Local No. 3, IBEW

National Labor Relations Board - Board Decisions

Jun 22, 1972

197 N.L.R.B. 866 (N.L.R.B. 1972)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 3, International Brotherhood of
Electrical Workers , AFL-CIO and New York
Telephone Company and Communications Work-
ers of America , AFL-CIO; and Local 1106, Com-
munications Workers of America , AFL-CIO. Case
29-CD-107
June 22, 1972
DECISION AND OROER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 15, 1972, Trial Examiner Frank H. Itkin
issued the attached Decision in this proceeding.
Thereafter, Respondent and Charging Party filed
exceptions and supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
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 Trial Examiner and hereby orders
that Respondent, Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's recommend-
ed Order.
i
J
Sec 8 (b)(4)(i) and (n)(D) provides
(b) It shall be an unfair labor practice for a labor organization or its
agents-
. » » «
(4)(i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in 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 any goods, articles, materials, or commodities or to
perform any services, or (u) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is
(D) forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular trade,
craft , or class rather than to employees in another labor organization or
in another trade , craft , or class, unless such employer is failing to
conform to an order or certification of the Board determining the
bargaining representative for employees performing such work
The petition averred that there was reasonable cause to believe that
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN, Trial Examiner: This proceeding was
heard at Brooklyn, New York, on January 10, 1972. The
principal question presented is whether Respondent Local
Union No 3, International Brotherhood of Electrical
Workers, AFL-CIO (herein Local No. 3 or Respondent),
violated Section 8(b)(4)(i) and (n)(D) of the National
Labor Relations Act, as amended, by engaging in certain
acts and conduct recited below.'
This is the fourth hearing arising from the acts and
conduct alleged in the unfair labor practice complaint filed
herein. The first hearing was held on December 17, 30, and
31, 1970, before the United States District Court of New
York, on a petition filed pursuant to Section 10(1) of the
Act alleging, inter alia, that there was reasonable cause to
believe that Respondent had engaged in conduct violative
of Section 8(b)(4)(i) and (u)(B) and (D) of the Act.2 On
January 21, 1971, the District Court granted an injunction
pursuant to Section 10(1) of the Act. See Kaynardv. Local
3, IBEW (New York Telephone Co), 337 F Supp. 31 (D C
NY, 1971). The second hearing was held on April 23,
1971, before Trial Examiner Thomas Ricci in Case
29-CC-268 (referred to herein as the "CC" case). The
principal issue there was whether Respondent's conduct, as
alleged-the same conduct involved in this proceeding
-was violative of Section 8(b)(4)(i) and (u)(B) of the Act.3
On June 25, ' 1, Trial Examiner Ricci issued his
Decision, finding that Respondent had violated Section
8(b)(4)(i) and (n), subparagraph (B), of the Act, as alleged.
On October 15, 1971, the Board adopted the findings,
conclusions, and recommendations of the Examiner, as
modified. See Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO (New York Telephone
Company), 193 NLRB No. 111 (1971).4 The third hearing
Respondent's conduct, as alleged, was for an object proscribed by
subparagraph (B) as well as (D) Subparagraph (B) forbids (i) and (u)
conduct where an object thereof is
» « »
(B) forcing or requiring any person to cease using , selling , handling,
transporting , or otherwise dealing in the products of any other
producer , processor , or manufacturer . or to cease doing business with
any other person , or forcing or requiring any other employer to
recognize or bargain with a labor organization as the representative of
his employees unless such labor organization has been certified as the
representative of such employees under the provisions of section 9
Provided, That nothing contained in this clause ( B) shall be construed
to make unlawful, where not otherwise unlawful , any primary strike or
primary picketing,
The parties stipulated before Trial Examiner Ricci that the record (the
transcript and exhibits) in the 10 (1) proceeding would be received in
evidence in the CC case The parties reserved the right to offer additional
evidence and make further argument on the evidence of record The only
additional testimony adduced at the CC hearing was that of one William
Darcy , a business representative of Local 3 See Local Union No 3,
International Brotherhood of Electrical Workers, AFL-CIO, 193 NLRB No
Ili (TXD)
i The Board ' s modifications concerned only the Trial Examiner's
Conclusions of Law and Order and did not pertain to his findings insofar as
pertinent or material to this proceeding
197 NLRB No. 137
LOCAL NO. 3, IBEW
was held on June 1, 2 and 3, 1971, pursuant to Section
10(k) of the Act.5 On October 15, 1971, the Board issued its
Decision and Determination of Dispute, finding, inter aha,
that there was "reasonable cause to believe" that Respon-
dent's conduct, as alleged in this proceeding, was violative
of Section 8(b)(4)(i) and (ii)(D) of the Act. See Local No 3,
International Brotherhood of Electrical Workers, AFL-CIO
(New York Telephone Company), 193 NLRB No. 116
(1971).6
In the instant case, Respondent admits in its answer that
"[s]ince on or about October 15, 1971, Respondent has
failed and refused to comply with the Decision and
Determination of Dispute described above . . . and has
failed and refused to notify the Regional Director for
Region 29 that it will refrain from the actions proscnbed
by the Board in said Determination, although Respondent
was afforded a fair opportunity to do so." Respondent,
however, denies having engaged in conduct violative of
Section 8(b)(4)(i) and (u) for an object proscribed by
subparagraph (D).
Counsel for the General Counsel argues that, under the
circumstances present here, I am bound by the Board's
findings of Section 8(b)(4)(i) and (u) conduct in the related
CC case absent the production of newly discovered
evidence pertaining to such conduct. Counsel for the
General Counsel further contends that the evidence of
record amply establishes that Respondent' s (i) and (if)
conduct was in furtherance of a (D) object 7 Counsel for
Respondent in turn denies that I am bound by the Board's
(i) and (n) findings in the CC cases In counsel for
Respondent's posthearing memorandum, he argues, inter
aha, that I am
not required by the Board's decisions already issued in
connection with this matter to find that Local Union
No. 3 committed any acts with a Section 8(b)(4)(D)
5 Sec 10(k) provides
Whenever it is charged that any person has engaged in an unfair labor
practice within the meaning of paragraph (4)(D) of section 8(b), the
Board is empowered and directed to hear and determine the dispute
out of which such unfair labor practice shall have arisen, unless , within
ten days after notice that such charge has been filed, the parties to such
dispute submit to the Board satisfactory evidence that they have
adjusted, or agreed upon methods for the voluntary adjustment 6f, the
dispute Upon compliance by the parties to the dispute with the
decision of the Board or upon such voluntary adjustment of the
dispute, such charge shall be dismissed
At the 10(k) hearing, the records in the related 10(1) and CC cases, insofar as
pertinent here. were received in evidence The CC record was offered by
counsel for Respondent
Sec 102 92 of the Board's Rules and Regulations states that the "record
of the proceeding under section 10(k) and the determination of the Board
thereon shall be a part of the record in such unfair labor practice proceeding
e The Board's 10(k) determination of the dispute provides
A Employees of the New York Telephone Company, currently
represented by Communications Workers of America, AFL-CIO, and
Local 1106, Communications Workers of America, AFL-CIO are
entitled to perform the following work
All work involving the pulling of feeder, house, and inside wiring
cable into and within buildings , attaching the house and inside wiring
cable t ,) walls , the placing of inside wiring , the fastening of terminal
boxes to walls and the bolting to floors of frames designed to support
telephone equipment where the particular job is new construction or
constructi,n involving a major alteration , and on jobs within Queens
County, New York, where all employees on the job are members of
building trades Unions
B Local Union No 3, International Brotherhood of Electrical
867
object whether or not [I am] legally bound by the
Board's finding (193 NLRB No. I11) that (i) and (n)
acts were committed for which Respondent was
responsible and the Board's further finding (193 NLRB
No. 116) that a jurisdictional dispute within the
meaning of Section 8(b)(4)(D ) exists herein... .
[Respondent] urge[s] that it cannot reasonably be
inferred that Local Union No 3 acted-at two out of
several dozen locations-with a Section 8(b)(4)(D)
object ... .
As stated at the hearing, I conclude that I am bound by
the Board 's findings of (i) and (u) conduct in the related
CC case (193 NLRB No. 111). Admittedly, the same
parties are involved in both proceedings; the same conduct
is in issue insofar as it pertains to Section 8(b)(4)(i ) and (u),
and the parties were afforded full opportunity to litigate
the (i) and (ii) conduct before the Board in the related CC
case. In fact, counsel for Respondent expressly declined
the opportunity in the instant proceeding to adduce
additional evidence pertaining to the (i) and (n) issue as
well as the (D) issue, including the opportunity to conduct
additional cross-examination of witnesses who had testi-
fied at the previous hearings.
Under principles of collateral estoppel, the Board's
earlier findings of (i) and (ii) conduct are controlling here.
As the court stated in Hyman v. Regenstein, 258 F 2d 502,
510(C.A 5, 1958):
It, of course, is well settled law that a fact decided in
an earlier suit is conclusively established between their
parties and their privies, provided it was necessary to
the result in the first suit The Evergreens v Nunan, 2
Cir., 1944, 141 F.2d 927, 928, 152 A.L.R. 1187.
American Jurisprudence, Judgments, Section 371,
states the rule:
It is a fundamental principle of jurisprudence
Workers. AFL-CIO, is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the New York Telephone
Company to assign the above-described work to electricians , who are
currently represented by Local Union No 3, International Brother-
hood of Electrical Workers, AFL-CIO
C Within 10 days from the date of this Decision and Determina-
tion of Dispute. Local Union No 3. International Brotherhood of
Electrical Workers, AFL-CIO. shall notify the Regional Director for
Region 29, in writing, whether or not it will refrain from forcing or
requiring New York Telephone Company to assign the work in dispute
to its members , rather than to employees of New York Telephone
Company represented by Communication Workers of America,
AFL-CIO, and Local 1106, Communications Workers of America,
AFL-CIO
r Counsel for the Charging Party, New York Telephone Company
(herein Telco ), generally concurs with counsel for the General Counsel that
I am bound by the Board 's (i) and (u) findings in the CC case However,
counsel for the Charging Party further contends in his posthearing brief that
I am also bound by the so-called "conclusion" in the CC case "that the
object of this conduct was to protect Local 3's claimed work jurisdiction
the object prescribed by Section 8(b)(4)(D) of the Act "
I note , however , that counsel for Respondent characterized the instant
proceeding, in part , as follows
this is the fourth in a series of pointless hearings, unproductive hearings
which have been a waste of the taxpayer 's money They are the
outgrowth of two conversations which took place on November 24,
1970, which the Telephone Company in its wisdom chose to make a
Labor Board Case , obtained a temporary restraint, a temporary
injunction , and in the case of the CC case a permanent injunction
which Respondent will not comply with, and the Board has been
advised
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that material facts or questions which were in
issue in a former action, and were there admitted
or judicially determined, are conclusively settled
by a judgment rendered therein, and that such
facts or questions become res judicata and may
not again be litigated in a subsequent action
between the same parties or their privies, regard-
less of the form the issues' may take in the
subsequent action, whether the subsequent action
involves the same or a different form of proceed-
ing, or whether the second action is upon the
same or a different cause of action, subject
matter, claim, or demand, as the earlier action. In
such cases, it is also immaterial that the two
actions are based on different grounds, or tried
on different theories, or instituted for different
purposes, and seek different relief... .
Similarly, Freeman writes: "Regardless of any
differences in the cause of action or subject
matter, the conclusiveness of a former adjudica-
tion extends to every question in issue and
determined by the court . . . though not then
directly the point in issue.... [A judgment] is
conclusive as to all matters within the scope of
the pleadings which are material and relevant and
were in fact determined." 2 Freeman on Judg-
ments, Section 688, p. 1450. [See cases and other
authorities cited]
And see Truck Drivers and Helpers Local No. 728 v.
N.L.R B, 415 F.2d 986, 988 (C.A. D.C., 1969), cert. denied
397 U.S. 935 (1970), where the court of appeals comment-
ed:
There is sound scope for principles of estoppel in
administrative adjudications [citation omitted].
There is no reason why an agency any more than
a court should be required to squander limited
and overtaxed resources of decisional and staff
personnel by reconsidering matters already fairly
heard and determined. . . . In this case, the
application of the principles of estoppel was well
within the Board's discretion ... .
Cf. Peyton Packing Company, Inc., 129 NLRB 1358
(1961), where the Board, having previously found in
another case that the alleged withholding of a bonus was
violative of Section 8(a)(1), would not permit counsel for
the General Counsel to relitigate this question in a later
8(a)(5) proceeding.
Of course, the Board did not have before it the (D)
object issue in the related CC proceeding and, consequent-
ly, this issue must be resolved on the record before me now.
In this respect, I note that both the district court in the
10(1) proceeding and the Board in the 10(k) proceeding
were only concerned with the issue of whether there was
"reasonable cause to believe" that an 8(b)(4)(D) violation
had occurred.
Accordingly, upon the entire record in this case, and a
consideration of the arguments of counsel, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER; THE LABOR
ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits , and I find that
Telco, the Charging Party , a New York corporation,
maintains its principal office and place of business in New
York City and maintains various other places of business
in the State of New York, where it is and has been engaged
continuously in providing telephone communications and
related services; that during the past year , which period is
representative of Telco's annual operations generally,
Telco derived gross revenues in excess of $500 ,000 in the
course and conduct of its operations ; that during this same
period , Telco purchased and caused to be delivered and
transported to its places of business in New York,
telephone cable, wire , lumber , and other goods and
materials valued at in excess of $50,000, said goods and
materials having been transported and delivered to Telco's
places of business in interstate ' commerce directly from
States of the United States other than New York; and
therefore that Telco is and at all times material herein has
been engaged in commerce and in an industry affecting
commerce within the meaning of Sections 2(6) and (7) and
8(b)(4) of the Act.
The complaint further alleges , the answer admits, and I
find that Respondent Local 3, Communications Workers
of America , AFL-CIO, and Local 1106 , Communications
Workers of America , AFL-CIO (herein CWA and Local
1106 respectively ), are and at all times material have been
labor organizations within the meaning of Section 2(5) of
the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background
As the Board found in the 10(k) proceeding (supra, fn. 6)
and in the related CC case, the work in dispute involves the
installation of certain telephone equipment on projects
located within Queens County which involve new con-
struction or major alterations to existing buildings, on
which all of the employees are members of building trades
unions. For many years prior to November 1970, it was
Telco's practice to contract out the disputed work to firms
employing electricians represented by Respondent Local 3.
During the later part of October 1970, Telco determined to
assign the disputed work to its own employees represented
by CWA and Local 1106. Thus, on November 24, 1970,
Telco assigned crews to two projects in Queens County,
Queensborough Community College and Thompson Ave-
nue, to pull cable and place terminal boxes. The events
described below occurred at the two project sites.
B. The (i) and (ii) Conduct Occurring at the Two
Projects as Found by the Board in Case 29-CC-268
On November 24, electricians employed by electrical
subcontractor Sheldon Electric Co., Inc., were working at
the Thompson Avenue project , and electricians employed
by electrical subcontractor A. I. Smith, Inc., were working
at the Queensborough College project . Both subcontractors
LOCAL NO. 3, IBEW 869
had collective-bargaining agreements with Local 3 cover-
ing their respective electrician employees.
In the CC case, the Board, in agreement with the Trial
Examiner, found, inter aka, as follows:
The evidence shows that at the Thompson Avenue job,
[Robert] Fedor, calling himself the job steward for
Local 3 [and foreman for the electrical subcontractor]
told a representative of the general contractor, [Park-
will] Construction Co., he would turn the electricity off
the job if the CWA men worked.
The evidence also shows that at the Queensborough
College project, Herbert Smith [of A. I. Smith, Inc.], an
electrician foreman and member of Local 3, ordered
the Telephone Company men off the project, and that
Bill Allen, Local 3 shop steward employed by the Smith
Company, ordered Eaton [a Telephone Company
foreman] to tell his superiors he had been threatened
with physical violence if the Telephone Company men
did not leave, and made . . . the general contractor
understand that the electricians would strike if the
Telephone Company men worked at all.
Vianelli, superintendent for the general contractor at the
site (Parkwill Construction Co.), told Baynon and Mei to
leave because the electricians would turn off the electricity
and close down the job if the two Telco employees
remained on the site. Baynon called McCarthy and they
went to speak with Vianelli. In the presence of Fedor,
McCarthy asked Vianelli why his men had to leave;
Vianelli responded that trades people must do the work
because the electricians would otherwise close down the
job. McCarthy asked Fedor if this was true and Fedor
agreed that "we'll turn it off...." Fedor also stated:
"Isn't this work usually done by Comstock" (an electrical
contractor who employs members of Local 3). Fedor,
during this conversation, identified himself as shop steward
for Local 3.
McCarthy, in his testimony, recalled, inter alia, that
Vianelli said that if the CWA men work, the electricians
would turn the power off and Parkwill would have to close
down the job. Fedor apprised Vianelli that "jobs of this
type were normally done by Comstock." Fedor informed
McCarthy that he would turn off the power in the building
if the Telco men worked. Fedor identified himself as a
Local 3 steward.
Vianelli, in his testimony, related , inter alia, that Fedor
informed him that the Telco employees were not trades
The cables were not pulled into the two buildings and
the terminal box work was not performed until a month
later, after the General Counsel had filed a petition for
injunction under Section 10(1) of the Act.
The Board, in finding and concluding that Respondent
by the foregoing and related conduct had violated Section
8(b)(4)(i) and (u) for an object proscribed by subparagraph
(B), expressly rejected Respondent's contention that it was
not responsible for the acts and conduct of both Fedor and
Allen.
C. The Evidence of Record Pertaining to an
8(b)(4)(D) Object
The question remains, whether Respondent's (i) and (ii)
conduct was in furtherance of an object proscribed by
Section 8(b)(4)(D). Upon the entire record, I find and
conclude that an object of Respondent's (i) and (ii)
conduct was to force or require Telco to assign the
disputed work to members of Local 3 rather than to Telco's
own employees represented by CWA and Local 1106.
1. The Thompson Avenue job
Thus, according to the testimony of Telco employee
Baynon, Telco Foreman McCarthy arrived at the Thomp-
son Avenue project on the morning of November 24. He
was accompanied by Telco employees Baynon and Mei.
Baynon started to work on terminal boxes. Fedor, a
foreman for the electrical subcontractor on the site
(Sheldon Electric Co., Inc.) and a member of Local 3, told
Baynon that "the work belonged" "to Local 3." Thereafter,
people, that the Telco employees would "interfere with"
the operation of the job "since this job was all performed
by trade workmen," and therefore the CWA men "would
have to leave the site." Vianelli told Baynon and Mei to
leave the premises. Later, Vianelli told McCarthy that "the
job was run by all trades people, that it was going to cause
[Vianelli] an inconvenience on [his] site, on [his] job, if
these men were to work there...."
I credit the testimony of Baynon, McCarthy, and
Vianelli as stated above. Their testimony in material part is
mutually corroborative and, upon the entire record before
me including the ultimate findings of the Board in the
related CC case, appears to be a trustworthy and complete
account of what transpired at the Thompson site on
January 24, 1970.9
2. The Queensborough Community College job
Telco Foreman Eaton arrived at the Queensborough
College site on the morning of November 24 with linemen
Bickel and Kazmerski for the purpose of pulling telephone
cable and installing terminal boxes. According to the
testimony of Eaton, some duct work remained to be done,
by the electrical subcontractor (A. I. Smith, Inc.). Eaton
sought out Herbert Smith, one of the owners, and foreman
of A. I. Smith, and a member of Local 3. Eaton then went
to see Bill Allen, the Local 3 shop steward for A. I. Smith.
Allen told Eaton that "he wasn't going to place any
conduit; we weren't going to pull any cable; and he wasn't
going to place any conduit for us." Eaton spoke with
Thompson, the custodian engineer at the College.i° Allen
told Thompson, inter alia, "that this type of work is
generally contracted out to [employers ] who employ Local
9 Fedor denied, inter aha, that he was a steward and that he had agreement with the Trial Examiner in the CC case , I would not credit Fedor
threatened a work stoppage The Board has determined in the CC case that insofar as his testimony conflicts with that of Baynon , McCarthy, and
Fedor did engage in the (i) and (ii) conduct and that Respondent Local 3 is Vianelli as stated above (See 193 NLRB No. I I I (TXD))
responsible for this conduct . Further, on the record before me and in 10 The general contractor at this site was Mars Associates.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 members," and the cable pulling had to be done by Local
3 men. Thompson agreed. Eaton next spoke on the
telephone to De Blaze, a representative of the College.
Thompson said to De Blaze, in the presence of Allen, that
the "electricians are going to walk off the job and their
union is going to claim that they had not sanctioned the
walkoff." Allen agreed, stating: "That's right. We will walk
off if the Telephone Company pulls the cable." Allen then
told Eaton, "Why don't you go back and tell your boss that
you were threatened with physical violence?"
Telco employee Kazmerski testified, inter aka, that he
had started to mount a terminal box at the site. Herbert
Smith asked the employee what he was doing; Kazmerski
said that he was pulling a telephone cable; Smith replied,
"No, we weren't. He had the key to the room [and] he
wasn't letting us in here-to get out." Smith, in his
testimony, asserted, inter aka, that the reason he ordered
the Telco employees out of the particular room was to
protect his company's equipment and to prevent any one
from being injured by the live electrical connections. Allen,
in his testimony, generally denied any threats toward
Eaton or anyone else.
I credit the testimony of Eaton and Kazmerski as stated
above. Their testimony is in material part mutually
corroborative and, upon the entire record before me,
including the ultimate findings of the Board in the related
CC case, appears to be a reasonable, trustworthy, and
complete account of what transpired at the Queensborough
College site on November 24.11
Allen and Fedor telephoned Local 3 Business Represent-
ative Darcy on the morning of November 24 to report what
had happened at their locations. According to Darcy, he
told Allen and Fedor, in effect, to ignore the Telco
employees at the two sites and to do nothing. However, I
do not credit Darcy's testimony in this respect: As the
Trial Examiner noted in the related CC case (193 NLRB
No. 111), Darcy "shifted his position on one question after
another, evaded simple inquiries again and again, even
refused to answer coherently ...... Moreover, as stated, it
had been Telco's practice for a number of years to contract
out the disputed work to firms employing electricians
represented by Local 3. And, article XIV of Respondent's
bylaws provides:
No member is to give away work coming under the
jurisdiction of this Local, or to allow any other
tradesmen to do work coming under this Local's
jurisdiction, without being subject to such penalty as
decided upon by the Executive Board.
The record shows and I find that the work in question was
considered for many years by Local 3 as within its
"jurisdiction."
In sum, on the record before me, I find and conclude
that Respondent's conduct, as stated above, was for an
object of forcing and requiring Telco to assign the disputed
11 The Board has determined in the related CC case that Allen did
engage in the (i) and (u) conduct and that Respondent Union is responsible
for his conduct Further , on the record before me, I would not credit Allen
or Smith where their testimony conflicts with that of Eaton and Kazmerski
as stated above Allen and Smith , as the Trial Examiner noted in the related
CC case ( 193 NLRB No I I l)-"changed their stones as they went along,
both were evasive and oblique in their stories as they went along, both were
evasive and oblique in their testimony at many points, and both sought to
work to members of Respondent rather than to Telco's
employees represented by CWA and Local 1106.12
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the interstate operations of
the companies involved, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and its free flow.
IV. CONCLUSIONS OF LAW
1. Telco is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent Local 3, CWA, and Local 1106 are labor
organizations within the meaning of Section 2(5) of the
Act.
3. Respondent Local 3 has failed and refused to
comply with the Board's Decision and Determination of
Dispute, dated October 15, 1971, and reported in 193
NLRB No. 116.
4. Respondent Local 3 has engaged in and continues to
engage in unfair labor practices proscribed by Section
8(b)(4)(i) and (ii)(D), of the Act by engaging in, inducing,
and encouraging employees of A. I. Smith, Inc. to engage
in a strike or refusal in the course of their employment to
perform services, and by threatening, coercing, and
restraining A. I. Smith, Inc., Queensborough Community
College, Sheldon Electric Co., Inc., Parkwill Construction
Co., and Mars Associates, an object thereof being to force
or require Telco to assign the work described below to
members of Respondent Local 3 rather than to Telco's
own employees represented by CWA and Local 1106.
The work involved consists of:
All work involving the pulling of feeder, house, and
inside wiring cable into and within buildings, attaching
the house and inside wiring cable to walls, the placing
of inside wiring, the fastening of terminal boxes to
walls, and the bolting to floors of frames designed to
support telephone equipment where the particular job
is new construction or construction involving a major
alteration, and on jobs within Queens County, New
York, where all employees on the job are members of
building trades unions.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent Local 3 has engaged in
unfair labor practices proscribed by Section 8(b)(4)(i) and
avoid admitting facts that were obvious from the record as a whole"
i2 Counsel for Respondent moved to strike CWA as a party The Board,
in its 10(k) determination (193 NLRB No 116, In 1), noted that
"Communications Workers of America, AFL-CIO, was permitted to
intervene in the proceedings herein on the basis of a collective- bargaining
agreement with New York Telephone Company The contract is adminis-
tered by Local 1106." Under the circumstances , CWA is properly a party
here and Respondent 's motion is denied.
LOCAL NO. 3, IBEW 871
(it)(D) of the Act, my recommended Order will require it to
cease and desist therefrom and to take certain affirmative
action designed to remedy unfair labor practices of this
nature and to effectuate the policies of the Act. Moreover,
on the entire record before me and in view of Respondent's
secondary boycott pressures implicating innocent parties,
as found by the Board in the related CC case, arising from
the same dispute involved herein, I find it appropriate to
recommend that Respondent be enjoined from engaging in
similar conduct involving employees of and/or any other
person engaged in commerce or an industry affecting
commerce.
RECOMMENDED ORDER
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notices to the
Regional Director for Region 29 for posting by New York
Telephone Company, A. I. Smith, Inc., Sheldon Electric
Company, Inc., Queensborough Community College,
Parkwill Construction Co., and Mars Associates, at all
locations where notices to their respective employees are
customarily posted, if they are willing to do so.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.14
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, it
is recommended that Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO , Respon-
dent herein , its officers , agents, and representatives , shall:
1. Cease and desist from engaging in, inducing, or
encouraging any individual employed by A. I. Smith, Inc.,
or by any other person engaged in commerce or in an
industry affecting commerce , to engage in a strike or a
refusal in the course of their employment to use , manufac-
ture, process, transport , or otherwise handle or work on
any goods , articles, materials, or commodities or to
perform any services ; or threatening , coercing , or restrain-
ing A . I. Smith , Inc., Sheldon Electric Company, Inc.,
Queensborough Community College, Parkwill Construc-
tion Co., and Mars Associates , or any other person
engaged in commerce or in an industry affecting com-
merce, where in either case an object thereof is to force or
require New York Telephone Company to assign the work
described below to members of Local Union No. 3,
International Brotherhood of Electrical Workers, AFL-CIO,
Respondent herein, rather than to New York Telephone
Company's own employees represented by Communica-
tions Workers of America, AFL-CIO and Local 1106,
Communications Workers of America, AFL-CIO.
The work involved consists of:
All work involving the pulling of feeder , house, and
inside wiring cable into and within buildings , attaching
the house and inside wiring cable to walls, the placing
of inside wiring, the fastening of terminal boxes to
walls, and the bolting to floors of frames designed to
support telephone equipment where the particular job
is new construction or construction involving a major
alteration , and on jobs within Queens Ccunty, New
York , where all employees on the job are members of
building trades unions.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Post in conspicuous places in Respondent's business
offices, meeting halls, and all places where notices to
employees are customarily posted, copies of the attached
notice marked "Appendix ." 13 Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by the Respondent's authorized
representative , shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
13 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 , recommendations , and recommended Order herein shall, as
provided in Sec 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
14 In the event that the Board's 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Local Union No. 3. International
Brotherhood of Electrical Workers, AFL-CIO, and to all
employees , We hereby notify you that:
WE WILL NOT engage in , induce , or encourage
employees employed by A. I. Smith , Inc., or by any
other person engaged in commerce or in any industry
affecting commerce , to engage in a strike or a refusal in
the course of their employment to use , manufacture,
process, transport , or otherwise handle or work on any
goods, articles , materials , or commodities or to perform
any services ; or threaten , coerce , or restrain A. I.
Smith , Inc., Sheldon Electric Company, Inc., Queens-
borough Community College, Parkwill Construction
Co., and Mars Associates , or any other person engaged
in commerce or in an industry affecting commerce,
where in either case an object thereof is to force or
require New York Telephone Company to assign the
work described below to members of Local Union No.
3, International Brotherhood of Electrical Workers,
AFL-CIO, Respondent herein , rather than to New
York Telephone Company's own employees represent-
ed by Communications Workers of America, AFL-CIO
and Local 1106 , Communications Workers of
America , AFL-CIO.
The work involved consists of:
All work involving the pulling of feeder, house,
and inside wiring cable into and within buildings,
attaching the house and inside wiring cable to
walls, the placing of inside wiring, the fastening of
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminal boxes to walls, and the bolting to floors
of frames designed to support telephone equip-
ment where the particular job is new construction
or construction involving a major alteration, and
on jobs within Queens County, New York, where
all employees on the job are members of building
trades unions.
LOCAL UNION No. 3,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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 . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office 16 Court Street, Fourth
Floor, Brooklyn, New York 11241, Telephone
212-596-3750.