Local Union 3, IBEW

National Labor Relations Board - Board Decisions

Oct 15, 1971

193 N.L.R.B. 758 (N.L.R.B. 1971)

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO and New York
Telephone Company. Case 29-CC-268
October 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 25, 1971, Trial Examiner Thomas A. Ricci
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and supporting
briefs; and the Charging Party filed a brief in support
of the Trial Examiner's Decision.
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.
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 recommendations of the
Trial Examiner, as modified herein.
CONCLUSIONS OF LAW
The Trial Examiner's Conclusions of Law are
hereby amended by deleting Conclusions of Law 3
and 4 and substituting therefor the following:
3. By threatening, coercing, and restraining A. I.
Smith, Inc., and Queensborough Community College
with an object of forcing or requiring them to cease
doing business with each other, with Mars Associates,
and with New York Telephone Company, and by
threatening, coercing, and restraining Sheldon Elec-
tric Co., Inc., and Parkwill Construction Co.' with an
object of forcing or requiring them to cease doing
business with each other and with New York
Telephone Co., the Respondent has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(4) (ii)(B) of the
Act.
4. By engaging in, and 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 with an object of forcing or requiring A. I.
Smith, Inc., Mars Associates, and Queensborough
Community College to cease doing business with one
another and with New York Telephone Company, 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.
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 as modified below and
hereby orders that the 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
recommended Order as modified herein:
1. Substitute the following for paragraphs 1(a) and
1(b) of the Trial Examiner 's recommended Order:
"(a) Engaging in, or inducing or encouraging
individuals employed by A. I. Smith , Inc., or any other
person engaged in commerce or an 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 , where the object thereof is to
force or require A. I. Smith , Inc., or any other person,
to cease doing business with Mars Associates,
Queensborough Community College , or any other
person , and to force or require Queensborough
Community College , Mars Associates , or any other
person, to cease doing business with New York
Telephone Company.
"(b) Threatening , coercing , or restraining A. I.
Smith , Inc., Sheldon Electric Company , Inc., Queens-
borough Community College , Parkwill Construction
Co., or any other person engaged in commerce or in
an industry affecting commerce , where the object
thereof is to force or require Queensborough Commu-
nity College , Mars Associates, Parkwill Construction
Co., or any other person , to cease doing business with
New York Telephone Company."
2. Substitute the attached notice for the Trial
Examiner 's notice.
I Also referred to in the record as "Parkwell "
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in , or induce or encourage
193 NLRB No. 111
LOCAL UNION 3, IBEW
employees employed by A.I. Smith, Inc., or 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 service, where
an object thereof is forcing or requiring A.I. Smith,
Inc., Queensborough Community College, Mars
Associates, or any other person, to cease doing
business with New York Telephone Company.
WE WILL NOT threaten, coerce, or restrain A.I.
Smith, Inc., Sheldon Electric Company, Inc.,
Queensborough Community College, Parkwill
Construction Co., or any other person engaged in
commerce or in an industry affecting commerce,
where an object thereof is to force or require
Queensborough Community College, Mars Asso-
ciates, Parkwill Construction Co., or any other
person, to cease doing business with New York
Telephone Company.
LOCAL UNION No. 3,
INTERNATIONAL
BROTHERHOOD OF
ELECT RICAL 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 concerning this Notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11201, Telephone 212-596-3535.
TRIAL EXAMINER'S DECISION
S rATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in this
proceeding was held before the duly designated Trial
Examiner on April 23, 1971, at Brooklyn, New York, on
complaint of the General Counsel against Local Union No.
3, International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Respondent or Local 3. The
complaint alleges unlawful inducement of employees to
strike and unlawful coercion of neutral employers, in
violation of Section 8(b)(4)(i) and (n)(B) of the statute.
Briefs were filed by all parties.
By general agreement there was received in evidence the
record transcript of testimony and exhibits previously taken
759
in a related proceeding in the United States District Court,
Southern District of New York, and the parties stipulated
that that oral testimony and those exhibits be considered by
the Trial Examiner here in making findings of fact and
conclusions of law. Upon the entire record , and from my
observation of the sole witness called at the hearing on
April 23, 1971, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
This is a secondary boycott case arising out of two
incidents, each occurring at a separate common situs
construction project in the county of Queens, city of New
York. At each location several companies
functioned-owners, general contractors, and subcontrac-
tors, and directly involved at each were employees of the
New York Telephone Company The complaint alleges, the
answer admits, and I find that the New York Telephone
Company is an employer within the meaning of the statute
and that it will effectuate the policies of the Act to exercise
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Installation of telephones in new buildings requires
pulling cables from major connecting points outside the
outer walls and placing terminal boxes inside the buildings
at the points to which cables are drawn. In the city of New
York, and more particularly in the county of Queens, it has
for over 60 years been a jurisdictional claim of the
Respondent Union that this work is embraced within the
electrician's craft and must therefore be performed only by
electricians who are members of IBEW Local 3. In
November of 1970 two construction projects in progress
had reached the point where this work had to be done; one
was an industrial building called the Thompson Avenue job
and the other a cafeteria on the campus of the Queensboro
Community College. The Telephone Company, of course,
was responsible for providing the telephones. On Novem-
ber 24, 1970, it sent its employees to work at these projects
to do the work in question; these employees were
represented for collective-bargaining purposes by Commu-
nication Workers of America, AFL-CIO, here called CWA.
It is not clear whether they were members of CWA, but
there is no doubt they were not members of Local 3, or
covered by any of its contracts.
There were also at work that day at each of these projects
electricians employed by electrical subcontractors, Shelton
Electrical Co., Inc., at Thompson Avenue, and A. R. Smith,
Inc., at Queensboro College. Both Shelton and Smith had
collective-bargaining agreements with Local 3 covering
their electricians. According to the complaint, at the
Thompson Avenue project an electrician named Fedor,
foreman for Shelton and a member of Local 3, effectively
prevented the Telephone Company employees from
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working, and Bill Allen, an employee of Smith and the job
steward there for Local 3, accomplished the same objective
of preserving the disputed work for members of the
Respondent Union at the Queensboro College job. At each
location the Telephone Company employees left the
premises, with the cable pulling and terminal box
installations remaining undone for some time thereafter.
However the labor dispute be phrased-conflicting
jurisdictional claims for work or question concerning
representation-it is clear the primary employer was the
Telephone Company and the disputing union Local 3. The
evidence shows that at the Thompson Avenue job Fedor,
calling himself the job steward for Local 3, told a
representative of the general contractor, Parkwell Con-
struction Co., he would turn the electricity off the job if the
CWA men worked. This is called a threat aimed directly at
a secondary, or neutral employer; if Parkwell wished to
keep the project going it had to remove the Telephone
Company employees from the premises or, in the words of
the statute, cease doing business with the primary
employer. The evidence also shows that at the Queensboro
College project Herbert Smith, 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 to tell his
superiors he had been threatened with physical violence if
the telephone men did not leave, and made Thompson, the
general contractor, understand the electricians would strike
if the telephone men worked at all. The steward's threat of
physical violence, in order to induce a work stoppage, was
illegally coercive within the meaning of Section
8(b)(4)(i)(B) of the statute, and his statement to the general
contractor was secondary pressure upon neutral employers
in furtherance of the primary dispute.
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.
In defense the Respondent contends there were no
threats voiced by any of the electricians involved, either to
Telephone Company employees or to agents of the
secondary employers, and that in any event, even if Fedor
and Allen did take it upon themselves to induce any work
stoppages, they did so as individuals and were not agents of
Local 3 within the meaning of the statute.
A. The Thompson Avenue Project
There is a conflict in testimony. McCarthy, Telephone
Company foreman, arrived at Thompson Avenue in the
morning of November 24 with two men, Jack Bayon and
Martin Meyer. When Bayon started to work on the
terminal boxes, Fedor told him the work belonged to Local
3, which had claimed it on this project for the past 6
months. In a short time Vianelli, Parkwell's superintendent,
came and told Bayon and Meyer to leave "because the
electricians would turn off the electricity, close down the
job, if we stayed on." With this, Bayon called McCarthy,
and the two went to Vianelli, where Fedor was also present.
Now McCarthy asked why did his men have to leave, and
Vianelli responded that "trades people" must do the work,
because the electricians would otherwise "close down the
job." McCarthy asked Fedor was this true and he answered
"Yes." "You're kidding," said McCarthy. "No," said
Fedor, "we'll turn it off .... Isn't this work usually done
by Comstock [an electrical contractor who employs
members of Local 3 and who was performing electrical
work elsewhere on the College grounds]?" It was here, still
according to Bayon, that Fedor identified himself as Local
3 shop steward.
McCarthy's testimony parallels that of Bayon. He quoted
Vianelli as saying that if the CWA men worked "they [the
electricians] would turn the power off in the building and
we would have to close thejob down." Vianelli again asked
Fedor what the objections were, and Fedor said "jobs of
this type were normally done by Comstock." Now
McCarthy asked Fedor directly "if he would turn the power
off in the building if we worked," and Fedor answered:
"Yes, he would." McCarthy too testified Fedor called
himself Local 3 steward on the job.
Essentially, Vianelli corroborated Bayon and McCarthy.
He testified that when the telephone men arrived Fedor
came to him to say "that these men were not trades people.
And that therefore, since this job was all performed by
trade workmen, that they were going to interfere with my
operation of the job being run properly . . . . They [the
CWA men] would have to leave the site ." With this Vianelli
told Bayon and Meyers to leave the premises . Later, when
McCarthy came to look into the matter, and now in the
presence of Fedor and Bayon, Vianelli said he told
McCarthy "this job was run by all trades people, that it was
going to cause me an inconvenience on my site, on my job,
if these men were to work there ...." Reluctantly,
Vianelli admitted he thought at the time Fedor was the
Local 3 shop steward, and that he had so stated in his
pretrial affidavit. He was sure all the electricians were
required to be members of Local 3 and that Fedor was the
foreman "and ran the work."
Fedor admitted he told Vianelli that morning in the
presence of McCarthy and another Telephone Company
man, he would shut the power off the project so that others
besides the electricians could not work. "And I told Mr.
Vianelli if he would allow any other tradesmen to come in,
to tap them into temporaries, when I had walked around
that building that day and asked some of the other
tradesmen to cut down on their use of power, I would have
to shut it down because it was starting to cook already."
Fedor said he explained at the time that his concern was
about certain temporary service feeders being overloaded,
and of his having had a blowout that morning. He denied
he had ever been designated steward, or ever threatened a
work stoppage.
I do not credit Fedor. None of the persons present
recalled any talk of dangerous electrical conditions at that
time . Fedor did not enhance his credibility by adding there
had been electrical trouble somewhere on the project the
following Christmas. His was too pat an explanation of the
threat to shut down the entire project at that critical
moment. He knew the work the telephone men were about
to perform had been claimed by Local 3 for many years; he
conceded it was his duty-as printed on his regular
foreman designation card-to be alert to any infringement
upon the contract terms, and he several times called his
LOCAL UNION 3, IBEW 761
business agent that day to report the presence of the CWA
men. First he said he telephoned Business Agent Darcy in
the afternoon, then added he called him quickly in the
morning. It must have been in the morning, for he said he
told Darcy "the telephone company men are on the job and
starting to do their work." This was the thought that
occupied his mind then, and this was the time he threatened
to "interfere"-as Vianelli quoted him-with the entirejob.
I find, as McCarthy, Bayon, and Vianelli testified, that
Fedor threatened Vianelli, the Parkwell Company man in
charge of the overall construction site, with a shutdown of
the entire premises unless the secondary employer removed
the telephone men from the premises. The threat proved
effective.
B. The Queensboro College Project
Before 10 a.m. on November 24, 1970, Eaton, a
Telephone Company foreman, arrived at the Queensboro
College project with two men-Jack Bickel and George
Kazminski-to pull cable and install terminal boxes. He
found that 5 feet of duct work had still to be done by the
electricians and so told an employee of Smith Electrical, the
subcontractor That man said it was necessary to see his
foreman. The two found the foreman-Herbert Smith, one
of the owners of Smith Electrical-who then took Eaton to
see Bill Allen, the Local 3 shop steward for the Smith
Company. The steward then said to Eaton "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." With this,
Eaton asked to see the job superintendent, could not find
him but located Thompson instead; Thompson was the
custodian engineer at the college. Here Allen told
Thompson the cable pulling had to be done by Local 3
men. Thompson agreed and said the Telephone Company
men must not do it. Still unsatisfied, Eaton searched for
DeBlaze, a college representative with greater authority on
the project. DeBlaze was located by telephone and Eaton
informed him of Thompson 's instructions . DeBlaze asked
to speak to his man Thompson, and Thompson then said to
DeBlaze , 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." At this point
Allen spoke up to say: "That's right. We will walk off if the
telephone company pull the cable." Allen also said to Eaton
then: "Look, let's end it all. Why don't you go back and tell
your boss that you were threatened with physical violence?"
The story thus far is according to the testimony of Eaton.
Kazminski, one of Eaton' s men , testified only about what
happened when the telephone men arrived and entered the
room where the work was to be done. He said one of the
electricians told Eaton he had to see the Smith Company
foreman first . As he, Kazminski, started nevertheless to
mount the terminal boxes, Smith, the foreman, came into
the room, and asked what the man was doing. When
Kazminski said he was "pulling a telephone cable," Smith
answered: "No, we weren't. He had the key to the room; he
wasn 't letting us in here-to get out." The telephone men
stopped work and eventually left the premises.
Herbert Smith did not contradict the two telephone
company witnesses as to what he did that day. He admitted
he is a foreman, a member of Local 3, he knew this work
had long been claimed by his union, and he ordered the
men out of the room after they had started to work. He
explained his reason as a desire to protect his Company's
equipment that was stored there and to avoid liability in the
event anyone should be hurt by the live electrical
connections located in the room.
Allen denied any threat to strike and any threat of
violence towards Eaton or anybody else. The burden of his
testimony is that it was Thompson, and then DeBlaze on
the telephone, who decided the telephone men should not
do the work assigned to them, and not the steward at all.
Wherever the testimony of Smith and Allen conflicts with
that of Eaton and Kaminski, I do not credit the steward or
the Smith Company foreman. Both changed their stories as
they went along, both were evasive and oblique in their
testimony at many points, and both clearly sought to avoid
admitting facts that were obvious from the record as a
whole. Smith started by saying he did not know what the
men were doing there, he did not see any Telephone
Company insignia on them. "I really didn't notice." But
they were wearing such markings on their work clothes. All
that Smith said-as he testified-as soon as he learned who
they were, was: "out." Except for one piece of duct 5 feet
long, all the work his Company had contracted to do in that
room had been completed a year earlier. He knew the
cables had to be pulled and the boxes installed by the
Telephone Company-and he knew his umon claimed that
work, which was not covered by his contract. It is simply
unbelievable that he did not know what the men finally
arrived to do that day. His story about ordering the men out
to guard against robberies and danger to anyone is no more
persuasive. His first statement was that they should have
gone to the job superintendent for that man's key, so that
Smith would not be responsible for missing things. Then he
said he had to have something in writing, a release of some
sort, from the general contractor. Later he added it did not
have to be in writing, but some kind of assurance from
higher authority. And finally he admitted he had never
obtained any such form of assurance from anyone else on
this entire project. Most important of all, on this question of
his credibility, is the fact he said nothing to the telephone
men that day about this matter. If what he really wanted
was protection, all he had to do was ask Eaton to obtain it
from Thompson or DeBlaze. He did not.'
Allen, the steward, attempted to disclaim familiarity with
his union rules. He drew a distinction between Tom Eaton
asking him to install the small piece of duct, and
mentioning the fact it had to be put in place. Once he
testified it was Eaton who asked to see Foreman Smith,
then "I might have" asked him to see Smith. He made every
effort to avoid saying the Telephone Company was wrong
in wanting to do the disputed work, and then: ". . . I was
under the impression that the work that Tom was about to
do was work normally done by electricians. It's my
understanding that in the sixty-five years or something like
I As a foreman on the job Smith was required to report certain matters men had come to pull feeder cable into the building No talk of dangerous
to his union superiors Like Allen and Fedor he too called Darcy that day, conditions or thefts then
but Darcy's testimony is that Smith, like the others, told him telephone
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, that this work has been done by electricians And I
couldn ' t understand why they picked my job to bring about
a change . So I said, `Well , hold up. Let's go see Mr Keegan
. . . Let's get something done here . Let's see who' s [sic ]
right and who's wrong ' " I do not believe Allen at all
Conclusion
The cases are legion, holding that under Section 8(b) of
the statute a union is responsible for the acts of its stewards
as agents of the labor organization. See, of particular
pertinence , Local 3, IBEW (Western Electric Corp. and N
Y. Telephone Co), 141 NLRB 888.1 find that steward Allen
threatened Eaton, and through him his two subordinate
employees, to force them to quit work on the Queensboro
College job, a clear inducement to strike in order to make
the Telephone Company cease doing business with Mars
Associates, the general contractor, and that by such
conduct the Respondent Local 3 violated Section
8(b)(4)(i)(B) of the Act I also find that by his threat, voiced
to Thompson of the Queensboro College, which owned the
project, to cut off the power and thereby immobilize the
entire project, Allen coerced the general contractor,
through the owner, within the meaning of Section
8(b)(4)(ii)(B), and thereby committed a further unfair labor
practice chargeable to the Respondent. And of course the
very threat to order the electricians themselves off thejob,
with the same ultimate objective, was also a violation of
Section 8(b)(4)(i)(B)
The steward acted in keeping with the duties which his
union had placed him there to discharge. Starting as an
ordinary member of Local 3 he was bound by the bylaws,
which provide-
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 [art. XIV, sec 91
Thus he was not to "allow" any other tradesmen to do work
coming under Local's 3's jurisdiction The clearest fact
emerging from this record is that the cable and terminal
box work in question is deemed, and for 60 years has been
considered by Local 3 as work falling within its
"jurisdiction " And to put teeth into this obligation so
imposed on every member to see to it that none but Local 3
members do the work, there is section 1, of article XIV of
the bylaws, which provides that'
any member who violated the trade or working
rules of this Local, or the Constitution, or these bylaws,
or any agreement existing with employers, shall be tried
before the Executive Board, and if found guilty, shall be
subject to such penalty as decided by the Board
The member who stands by while outsiders do the work
to his knowledge exposes himself to internal discipline
More so is the steward the enforcer of the Union's
demands, because in his representative capacity he has the
further duty "to report any encroachment upon the
jurisdiction of this Local Union" [bylaws art. IX, secs. 1-3],
and "to report to the Business Manager any violation of our
laws, agreements or rules" (bylaws art. IX, secs. 1-4). And
finally, still as set out in the bylaws: "Any steward who fails
to do his duty as required by the bylaws and the rules shall,
when found guilty, be assessed such sum as decided upon
by the Executive Board."
The question as to the Union's responsibility for the
conduct of Fedor, officially designated foreman, is
different in superficial form but not in substance. I find that
on the Thompson Avenue project he told both McCarthy,
the telephone foreman, and Vianelli, the superintendent of
Parkwell Construction Co., the general contractor, he was
going to turn all electricity off unless the Telephone
Company men ceased work, and that, as he also said, his
reason was because he wanted the work in question to be
performed by Local 3 members. I believe the testimony of
Bayon and McCarthy that Fedor called himself the union
steward that day. It may be, nevertheless, that the
Respondent had not formally and in writing so designated
him on that job. Local 3's contract with the electrical
subcontractor did provide there would be a steward there.
His foreman status did require him to carry a registration
card issued by the Union, and he did say he could not
remain foreman if that card were revoked. An agency status
of some kind therefore appears to have been established
even apart from circumstantial evidence.
But under this statute a labor organization's responsibili-
ty for the conduct of its agents need not be proved by
formal, overt designation of particular individuals.2 All
relevant facts shown in the surrounding circumstances may
be considered on the question whether a given member
speaks for the union, to the union's knowledge and
acquiescence. In light of the total record here, and
considering also the history of disputes between Local 3
and the Telephone Company in the New York City area, I
am satisfied Fedor acted as agent of the Respondent and
therefore find that his statement to both McCarthy,
supervisor of the Telephone Company men on the
Thompson Avenue project, and Vianelli, superintendent of
general contractor Parkwell, the Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
Fedor has for 12 years been a member of the IBEW.
Disputes arising over assignment of work performed by the
Telephone Company-conflicting jurisdictional
claims-between the IBEW and the CWA or other labor
organizations, have again and again resulted in unfair labor
practice findings against the IBEW. Local 3, IBEW, and N.
Y. Telephone Co., 140 NLRB 729 (events occurring during
1961); Local 3, IBEW, and Western Electric Co, 141 NLRB
888 (events occurring during 1962); Local 25, IBEW, and N
Y Telephone Co., 162 NLRB 703 (events occurring during
1963 and 1964). With this as background, his union's
bylaws dictating that no member is to "give away," or
"allow any other tradesmen" to perform work claimed by
the IBEW, and warning that any member who "violates"
the internal union rules "shall" be tried by the Executive
Board and subjected to penalty, without question became
directives of the Respondent to Fedor. In the circumstances
the assertion by Respondent's counsel at the hearing and in
2 Sec 2(13) of the statute reads question of whether the specific acts performed were actually
In determining whether any person is acting as an "agent" of another authorized or subsequently ratified shall not be controlling
person so as to make such other person responsible for his acts, the
LOCAL UNION 3, IBEW
his brief that Fedor was acting purely out of personal
conviction is unpersuasive. Moreover, he was under orders,
as a foreman, to report to his union superiors any attempt
by other tradesmen to infringe upon Local 3's work claims.
These are the pertinent collateral facts which the circuit
court of appeals in N L.R.B. v. Local 3, IBEW, 325 F.2d
561 (CA. 2), enfg. 140 NLRB 729, said "buttressed" the
unfair labor practice findings against the Respondent.
Like steward Allen, Fedor also called Business Agent
Darcy on the telephone that morning to report what had
happened. Darcy testified all the men told him was that
Telephone Company employees were on the jobs and
nothing more, and that all he told them was to ignore those
people. If Darcy is to be believed, this was the higher union
officer telling the members to do nothing about "other
tradesmen performing" work "coming under this Local's
jurisdiction," and thereby, according to the union laws,
expose themselves to penalty. Darcy even said he did
nothing about these reports, although the union rules
applied as much, if not more, to him. He too was subject to
discipline for "allowing" strangers to do the Union's work
It was presumptuous on his part to close his position with
the argument that all his testimony must be taken at face
value because the Telephone Company officials failed to
call him later and request permission to go back and do the
work they had been stopped from performing. A more
reasonable inference, which I make, is that he had nothing
to do or fear because Allen and Fedor reported they had
already taken the necessary steps to remove the telephone
men from the projects, and that his inaction evidences tacit
approval of their successful coercive tactics.3
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set out above, occurring
in connection with the interstate operations of the Charging
Party, 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 the free flow thereof.
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices proscribed by Section 8(b)(4)(i) and (u)(B)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following.
3 1 do not credit Darcy's testimony as to his conversation with Allen
and Fedor that day He shifted position on one question after another,
evaded simple inquiries again and again , even refused to answer
coherently On the very question whether Local 3 claims the disputed work
he sometimes said yes and sometimes no At one point he said the calls
informed him telephone men "were performing work ," at another that he
spoke to Allen and Fedor in the evening , when clearly those men had been
excluded from the premises It was impossible to provoke an intelligible
answer from him on whether he ever knew , even as late as the hearing on
December 30, that the telephone men had not done the work involved He
CONCLUSIONS OF LAW
763
1. New York Telephone Company is an employer
engaged in commerce within the meaning of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening, coercing, and restraining New York
Telephone Company and Queensboro College with an
object of forcing or requiring them to cease doing business
with one another or with Mars Associates, and by
threatening, coercing, and restraining New York Telephone
Company and Parkwell Construction Co., to cease doing
business with one another, the Respondent has engaged in
and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(4)(u)(B) of
the Act.
4. By inducing and encouraging employees of New
York Telephone Company to engage in a strike or refusal in
the course of their employment to perform services for
Queensboro College, Mars Associates, and Parkwell
Construction Co., 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.
5. The aforesaid labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 4
ORDER
Respondent, Local Union No. 3, International Brother-
hood of Electrical Workers, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Threatening, coercing, or restraining New York
Telephone Company, Queensboro College, Mars Associ-
ates and Parkwell Construction Co., or any other person
engaged in commerce or in an industry affecting com-
merce, where an object is to force or require New York
Telephone Company and Queensboro College to cease
doing business with any of the latter companies, or with any
other employer or person.
(b) Engaging in, or inducing or encouraging individuals
employed by New York Telephone Company, or any other
person engaged in commerce or an industry affecting
commerce, to engage in strikes or refusals 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,
where an object thereof is to force or require New York
Telephone Company or any other employer or person, to
admitted he did absolutely nothing about the calls he received that
day-even adding like calls had come from other construction projects
And he coldly evaded the District Judge's questions as to why the men
were required to advise him if he was to ignore their reports
4 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
764 DECISIONS OF NATIONAL
cease doing business with Queensboro College, Mars
Associates or Parkwell Construction Company.
2. Take the following affirmative action which is
necessary 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." 5 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
consecutive days thereafter, in conspicuous places, mclud-
5 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 "
LABOR RELATIONS BOARD
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 Queensboro
College, Mars Associates and Parkwell Construction Co., 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.6
6 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"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 "