Local 399, IBEW

National Labor Relations Board - Board Decisions

Apr 3, 1978

235 N.L.R.B. 555 (N.L.R.B. 1978)

LOCAL 399, IBEW
Local 399, International Brotherhood of Electrical
Workers and Illinois Bell Telephone Company.
Case 38-CC-339
April 3, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On February 15, 1977, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed limited exceptions' and a brief in support of the
Administrative Law Judge's Decision, and Respon-
dent filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
Contrary to our dissenting colleague's view and in
agreement with the Administrative Law Judge, we
reject Respondent's work-preservation defense. Re-
spondent had no bargaining relationship with the
State of Illinois. Its picketing was not addressed to
the State's labor relations vis-a-vis its own employees
but was designed to satisfy Respondent's objectives
in its relationship with Illinois Bell. Therefore, the
picketing violated Section 8(b)(4) of the Act. United
Brotherhood of Carpenters & Joiners of A merica, Local
112, AFL-CIO (Summit Valley Industries), 217
NLRB 902, 917-918 (1975). In view of this finding,
we find it unnecessary to pass on the Administrative
Law Judge's further finding that Respondent had no
work-preservation clause in its contract with Illinois
Bell and his discussions of the consequences that
flow from the lack of such a clause in that contract.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Local 399,
International Brotherhood of Electrical Workers,
The General Counsel's motion to correct certain inadvertent errors in
the Administrative Law Judge's Decision is noted and the Decision has been
corrected accordingly.
2 Hereinafter the State.
235 NLRB No. 70
Springfield, Illinois, its officers, agents, and represen-
tatives shall take the action set forth in the said
recommended Order.
MEMBER MURPHY, dissenting:
Contrary to my colleagues I find that Respondent
Local 399 IBEW's objective in picketing was the
preservation of unit work, and that it lawfully
picketed the primary employer, the State of Illinois, 2
in furtherance of that objective. I would, therefore,
dismiss the complaint against the Union.
Briefly, the facts are as follows: For several years
prior to the dispute herein, the State leased Bell lines
to transmit data between its facilities in Springfield
and Urbana.3 When problems developed in the
transmission lines owned by Bell, the work of
locating the problems (herein called fault isolation)
was performed at the State's facilities by Bell
employees who were represented by Respondent.
The present dispute arose when the State decided-
in the interest of economy and efficiency-to per-
form this work with its own employees rather than
with Bell employees. To accomplish this, it leased
additional equipment called jack panels from Bell.
When state employees began performing the work,
Respondent picketed the state facilities on May 10,
1976, carrying signs reading as follows:
NOTICE TO PUBLIC, STATE OF ILL DEP. OF GEN'L
SVCS TELECOMMUNICATIONS DIV. IN VIOLATION OF
CONTRACT OF IBEW LOCAL 399. INFORMATIONAL
PICKET.
At the same time, the pickets passed out leaflets more
fully describing the nature of the dispute. 4 Employ-
ees of the State's building and maintenance staff in
Springfield refused to cross the picket line.
On the day of the picketing state officials met with
Respondent's representatives, who claimed for the
employees they represented the work of fault isola-
tion on Bell-owned equipment using jack panels.
State officials asked Respondent's representatives
whether the picketing would cease if the State
refrained from using the testing equipment. They
answered that the problem would be taken care of
that afternoon. Later that afternoon the pickets were
removed from state office facilities.
The Board's approach to a case of this nature is set
forth in Local Union No. 438, Plumbers (George Koch
Sons, Inc.), 201 NLRB 59, 64 (1973), wherein the
Board stated:
3 There are two facilities involved: the state office building in Springfieid.
Illinois, and the computer center at the University of Illinois in Urbana.
4 See the Administrative Law Judge's Decision for the text of the leaflet.
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . . the Board has always proceeded with an
analysis of (1) whether under all the surrounding
circumstances the union's objective was work preser-
vation and then (2) whether the pressures exerted
were directed at the right person, ie., at the primary
in the dispute .... In following this approach,
however, our analysis has not nor will it ever be a
mechanical one, and, in addition to determining,
under all the surrounding circumstances, whether
the union's objective is truly work preservation,
we have studied and shall continue to study not
only the situation the pressured employer finds
himself in but also how he came to be in that
situation. [Emphasis supplied.] 5
I consider first whether the picketing was directed
against the primary employer. In determining this
question, the Board has consistently looked to see
who had the "right to control" the work. Here the
State has such control since only the State, at all
relevant times, possessed the power and authority to
assign the work in dispute.
Despite this, my colleagues in the majority adopt
the Administrative Law Judge's finding that Bell is
the primary employer. The Administrative Law
Judge based his conclusion on his finding that the
Union claimed the work under the terms of its
contract with Bell and his finding that Bell acted in
violation of that agreement. This conclusion, in my
opinion, ignores the realities of the situation. It is
undisputed that the State-having contracted out the
work in dispute herein to Bell for a substantial period
of time-thereafter reclaimed it and assigned it to its
own employees. Bell had no power to prevent the
State from taking this action, and, after the State
acted, Bell retained no authority to assign such work
to its own employees. The State alone had the power
to assign the work in question. Applying the right-to-
control test, it is obvious that Bell was not the
primary employer at the time of the dispute. If not
Bell, then to whom could the Union look to resolve
its dispute? The answer is obvious. It was the State,
since it had exclusive "right of control" over the
assignment of the work.
The second factor to be considered is whether
Respondent's objective was work preservation. It is
uncontested that for several years prior to this
dispute all testing and repair on Bell-owned equip-
ment leased to the State had been performed by
employees represented by Respondent. Respondent's
picketing, in protest against the assignment of the
disputed work to employees of the State, was for the
purpose of securing the return of work which the
s This statement of the Board's approach to these cases was recently
cited with approval in N.LR.B. v. Enterprise Association etc., General
Pipefitters, Local Union No. 638 [Austin Co.], 429 U.S. 507, 523, fn. 11
(1977).
employees it represented had historically performed.
Thus, the objective was clearly work preservation.
My colleagues in the majority, however, find that
there was no work-preservation objective on the
basis that the picketing was not addressed to the
State's labor relations vis-a-vis its own employees but
was designed to satisfy Respondent's objectives in its
relationship with Bell. In so doing, my colleagues rely
on Summit Valley Industries, 217 NLRB 902 (1975).
Based on this case they appear to conclude that,
unless the target of the picketing has a collective-
bargaining relationship with the union, economic
pressures of the type involved herein are always
illegal secondary activity. Such a mechanical ap-
proach, to what I view as an overly broad statement
of the law in Summit, would lead to unwarranted
results. Thus, under that approach, where a union
does not have a collective-bargaining relationship
with the picketed employer, such activity would be
deemed secondary without further inquiry. I submit
that a collective-bargaining relationship is not the
only relationship comtemplated by Section 8(bX4)
which would entitle a union to engage in lawful
picketing in an attempt to preserve work for its
members. As the Board stated in Koch, all of the
surrounding circumstances must be carefully scrutin-
ized. Here, the parties to the dispute have an ongoing
relationship which justified Respondent in taking
action on behalf of its members to recapture or
reclaim for unit employees work which they previ-
ously performed. Thus, although the State had no
collective-bargaining relationship with Respondent,
employees represented by Respondent had worked in
state buildings performing the disputed work at the
State's request. The State certainly was aware that
when it exercised its control to reassign the work it
was these employees who would lose work. Further,
the work was to be performed at the same site and in
the same manner. Consequently, the State is not a
stranger to this Union or the employees it represents.
This relationship, it seems to me, is sufficiently close
to permit Respondent to treat the State in the same
manner that it would treat an employer with whom it
had a collective-bargaining relationship. Certainly it
cannot realistically be said that the "union pressures
were designed to involve the State in a dispute not its
own." 6
Accordingly, I find that the State is not a neutral
caught up in a primary dispute between a union and
an employer who is entitled to shield itself behind the
proscriptions of the Act. Rather, I find that Respon-
dent, Local 399, was engaging in picketing directed
against the primary employer for the purpose of
6 National Woodwork Manufacturers Association v. N.L.R.B. 386 U.S. 612
(196%7).
556
LOCAL 399, IBEW
preserving unit work. Therefore, I would dismiss the
complaint.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge: This
case was heard at Springfield, Illinois, on August 30, 1976.1
The charge was filed by the Illinois Bell Telephone
Company on May 14, and the complaint was issued on
June II1. Respondent (Local 399, International Brother-
hood of Electrical Workers) filed its answer on June 18 and
asserted therein three affirmative defenses. The primary
issues are whether Respondent violated Section 8(bX4)(i)
and (ii) (B) of the National Labor Relations Act, as
amended, by (I) inducing or encouraging employees of the
State of Illinois and employees of other employers to
engage in a strike or refusal to perform work for their
employer, and (2) threatening, coercing, or restraining the
State of Illinois and other persons with an object of forcing
or requiring the State or others to cease using or otherwise
dealing in the products and services of Illinois Bell
Telephone Company (Bell Telephone), or to cease doing
business with Bell Telephone.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due considerations of
the briefs filed by the General Counsel, the Company, and
the Union,2 I make the following:
FINDINGS OF FACT
I. JURISDICTION
Illinois Bell Telephone Company, an Illinois corporation
with various offices and places of business throughout the
State of Illinois, is engaged in the business of providing
telephone and other telecommunications services to cus-
tomers. During the period of June 1975 through May of the
following year, a representative period, it purchased and
had delivered to its Illinois facilities goods valued in excess
of $50,000, which were transported to said facilities from
States other than the State of Illinois. The Company and
Respondent admit, and I find, that Bell Telephone is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Operation of the Division of
Telecommunications
The facts and chronology in this case are essentially
undisputed. For the purpose of transmitting data between
some of its agencies, the State of Illinois has a division of
I All dates are in 1976 unless otherwise stated.
2 At the commencement of the heanng, the State of Illinois, by its
counsel, moved to quash a subpoena duces tecum that had been served on it
telecommunications which has its technical operations
center in the Illinois data processing center in the state
office building in Springfield, Illinois. In providing commu-
nications for its agencies, the State utilizes various types of
telecommunications facilities and equipment, of which
some it owns, some is leased from various vendors, and
some is leased from Bell Telephone.
Bell Telephone has a collective-bargaining agreement
with Respondent Union for the period of August 1, 1974,
through August 6, 1977. The parties stipulated that the
Union has no collective-bargaining agreement with the
State, and that it does not represent state employees.
For 6 or 7 years prior to January 1974, if there was a
breakdown in the State's data communication system at
Springfield, officials would make a trouble report to Bell
Telephone. A serviceman would be dispatched by Bell,
who would take test gear, lift wires, and make tests on the
data sets until the fault was isolated and the circuit was
repaired. The fault in the cable system could either be in
Bell-owned equipment, state-owned equipment, or other
vendor-owned equipment, such as Western Union. At
times the Bell serviceman would locate the problem in non-
Bell-owned equipment. The State would then have to call
in a serviceman from the actual vendor or, if the malfunc-
tioning equipment was owned by the State, repair it
themselves. This procedure caused a substantial loss of
time in locating the fault in the State's data communication
system and resulted in the State's paying service fees to Bell
for problems that Bell could not correct.
In January 1974, the state director of the department of
finance made a formal complaint to the telecommunica-
tions division, with the major complaint being that they
were experiencing too much downtime on the communica-
tions facilities. The State then started to perform its own
tests to locate the problems on the telecommunications
equipment (herein called fault isolation), so as to find the
causes of trouble more quickly and cut down on the time
during which the equipment was not functioning.
State employees used clip leads and oscilloscopes to
make these tests, but they proved too elementary to isolate
problems in what LeVern Whitt, the manager of the State's
division of telecommunications in the department of
general services, described as a "rat's nest of wires." Over
600 line facilities terminate in the data center. Whitt had
been an employee of the State for the past 7 years in its
telecommunications division, and prior to that had worked
for Bell Telephone in its engineering department.
In September 1974, the State started to look into the
various types of jack field equipment that would speed up
the running of tests and problem determination. Such
equipment could be purchased from the manufacturer, the
ADC Company, or leased from Bell Telephone. The State
thereafter decided that it would be to its financial advan-
tage to lease rather than purchase the jack field equipment,
so a lease arrangement was entered into with Bell Tele-
phone.
by Respondent. After the motion to quash was granted, counsel for the State
was excused, and the State did not further participate in the hearing.
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Installation of Jack Panels
The fault isolation equipment, herein called jack panels,
was installed at the state facility in Springfield in July and
August 1975.3 The jack panels were technologically ad-
vanced equipment that allowed a technician to quickly and
simply isolate the problem on the circuits without going
into the "rat's nest" of wires.
Shortly after the jack panels were installed in Springfield,
state employees began testing circuits leased from Bell
using the jack panels. In November 1975, the Union,
pursuant to its collective-bargaining agreement with Bell
Telephone, filed a grievance alleging that Bell was violating
its contract by allowing the State to use its jack panels. The
grievance was processed through the first two steps of the
grievance procedure without a satisfactory result being
secured by the Union. At the time of the hearing of this
case, the grievance was still pending.
Sometime in the spring, Union Steward Lawrence White,
an employee of Bell Telephone, and Local 399 Business
Representative Kenneth Kramp contacted Director John-
son of the Illinois department of labor. White admitted that
the purpose of this meeting was to secure the assistance of
Johnson (a member of the IBEW) in attempting to
convince the department of general services not to use the
jack panels. No results developed from the conference with
Johnson.
Thereafter, in early May, Kramp telephoned Whitt at the
division of telecommunications. Kramp asked what the
division planned on doing about the jack field equipment.
Whitt responded that they did not plan on doing anything
differently than they had been doing, and that they were
going to keep using the jack field equipment for fault
isolation testing. Kramp answered that he was beginning to
get some pressure about the jack field equipment. Whitt
told him that he was sorry that Kramp was getting
pressured, but that the division of telecommunications
intended to keep using the jack field equipment as it had in
the past.
C. The Events of May 10
On May 10, at 8:30 a.m., Respondent had pickets at the
south entrance of the state office building in Springfield,
where the State's data processing center is located, carrying
pickets signs which stated:
NOTICE TO PUBLIC, STATE OF ILL DEP. OF GEN'L SVCS
TELECOMMUNICATIONS DIV. IN VIOLATION OF CONTRACT
OF IBEW LOCAL 399. INFORMATIONAL PICKET.
The pickets also passed out leaflets which stated as follows:
NOTICE TO PUBLIC
THE STATE OF ILLINOIS, GSA, DEPARTMENT OF TELE-
COMMUNICATIONS, HAS MADE AN ARRANGEMENT WITH
ILLINOIS BELL TELEPHONE COMPANY FOR THE
PERFORMANCE OF WORK ON ILLINOIS BELL DATA
COMMUNICATION SYSTEMS.
3 Equivalent equipment was also installed at the computer center at the
University of Illinois in Urbana in the following February.
LOCAL 399, IBEW, HAS A COLLECTIVE BARGAINING
AGREEMENT WITH ILLINOIS BELL TELEPHONE COMPANY
TO PERFORM ALL WORK ON ILLINOIS BELL DATA
COMMUNICATION SYSTEMS.
GSA, DEPARTMENT OF TELE-COMMUNICATIONS HAS
ASSIGNED EMPLOYEES OF THE STATE OF ILLINOIS TO
PERFORM WORK ON PARTS OF ILLINOIS BELL'S DATA
COMMUNICATION SYSTEMS. THIS WORK BY STATE OF
ILLINOIS EMPLOYEES VIOLATES THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN LOCAL 399, IBEW,
AND ILLINOIS BELL TELEPHONE COMPANY.
The Union also engaged in similar picketing at the
University of Illinois' administration building in Urbana.
As a result of the picketing in Springfield, employees of the
State's building and maintenance staff refused to cross the
picket line and did not go in the building that day to
perform mechanical and electrical work.
At 2 p.m. on the afternoon of the picketing, a meeting
was held in the state office building between representa-
tives of the State and representatives of Local 399. Present
for the State were Deputy Director Russell of the depart-
ment of general services, the data and television systems
engineering manager, the operations manager of the
communications technical operations center, the assistant
chief counsel, and Whitt. The Union was represented by
Business Representative Kramp, Dan Maddox, business
manager from a Decatur local of the IBEW, and the
steward, White.
Deputy Director Russell opened the meeting, stating that
he did not understand what the pickets were doing in front
of the state office building, and that he did not know why
the State of Illinois was being involved in a dispute
between Bell and the IBEW. Kramp responded for the
Union by stating that he wanted to make sure that no
contract agreements were violated, and that none of the
jobs of union people was jeopardized. When Russell asked
what the specific problems were as far as the picketing was
concerned, Kramp responded that there were three prob-
lem areas. The first one was that the State was testing
equipment provided exclusively by Bell Telephone, and
only Bell crafts people should test that equipment. The
second problem was that state employees were doing their
work. White raised the third point, stating that testing with
the jack field equipment by the State was not really
required, and that the State could do fault isolation with
the test equipment it already had. Whitt disagreed with
White, stating that they needed the jack field equipment.
Whitt then asked why the pickets were in front of the state
office building, and Kramp again responded by saying that
the Union had to make sure that there were no contract
violations, and that no jobs of union people were jeopard-
ized. There was further technical discussion between Whitt
and White about the different types of communication
equipment used by the State. White finally stated that there
was no objection to the State doing fault isolation and
testing on its own equipment, but where the modern
facilities, jack field equipment, and communication facili-
558
LOCAL 399, IBEW
ties were provided by Bell Telephone, that equipment
should only be tested by IBEW crafts people. Whitt then
stated that until this dispute was settled between Illinois
Bell and the IBEW, the State would refrain from using the
jack field equipment on Illinois Bell communication facili-
ties. Russell then asked the union representatives, if the
State refrained from using the testing equipment, would the
pickets be removed from the state office building. Kramp
advised that on that basis the problem would be taken care
of that afternoon. Later that afternoon, the pickets were
removed from the state office facility and have not
reappeared.
After the meeting, Whitt telephoned the district market-
ing manager of Bell Telephone, Gene Crum, informed him
of the meeting, and advised him that the State had agreed
not to use the jack panels on facilities provided exclusively
by Illinois Bell. Crum responded that he was sorry that the
State had taken that position. Whitt told Crum that with
the general assembly in session, and because of the
possibility of operations being curtailed, the State did not
have much choice but to refrain from utilizing the equip-
ment until the dispute was settled. Whitt further told Crum
that, if the State received word from a responsible official
of Illinois Bell that the problem had been resolved, they
would commence using the jack field equipment. He
concluded by telling Crum that the State was not going to
pay for the jack panels, and that during this period they
were going to look very closely at the performance of
Illinois Bell provided equipment; and, if any substantial
drop was noticed in the performance of Bell equipment,
they would remove any and all such equipment.
D. Contentions of the Parties
General Counsel contends that by its conduct Respon-
dent (I) induced and encouraged individuals employed by
the State of Illinois, and other employees, to engage in a
strike or refusal in the course of their employment to use or
work upon jack panels, or perform services for their
employer, and (2) threatened, coerced, and restrained the
State and other persons-all with an object of forcing or
requiring the State to cease leasing jack panels from Bell
Telephone.
Respondent Local 399 does not contest the facts as
heretofore set forth, which on their face seem to make out a
conventional secondary boycott. However, Respondent
contends in its briel that the facts remove its case "from the
traditional secondary boycott theories of the statute"
because of "unique" aspects involving three main points:
(1) the State is a political subdivision and thus exempt from
the provisions of the statute as an employer; (2) the agents
of the State joined with Bell Telephone to conspire to have
equipment installed which would allow state employees to
perform work traditionally performed by members of
Local 399; and (3) Local 399 was only attempting to retain
work which it had previously performed and not trying to
have the State cease doing business with Bell Telephone,
except for the limited area of its traditional work jurisdic-
tion.
E. Analysis and Conclusions
As the facts clearly show, Local 399 had a primary
dispute with Bell Telephone concerning the leasing of jack
panels to the State of Illinois. This lease allowed state
employees to do speedy fault isolation work. Respondent
claimed that such work should have been done by its
members under the terms of its collective-bargaining
agreement with Bell Telephone, and that the Company's
action violated this agreement. Bell Telephone was plainly
the primary employer involved in Local 399's dispute.
Equally, the State of Illinois was clearly the secondary
employer, as it had no collective-bargaining agreement
with Local 399, nor were its employees represented by the
Union. The Union's dispute with the State was secondary
as it had only arisen because of its primary and underlying
dispute with Bell Telephone relating to the leasing of jack
panels to the State. Local 25, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (J. C. Driscoll Transportation, Inc.), 148 NLRB 845, 850
(1964).
Respondent recognized its primary dispute was with Bell
when, in November 1975, Local 399, acting under the
terms of its contract, tried to achieve its objective by filing
a grievance with Bell. Then, in April, Respondent sought
the help of the director of the Illinois department of labor
to convince the State not to use the jack panels. When this
action, like the grievance proceeding, was unsuccessful, the
Union put direct pressure on the State by picketing its two
office buildings in which the jack field equipment was
located. Both sites, the data processing center in Spring-
field, and the data processing center in Urbana, were State-
owned property in which the State was engaged in doing
business. As a result, employees of the State, the secondary
employer, refused to perform services. I find, in agreement
with General Counsel, that the picketing engaged in by
Local 399 constituted proscribed secondary activity within
the meaning of Section 8(b)(4XBXi) and (ii) of the Act for
reasons stated herein.
In the case of International Brotherhood of Electrical
Workers, AFL-CIO, et al. (Illinois Bell Telephone Compa-
ny), 179 NLRB 202, (1969), Trial Examiner S. M. Singer
cogently set forth the heart of Subsection (i) and (ii) of
Section 8(b)(4):
1. Section 8(b)(4Xi) and (iiXB), insofar as here
relevant, prohibits a union or its agents from inducing
or encouraging employees of a secondary employer to
refuse to handle products or perform services, and from
threatening, restraining, or coercing secondary employ-
ers, where an object of such conduct is to force or
require a secondary employer to cease doing business
with the primary or disputing employer. Thus, a
violation under these statutory provisions requires two
elements: (I) an object to bring about cessation of
business between the primary and secondary employ-
ers; and (2) inducement of secondary employees and
coercion of secondary employers to achieve the pro-
scribed objective.
Based on the entire record I find that an object of the
picketing was the involvement of the employees of the
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State of Illinois in the Union's dispute with Bell Telephone
in order to force the State to cease doing business with Bell
Telephone, the primary employer, by bringing illegal
pressure on Bell. Although Respondent contends in its
brief that it was merely engaging in "informational picket-
ing," it was nonetheless picketing at the premises of the
secondary employer. Long ago, 'in Sailors' Union of the
Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547,
549 (1950), the Board established criteria to aid in deter-
mining when picketing at the premises of a secondary
employer may be presumed to be for a primary objective:
(a) [t]he 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 primary
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.
Local 399's picketing plainly failed to meet requirements
(a), (b), and (d) of Moore Dry Dock, and Respondent has
not undertaken to contend that its picketing met these
standards. There is no evidence that Bell employees were
scheduled to be in, or were in, the State building, or that
Bell was engaged in its normal business at the site of the
picketing on May 10. Finally, the picket signs failed to
disclose that its dispute was with Bell Telephone, not
mentioning Bell's name in any form. On the contrary, the
picket legend read that the "STATE OF ILL . . .
TELECOMMUNICATIONS DIV. [was J IN VIOLATION OF
CONTRACT OF IBEW LOCAL 399." By any objective test, this
picket sign was misleading, as it stated bluntly that the
State was "IN VIOLATION OF CONTRACT OF IBEW LOCAL
399," and did not mention the employer with whom it had
its contract, and with whom it had a primary dispute, Bell
Telephone. Plainly, the wording on the picket sign sought
to enmesh the State, a neutral party, in Respondent's
primary dispute with Bell Telephone.
This finding of an illegal object of the picketing is
reinforced by statements of Respondent's officials made at
the hastily summoned meeting with state officials on the
afternoon of the picketing. When Director Russell asked
why the picketing was taking place, and why the State was
being involved in a dispute between Bell Telephone and
the Union, Business Agent Kramp repeatedly conveyed to
the State that the object of the picketing was to protect the
Respondent's exclusive right to work on the jack panels. It
was evident that the only way the Union's work could be
preserved was for the State to cease leasing jack panels
from Bell Telephone. Steward White admitted reluctantly
at the hearing that after the meeting commenced the
Union's purpose was to get the State to cease using thejack
panels. Finally, when Whitt saw that the Union was not
going to budge on removing the picket line as long as state
employees used the jack panels, the State got the message.
It then informed the Union that it would refrain from using
the jack panels until Bell Telephone and the Union settled
its dispute. Respondent, as its quid pro quo, promptly
removed the picket line that afternoon.
The record does not indicate that there was any cessation
of business between Bell Telephone and the State of Illinois
other than that the State refrained from using the jack
panels as well as paying for them. However, as the Supreme
Court has held, it is not necessary to find that an object was
for a complete cessation of business in order to find a
violation of Section 8(b)(4XB). N.LR.B. v. Local 825,
International Union of Operating Engineers, AFL-CIO
[Burns and Roe, Inc.] 400 U.S. 297 (1971).
Under all the circumstances, I find that an object of the
picketing was to implicate the neutral employer, the State
of Illinois, in Local 399's dispute with Bell, in violation of
Section 8(b)(4)(i) and (iiXB) of the Act.
It is equally clear that by its picketing at the state office
building, Local 399 induced and encouraged employees of
the State, the secondary employer, not to go into the
building and perform their mechanical and electrical duties
for their employer, and thereby violated the Act. "The
normal purpose of a picket line is to persuade employees
not to cross it." N.LR.B. v. Dallas General Drivers,
Warehousemen & Helpers, Local No. 745, AFL-CIO [Asso-
ciated Wholesale Grocery of Dallas] 264 F.2d 642, 648 (C.A.
5, 1959).
F. The Affirmative Defenses of Respondent
1. The status of the State of Illinois
Respondent urges in its brief, as it did in its answer, that
since the State of Illinois is a governmental body it "is not
an employer which can fulfill the requisite secondary
employer portion of Section 8(bX4)(B)."
Such an argument may have been valid prior to 1959, but
it has no validity since the 1959 amendments to Section
8(b)(4). Since the 1959 amendments to the Act, Section
8(b)(4) refers merely to "any person" as distinguished from
"any employer" (the pre-1959 wording) engaged in com-
merce as a proscribed target of secondary activity coming
within the ban of Section 8(b)(4). It is accordingly found
that the State of Illinois is a person within the meaning of
Section 8(bX4) and is entitled to the protection of the Act,
and from being enmeshed in the secondary activities of
Respondent. Local 3, International Brotherhood of Electrical
Workers, AFL-CIO (Mansfield Contracting Corporation),
205 NLRB 559 (1973); Local No. 16, International Long-
shoremen and Warehousemen's Union (City of Juneau), 176
NLRB 889, (1969); District Lodge No. 123, International
Association of Machinists and Aerospace Workers, AFL-
CIO (Pacific Crane & Rigging Company), 167 NLRB 977
(1967).
2. The State as an ally of Bell Telephone
The s-cond affirmative defense of Respondent as set
forth in its answer invoked the "ally doctrine" by stating,
"the State of Illinois has so allied itself with Illinois Bell
Telephone as to remove itself from the potential category
of secondary employer." As proof of this alliance, Respon-
dent relies on some kind of vague conspiracy, alleging in its
brief that "the agents of the State . . . in the person of
Whitt and others under his authority actively joined with
Illinois Bell . . . to conspire to have equipment installed
which would allow State employees to perform the work
traditionally performed by members of Local 399."
560
LOCAL 399, IBEW
Respondent did not set forth just what the essentials of
the conspiracy consisted of, neither citing unlawful acts or
unlawful means, nor the names of any alleged conspirator
other than Whitt. The evidence merely shows that Whitt,
the manager of the telecommunications division of the
State, was under pressure from his supervisor to cut down
on the amount of time that the communication system was
not functioning due to breakdowns. After experimenting
with elementary type equipment, the State openly leased a
piece of sophisticated equipment from Bell that it could
have in fact purchased from the actual manufacturer. It is
true that Whitt formerly worked for Bell Telephone, but
that was 8 years prior to his employment by the State, and
his work at Bell was different from his duties with the State.
This is too weak a reed to rely on for Respondent's
conspiracy theory. Also, when the crunch came at the
conference on May 10, Whitt advised Respondent's repre-
sentatives that the State was not going to use the jack
panels, and, after the meeting, he notified Crum that the
State was not going to pay for the jack panels. These are
hardly the reactions of a coconspirator. I find that
Respondent's conspiracy-ally theory is without merit.
The conventional "ally doctrine," which Respondent
admittedly seeks herein to extend beyond its recognized
boundaries, is also not applicable to the facts of this case.
The ally doctrine has heretofore been applied to two
situations: (1) where a secondary employee performs struck
work; i.e., work which, but for the labor dispute, the
primary employees would ordinarily perform (N.L R.B. v.
Business Machine and Office Appliance Mechanics Confer-
ence Board, Local 459, International Union of Electrical,
Radio & Machine Workers, CIO [Royal Typewriter Co.] 228
F. 553 (C.A. 2, 1955)); or (2) where the operations of the
secondary and primary employers are commonly owned
and controlled to such an extent that the two may be
regarded as a single employing enterprise (United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, et al.
(J. G. Roy and Sons Company), 120 NLRB 1016 (1958);
International Brotherhood of Electrical Workers, AFL-CIO,
et al., supra). In these two situations, the secondary
employer loses its protected neutral status under Section
8(b)(4). Neither situation is present here, nor does Respon-
dent claim that such factual conditions exist. Since there
was no strike by Respondent's members against Bell
Telephone, there was no struck work. It is obvious that the
State of Illinois and Bell Telephone were not commonly
owned, nor was there even any indicia of common labor
relations, common supervision, or common employees.
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local No. 639 and Summit, Medina & Portage
Counties, District Council of Carpenters (United States Steel
Corp.), 203 NLRB 1112 (1973). Hence, I find that Bell
Telephone was not an ally of the State of Illinois, and that
this defense does not defeat the General Counsel's case.
4 The Board had long recognized the legitimacy of work-preservation
clauses like that involved in National Woodwork, not only in the construc-
tion industry, but also in other industnes. Milk Wagon Drivers and Dairy
Employees Union Local 603, International Brotherhood of Teamsters, Chauf-
3. The work-preservation defense
We now turn to Respondent's final and major defense
which is based on the work-preservation doctrine. Respon-
dent argues that it had a lawful primary object, work
preservation for its members, and it could, therefore, bring
pressure to achieve that lawful objective by picketing the
State of Illinois. Respondent cites National Woodwork
Manufacturers Association, et al., 386 U.S. 612 (1967), as
authority for its position. However, I find that there is an
immediate and essential difference between the facts in
National Woodwork and the facts in the instant case that
make it inapplicable.
In National Woodwork, Frouge Corporation, a general
contractor, was subject to a collective-bargaining agree-
ment between a carpenter's union and a contractor's
association. A sentence in a provision of that agreement
entitled "Rule 17" provided that " 'no member of this
District Council will handle. . . any doors. . . which have
been fitted prior to being furnished on the job.' " Subse-
quently, the general contractor purchased prefabricated
doors, and, when they were delivered to the jobsite, the
union ordered its members not to hang the doors, and the
members obeyed the order. National Woodwork Manufac-
turers filed charges with the Board, alleging, among other
things, that in enforcing the "we will not handle" sentence
in the collective-bargaining agreement the union was in
violation of Section 8(bX4XB) of the Act. The Supreme
Court held that the union's maintenance and enforcement
of this clause against Frouge involved a primary dispute by
the carpenters against their employer and was therefore
primary activity outside of the prohibition of Section
8(b)(4XB).
The carpenters action against Frouge was bottomed on
the fact that they had a written work-preservation clause in
their collective-bargaining agreement with their employer
by which they contractually protected their traditional
work of cutting out and fitting doors on the jobsite. "The
touchstone is whether the agreement or its maintenance is
addressed to the labor relations of the contracting employ-
er vis-a-vis his own employees." National Woodwork, supra
at 645.
In the instant case, Respondent had no agreement with
Bell Telephone (such as the carpenters had in their "Rule
17" in National Woodwork) by which Local 399 staked out
its asserted traditional work jurisdiction of fault finding on
circuits leased to customers.
Time after time in its brief Respondent speaks of Local
399's "traditional work jurisdiction," "traditional work on
testing," and "the Union's jurisdiction," but it never
mentions a work-preservation clause as being contained in
its contract with Bell Telephone. 4 The reason is clear why
Respondent does not assert a contractual work-preserva-
tion clause, and that is because there is none to be found in
the collective-bargaining agreement that it negotiated and
executed with Bell Telephone covering the time period
material to this case. (Resp. Exh. 4.)
feurs, Warehousemen and Helpers of America (Drive-Thru Dairy, Inc.). 145
NLRB 445 (1963); Retail Clerks' Union, Local No. 648, Retail Clerks
InternationalAssociation (Brentwood Markets, Inc.). 171 NLRB 1018 (1968).
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the concluding portion of Respondent's brief, Respon-
dent perceives this fundamental difference between the
union's rights in National Woodwork and Local 399's rights
in the instant case, and states, "Local 399 recognizes that
the National Woodworkers [sic] case was one involving
contractual language between the Union and the primary
employer," but submits that the basic principles set forth in
National Woodwork are still applicable to the facts of this
case. I do not agree. The carpenters in National Woodwork
had a lawful work-preservation clause in their contract that
set forth their rights to certain job protection vis-a-vis their
employer, and they had a right to enforce this work
preservation-clause in their primary dispute with their
employer. Since Local 399 did not have a work-preserva-
tion clause with Bell Telephone, it cannot substitute
therefor some vague concept of its traditional work
jurisdiction and, relying thereon, bring economic pressure
on a neutral employer, the State of Illinois.
In National Woodwork the court recognized the concept
that a union wants to, and may protect, the traditional unit
work of its members who are working for an employer. A
proper way to protect that work is for the union to secure a
legitimate work-preservation clause in its contract with that
employer. In the event the contracting employer defaults
on the clause, the union may enforce it by exerting pressure
on the employer who agreed to that term of employment;
i.e., the primary employer. However, the union may not
direct its pressure against a neutral or secondary employer
to enforce the clause, because there is no privity of contract
or collective-bargaining relationship. This concept was
recently upheld in United Brotherhood of Carpenters &
Joiners of America, Local 112, AFL-CIO and its Agent,
Southwest Building Trades Council of Montana, AFL-CIO
(Summit Valley Industries, Inc.), 217 NLRB 902 (1975), in
which the Board rejected a work-preservation defense to
exert pressure against secondary employers, employers
with whom the union had no collective-bargaining agree-
ment. The union did have contracts with area contractors
containing work preservation clauses, which set forth
specific aspects of carpentry work which signatory contrac-
tors had to have performed at the construction site on the
trucked-in, factory-made, modular houses. The manufac-
turers of the houses did not have collective-bargaining
agreements with the carpenter's union. Pressure, including
picketing, was brought against the manufacturers of the
houses by the carpenters. The Board, after reviewing
National Woodwork in great detail, found that the carpen-
ters' conduct violated Section 8(b)(4)(i) and (ii)(B), stating
(Summit Valley Industries, supra at 917):
Underlying National Woodwork is the concept that a
union may protect traditional unit work of employees
who are working for a particular employer. Necessarily
this envisages the existence of an established bargaining
relationship between the union and the employer, or
there will be nothing that can be preserved.... the
pressure against him [the noncontracting employer] can
scarcely be viewed as having a primary work preserva-
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
tion object, because no bargaining unit or bargaining
relationship exists. The pressure is thus not addressed
to the "labor relations of the contracting employer vis-
a-vis his own employees" but must be seen as "tactical-
ly calculated to satisfy union objectives elsewhere" and
therefore as secondary.
In contrast to the relationship in National Woodwork,
Respondent herein had no work-preservation clause in its
contract with Bell Telephone, just as it had no collective-
bargaining relationship with the State of Illinois. I therefore
find that Respondent's work-preservation defense is with-
out merit and does not defeat the General Counsel's case.
In sum, I find that an object of the picketing engaged in by
Respondent on May 10 at the Illinois state office buildings
was to require the State of Illinois to cease doing business
with Bell Telephone in the use of jack panel fault finding
equipment on circuits leased from Bell, and to enmesh the
State in its dispute with Bell Telephone in violation of
Section 8(bX4)(i) and (ii)(B) of the Act.
CONCLUSIONS OF LAW
I. Local 399, International Brotherhood of Electrical
Workers, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Illinois Bell Telephone Company is an employer
engaged in commerce or industries affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and the State of Illinois is a person engaged in commerce
within the meaning of Section 8(b)(4) of the Act.
3. By picketing the State of Illinois on May 10 at its
state office building containing its data processing center
and at its communication site at the University of Illinois
in Urbana, Illinois, with an object of forcing or requiring
the State of Illinois to cease doing business with Illinois
Bell Telephone Company in the use of jack field testing
equipment, Respondent has engaged in unfair labor prac-
tices affecting commerce proscribed by Section 8(bX4)(i)
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
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4Xi) and
(iiXB) of the Act, I shall recommend that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER 5
The Respondent, Local 399, International Brotherhood
of Electrical Workers, Springfield, Illinois, its officers,
agents, and representatives, shall:
1. Cease and desist from:
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
562
LOCAL 399, IBEW
(a) Inducing or encouraging any individual employed by
the State of Illinois, or any other person engaged in
commerce or an industry affecting commerce, to engage in
a strike or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or
work on goods, articles, materials or commodities, or to
perform any services, where an object thereof is to force or
require the State of Illinois or any other person to cease
doing business with Illinois Bell Telephone Company.
(b) Threatening, restraining, or coercing the State of
Illinois or any other person engaged in commerce or in an
industry affecting commerce, where an object thereof is to
force or require the State of Illinois or any other person to
cease doing business with Illinois Bell Telephone Compa-
ny.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its offices and meeting halls in Springfield,
Illinois, copies of the attached notice marked "Appen-
dix."6 Copies of the notice, on forms provided by the
Officer-in-Charge for Subregion 38, after being duly signed
by Respondent's authorized representative, shall be posted
by Respondent 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 posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Furnish said Officer-in-Charge with signed copies of
the aforesaid notice for posting by the State of Illinois, if it
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
is willing, at places where it customarily posts notices to its
employees.
(c) Notify the Officer-in-Charge for Subregion 38, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage employees of the
State of Illinois, or of any other person engaged in
commerce or in an industry affecting commerce, to
engage in a strike or a refusal to perform services,
where an object thereof is to force or require the State
of Illinois to cease doing business with Illinois Bell
Telephone Company.
WE WILL NOT threaten, restrain, or coerce the State
of Illinois, or any other person engaged in commerce or
in an industry affecting commerce, where an object
thereof is to force or require the State of Illinois or any
other person to cease doing business with Illinois Bell
Telephone Company.
LOCAL 399, INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS
563