Local No. 441, IBEW

National Labor Relations Board - Board Decisions

Jan 9, 1976

222 N.L.R.B. 99 (N.L.R.B. 1976)

LOCAL NO. 441, IBEW 99
Local-No. 441, International Brotherhood of Electrical
Workers, AFL-CIO and Rollins Communications,
Inc. Case 21-CC-1459
January 9, 1976
SUPPLEMENTAL DECISION
BY CHAIRMAN- MURPHY AND - MEMBERS FANNING
AND JENKINS
On February 5, 1974, the National Labor Rela-
tions Board issued its Decision and Order in this pro-
ceeding I in which it reversed the findings of-the Ad-
ministrative Law Judge, and found that the Union
violated Section 8(b)(4)(i) and (ii)(B) of the Act by
picketing for the proscribed object of forcing a neu-
tral general contractor (Carter) to cease doing busi-
ness with the subcontractor (Rollins) with whom the
Union-had a dispute?
Thereafter, a petition for review and cross-applica-
tion for enforcement of an Order of- the National
Labor Relations Board was filed with `the United
States Circuit Court of Appeals for the District of
Columbia. The court, in ruling on Respondent's peti-
tion for review and the Board's cross-petition for en-
forcement, remanded the case to the Board to clarify
whether the Board was overturning the Administra-
tive Law Judge's credibility findings. In the court's
view, it was "incumbent upon the Board first to iden-
tify expressly an awareness that it was disagreeing
with the Administrative Law Judge, especially on a
point where he had credited one witness over anoth-
er, and second, to set forth the basis of disagreement
with the Administrative Law Judge." The court also
directed the Board to "clarify the basis of its ruling",
in the event the- Administrative Law Judge's version
of the facts is adopted on remand and a violation is
found:
The - court needs to know whether it is the
Board's position ` that, if a union has a dispute
with a primary employer, the union (a) may not
have=any conversation with a neutral' employer,
or (b) may have a conversation witha- neutral
employer but-must not refer to the possibility of
termination of- the primary employer even when
that subject is initiated by the neutral employer;
or (c) may answer the question raised by the
neutral employer by indicating the :picketing
'208 NLRB 943. -
2 Member Fanning, for the reasons set forth in his dissent in International
Brotherhood of Electrical Workers, Local Union No. 11, AFL-.CID (L. G
Electric Contractors Inc.), 154 NLRB 766 (1965), dissented in the instant
case. He would affirm the findings, conclusions , and recommendations of
the Administrative Law Judge and dismiss the complaint in its entirety.
would stop if either the primary employer-is ter-
minated or pays the prevailing wage, but may
.not go further and inform-the neutral, employer
that the picketing will cease if he takes the affir-
mative action of providing written assurance
that the primary employer would not be,allowed
to return to the jobsite unless it pays prevailing
wages and benefits:' .
On June 19, 1975, the Board notified the parties
involved in these proceedings that it was accepting
the remand from the court and all parties were invit-
ed to submit statements of positions with respect to
the issues raised by the court's remand. On July 4,
1975, the Board received a telegram"from the Re-
spondent wherein it was stated that the telegram will
constitute the statement of position ,of Respondent
Union and the Board was referred to the positions
taken by the Respondent in its briefs to the court and
asked that the complaint be dismissed in its entirety.
On July 7, -1975, the General Counsel submitted a
Statement of Position on Remand. -
Pursuant to the provisions of Section 3(b), of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated- its au-
thority in this proceeding to a three-member panel.
The Board has reexamined the entire record, in-
cluding the court's opinion, and the positions of the
parties on remand, and hereby-reaffirms its Decision
and Order for the reasons indicated hereafter.
In our original decision we found that the Union
violated Section 8(b)(4)(i) and (ii)(B) of the Act by
picketing for the proscribed object of forcing a neu-
tral general contractor (Carter) to cease doing busi-
ness with the subcontractor (Rollins) with whom the
Union had a dispute. Our finding of a violation was
based on a conversation between Union Business
Representative Addington and General Contractor
Carter which occurred after picketing began. The
picketing itself 'conformed in all respects to the
Moore Dry Dock standards, Sailors' Union of the Pa-
cific AFL (Moore Dry Dock Company), 92 NLRB 547,
549 (1950). We note that compliance with the Moore
Dry Dock standards, however, is not conclusive evi-
dence that the picketing constitutes ' lawful primary
activity, for the "totality of a, union's conduct in a
given situation may well disclose a real purpose to
enmesh neutrals in a dispute, despite literal compli-
ance with the Moore Dry Dock standards." Mill-
wrights Local Union No. 1102 (Dobson Heary Haul),
155 NLRB 1305,1307-10 (1965). Specifically, picket-
ing for a lawful object may be unlawful if there is
other evidence establishing that the picketing also
has an unlawful secondary object. In such circum-
3 Local No 441, International Brotherhood of Electrical Workers, AFL-
CIO (Rollins Communications) v N.L R B, 510 F.2d 1274, 1277 (1975).
222 NLRB No. 24
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, Section 8(b)(4)(B) is violated .4 The instant
case presents precisely such a situation. Carter and
Addington•gave conflicting versions of the conversa-
tion which is the crucial incident in this case. Ac-
cording to Addington, Carter initiated the conversa-
tion by asking if Addington would remove the picket
line if Carter removed the primary employer (Rol-
lins) from the jobsite; Addington responded in the
affirmative and asked for a letter from Carter con-
firming the removal of the primary. The Administra-
tive Law Judge credited this account.
However, in our recitation of the facts in our origi-
nal decision we related only Carter's version of his
conversation with Addington. According to Carter,
he asked Addington what he could do to get the job
going; Addington replied that he would remove the
picket line if Carter would give him a letter stating
that Rollins' men would not go back to work until
they were paid prevailing wages and benefits. We
concluded that this conversation enmeshed Carter in
the Union's dispute with Rollins, and showed that
the picketing was for an object of causing Carter to
cease doing business with Rollins. We noted that the
Union agreed to remove its picket line if the neutral,
Carter, would give a written commitment that Rol-
lins' employees would not be put back to work until
Rollins paid prevailing wages and benefits. Adding-
ton was not predicting the occurrence of primary
picketing at a neutral location, but rather was seek-
ing a commitment from the neutral which would re-
sult in either cessation of business with Rollins, or
else a significant disruption of their relationship.
In our original decision we did differ with the Ad-
ministrative Law Judge's credibility findings regard-
ing the critical conversation, as in our opinion,
Carter's version was more in accord with the proba-
bilities of the situation. In this regard we note that
the Administrative Law Judge at no time discredited
Carter based, on his demeanor. In fact, the Adminis-
trative Law Judge specifically found that
Addington's testimony "was not detailed" and that
the conversation between Addington and Carter as a
whole "apparently occurred as Carter testified." Fur-
ther, the Administrative Law Judge conceded that
there is "some slight variation between the testimony
of Carter and that of Addington." In these circum-
stances, we consider that the detailed description of
4lnternational Brotherhood of Electrical Workers, Local 480, AFL-CIO
[Gulf Coast Bldg & Supply Co] v. N.L.R B, 413 F 2d 1085, 1088-90 (134
App.D.C. 178, 181-183) (1969); Gulf Coast Building & Supply Company v.
International Brotherhood of Electrical Workers, Local No 480, AFL-CIO,
428 F 2d 121, 125 (C A. 5, 1970), cert denied 400 U S. 942 (1970); N LR B
v. International Brotherhood of Electrical Workers, Local 453 [Delp Refrigera-
tin], 432 F.2d 965, 969 (C.A 8, 1970); N.LR.B v. Northern California Dis-
trict Council of Hod Carriers [Joseph's Landscaping Service], 389 F 2d 721,
725 (C.A 9, 1968)
the conversation testified to by Carter at the hearing
was more reliable than an admittedly "not detailed"
description testified to by Addington.
The Administrative Law Judge, while conceding
that Addington's testimony was not detailed with re-
spect to his conversation with Carter, and, specifical-
ly, finding that the rest of the conversation, not de-
tailed by Addington, occurred as Carter testified,
proceeded, without specifically discrediting Carter,
to accept Addington's version because he was "in-
clined" to do so in view of a statement Carter made
on cross-examination as follows:
Q. You said that just before that Addington
told you that he wanted the people off the job
and that he wanted his people on the job, that is
what you said. Now, I want to know when he
said that?
A. I do not recall at any time that he told me
that he wanted them specifically off the job, but
at all times that he wanted them to be paid the
prevailing wages and benefits and until that was
done, he wasn't satisfied.
The statement by Carter meant no more than that
Addington never specifically and overtly requested
that Carter replace Rollins' employees with
Respondent's electricians. The Administrative Law
Judge's reference to that portion of Carter's testimo-
ny, on the face of the record, appears to us to be
unduly emphasized. We find that the testimony of
Carter and Addington are easily reconcilable under
Carter's version of the sequence of events. In view of
the fact that the Administrative Law Judge did not
discredit Carter and obviously concluded that
Carter's testimony was more precise and detailed
than Addington's and that as a whole it better re-
flected the events which occurred, we are inclined to
adopt the more complete picture of the relevant
events found in Carter's testimony, rather than the
somewhat incomplete and conclusionary statement
of facts presented by the Administrative Law Judge
in his Decision.
Moreover, even if Addington's version of the con-
versation is credited, Respondent nevertheless violat-
ed Section 8(b)(4)(B) of the Act. Even under
Addington's version it is clear that Respondent was
attempting to enmesh Carter in its dispute between
Respondent and,Rollins, inasmuch as Addington de-
manded, as a condition of removing the pickets, that
Carter give Respondent a letter stating that Rollins'
men would be removed from the jobsite and not be
allowed to return to work until Rollins paid prevail-
ing wages and benefits. It is, then, clear that what
Respondent wanted was a commitment from Carter
that the primary, Rollins, would be removed from
LOCAL NO. 441, IBEW 101
the jobsite as a quid pro quo for removing the pickets.
The enmeshing effect upon Carter was no less real,
and the inference is clearly warranted, based on
Addington's testimony alone, that an object of the
Union's picketing was to force Carter to remove Rol-
lins from the jobsite. Such conduct, which in effect
requires a neutral to alter or, modify its existing busi-
ness relationship with the primary employer, al-
though arguably requiring less than a total cancella-
tion of the business relationship, is enough disruption
of an existing business relationship to constitute a
"cease doing business" object within the meaning of
Section 8(b)(4)(B) of the Act.
In sum, as we observed in our original Decision,
"[P]icketing for a lawful objective, such as to pre-
serve area standards, may be unlawful if there is ad-
ditionally an unlawful objective as revealed by con-
temporaneous statements of union agents or other
pertinent evidence." In the instant case, "[as] in
L G. Electric [supra], the secondary employer, as a
condition for getting rid of the pickets, was required
by the union to take specific affirmative action-the
choice of action was not left to the secondary em-
ployer." We found "Addington's insistence on a let-
ter of commitment from Carter was clear and con-
vincing evidence that an object of [the Union's]
picketing was to cause a disruption in Carter's busi-
ness relationship with Rollins or a cessation of busi-
ness between Carter and Rollins."
We found, and we now reaffirm our finding, that
in these circumstances the presumption of validity
which attached to the Union's picketing because of
its compliance with the Moore Dry Dock standards
was overcome in the instant case. We again "con-
clude from an examination of the entire `course of
conduct engaged in by the [Union] that it would not
have been satisfied with 'anything less than the re-
moval of Rollins from the, jobsite, and that this un-
lawful object, as well as the lawful object of main-
taining area standards,, was reflected in the picketing.
Unlike our colleague, who is dissenting for the rea-
sons set forth in his dissent in L. G. Electric, supra,
we are unable to separate the picketing from the ac-
companying statement explaining when picketing
would cease." 5 We find that the Union did not seek
to limit its appeals to the primary employer and its
employees and that at least an object of its picketing
was prohibited.
The court requested clarification from the Board
as to the Board's position on what, if anything, a
union representative may say to a neutral general
contractor concerning a union's dispute with another
s 208 NLRB 943, 944.
person. The Board has held that it is not unlawful to
give notice of prospective strike action against a sub-
contractor to a prime or general contractor 6 Further,
it would not appear to be unlawful for a union repre-
sentative, upon being informed that the prime con-
tractor intended to remove the offending employer
from the jobsite, to inform the prime contractor that
the union would cease ,its picketing activities., Since
the Board's rules for "common-situs" picketing do
not permit picketing in the absence of the primary
employer, such a statement would`constitute no more
than notice of intent to comply with the Board's
rules. However, where, as here, the removal of the
picket line by the union is conditioned upon some
action to be taken by the neutral general or, prime
contractor, such conduct constitutes a deliberate en-
tanglement of a neutral person in a dispute not his
own and is violative of the secondary boycott provi-
sion of the Act. In the first circumstance, the prime
contractor elects to remove the offending employer
either because of the incidental effects of the union's
picketing or out of sympathy with the union's labor
dispute. But, in the second, unlawful circumstance,
the union is in effect telling the neutral employer that
he, alone, has the power to resolve the underlying
dispute by removing the offending employer or by
forcing him to make some agreement with the union.
International Brotherhood of Electrical Workers, Local
Union No. 11, AFL-CIO (L. G. Electric Contractors,
Inc.), 154 NLRB 766 (1965).
On the basis of the discussion above and our re-
view of the entire record, we credit Carter' s testimo-
ny and find the Union violated Section 8(b)(4)(i) and
(ii)(B) of the Act. Moreover, even if we were to adopt
the Administrative Law Judge's credibility resolu-
tions, we nonetheless would find that the Union vio-
lated Section _8(b)(4)(i) and (ii)(B) of the Act, inas-
much as Addington's version of the disputed
conversation shows that an object of the Union's
conduct was to force a change in the business rela-
tionship between Carter and Rollins. Accordingly,
we reaffirm our findings; conclusions, and remedy
provided in our original Decision,and Order.
MEMBER FANNING, dissenting:
For the reasons set forth in my dissent in L. G.
Electric Contractors, Inc., supra, I dissented in the in-
stant case. I adhere to the views expressed in that
dissent and would affirm the findings, conclusions,
and recommendations of the Administrative Law
Judge and dismiss the complaint in its entirety.
6 Construction, Building Material and Miscellaneous Drivers Local Union
No 83, International Brotherhood-of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind (Marshall & Haas), 133 NLRB 1144, 1146
(1961).