smith, that when, on March 15, in a dis-
cussion of the strike with Smith at the Company's office, Polansky deplored the "violence
and vandalism" at the jobsites, Smith made no comment. Even if Polansky be credited,
there is no evidence that Smith observed such violence or vandalism, Or believed that
such acts had occurred. Accordingly, I do not deem it to have been incumbent upon him
to disavow them
>s Central Veneer, Incorporated, 131 NLRB 189 (Member Fanning dissenting).
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1103
employees to sign cards for the union under circumstances deemed to constitute him
the union's agent for the purpose of such solicitation. The Board reasoned that,
since the union had made the individual its agent for the purpose of organizing the
employees involved, it was responsible for his "conduct in furtherance of that or-
ganizational purpose, whether or not the specific conduct was authorized or ratified." 19
This rule seems to accord with common-law principles of agency, which have been
held by the Board to be controlling in this area 20 Nor would it seem to be material
that Smith, as he testified, counseled the strikers against resorting to violence21
I find, therefore, that Smith, who was admittedly empowered by the Respondent
to supervise the conduct of the strike, expressly authorized Petilli and Brummer,
among others, to solicit the Company's employees on behalf of the Respondent,
and that the various coercive acts found above to have been committed by them to
induce employees of the Company to join the strikers were in furtherance of that
organizational purpose. It follows that the Respondent is responsible for such acts,
and that it thereby violated Section 8(b)(1)(A) of the Act. I find also that Re-
spondent is also responsible for Weisberg's threat to attack Errigo unless he joined
the strike. Although it does not appear that he was entrusted by Smith with any
authorization cards, or was otherwise authorized to solicit for the Respondent,
Weisberg's conduct is nevertheless chargeable to the Respondent because it conformed
to the pattern of conduct established by Brummer and Petilli, whom I have found
to be agents of Respondent,22 and, in fact, occurred in the presence of Petilli as well
as Haber.
As to the other coercive acts of the strikers vis-a-vis Errigo and Levine, related
above, it is not clear whether they were in furtherance of any organizational purpose
or were merely expressions of animus against management, as symbolized by Errigo
and Levine.
It may be argued that any attack by union adherents upon supervisors during the
course of a strike, whatever the motive therefor, furthers the Union's organizational
objectives, as it tends to enforce allegiance, and deter opposition, to the Union.23
However, as a finding as to these incidents would not affect the remedy herein, I do
not deem it necessary to resolve the question of the Respondent's responsibility
therefor.24
Concluding Findings
It is found, therefore, that the Respondent violated Section 8(b) (1) (A) of the Act
by reason of:
1. The threats of loss of employment addressed to Poirier and Colon.
2. The threats of physical harm addressed (1) to Poirier, Tacktickus, and other
employees on March 8 by Brummer; (2) to Tacktickus on March 9 by Brummer;
and (3) to Errigo on April 3 by Weisberg.
3. The attack on Poirier on March 9.
B. Case No. 2-CC-703
The amended complaint in this case alleges that, because of a dispute with the
Company over recognition, Respondent picketed in front of various designated
>e Member Fanning dissented solely on the ground that under the facts of that case he
would not find an agency relationship for any purpose. He did not, however, question the
premise of the majority that, where a union authorizes an individual to solicit for it, or
otherwise constitutes him its agent for that purpose, the union is responsible for threats
uttered by that individual to induce employees to join the union.
21 Sunset Line & Twine Company, 79 NLRB 1487, footnote 44. See Section 2(13) of
the Act, and Restatement of the Law of Agency, American Law Institute, 1933, Sections
229-231.
2i See Restatement of the Law of Agency, supra, Section 230.
22 Sunset Line & Twine Company, Supra; Stephenson Brick & Tile Company, 129
NLRB 610.
23 Ohio Consolidated Telephone Company, 120, NLRB 684.
24 For the same reason of redundancy I do not make any findings whatsoever as to
alleged coercive acts of the strikers other than those discussed above, including alleged
admonitions to employees not to work or to go home, and alleged acts of sabotage directed,
in the presence of employees, at equipment installed by the Company in the picketed apart-
ment buildings (As to the latter, it may be noted parenthetically that, while there is
precedent for finding coercion in acts of violence directed by strikers against property of
employees or against vehicles being operated by them, no authority has been cited for
such a finding with respect to sabotage of the type here alleged )
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apartment buildings, in which the Company was performing services for the owners
or managers of such buildings, and that such picketing was conducted at times when
no employees of the Company were present. The amended complaint alleges
further that the object of such picketing was to force said owners and managers to
cease doing business with the Company, to force third persons to cease doing business
with said owners and managers, and to force the Company to recognize and bargain
with the Respondent as the representative of the Company's employees, notwith-
standing that the Respondent had not been certified as such representative, and that
by the foregoing picketing the Respondent violated Section 8(b) (4) (i) and (ii) (B)
of the Act.
The answer controverts all the foregoing allegations, but asserts that Respondent
picketed premises where the Company's employees were performing services for
the purpose of organizing such employees, and that Respondent has filed a petition
with the Board for representation of the Company's employees.
In his brief, Respondent's counsel concedes, in effect, that the Respondent has not
been certified by the Board to represent the Company's electricians, but urges that
all times here material there was a contract in effect between the Company and
the Respondent, and that such contract should be deemed equivalent to certification.
I find no merit in this contention 25 I find, therefore, that it was an object of the
picketing to force the Company to recognize the Respondent as the representative
of the Company's electricians, notwithstanding that Respondent has not been certified
by the Board for that purpose.
The main issue in this case is whether the picketing conformed to the Board's
standards for common situs picketing as enunciated in the Moore Dry Dock case 26
and subsequent cases. One of those standards is that where the common situs
consists of premises of a secondary employer at which the primary employer is
performing services, the picketing must be limited to periods when the employees of
the primary employer are actually present.27
Here the primary employer was the Company, which had contracted to perform
services at various apartment buildings operated by neutral employers. The Re-
spondent posted in front of those buildings pickets, who patrolled continuously
(except for Sundays) from March 5 to at least early in June, from 8:30 or 9 each
morning to 4 or 5 in the evening. The picket signs stated:
Electricians employed on this job by New Power . . . are not members of
Local Union No. 3 IBEW . .. 28
The General Counsel adduced considerable evidence that during extensive periods
after March 5 there were no primary employees at the picketed sites. Polansky, the
Company's comptroller, testified, on the basis of records compiled by him, as to
certain periods between March 5 and May 31 when no work was performed by
company employees at each of the locations here involved. According to these
records, such inactive periods ranged from single days to 6 or 7 weeks. Thus, at
500 West 190th Street, according to Polansky, no work was performed between
March 7 and May 20, nor was any work performed on May 26, 27, and 30, so that
at that location only about 1 week was worked in a 2-month period.
However, Polansky admitted that his records were based only to a limited extent
on personal observation, and to a large extent on reports filed by employees and
supervisors. The reliability of these records was impugned at the hearing. More-
over, there is abundant, independent, eyewitness testimony, discussed in detail below,
that picketing continued at certain locations for substantial periods, even though
no primary employees were present. Accordingly, there is no need to, and I do not,
rely on Polansky's tabulation.
Picketing at 222d Street
Kelmar Realty Corporation and Louis Weinstock, doing business as Village Realty,
own and manage adjoining buildings at 222d Street. In December 1961 the Com-
pany began to install electrical wiring in these buildings, which work was interrupted
w The case of National Broadcasting Company, 105 NLRB 355, cited by Respondent,
deals with a different section of the Act, and is not apposite here.
26 Moore Dry Dock Company, 92 NLRB 547
27 llansberger Refrigeration & Electric Co , 135 NLRB 492, and cases here cited
28 At times the pickets also carried it sign reading in pertinent part as follows:
New Power & P & L Services
on strike
Electrical Workers Local Union No. 3
C
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1105;
by the strike . Virok, the superintendent of these buildings , testified that the picket-
ing continued to May 15 and that no employees of the Company were present in
the building from the beginning of the strike to March 26 , that a porter and part-
time handyman worked with him in the buildings , and that employees of various
firms which supplied services and fuel oil to the buildings crossed the picket line,
but an employee of an elevator firm refused to do so. There is no denial of this
testimony , except insofar as it relates to the absence of the Company 's employees be-
tween March 5 and 26. Lampone testified on direct that he picketed at 222d Street
during the first 7 weeks of the strike, that Robert Unger , the Company 's delivery-
man, came to the job almost every day with materials , and that Supervisors Levine
and Errigo appeared on the job every day during this period and brought materials
and, sometimes , men. However , under cross -examination Lampone was unable to
recall the exact date when men were first brought to the job during the strike, and
admitted it could have been March 26 29
Levine denied that he visited the 222d Street job at all between March 6 and 26 3o
Errigo testified that he visited all the jobsites involved in this case during the first
week of the strike to pick up tools and to restore electrical service , which had been
disrupted by the strike , that such visits did not last more than 15 minutes , and that
he visited each building from one to three times during the strike to check on
vandahsm 31 Robert Unger did not testify.
Ventura testified that: he picketed at 222d Street the first 4 weeks of the strike;
he saw Levine there "after the first week or two," and he "often" saw Errigo and
Robert Unger there; Levine brought men with him "five out of six times "; Errigo
and Unger were usually alone; and one or more of these three individuals brought
materials to the site.32
Alexander testified that: he picketed at 222d Street during the first week of the
strike and for 3 weeks after March 26; deliveries were made during the picketing;
and he saw Errigo at the building about three or four times a week , and saw him
bring men and materials on two occasions , but did not specify whether these oc-
casions were before or after March 26.
In view of Virok's neutral status in this matter ,33 I credit his testimony that there
was no work done by the Company from March 5 to 26, when he personally called
the Company and insisted that work be resumed . It follows that any visits made
by Levine and Errigo during this period could not have been for the purpose of
bringing men or materials to the job, but only for the purposes stated by them and,
in the absence of any specific contradiction , I credit their testimony that their visits
for those purposes were relatively infrequent and for relatively brief periods. While
there is no direct denial of Lampone 's testimony that Robert Unger brought mate-
rials to the job every day during the period in question , such testimony becomes
inherently incredible , in view of the improbability that the Company would con--
tinue to deliver materials for a period of 3 weeks to an idle job.
Accordingly , I find that during the first 3 weeks of the strike ( 1) there were no
nonsupervisory employees of the Company at work at 222d Street , (2) Levine visited
that site only once (on March 6 ), and (3 ) Errigo drove by the site frequently to
observe the picketing , but did not enter the buildings on those occasions. I find fur-
ther that Errigo did enter the buildings during the first week of the strike but only
for the purpose of removing tools and restoring service disrupted by the strike, that
none of these visits lasted more than 15 minutes , and that thereafter he entered the
buildings not more than three times to check on vandalism.
29 Moreover , Lampone admitted that the pickets arrived at the jobsite each morning
about 45 minutes before the employees.
ao According to Levine , the purpose of such visits as he made to jobsites was to observe
the picketing and check on vandalism ; he entered the buildings only on those occasions
when he was checking on vandalism ; he made only about two such visits to each building,
and did not stay in the building more than 15 minutes
81 Errigo admitted that he frequently drove by each job to observe the picketing but
insisted that on such occasions he did not stop or enter the building
12 While Niedzwiecki testified on direct that he picketed at 222d Street from March 20 to
the end of May , and he saw Errigo, Levine , Robert Unger , and Annunziata ( an officer of
the Company ) at that location "almost every day " and that they brought men and mate-
rials with them, he admitted under cross-examination that it was possible he did not begin
picketing at 222d Street until March 26 Under these circumstances , his testimony re-
quires no further comment.
53At the time of the hearing he was no longer in the employ of Kelmar or Village
Realty , and had moved to Florida
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
500 West 190th Street
This building is owned by Al-Ri Corporation and managed by Columbia Manage-
ment Corporation, which employed a building superintendent at this location. Pur-
suant to its contract with Al-Ri, the Company began work at this site in December
1961. Picketing here began on March 5.
Milner, the building superintendent, testified that: this site was picketed between
March 5 and May 21 daily except Sunday, from 8:30 a.m. to 5 p.m.; during this
period there were no employees of the Company at the jobsite; an employee of a
plumbing firm refused to cross the picket line to make repairs in the building; a
telephone company employee refused to install a telephone in one of the apart-
ments during the picketing until after he had consulted with his supervisor; and
employees of another firm refused to install a sink in one of the apartments until
after they had consulted with the pickets. According to the uncontradicted testi-
mony of Matfus, a representative of Milner's employer, Milner himself asserted that
he would not admit any of the Company's electricians to the building because of
the picketing.
Cancel, a picket, testified that: except for 1 week he picketed at this site from
March 5 to early in June; he saw Errigo, Levine, Robert Unger, and Annunziata
(an officer of the Company) at the site; one or the other of these four came
to the job about once a week; and electricians were brought to the job a few times.
Under cross-examination the witness admitted that Levine did not enter the build-
ing but stayed outside in his car, that he saw Annunziata enter only 4 times, and
Errigo about 10 or 12 times during the last month of the picketing, and that the
witness picketed in front of all the entrances to the building.
Even if Cancel's tesitmony is credited, it is clear from a synthesis of such testi-
mony with Milner's that there were substantial periods of time, during the picket-
ing, when no electricians or other representatives of the Company were at the job-
site, and that the picketing was witnessed by Milner and by employees of neutral
employers doing business with Columbia Management Corporation.
47th Street
The apartment buildings at 4808, 4816, and 4826 47th Street are owned and
managed by Cosmopolitan Associates. Work was begun there by the Company
in the spring of 1961, pursuant to its contract with Cosmopolitan, and had not yet
been completed at the time of the hearing.
Kuhlsen testified that: he was the janitor for these three buildings, and Cosmopoli-
tan's porters work in the buildings; the Company's employees worked there from
February 1 to early March, but did not, so far as the witness knew, do any work
for about 2 months thereafter; 34 milk and oil deliveries were made during the picket-
ing; and painters employed by an a lilitate of Cosmopolitan worked in the buildings
during that time.
Niedzwiecki testified that: he picketed these buildings during the first 2 weeks
of the strike; there were employees of Cosmopolitan in the buildings; and Unger,
Errigo, Levine, or Annunziata visited the buildings "almost every other day" but
did not bring men or materials with them 35
Murino testified that: he picketed at the instant buildings from March 6 to the end
of May; during the picketing maintenance work was done at the building by
Cosmopolitan employees and deliveries were made; Robert Unger came to the build-
ings every day, Annunziata about eight times, and Errigo every day during the last
4 weeks of the picketing; and one or more of these individuals brought men and
materials, but only during the last 4 weeks of this period. Under cross-examination
the witness testified that Unger would stay from 5 minutes to a "couple of hours."
There is thus no effective contradiction of Kuhlsen's testimony that no work was
done by the Company at the instant jobsite between early March and early May 36
(with the possible exception of 2 weeks in April 37), that picketing continued through-
34 The witness was on vacation for 2 weeks early in April and so was unable to testify
concerning that period
35 The witness so testified as to these visits under cross-examination. While his testi-
mony on direct was less favorable on this point to the General Counsel's case, it is not
clear whether such testimony related to the instant jobsite or to another jobsite at which
the witness picketed after the first 2 weeks of the strike. See footnote 32 above.
3e Munno's testimony that electricians were not brought back to the job until the last
4 weeks that he picketed (I e., the month of May) coincides roughly with Kuhlsen's
testimony that the Company resumed work early in May
37 See footnote 34, above
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1107
out that period, and that various employees of Cosmopolitan and other neutral em-
ployers worked on the premises during such period at times when no primary em-
ployees were present. I so find.
515 West End Avenue
This apartment building is owned by Finmar Realty Corporation and managed
by Henry Moskowitz. Pursuant to a contract with Finmar, work by the Company
at this site began in December 1961, stopped sometime in March, and continued
intermittently thereafter. Moskowitz has eight employees at this site. Errigo testi-
fied that he drove by this site every day between March 5 and 26 and that on vir-
tually every occasion he observed pickets but no employees, and that to his knowl-
edge there were no company employees there during that period.
Cicero testified that: he picketed this building intermittently for about a month
throughout the period of the strike; Errigo, Levine, Annunziata, or Robert Unger
visited the site every day; Errigo came most frequently and took men and materials
into the building; and deliveries were made to the building through the picket line.
However, under cross-examination, Cicero was vague as to how many days he
picketed at this location between March 5 and 26, his best estimate being that he
picketed there not more than 6 days during that period. Accordingly, it is undis-
puted that was continuous picketing here, as elsewhere, from March 5 to 26, and,
apart from Cicero's testimony as to what he observed during the 6 days that he
picketed during that 3-week period, there is no denial of Errigo's testimony that no
company employees appeared at this site during those 3 weeks, nor is there any
evidence that representatives of the Company entered the building for any purpose
other than those detailed above. (See discussion under "Picketing at 222d Street.")
117 Mulberry Street
This apartment building is owned and managed by Hong. He testified that:
work by the Company at this site, pursuant to its contract with him, began early in
March, ceased a few days thereafter, and was not resumed until sometime in
May; picketing was conducted throughout this period; he has one employee at the
building; and on April 10 an employee of a hardware store refused to cross the
picket line to install a door-closing device.
Kozlowsky testified that: he picketed at this site from early in April to late in
May; he picketed in front of the only two entrances to the building; deliveries were
made to the building; a plasterer crossed the picket line; on about four or five oc-
casions he saw Errigo at the building with some men, who stayed in the building
all day; and twice he saw Annunziata, who stayed in the building for an hour or two,
but the foregoing visits by Errigo and Annunziata may have occurred after May 15.
On the basis of a synthesis of the foregoing testimony, I find that: from early in
March to at least May 1 there were no employees of the Company at this site;
picketing was in effect all that time; Hong had an employee at the site; and em-
ployees of other neutral employers visited the premises during the picketing to per-
form services for Hong.
Summary 38
There emerges from the foregoing the following pattern:
At the sites discussed above picketing was conducted generally between March 5
and the end of May, in the presence of employees of the building managers and
of employees of other neutral employers who serviced the buildings. During the
picketing, the sites were visited by representatives of the Company for brief periods
and for the purpose of removing tools and materials, inspecting the buildings or
the picketing, and, in the case of Errigo, during the first week of the strike for the
purpose of restoring electrical service interrupted because of the strikers' abandon-
ment of their work. There were also periods during the picketing when employees
of the Company performed their regular work at the premises. However, for sub-
stantial periods of time, in some cases as much as 2 months, there were no primary
employees on the premises, nor were any other representatives of the Company
present during part or all of such periods.
As already noted, it is well settled that where, as here, picketing is conducted at
secondary premises, in the presence of neutral employees, and while no primary
"I do not deem it necessary to discuss the picketing at locations other than those
mentioned above, as any violation findings based thereon would be cumulative and would
not affect the remedy.
727-083-64-voL 141 71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees are present, such picketing violates Section 8(b) (4) (i) and (ii) (B) of
the Act.
However, the Respondent contends that this rule is not applicable here because
(1) in view of the practice of the Company of shifting men from one job to another
before the first job had been completed, the Respondent could not know in advance
when work would be resumed on a particular job that was being picketed, and (2)
the pickets outside a building had no way of determining whether work was being
done by the Company inside a particular building. In connection with the latter
point, the Respondent contends that, while it is true that in some (but not all) of
the buildings the pickets had an unobstructed view of all entrances, employees of
the Company could have entered the buildings before the pickets arrived and could
have left after the pickets departed. Thus, Respondent's position is in effect that
it could not have determined by the exercise of due diligence when and where the
Company was performing work, and that under these circumstances it was privileged
to picket all the secondary sites here involved, even at times when there were no
primary employees and no representatives of the Company at these sites.
However, I find no merit in this "due diligence" contention It is undisputed that
Smith made no effort to ascertain from the Company what jobs were active during
the period of the strike. Such neglect may be excused on the ground that the
Company was not likely to be cooperative in furnishing such information. However,
there is no showing that it was not feasible for the pickets to enter the buildings to
determine whether electrical work was in progress. Petilli, who was a member of
the strike committee, testified that immediately before the strike began he was super-
visor over 10 jobs (all but 1 being jobs at the secondary sites here involved 39);
that that he was familiar with the progress of the jobs, and that in the case of at least
some of the jobs, if any work was being done there, employees of the Company
would be found in the basement of the building involved. While protesting that
he might have difficulty in finding electicians in a basement because of the size of
some of the basements and because of other contingencies that might arise, Petilli
admitted that he never made any effort to ascertain whether there were any company
employees in the basement of a picketed building. When asked why not, Petilli's
only answer was, " It wasn't my business." Thereafter the following ensued:
Q. Weren't you on the strike committee?
A. I was on the shop committee, yes sir.
Q. Was there any instruction given to the pickets about making sure that
they picketed only while there were people from P & L working there?
A. Yes.
Q. Were they told how they would carry out the instructions, how they would
determine whether there were P & L people there?
A. No. We told them they couldn't tell all the time, because they would
come early in the morning before we got there.
Q. Did anybody suggest you go in the basement to see if there were men
working there?
A. No. We were told to stay out of the basements.
Q. Didn't you go in the basement on Washington Avenue?
A. Yes.
Q. Did you ask permission to go in there?
A. No.
Q. Why did you go in there?
A. To speak to the fellows.
Q. There was no problem getting in the basement then was there?
A. No.
Apart from the incident at Washington Avenue, referred to in this colloquy, the
record contains other evidence indicating that the pickets had free access to the
basements of the various buildings here involved and did not hesitate to avail
themselves thereof. At 1316 Morris Avenue, they solicited employees of the Com-
pany while at work in the basement of the building, and appealed to the super-
intendent for cooperation. At 500 West 190th Street, they stored their picket signs in
the basement with the knowledge of the building superintendent.
In the Hansberger case, supra, in finding unlawful picketing at a common site
while no primary employees were present, the Board cited the absence of any
evidence that the respondent union "made any effort to ascertain whether [the pri-
mary employer] or his employees were engaging in [the primary employer's] normal
operations when it commenced and later continued its picketing." There was no
so Polansky so testified , without contradiction , and I'so find'.-'
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1109
such effort here, and for reasons just stated, I do not believe that the circumstances
cited by the Respondent justified its failure to make such effort.
Oral Inducement Issue
The General Counsel contends that the picketing was unlawful on the further
ground that it was attended by oral inducement of neutral employees not to perform
services for their employers. The only pickets who were identified as having any
connection with such inducement were Petilli, Lampone, and Haber. As already
stated, Haber and Petilh were members of the Respondent's strike committee. As
to Haber, there was testimony, and I find, that unidentified pickets, in his presence,
solicited the superintendent of an apartment building (at Morris Avenue) not to
admit the Company's electricians to the building. As to Petilli and Lampone, Virok
testified, and I find, that they requested him not to admit any of the Company's
electricians to the buildings at 222d Street.40
The question remains whether the Respondent is responsible for the foregoing
conduct. The Board has heretofore refused to impose liability on a union for oral
inducement of neutral employees not to perform services, even though such induce-
ment is by pickets posted by the Union, absent a showing that such inducement
was authorized, encouraged, or acquiesced in by an agent of the Union. In this
context, the Board has deemed business representatives, union stewards, or union
officers to be union agents for this purpose 41 So far as I can ascertain, however,
there has been no case dealing with the question whether members of an ad hoc
strike committee, such as is here involved, are such agents.42
However, as I have found the picketing unlawful on other grounds, and a finding
of unlawful oral inducement would not affect the scope of the remedy, there appears
to be no need to resolve that issue here.43 Accordingly, I do not pass on the
Respondent's liability for the oral inducement found above.
Concluding Findings
It is found, therefore, that, by picketing at the locations discussed above during
periods when individuals employed by the aforenamed building managers, but no
company employees, were present, with an object of forcing such managers or the
building owners to cease doing business with the Company, and forcing the Com-
pany to recognize and bargain with the Respondent, although not certified, the
Respondent violated Section 8(b) (4) (i) (B) of the Act.
It is further found that, by picketing in the presence of individuals employed by
the above-named building managers and in the presence of employees of other
neutral employers doing business with such managers, while no company employees
were present, the Respondent coerced and restrained such managers and the building
owners, with an object of forcing them to cease doing business with the Company
and forcing the Company to recognize and bargain with the Respondent, although
not certified, and that the Respondent thereby violated Section 8(b) (4) (ii) (B) of
the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the Company, as set forth in section II, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
40 Although Petilli and Lampone contradicted this testimony, I deem Virok to be a
more credible witness for reasons already noted.
41 See, e g , Genuine Parts Company, 119 NLRB 399.
42 The only admitted agent here was Smith and he denied authorizing any oral induce-
ment of neutrals, asserting that lie in fact expressly forbade it.
43 The fact that, as I have found, Petilli and Haber were agents for purposes of Sec-
tion 8(b) (1) (A) would not appear to be conclusive of the question of their agency under
Section 8(b) (4) In finding them agents under the former provision, I relied solely on
the fact that the Respondent had expressly authorized them to Induce the Company's
electricians to sign authorization cards, and such authorization was deemed to render
Respondent liable for such means as they used to accomplish that purpose. However, it
does not follow that Respondent was thereby also rendered liable for the means used to
accomplish quite a different purpose-namely, the inducement of neutral employees not
to perform services for their employers
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, it
will be recommended that the 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 Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Columbia Management Corporation, Kelmar Realty Corporation, Louis Wein-
stock, d/b/a Village Realty, Cosmopolitan Associates, Henry Moskowitz, and
Hong are engaged in commerce or in an industry affecting commerce within the
meaning of Section 8(b) (4) of the Act.
3. Local 3, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
4. By inducing and encouraging individuals employed by Columbia Manage-
ment Corporation, Kelmar Realty Corporation, Louis Weinstock, d/b/a Village
Realty, Cosmopolitan Associates, Henry Moskowitz, and Hong to engage in a strike
or a refusal in the course of their employment to perform services, and by thereby
coercing and restraining the foregoing employers, with the objects of forcing and
requiring them, together with Al-Ri Corporation, and Finmar Realty Corporation,
to cease doing business with the Company, and forcing and requiring the Company
to recognize and bargain with the Respondent as the representative of its electricians,
although not certified as such representative, the Respondent has violated Section
8(b)(4)(i) and (ii) (B) of the Act.
5. By threatening employees of the Company with loss of employment, and by
threatening, and inflicting, physical harm, the Respondent has coerced such employees
in the exercise of their right not to engage in concerted activities, thereby violating
Section 8 (b) (1) (A) of the Act.
[Recommended order omitted from publication.]
The Boeing Company and Association of Electronic Technicians.
Case No. 19-RC-3169. October 15, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Orville W.
Turnbaugh. The Hearing Officer's rulings are free from prejudicial
error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Sections
9 (c) (1) and 2 (6) and (7) of the Act for the following reasons : z
'International Association of Machinists , AFL=CIO , referred to here as IAM , inter-
vened as the representative of a multiplant unit of Boeing employees , including those
sought to be severed by the instant petition.
9 As we agree with the Employer and IA IM that the unit sought is not appropriate, we
do not deem it necessary to decide whether the intervention of the Federal Government
into IAM's contract dispute with the Employer , which began before the instant petition
144 NLRB No. 103.