Local No. 164, Int'l B'hood of Electrical Workers

National Labor Relations Board - Board Decisions

May 12, 1966

158 N.L.R.B. 838 (N.L.R.B. 1966)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
366-367 (C.A. 6), and Monroe Feed Store, 112 NLRB 1336, 1337 [Emphasis sup-
plied] ." The Board then cited the exceptions to this rule of newly discovered evidence
or prejudice , as set out above . Accordingly, the Charging Party in the first instance
and the General Counsel in his subsequent investigations bear the reasonable respon-
sibility to litigate all , or forget, possible unfair labor practices which in point of time
could be litigated in a hearing . Merely because a Charging Party files a timely
charge under the Act does not mean the General Counsel is required to proceed to
-complaint and trial . His discretion under the Act and the responsibility of the
Board in making ultimate findings based on reasonable administrative practices lies
at the very heart of the policies and purposes of the Act. It is inconceivable that
a charging party could withhold knowledge of certain unfair labor practices while
filing charges based only on other unfair labor practices , and, after the first prosecu-
tion of Government expense file a new charge for another trial. This would be
harassment of respondents , wasteful of public funds and against the public interest.
Accordingly, it would not effectuate the purposes of the Act for the Board to engage
in several trials when one trial absent the exceptions of legal "newly discovered evi-
dence" or "prejudice ," is available to litigate all the issues involved.
2. As to the second ground of die minimus and redundancy, again assuming that
the General Counsel established the violation alleged by a preponderance of the
evidence , we have 3 employees out of 125 told to go to a strike vote meeting and
report back. They-were members of the unit of employees who would be involved
if there were to be a strike . These are isolated instances involving no pattern of
illegal antiunion motive . Obviously this had little or no effect or impact on their
Section 7 rights, or they would have been brought to the attention of the necessary
parties. No charge based thereon was filed for almost 6 complete months. The
point of redundancy is even clearer . A cease-and-desist order here would be no
more effective than the one in 155 NLRB 117 and there is no need to spend time
and money in this situation with the workload of the Board at its all time peak
capacity.
Accordingly, I recommend the complaint be dismissed in its entirety.
Local Union No. 164, International Brotherhood of Electrical
Workers, AFL-CIO and Board of Education of the Township
of Ridgewood . Case No. 33-CC-9d84. May 13,1966
DECISION AND ORDER
On January 11, 1966, Trial Examiner Phil Saunders issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent, and the General Counsel and Breen
Iron Works, Inc., a party in interest, filed exceptions to the Decision
and supporting briefs. The Charging Party also filed exceptions to
the Trial Examiner's Decision and- a brief in answer to the Respond-
ent's exceptions and briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
158 NLRB No. 11.
LOCAL NO. 164, INT'L B'HOOD OF ELECTRICAL WORKERS 839
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modification : Add the following to the end of the
paragraph in the notice "et al."]
MEMBER BROWN, dissenting :
I disagree with my colleagues' conclusion that the Respondent vio-
lated Section 8(b) (4) (i) and (ii) (B) of the Act in the circumstances
of this case.
Respondent's contract with K & Z Electric Company required (1)
that all electrical welding apparatus be maintained by separate full-
time maintenance electricians at a given ratio of worker per machine,
and (2) that any contract entered into by K & Z with any general con-
tractor, builder, or owner calling for work covered by this agreement
incorporate the provisions' of the collective-bargaining agreement.
K & Z failed to incorporate this contract, by reference or otherwise,
into its agreement with the Board of Education of the Township of
Ridgewood to serve as the genera] contractor for the electrical work at
the Travell school site. When East Rutherford Steel Erectors Com-
pany, a subcontractor of the steel work prime contractor at the site,
Breen Iron Works, Inc., began operating an electric welding machine
on the job, the Respondent notified K & Z that under their collective-
bargaining agreement K & Z was obligated to hire a journeyman elec-
trician to maintain'the machine.
In a letter to K & Z the Respondent made it clear that it was looking
to no one other'than K & Z for satisfaction of its demand; that K & Z
could settle the dispute by employing a journeyman electrician; that
no other contractor was involved in the dispute; and that no demand
was being. made on. or action expected from any other contractor.
K & Z refused to comply With the Responde_nt's demand for per-
formance of its contract and Respondent struck K & Z. The strike did
not involve picketing or the stoppage of work by employees of any
other employer on the job. -
' As the record clearly shows that the welding machine was never maintained at the
construction site, Member Fanning does not view this case as involving a jurisdictional
dispute which might give rise to an 8(b) (4) (D ) violation
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the foregoing facts demonsti ate that the strike was to enforce
provisions of a collective -bargaining contract covering and preserving
unit work , the concerted activity was clearly primary 2
In adopting the Trial Examiner's Decision which finds that K & Z's
breach of its collective -bargaining contract gave rise to the sti ike,3 it
seems apparent that my colleague -, are admitting that the Respondent
struck to protect unit work In holding that this action nevertheless
violated Section 8 ( b) (4) (B) of the Act, they are of necessity relying
solely on the fact that K & Z was poweiless to assign a journeyman
electrician to maintain the electiic welding machine As I have said
before, the fact that the primary employer may not be able to meet the
union's demand does not convert his status to that of a secondary
employer 4 Yet, in this case, that is precisely the effect of the reasoning
employed by my colleagues for it makes this incidental factor the
determinative one in ascertaining a union's objective I believe that
all the factors , including, of course , the factor of control , must be con-
sidered in making such determination Moreover, I do not agree that
K & Z did not have the power to resolve the labor dispute Certainly,
K & Z had within its power the satisfaction of the Respondent 's specific
demand-the employment of a journeyman electrician-action which
the Union had indicated would be accepted as satisfaction of the con-
tt ictual obligation in this instance
Here, a union which strikes its employer at its place of work over a
breach of its contract relating to terms and condition, of employment
of unit members is found to be engaged in a secondary boycott I sup-
pose if the union picketed the stranger employer who had the "right of
control" that the logic of the majority would compel a finding that the
Painters Local Union No 720, Brotherhood of Painters Decorators and Paperhangers
of America AFL-CIO (J M Miller Decorating Company ) 156 NLRB 32 International
Brotherhood of Electrical Workers, Local 11 AFL-CIO (T A Thornburgh Co et al )
153 NLRB 1173 I am mindful that the court of appeals enforced the majority s decisions
in Local 5 , Pipefitters (Arthur Venneri v N L R B 321 F 2d 366 (CAD C) and Ohio
Valley Carpenters District Council ( Hankins & Hankins Constr Cc) v N L R B , 339
F 2d 142 (C A 6) in my judgment however the primary nature of Respondent's present
conduct is established even more convincingly than was the conduct under considers
tion in those cases
$ The Trial Examiner 's Decision contains the following language
There is no question that the reason the Union embarked upon the course it took
was due to the fact that the electrical contract signed and executed between K & Z
and Ridgewood did not contain or incorporate the provision in the bargaining
agreement between I{ & Z and the Union to the effect that all electrical welding
apparatus should be maintained by full time maintenance elf etricians under the
terms and conditions pursuant to their specific agreement
* See my dissenting opinions in Local No 5, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO ( Arthur Venneri Company ), 137 NLRB 828 and Ohio Valley Carpenters Dis
triot Council United Brotherhood of Carpenters and Joiners of America, AFL-CIO et al
( Willard E Hankins at al d/b/a Hankins & Hankins Construction Company ) ( Cardinal
Industries, Inc ), 144 NLRB 91
LOCAL NO. 164, INT'L B'HOOD OF ELECTRICAL WORKERS 841
union was engaged in primary activity. I cannot accept either con-
clusion. Accordingly, I would find that Respondent's strike activity
is not proscribed by Section 8(b) (4) (B).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Pursuant to a charge filed on June 14, 1965, by the Board of Education of the
Township of Ridgewood, herein called Ridgewood, the General Counsel issued a
complaint dated June 30, 1965, against Local Union No. 164, International Brother-
hood of Electrical Workers, AFL-CIO, herein called the Respondent or the Union.
The complaint alleges that the Union engaged in unfair labor practices within Sec-
tion 8 (b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended, by
engaging in a strike from June 11 to July 1, 1965,1 against Kenneth P. O'Dowd, an
individual proprietor doing business under the trade name of K & Z Electric Com-
pany, herein called K & Z, with an object of forcing and requiring K & Z, Ridge-
wood, and Breen Iron Works, Inc., herein called Breen, to cease doing business with
East Rutherford Steel Erectors, Inc., herein called East Rutherford, and with each
other at the construction site of the new Travell school in Ridgewood, New Jersey,
herein called the Travell site. In a duly filed answer, the Union denied the unfair
labor practice allegations . Pursuant to due notice, a hearing was held before Trial
Examiner Phil Saunders in Newark, New Jersey, and all parties were given full
opportunity to examine and cross-examine witnesses, to introduce relevant evidence,
to argue orally, and to file briefs.
Upon the entire record in the case and from my observation of witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
Breen is a New Jersey corporation, and at all times material herein has main-
tained its principal office and place of business in Hillside, New Jersey, and is a
contractor in the building and construction industry engaged in the business of fabri-
cating and erecting steel at various construction sites located in the State of New
Jersey. In the course and conduct of Breen's business operations during the fiscal
year ending March 31, 1965, said operations being representative of its operations
at all times material herein, Breen caused to be purchased, transferred, and deliv-
ered to various construction sites located in New Jersey, steel and other goods and
materials valued in excess of $50,000 of which goods and materials valued in excess
of $50,000 were transported to said construction sites in interstate commerce directly
from States other than the State of New Jersey.
East Rutherford is also a New Jersey corporation, and at all times material herein
East Rutherford has maintained its principal office and place of business in East
Rutherford, New Jersey, and is a contractor and subcontractor in the building and
construction industry engaged in the business of erecting steel at various construc-
tion sites located in the State of New Jersey. In the course and conduct of East
Rutherford's business operations during the preceding 12 months, said operations
being representative of its operations at all times material herein, East Rutherford
provided and performed steel erecting services valued in excess of $50,000 of which
steel erecting services valued in excess of $50,000 were provided and performed for
other enterprises including Breen located in the State of New Jersey, each of which
other enterprises, in the past 12 months caused to be purchased, transferred, and
delivered to various construction sites located in New Jersey, goods and materials
valued in excess of $50,000, of which, goods and materials valued in excess of
$50,000 were transported by each to said construction sites in interstate commerce
directly from States other than the State of New Jersey.
K & Z at all times material herein has maintained its principal office and place of
business at 215 Little Falls Road, Fairfield, New Jersey, and is now, and at all times
material herein has been a contractor and subcontractor in the building and con-
struction industry engaged in the business of performing electrical construction work
at various jobsites located in the State of New Jersey.
1 A11 dates are 1965 unless specifically stated otherwise.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon these uncontroverted facts, I- find, that Breen, East Rutherford, and K & Z
at all material times have been and are persons and employers engaged in commerce
or industries affecting commerce within the meaning of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 164, International Brotherhood of Electrical Workers, AFL-
CIO, is a labor organization within the meaning of the Act, and George Renz is its
business manager.
III. THE UNFAIR LABOR PRACTICES
Ridgewood has been and is constructing five schools in Ridgewood, New Jersey;
the only school construction site involved in the instant case is that of the Travell
site. Ridgewood engaged Breen as general contractor for the steelwork. Breen
fabricates the steel itself, but subcontracted to East Rutherford the erection of the
steelwork at the Travell site. Ridgewood also engaged K & Z as the general con-
tractor for the electrical work at the Travell school. On or about April 14, K & Z
began its work at the Travell site, and pursuant to its collective-bargaining agree-
ment with the Union-K & Z obtained the electricians it employed at the Travell
site from the Union.3 About May 12, East Rutherford, the steel subcontractor,
began the steel erection and at this time East Rutherford also brought a gasoline-
driven generator for the purpose of welding on the project. On or about May 27,
actual welding of steel joists began. The gas-driven generator furnishes electricity
used in welding the joists. It further appears from this record (General Counsel's
Exhibits 9 and 10) that East Rutherford has a collective-bargaining agreement with
Local No. 825, International Operating Engineers, AFL-CIO, and with Local No.
483, International Association of Bridge Structural and Ornamental Iron Workers,
AFL-CIO, and pursuant to these agreements East Rutherford employed a member
of Local 825, International Operating Engineers, AFL-CIO, to operate and maintain
this welding machine, and also employed a welder, a member of Local 483, Interna-
ticnal Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO,
who used the electricity therefrom in his welding work at the Travell site. When
East Rutherford assigned the above employees to operate and maintain the welding
machine K & Z was then advised that they were obligated under its contract with
the Respondent to employ an electrician to maintain the welding machine. The
credited testimony in this record shows that K & Z thereupon notified Ridgewood's
architects of Respondent's demand, and the architects then wrote to Breen advising
that Breen pay for this maintenance electrician or to forgo the use of this welding
machine and to use instead an acetylene welding method (General Counsel's Exhibit
8). Breen declined to do either and, instead, ordered its subcontractor, East Ruther-
ford, to stop work at the site. The steel erection work was stopped from about
May 28 to June 9, but on or about June 9 Breen's subcontractor, East Rutherford,
resumed their work on their steel erection job at the Travell site with the use of the
2It appears from this record that under New Jersey law a school board is required
to let five general contracts on all school construction work. One of the general con-
tracts must be for the steel work and another must be for the electrical work.
8 The Union 's bargaining agreement with K & Z, which was In effect during the period
pertinent to this case , contained the following clauses:
19-"Employer" or "Contractor" means any and all members of the Division, and
also any and all other electrical contractors who may execute this or a similar agree-
ment with the Union , or may agree in writing to comply with or be bound by its
provisions with respect to work performed in the area covered by this Agreement.
2 7-The contractor further agrees that he shall notify any general contractor , builder
or owner with whom he may enter into any agreement calling for the work, labor
or services of employees covered by this principal agreement as to the provisions
set forth in same, and such agreement shall Incorporate by reference the provisions
of this contract , which shall be binding and operative and have the same force and
effect upon such general contractor, builder or owner.
13.15-All electrical welding apparatus shall be maintained by separate full time
maintenance electricians as follows : one man will suffice to maintain from one (1)
to twenty ( 20) electrical welding apparatus inclusive, in an area consisting of 200
feet by 200 feet . Should there be another such area started , it will require another
maintenance man on the same basis as stated above.
LOCAL NO. 164, INT'L B'HOOD OF ELECTRICAL WORKERS 843
welding machine here in question. Zinaiea O'Dowd of K & Z testified that on
June 9 the' Respondent's Business Manager George Renz called and told her that
the welding machine was back on the job and that K & Z, under its contract with
the Union, was obligated to maintain it. O'Dowd stated that she then informed
Renz that K & Z had not made any allowances for a maintenance electrician on the
welding machine when K & Z had submitted its bid, but that Renz replied that it
was K & Z's responsibility and that the only way K & Z could get out of it was "by
going to the owner and bring the facts." Renz then wrote a letter on June 9 to
K & Z (General Counsel's Exhibit 6) advising them that K & Z was violating its
collective-bargaining agreement with the Union by failing to employ a journeyman
electrician to maintain the electric welding apparatus on the job as required by their
contract. Renz further stated in his letter of June 9 that appropriate action would
be taken if K & Z did not comply by June 10, that the Union must look to K & Z
and to "no one else" to assure compliance with their bargaining agreement, and that
the Union would decline to discuss the situation with any other person or firm con-
nected with the job. It appears further that on June 11, Renz notified K & Z that
the men were off the job. The strike thereupon began and lasted until July l?
There was no picketing involved, and Gordon McCoy, a representative and project
manager for Ridgewood architects, stated that no employees of any employers, other
than K & Z, ever stopped work subsequent to June 11.
The main issue presented in this case is whether or not the strike by the Respond-
ent against K & Z constituted illegal secondary activity within the proscription of
Section 8(b)(4)(i) and (ii)(B) where its object was to compel K & Z to hire a
maintenance electrician on a welding machine under the control of another con-
tractor, which contractor operated and maintained the welding machine with other
crafts, pursuant to collective-bargaining agreements.
The Respondent points out that K & Z signed its contract with Ridgewood without
referring to, incorporating, or making any mention of its collective-bargaining agree-
ment with the Respondent, and in violation of paragraph 2.7 of their contract, as
previously set forth herein. The Respondent' contends that its letter by Renz to
K & Z on June 9 was to specifically clarify that the Respondent's dispute was with
K & Z alone and with no other contractor; argues that K & Z, by employing a jour-
neyman electrician, could settle the dispute; that no other contractor was involved
in the dispute; that no demand was made on or action expected from any contractor:
that no action by any other contractor could settle the dispute since the sole demand
was that K & Z must employ a man. In its brief the Respondent also states the
following: "There is not the slightest scintilla of evidence, either by stipulation or
testimony, that Local 164 sought anything from any employer other than K & Z;
that it had any object other than to secure the employment of a maintenance man
by K & Z; that it made any demands upon Breen or East Rutherford; that its demands
would have been in any manner satisfied by the removal of Breen or East Rutherford
from the job. One thing and only one thing would have satisfied its demand-the
employment by K & Z of a journeyman electrician." The Respondent emphasizes
that their sole demand was that K & Z employ one journeyman electrician to be
available in the event that electrical maintenance work on the welding machine
should be required, and concludes, therefore, that Respondent's conduct was pro-
tected and permissible primary activity solely designed to redress K & Z's breach of
the aforementioned clauses in the bargaining agreement between the Respondent and
K&Z.5
The General Counsel and Ridgewood argue that the Respondent's dispute is not
at all with K & Z but is really with East Rutherford, the party who had the actual
control of the welding machine-and that K & Z is a neutral party powerless to
comply in the assignment of anyone to the work of maintaining the welding machine.
* On June 30, 1965, Respondent's counsel acceded to the request of the U.S. District
Court for the District of New Jersey, that Respondent terminate its strike pending deter-
mination of the merits on a petition for injunctive relief under Section 10(1) of the
Act. The Order granting temporary injunction in that case, Civil No. 683-65, was
issued on August 11, 1965.
5 The Respondent repeatedly and continually stresses the argument that the Union was
only demanding the performance of such necessary maintenance of the welding machine
as may be required, and was not making any demand for the operation of this machine.
The Respondent concedes that if they were demanding the employment of an electrician
by Breen or East Rutherford then their demand could not be met by K & Z.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel maintains that a strike against an employer for work over
which he has no control is an unlawful secondary boycott even if the strike is in the
guise of a violation of a collective-bargaining contract with that employer.
Concluding Findings
There is no real dispute as to the facts herein. Consqeuently, the issue, as noted
above, is basically a legal one. The positions taken by the parties and the facts set
forth above make it apparent in this proceeding, that the distinction between primary
and secondary activity does not present a glaringly bright line. There is no ques-
tion that the reason the Union embarked upon the course it took' was due to the
fact that the electrical contract signed and executed between K & Z and Ridgewood
did not contain, or incorporate, the provision in the bargaining agreement between
K & Z and the Union to the effect that all electrical welding apparatus should be
maintained by full-time maintenance electricians under the terms and conditions
pursuant to their specific agreement. Thus, it would seem, on the surface at least,
that control being in K & Z, the dispute was primary since the activity and strike by
the Union was for the preservation of a job previously designated as belonging to
K & Z. However, in fully examining the record in this proceeding, and in applica-
tion of the controlling Board law to the factual circumstances here, I must find that
the Respondent engaged in prohibited secondary activity.
In this case we see that Ridgewood awarded to Breen the prime contract for the
steelwork, and Breen then subcontracted the steel erection to East Rutherford-and
therefore, it appears clear to me that K & Z was effectively deprived of control on
any and all of the work assignments of this particular steel erection job, and the
clauses heretofore mentioned in the bargaining agreement between the Union and
K & Z were no longer applicable to K & Z on this project. In other words when
Breen awarded the steel erection work to East Rutherford the Respondent was
deprived of exclusive control of the flow of electricians or maintenance electricians
to this specific job, which clauses in their agreement with K & Z were designed to
protect. Under such circumstances the control and allocation of electricians, main-
tenance, or otherwise-lay not with K & Z but with Breen and East Rutherford-
and, as the Board has held, they were in no way bound by, or required to give effect
to, the provisions or clauses in the bargaining agreement between the Union and
K & Z. Therefore, as K & Z was powerless to effect the result which Respondent
sought-the assignment of a standby journeyman electrician for a gas-driven gen-
erator furnishing electricity in welding of steel joists-it is difficult to conceive what
effect Respondent's conduct was designed to produce other than to force Breen to
break or sever relations with East Rutherford. From the above it appears clear to
me that East Rutherford was the actual and real target of Respondent's conduct,
and regardless of the fact that the demand only called for a standby maintenance
electrician. That East Rutherford, et al., was the target of Respondent's conduct is
also demonstrated by the evidence in this record of its previous controversy with
Ridgewood where the Respondent was involved in a similar strike in 1962 or 1963,
and which resulted in Ridgewood paying several thousands of dollars for a standby
maintenance electrician. Under the total aspects of this case it is difficult to believe
that Respondent's present action was not calculated to produce a similar result
The record made in this case by the credited testimony of witnesses for the Gen-
eral Counsel and the exhibits-make it crystal clear that K & Z has no control what-
soever over the welding machine in question here. It had absolutely nothing to do
with it, and only East Rutherford has the authority to determine whether an elec-
trician referred by the Union would be permitted to maintain the welding machine
East Rutherford was using. As pointed out K & Z recognized without any hesitance
the true nature of Respondent's demand, and it immediately contacted Ridgewood
and sought to get Ridgewod to supplement its contract so that it could comply with
Respondent's demand. Ridgewood, in turn, recognized what Respondent was aiming
at and endeavored to get Breen to absorb the cost of the maintenance electrician.
Breen then capitulated and instructed its subcontractor, East Rutherford, to stop
work. In fact the Respondent itself recognized the secondary nature of its demand
when its business manager Renz told K & Z that the only way they could net out of
it was to go to the owner, as previously mentioned herein. That East Rutherford
actually controlled the welding machine is further shown in that when East Ruther-
ford used or attempted to use the welding machine to weld steel joists the electri-
cians provided by the Respondent to K & Z would stop working. Certainly, this is
most convincing that East Rutherford had and has the actual say in determining
whether K & Z can complete its prime electrical contract. I agree that East Ruther-
ford, by using or not using the welding machine, controls whether or not Respondent
LOCAL NO. 164, INT'L B'HOOD OF ELECTRICAL WORKERS 845
will or will not exert pressure upon K & Z. It is therefore apparent then that
Respondent is striking K & Z because of something that East Rutherford is doing, and
it is clear that under such factual circumstances K & Z is a neutral.
In Local No. 5, United Association of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and Canada, AFL-CIO v. N.L.R.B.
(Arthur Venneri Company), 137 NLRB 828, enfd. 321 F. 2d 366 (C.A.D.C.), cert.
denied 376 U.S. 921, a similar scheme was exploded, wherein the Board and the
court determined that the contract provision in question was really aimed not at the
subcontractor with whom the union dealt, but at the general conractor, which was
not the union's employer. Accordingly, secondary pressure had been applied and
rebuffed. In the above-cited case the union (Local No. 5) had a bargaining agree-
ment with Akron Mechanical Contractors, which in part stated that it was a viola-
tion of this agreement for any contractor to contract for a job where plumbing work
has been withheld from the plumbing contract by either the owner or general con-
tractor. Local No. 5 then struck Akron and argue that its strike was a lawful
primary strike against Akron to enforce the above-mentioned clause in its collective-
bargaining contract. The Board held that the union strike was an unlawful second-
ary boycott. The Board in its decision (p. 832) stated:
Thus, in the instant case, assuming that Respondent had a valid claim to the
plumbing work in dispute, it could take primary action against the employer
who had this work to assign. It could not, however, take action against Akron
which could not assign the work and hence was a neutral in the controversy.
Insofar as Respondent sought to bring about a cessation of business by Akron,
a neutral, its activity had a proscribed object within the meaning of Section
8(b)(4)(B) of the Act.
In Ohio Valley Carpenters District Council (Hankins & Hankins) v. N.L.R.B.,
339 F. 2d 142, enfg. 144 NLRB 91; the Court of Appeals for the Sixth Circuit stated:
The Board had held several times that, if a union demands that a contractor do
something he is powerless to do except by ceasing to do business with some-
body not involved in the dispute, it is manifest that an object of the union is
to induce this cessation of business. The courts to which this problem has
come have agreed with the holdings.
As in the instant case, so in the Carpenters District Council case just cited, the union
also argued that its dispute was primary and not an unlawful secondary boycott
because it was seeking to enforce a clause in its collective-bargaining contract with
the employer whom it was striking which provided, in sum, that the work it was
seeking was to be performed by its members. Likewise, the Court of Appeals for
the Third Circuit has held in N.L.R.B. v. International Longshoremen's Association,
Local 1694 AFL-CIO, et al. (Bd . of Harbor Commissioners), 331 F. 2d 712, enfg.
137 NLRB 1178, that a strike for a work assignment against an employer who does
not have control of the work is a secondary boycott outlawed by the Act .6
As far as I am able to ascertain the above cases and other similar decisions in
support of the General Counsel and the Charging Party contain the governing and
controlling law in this particular and specific area. In essence they hold that
although an employer might enter into an agreement with a union for the assignment
of work to its members-but where that employer on any given job does not have
that work and another employer does have the work, a strike against the employer
who does not have the work is an unlawful secondary boycott. Several decisions
cited by the Respondent are citations prior to the cases relied on above and such
decisions made before the 1959 amendments to the Act. Furthermore, these cases
and others cited by the Union are at least partially distinguished by their facts, and
certainly no contrary holdings can be successfully supported from some possible
reference or inference, contained in footnote or dictum in certain cases cited by the
0In the Sand Door decision (Local 1976, United Brotherhood of Carpenters and Join-
ers of America, AFL, at al . v. N.L.R.B:, 357 U.S. 93), the general contractors, Havstad
and Jensen, had a contract with Local 1976 which 'provided that "workmen shall not be
required to handle non-union material." It was to enforce this' provision' that the strike
took place and , as here, no picketing took place. The three factors which the Court
found established a violation in Sand Door are also present here; i.e. (1) inducement of
employees by the Union ( 2) to engage in a strike t or concerted refusal to work (3)
with an object of forcing or requiring their employer, to cease doing, business with a
third person . See also Local 825, International Union of Operating Engineers (Nichols
Electric Co .), 138 NLRB 540.
846 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, and, likewise, to those decisions relied on by the, Respondent clearly per-
taining to somewhat different questions and ramifications under Section 8(b)(4).7
The Respondent also emphasizes that this record fails to show that any employer
other than K & Z was in any way affected by the Union's strike against K & Z and
that there were no demands on any third parties. However, Gordon McCoy, project
manager for Ridgewood's architects, testified for the General Counsel that with the
strike and the electricians off the job the other contractors at the Travell site had to
slow down their work, and had to "go around" those areas where electric pipes and
other electrical apparatus were to be installed. McCoy stated that at this point the
Respondent's strike delayed the progress in the construction of this school building.8
From these facts it is obvious that the strike did have some definite effect on others
working on the job and tended to impede and obstruct the construction. Moreover,
it is well established that a union 's secondary conduct need not succeed in actually
causing a work stoppage of third party employees to constitute inducement in the
statutory sense , and as pointed out the absence of direct verbal or written demands
by the union on any third party is not sufficient to immunize the strike from the
proscription of Section 8(b)(4)(i) and (ii)(B). It is the real effect, not the niceties
of Respondent's conduct, which must, in the final analysis, be admeasured against
the prohibition of the statute.
In the final analysis here it should also be noted that by using the device employed
by the Respondent in the instant case-it would be entirely possible for a labor orga-
nization in the construction field to successfully evade the secondary boycott pro-
hibitions of the Act. I agree with the General Counsel that any labor organization
might do as the Respondent here did, insert some nominal contractual language in
the collective-bargaining agreement with the general contractor, to mask the real
nature of its dispute. It could then argue, as the Respondent does here, that it
merely wants the general contractor to pad its payroll with its members who would
be "available" if ever called on to do the work that some other contractor is doing.
In effect then, by adopting the very rationale urged here by the Respondent, any
labor organization in the construction field could easily evade the secondary boycott
prohibition of the Act. It is submitted, and I am in accord, that any such repeal of
Section 8(b) (4) (B) is a task for the Congress.
Thus, in the instant case, assuming the Respondent had a valid claim to the main-
tenance of the generator in dispute, it could take primary action against the employer
who had this work to assign. It could not, however, take action against K & Z
which could not assign the work and hence was a neutral in the controversy. The
defense, ably presented and argued by counsel, that the Union was only demanding
maintenance and not operation of the welding machine, can in no way negate the
fact that even this assignment rested in the sole and exclusive hands of East Ruther-
ford as K & Z had absolutely no control or right whatsoever in the welding machine,
or in any of the functions and arrangements for its use-actual or potential-and
the same is true no matter what subtle or refined terms the Respondent couched its
demand in.
v Respondent relies upon the rationale in N.L.R.B. v. Local 825, International Union of
Operating Engineers (Nichols Electric Co.), 326 F. 2d 218. As noted by the General
Counsel in this case the union, Local 825, International Union of Operating Engineers
had demanded that Nichols Electric Company, operating a certain machine, assign that
work to its members . Local 825 represented employees of another contractor on the
job; Selby and Elmhurst. When Nichols rejected the demand of Local 825 and began
to operate the machine with his own employees, who were members of another union,
the employees of Selby and Elmhurst went over to the machine and physically prevented
Nichols' employees from operating it. The court of appeals recognized that Nichols who
controlled the machine like East Rutherford in the instant case, was, in reality, the
primary employer and that Selby and Elmhurst , who did not have control of the machine,
were, like K & Z in the instant case, secondary or neutral employers. But the court felt
that the temporary absence of the employees of Selby and Elmhurst, when they went
over to Nichols' machine did not amount to a strike against Selby and Elmhurst ; that
Local 825 did not intend to and did not engage in a strike against Selby and Elmhurst.
However, in the instant case, the Union is striking against It & Z. Here it is not just
a temporary absence of a few minutes duration of the employees of K & Z because of their
inability to secure the work of maintaining or operating East Rutherford 's machine.
Herein, plainly, the strike effectively prevents K & Z from doing business with Ridgewood.
8 McCoy admitted that none of the other employers had to actually stop work because
of the strike, as aforementioned.
LOCAL NO.1164, INT'L B'HOOD OF ELECTRICAL WORKERS 847
Accordingly, I find that the Respondent has violated Section 8(b)(4)(i)(B) of
the Act by inducing and and encouraging employees of K & Z to engage in a strike
and a refusal in the course of their employment to use, handle, or to perform any
services for K & Z with an object of forcing or requiring K & Z to cease doing busi-
ness with East Rutherford, et al. I find, additionally, that the Respondent with like
object, threatened, coerced, and restrained and is threatening, coercing, and restrain-
ing K & Z which is engaged in commerce and in an industry affecting commerce and
that the Union thereby did engage in and is engaging in unfair labor practices within
the meaning of Section 8(b) (4) (ii) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above have a close, intimate, and-sub-
stantial relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes, burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found the Respondent has engaged in unfair labor practices, I shall rec-
ommend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
On the basis of the entire record in this case, I reach the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of Section 2(5) and
8(b) of the Act.
2. By inducing and encouraging employees of K & Z to engage in a strike, an
object thereof being to force and require K & Z to cease doing business with East
Ruinerford, et al., the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(4)(i)(B) of the Act.
3. By the acts described above in paragraph 2 for the objects set forth above in
said paragraph, Respondent did threaten, coerce, and restrain, and is now threaten-
ing, coercing, and restraining K & Z, a person engaged in commerce and in an indus-
try affecting commerce, and the Respondent thereby has and is committing unfair
labor practices within the meaning 'of Section 8(b)(4)(ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is ordered that the Respondent Local Union
No. 164, International Brotherhood of Electrical Workers, AFL-CIO, its officers,
agents, and representatives shall:
1. Cease and desist from engaging or inducing or encouraging any individual
employed by K & Z to engage in a strike or a refusal in the course of their employ-
ment to use, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or perform any services; or to threaten, coerce, or restrain
K & Z when, in either case, an object thereof is forcing or requiring K & Z to cease
doing business with East Rutherford, et al.
2. Take the following action which I find will effectuate the policies of the Act:
(a) Post, in conspicuous places, at its office and meeting hall, and at the Fairfield,
New Jersey, plant of K & Z and at.all places where Respondent customarily posts its
notices, copies of the attached notice marked "Appendix." 9 Copies of said notice.
-to be furnished by the Regional Director for Region 22, after being duly signed by
Respondent's representative, shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable
steps shall be taken to insure that such notices are not, altered, defaced, or covered
by any other material.
In the event that this Recommended Order is adopted by the Board, 'the words "a
Decision and Order" shall be substituted for the words, "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 22, in writing, within 20 days from
the date of the service of this Decision, what steps have been taken to comply
herewith 10
IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of
this Decision and Recommended Order the Respondent has notified the said Regional
Director, in writing, that it will comply with the foregoing Recommendations, the
National Labor Relations Board issue an Order requiring the action aforesaid
'()In the event that this Recommended Order is adapted by the Board this provision
shall be modified to read ' Notify said Regional Director In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No 164, INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that
WE WILL NO1 engage in, or induce or encourage any individual employed by
K & Z Electric Company to engage in, a strike or refusal in the course of his
employment to use, process, transport, or otherwise handle or work on any
goods, articles, or commodities or to perform any services, or threaten, coerce,
or restrain K & Z Electric Company, with an object of forcing and requiring
K & Z Electric Company to cease doing business with East Rutherford Steel
Erectors, Inc
LOCAL UNION No 164, INTERNATIONAL BROTHER-
HOOD 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
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No
645-3088
Floors, Inc. and Building Service Employees International
Union, Local No. 105, AFL-CIO. Case No 27-CA-1828
May 1? , 1966
DECISION AND ORDER
On January 11, 1966, Trial Examiner James R Hemingway issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Trial Examiner's Deci-
sion He also found that allegations of additional unfair labor prac-
tices set forth in the complaint had not been sustained Thereafter, the
General Counsel filed exceptions and a supporting bl ief and Respond-
ent filed a reply brief to the General Counsel's exceptions
158 NLRB No 83