Local Union 684, IBEW

National Labor Relations Board - Board Decisions

Nov 23, 1979

246 N.L.R.B. 549 (N.L.R.B. 1979)

LOCA. UNION 684. IBEW
Local Union 684, International Brotherhood of Elec-
trical Workers and Walsh & Maddox. Cases 32
CE-6 and 32-CC-79
November 23, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND TRUESDAI.E
On September 26, 1978, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and briefs, the General Counsel filed an answering
brief, and the Charging Party filed a brief in support
of the Administrative Law Judge's Decision.
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 considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended Or-
der.
The essential facts are not in dispute. General
Contractor Stanley, which employs nonunion carpen-
ters, subcontracted electrical work on a building proj-
ect to Walsh & Maddox, whose employees are mem-
bers of Respondent. Walsh & Maddox is a member of
the National Electrical Contractors Association and,
therefore, bound to the collective-bargaining agree-
ment between NECA and Respondent. That agree-
ment provides in section 7 that "This Agreement does
not deny the right of the union or its representative to
render assistance to other labor organizations, by re-
moval of its members from jobs when necessary and
when the Union or its proper representative decides
to do so; but no removal shall take place until notice
is first given to the employer involved."
On January 13, 1978, members of the Carpenters
Union began picketing the jobsite carrying area stan-
dards picket signs complaining about the wages and
fringe benefits paid by Stanley to its employees.
Walsh's employees refused to cross the picket line
which, Respondent informed Walsh, it intended to
honor, thereby causing Stanley to establish a clearly
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
marked reserved-gate system. On January 26, 1978, at
the conclusion of a period of inclement weather
which precluded any jobsite work by its employees,
Walsh sent several employees to work at the site. Af-
ter talking with the pickets, however, the employees,
who previously had expressed a determination to
work, decided not to work and returned to Walsh,
where one of them telephoned Sturgis, Respondent's
business manager. Sturgis advised the employee that,
if he went through the gate reserved for Walsh's em-
ployees, he would be summoned before Respondent's
executive committee and "likely be fined." The em-
ployee reported this conversation to Walsh.
On the following day, Sturgis notified Walsh that,
pursuant to section 7 of the bargaining agreement,
Respondent "is exercising its right to remove our
members from your job .... This removal is based on
the policy of our local not to have our members work
shoulder to shoulder with non-union employees and
to render assistance to any other labor organization
whose members are threatened with erosion of their
wages and working conditions due to non-union work
being performed in their craft. Due to the presence of
non-union employees at the above mentioned loca-
tion our members will be removed as of 1/31/78."
About a week later, Sturgis distributed to Respon-
dent's members a "Know Your Rights" leaflet which
stated that, although Respondent had a contractual
right to remove its members from jobsites at which
nonunion employees were working, and even if it in-
structed its members not to work, they nevertheless
had the right to determine whether the presence of
nonunion employees on the site constituted a threat
to their wages and conditions and to refuse to work
alongside any nonunion employee and to cross any
picket line regardless of the existence of a reserved
gate system. 2
By letter dated March 16, 1978, Respondent's at-
torney notified NECA, and thereby Walsh, that Re-
spondent's interpretation of Section 7 of the bargain-
ing agreement is that it may withdraw its members
from a construction site only in two instances, when
nonunion employees are present at the site because
Respondent "does not wish its members to wook
shoulder-to-shoulder with non-Union employees, and
in sympathy with other employees who are engaged
in a lawful primary dispute at the same site."
The Administrative Law Judge, relying on Brick-
layers and Stone Masons Union, Local 2, Bricklavers,
Masons Plasterers' International Union of America.
AFL-CIO (Gunnar 1. Johnson & Son, Inc.), 244
NLRB 1021 (1976), found the contractual clause in
2 Pnor to the distribution of this leaflet. which was prepared by Respon-
dent's attorney. Sturgis had prepared and intended to distribute a leaflet
which, in substance, instructed Respondent's members to leave a job if a
picket line was established, regardless of "hov many gates he employer sets
up.
246 NLRB No. 89
549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue is not restricted to contracting or subcontracting
construction site work, and, therefore, does not fall
within the construction industry proviso to Section
8(e); that Respondent's interpretation of the clause
fails to bring it within the protection of that proviso
and, moreover, emphasizes the type of self-help ac-
tion which the clause permits and which further re-
moves the protection of that proviso; and that the
clause is broad enough to apply to secondary activity
and, on its face, is violative of Section 8(e). He also
found that the Supreme Court's decision in Connell
Construction Co., Inc. v. Plumbers & Steamfitters Lo-
cal Union No. 100. etc., 421 U.S. 616 (1975), neither
"[b]roadened the scope of the construction industry
proviso-[nor] changed Board law in this regard."3
We agree with the Administrative Law Judge that
Respondent violated Sections 8(b)(4)(i) and (ii)(B)
and 8(e) of the Act. We agree that the clause in issue
constitutes an implied agreement to cease doing busi-
ness with an entity objectionable to Respondent-i.e.,
Stanley, which is involved in a labor dispute with a
labor organization supported by Respondent-and,
therefore, is secondary within the meaning of Section
8(e). We further agree that the clause is not privileged
by the construction industry proviso to Section 8(e)
because its restrictions are not limited to contracting
or subcontracting jobsite work. We also find, in this
connection, that Respondent's March 16, 1978, letter
to NECA, wherein it interpreted the clause as being
limited to jobsite work, merely is an unsuccessful at-
tempt to modify the clause. Thus, we find it unneces-
sary to consider whether the protection of the proviso
would be lost because the clause permits self-help ac-
tion and, therefore, we do not adopt the Administra-
tive Law Judge's finding that it was lost.
Accordingly, we find that the clause in issue vio-
lates Section 8(e). We also agree with the Administra-
tive Law Judge's further findings that by invoking
said clause in order to assist the Carpenters Union in
its dispute with Stanley, and by distributing the
"Know Your Rights" leaflet for the same reason, Re-
spondent induced and encouraged Walsh's employees
to engage in a strike and a refusal to work, and also
coerced and restrained Walsh, all for the purpose of
forcing or requiring Walsh to cease doing business
with Stanley, in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act.
At the time of the issuance of his Decision the Administrative Law Judge
did not have the benefit of recently issued Board decisions interpreting and
applying Connell. These cases do not, however, materially affect the outcome
in this proceeding. See International Union of Operating Engineers, Local No.
701, AFL-CIO, el al. (Pacific Northwest Chapter of the Associated Builders &
Contractors, Inc.), 239 NLRB 274 (1978); Los Angeles Building and Construc-
tion Trades Council; and Local Union No. 1497, United Brotherhood of Car-
penters and Joiners ofAmerica (Donald Schriver, Inc.), 239 NLRB 264 (1978):
Utilities Services Engineering, Inc., 239 NLRB 253 (1978); Carpenters Local
No. 994, United Brotherhood of Carpenters andJoiners of Amerca, A FL- CIO,
et at. (Woelke & Romero Framing, Inc.), 239 NLRB 241 (1978).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Local Union 684,
International Brotherhood of Electrical Workers,
Modesto, California, its officers, agents, and represen-
tatives, shall take the action set forth in the said rec-
ommended Order, except that the attached notice is
substituted for that of the Administrative Law Judge.
APPENDIX
NoIi(cE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.L NOT enter into, maintain, give effect
to, or enforce clauses in our collective-bargaining
agreement with Walsh & Maddox, or with any
other employer, to the extent that they violate
Section 8(e) of the National Labor Relations
Act.
WE WILL NOT induce or encourage any indi-
vidual employed by Walsh & Maddox, or any
other person engaged in interstate commerce or
in an industry affecting commerce, to engage in a
strike or a refusal in the course of his employ-
ment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles,
or commodities, or to perform any services,
where an object thereof is to force or require any
such person or any other person to cease doing
business with Guy R. Stanley Construction.
WE WILL NOT threaten, restrain, or coerce
Walsh & Maddox or any other person engaged
in interstate commerce or in an industry affect-
ing interstate commerce, where an object is to
force or require said person, or any other person,
to cease doing business with Guy R. Stanley
Construction.
LOCAL UNION 684, INTERNATIONAL BROTH-
ERHOOD OF ELECTRICAL WORKERS
DECISION
SIATEMENI OF IE CASE
JAMES S. JENSON, Administrative Law Judge: These cases
were heard before me in Modesto, California, on June 6,
1978. The consolidated complaint, which issued on March
20, 1978, pursuant to charges filed on February 28, 1978, in
Case 32 CE--6 and on March 13, 1978, in Case 32 CC-79,
allege violations of Section 8(e) and 8(b)(4)(i) and (iiXB),
550
LOCAL UNION 684. IBEW
respectively. More specifically, the consolidated complaint
alleges that Respondent violated Section 8(e) by reaffirming
and giving effect to article II, section 7, of the collective-
bargaining agreement between it and Walsh & Maddox.
and violated Section 8(b)(4)(i) and (ii)(BI by inducing and
encouraging employees and other persons to honor the
picket line of another labor organization, all with an object
of forcing the electrical subcontractor Walsh & Maddox
and other persons to cease doing business with the general
contractor, Guy R. Stanley Construction. Respondent de-
nies that the contractual provision in question has a second-
ary objective, but that, "even if such an objective were pres-
ent, the clause was lawful under the 'construction industry
proviso' to Section 8(e), as interpreted in Connell Conlruc-
lion Co., Inc. v. Pluhmber.rs Steamitters I.ocal Union Vo.
1001 and in post-Connell guidelines issued by the General
Counsel." All parties were given full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs were filed by
the General Counsel, the Charging Party., and Respondent
and have been carefully considered.
Upon the entire record in the case, and from my observa-
tion of the witnesses and their demeanor. I make the follow-
ing:
I'IN)IN(;S ()F FAC(I
1. JURISDI)( IION
Walsh & Maddox, herein called Walsh, a California cor-
poration, is engaged as an electrical contractor in the build-
ing and construction industry in Merced, California. Dur-
ing the past year, Walsh purchased and received goods
valued in excess of $50,000 from suppliers located within
California, which suppliers received such goods in substan-
tially the same form directly from outside California. The
parties stipulated, and I find, that Walsh is an employer
and person engaged in commerce within the meaning of
Section 2(l), (2), (6), and (7) of the Act. The parties stipu-
lated, and I find, that Guy R. Stanley Construction is a
person engaged in commerce within the meaning of Section
2(1). (6). and (7) of the Act.
II. HE L.ABOR ORGANIZATIONS INVOI.VI)
It is not disputed, and I find, that Respondent and Delta
Yosemite District Council of Carpenters, herein called Car-
penters, are each labor organizations within the meaning of
Section 2(5) of the Act.
iii. THE A.I.EGED UNFAIR l.ABOR PRArTIc(ES
A. Facts
Walsh, an electrical contractor, is a member of the Na-
tional Electrical Contractors Association, herein called
NECA, and subject to the provisions of a collective-bar-
'421 U.S. 616 (1975).
There is little dispute regarding the material facts, many of which are
contained in a stipulation and related documents introduced at the hearing
as Jt. Exh. I through 7.
gaining agreement between the Modesto Division of the
San Joaquin Chapter of NECA and Respondent. Walsh
employs a permanent corps of employees who are members
of Respondent. Guy R. Stanley Construction, herein called
Stanley, has been engaged as a general contractor in the
construction of the County Bank of Merced building in
Merced, California. Stanley. who employs nonunion car-
penter employees, subcontracted the electrical work on the
County Bank of Merced building project to Walsh, who
commenced working at the jobsite on December 2, 1977.
On January 13. 1978,1 the Carpenters commenced picketing
the jobsite with picket signs reading:
GtUY R. SANLtEY
Co)NSI. Co.
Doris No PA'
WA(;-S & FRINGES
ESIABI.ISIHE1 IN TiIS AREA
FOR CARPENIERS, D I A
YosEMi ri D.C.
On January 12 Walsh had two electrical employees working
at the jobsite. On January 13 two electricians were again
sent to the jobsite: however. they declined to cross the
picket line and returned to Walsh's shop. Les Walsh,
Walsh's president, then called Gilbert Sturgis, Respondent's
business manager and financial secretary, and asked if the
picket line was "sanctioned" by the Building Trades Coun-
cil. Sturgis, who is also the president of the Building Trades
Council, responded that it was, and that Respondent was
honoring the picket line. According to Sturgis. Walsh in-
formed him that a "double gate" was going to be estab-
lished.
On January 17 Stanley established a dual gate system at
the jobsite, entrances A and B being located approximately
300 feet apart. Entrance A was marked by a sign reading:
ENTRANCE A"
This entrance is for use
by all employees to County
Bank of Merced except
employees and suppliers to
Walsh & Maddox Electric.
Soule Steel
These employees and
suppliers use ENTRANCE "B"
only.
Entrance B was marked by a sign reading:
ENTRAN(CE "B"
This entrance is
reserved for the
employees of and suppliers of
WALSH &
MADI)OX EI.ECTRICA.
SO)UlE STEEI.
ONLY. All other
employees or suppliers
use ENTRANCE "A".
Les Walsh testified that on or about January 20 he and
All dates hereafter are in 1978 unless otherwise sated
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill Coleman, manager of the San Joaquin Valley Chapter
of NECA, met with Sturgis and drove to the jobsite, where
they observed the picketing and the dual gates. While
Walsh and Coleman urged him to allow the electricians to
work, Sturgis' only response was to the effect that "Some-
body had lied to him."
Les Walsh testified that no electrical work was scheduled
at the jobsite between January 13 and 25 because of rain,
and that between those dates his employees worked at other
jobs, weather permitting. He denied that any employees
were sent home as punishment for refusing to cross the
picket line, and no substantive evidence contradicts this as-
sertion. Sturgis, however, testified that on either January 17
or 18 he received a telephone call from Lester Serbousek, a
Walsh employee, who indicated he was not working that
day because there were "non-union people working on the
job." Sturgis claimed that "probably the 20th or the first of
the following week, the 21st, 22nd, in there," he received
telephone calls from four Walsh employees who reported
that they had been told to work on the bank project, that
they had refused to go to work, and that as a consequence
had been sent home, "being told that there was no work for
that day, and this happened two or three days in a row to
them." Sturgis testified that he told them "that I would see
what I could do to protect them from losing any more time
or from being disciplined." He denied that he told the men
that they should not work or cross the picket line because it
was sanctioned, or that they would be fined or brought be-
fore the Union's executive board if they did. None of the
four employees were called as witnesses. I am convinced,
however, that Sturgis is confused regarding dates, and that
Walsh did not dispatch any employees to the bank jobsite
after January 13 until January 25 because of the weather.4
On January 25 Walsh sent one man to work at the bank
jobsite; however, he refused to enter the gate "B" entrance
set up for Walsh's employees and returned to the shop.
On January 26 Walsh sent employees Marvin Carlson
and Gordon Fisher to work at the bank jobsite. Les Walsh
testified these two employees had told him they did not
want to lose their jobs to nonunion people and assured him
that they would work. Instead, however, they returned
within I hour and reported that they had talked to the
pickets and decided not to work. The men then called Stur-
gis. Carlson advised Les Walsh that Sturgis told him he
would be called before the "executive board" and "likely be
fined" if he went through the gate reserved for Walsh's em-
ployees. Sturgis denied making these statements and
claimed that he told Carlson that whether he went through
the second gate was "strictly your decision," and that there
was nothing in the Union's "constitution, by-laws or work-
ing agreement, that anything could happen to you if you
cross that." In light of action taken by Sturgis thereafter I
do not credit his testimony in these respects.
Article II, section 7, of the collective-bargaining agree-
ment provides as follows:
This Agreement does not deny the right of the union or
its representatives to render assistance to other labor or-
Les Walsh was definite regarding dates, whereas Sturgis was not, placing
telephone conversations with Walsh employees on "probable" dates falling
on Friday and the weekend, which he characterized as "the first of the fol-
lowing week."
ganizations, by removal of its members from jobs when
necessary and when the Union or its proper representa-
tive decides to do so; but no removal shall take place
until notice is first given to the employer involved.
[Emphasis supplied.] 5
On January 27 Sturgis sent the following telegram to
Walsh:6
This notice is being sent to your [sic] pursuant to Arti-
cle 1, Section 7 of our labor agreement. In accordance
with the terms of that Section Local Union 684 is exer-
cising its right to remove our members from your job
located at County Bank of Merced 490 West Olive
Avenue, Merced, California. This removal is based on
the policy of our local not to have our members work
shoulder to shoulder with non-union employees and to
render assistance to anv other labor organization whose
members are threatened with erosion of their wages
and working conditions due to non-union work being
performed in their craft. Due to the presence of non-
union employees at the above mentioned location our
members will be removed as of 1/31/78. [Emphasis sup-
plied.]
By letter dated January 30, Walsh advised Sturgis as fol-
lows:
Dear Mr. Sturgis
We are demanding you advise your members work-
ing for us to man the County Bank of Merced job. A
proper gate has been established for your members
use.
A copy of a demand on us from Mr. Eugene Mash
dated January 30, 1978, Guy Stanley Constructions at-
torney, is attached.
We will hold you responsible for any costs that may
arise from this matter.
Sturgis testified that he met with both Coleman and Les
Walsh on January 30, that the letter was hand delivered by
Coleman, that Walsh stated he would like to get his people
back on the job, and that Sturgis replied that it was not up
to him, it was up to the employees.
On or about February 6 Sturgis distributed a leaflet on
Respondent's letterhead to its members, including those
working for Walsh, reading:
Know Your Rights
Many of our members have asked what their rights
are when there are non-union employees working next
to them on a project, or when a picket line is set up.
This memorandum is designed to help answer some of
those questions.
Our labor agreement provides that the Union may
"render assistance to other labor organizations, by re-
moval of its members from jobs when necessary." But
regardless of whether or not the Union tells you to stop
working, YOU, AS AN INDIVIDUAL, HAVE THE FOLLOW-
ING RIGHTS:
'This language has been in contracts between Respondent and NECA
since 1945.
6 The parties stipulated that the telegram incorrectly refers to art. I. sec. 7,
when in fact the true reference is to art. II, sec. 7.
552
LOCAL UNION 684. IBEW
I. You can decide for yourself whether the presence of
non-union employees on a job threatens to under-
mine the wages and conditions you have fought hard
to achieve;
2. You can refuse to work alongside any non-union
employees, whether they are electricians or members
of any other craft;
3. You can refuse to cross or work behind any picket-
line regardless of whether the picket line is estab-
lished by your union or any other union, and regard-
less of whether the project has a single or two gate
system.
THE CONSTITUTION OF 'IIIE UNITEI) STATES GIVES YOU
THESE RIGHTS. YOU MUST D)ECIDE WHEN TO EXERCISE
THEM!!
Prior to distributing this leaflet Sturgis had acquired and
duplicated for distribution on Respondent's letterhead an-
other leaflet, which he discussed with and read to Coleman
over the telephone. Coleman suggested that he check with
his attorney before sending it out. Upon his attorney's ad-
vice he sent the "Know Your Rights" leaflet, which was
drafted by the attorney instead of the following leaflet.
which he had read over the phone to Coleman and had
duplicated and intended to send:
GOOD UNION MEMBERS RESPECT PICKET LINES
A good union member is extremely careful when con-
fronted with a picket line situation.
WHEN A PICKET LINE IS ESTABLISHED on a job where he
is working:
1. He LEAVES. He DOES NOT TAL.K-JUST I.EAVES.
2. He READS the PICKET SIGN as he leaves.
3. He DOES NOT hang around near the job.
4. He knows that ONCE A PICKET LINE IS ESTABLISHED,
his Business Agents and other Union officials are
legally gagged and handcuffed from giving advice
pertaining to THAT JOB. They can only tell him if the
Picket Line is AUTHORIZED.
5. He does NOT ALLOW HIMSELF to be drawn into con-
versations with ANYONE at the job site.
A GOOD UNION MEMBER KNOWS HIS RIGHTS
A. He has the right not to work behind ANY Picket
Line.
B. He has the right to decide for himself whether to
walk off a job being picketed.
C. He understands that his trade may be under at-
tack next.
D. He knows that a two gate system means a PICKET
LINE and he has the RIGHT NOT EO WORK, no matter
how many gates the employer sets up.
KEEP THIS SHEET-KNOW YOUR RIGIHTS
BE PREPARED AHEAD OF TIME-HOW 10 REACT ro PICKET
I.INES.
The charge in Case 32-CE 6 was filed on February 28
and in Case 32-CC-79 on March 29. In the meantime Stan-
ley hired a nonunion electrical subcontractor, Atwater
Electric, to perform the electrical work in Walsh's place.
The Atwater Electrical bill was charged against Walsh's
contract payments.
On March 16. Respondent's counsel wrote to Coleman of
NECA regarding Respondent's interpretation of article II,
section 7. In material part the letter reads:
Please be advised that Local 684 interprets the
above language to mean that men may be withdrawn
from a jobsite, at the present time, only under the fol-
lowing circumstances:
I. Non-Union employees are present on a construc-
tion site at the same time that members of Local 684
are expected to be present and, pursuant to the
guidelines relating to §8(e) issued by the General
Counsel after the Connell case, Local 684 does not
wish its members to work shoulder-to-shoulder with
non-Union employees;
2. Local 684 wishes to withdraw the services of its
members, at a construction site, in sympathy with
other employees who are engaged in a lawful pri-
mary dispute at the same site.
As I stated above, these are presently the only cir-
cumstances under which Local 684 may invoke the
language which is contained in Article II. Section 7 of
our collective bargaining agreement. We reserve the
right, of course, to invoke the language under such
other circumstances as the NLRB or its General Coun-
sel may, in the future, determine to be lawful under
§8(e).
If the clause is invoked for any purpose other than
as outlined herein, you may use this letter in any La-
bor-Management Committee proceeding or in arbitra-
tion as evidence of a violation of the Agreement.
On March 23 NECA's attorney wrote to Respondent's at-
torney as follows:
J. W. Coleman has referred to us your letter of
March 16, 1978, in connection with your "clarifica-
tion" of Article II, Section 7 of the collective bargain-
ing agreement between the chapter and IBEW Local
684. Obviously, your interpretation of Section 7 is
plainly at odds with Section 8(e) of the National Labor
Relations Act, as well as Section 8(b)(4). Accordingly.
assuming that your letter of March 16 is tendered as
some form of "settlement" offer in connection with the
pending Section 8(e) charge in Case No. 32 CE-6.
your offer is categorically rejected.
B. Positions of the Parties
Pointing out that article II, section 7, gives Respondent
the unfettered right to remove its members from any job
when necessary "to render assistance to other labor organi-
zations," the General Counsel contends the sole purpose of
the clause appears to be secondary in nature and because
the clause is broad enough to apply to secondary picketing
on its face it violates Section 8(e). Arguing that the section
was utilized simply to protect the Walsh employees from
being disciplined for refusing to work alongside nonunion
553
I)F.C'ISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, Respondent contends the contractual language
was not used "to satisfy [Respondent's] objectives else-
where." It contends further that since Walsh was the sub-
contractor and had a binding contract to perform the elec-
trical work, there was no way Walsh could force Stanley off
the job, and consequently there is no basis for inferring
Respondent's objective in invoking article II, section 7, was
to force Walsh to cease doing business with Stanley. Re-
spondent also argues that by the March 16 letter from its
counsel to NECA it bound itself to invoke article 11, section
7, in only two situations, i.e., (1) where there is a lawful
primary dispute at the same situs,' and (2) where nonunion
employees are present on the same site and at the same time
that members of Respondent are expected to be present and
the employees do not wish to work sholder-to-shoulder with
nonunion employees. It is contended by Respondent that
the questioned clause was invoked in the second situation
with the primary object of protecting its members when
they refused to work shoulder-to-shoulder with nonunion
employees. The General Counsel, on the other hand, argues
that the Union's March 16 clarification letter does not alter
the fact that the clause in dispute remains overly broad on
its face and therefore unlawful, and that the March 16 letter
constitutes a unilateral attempt by the Union to impose a
new contract provision on Walsh and NECA, which at-
tempt was promptly rejected by NECA by letter dated
March 23 (Joint Exh. 7). Even if Respondent's attempted
"clarification" were to be considered, argues the General
Counsel, the attempted limitation of article II, section 7, is
still unlawful since it would permit Respondent to remove
its members who are employed by a neutral employer,
Walsh, in circumstances where another union, the Carpen-
ters, was involved in a labor dispute with another employer,
Stanley, even though a neutral gate had been established
for Walsh's employees and the primary picket line is con-
fined to the gate reserved for the primary employer with
whom the Carpenters have a dispute.
Respondent contends next that even if article II11, section
7, is interpreted as encompassing a secondary objective it is
nevertheless lawful under the construction industry proviso
to Section 8(e) as interpreted in Connell Construction Co., v.
Plumbers & Steamfitters Local Union No. 100, et al., 421
U.S. 616 (1975), supra, and post-Connell guidelines issued
by the General Counsel. It is obvious, of course, that by
issuing the complaint herein the General Counsel disagrees
with Respondent's assessment of the "guidelines," which, in
any event, merely set forth his views on issues arising under
that decision, and, as he points out "The Board and the
courts will be the final adjudicators of these matters."7 (Con-
tending that Respondent has not violated Section
8(b)(4)(i) and (ii)(B) of the Act, Respondent argues that
article 11, section 7, was not invoked because of the dispute
between Stanley and the Carpenters Union but instead by
"the presence of non-union employees on the site at the
same hours that the electricians were expected to work,"
claiming further that Respondent did not attempt to per-
suade its members to withdraw their services at the jobsite.
7BNA's Daily Reporter System. No. 245, dated 12 20 76, p. D-l, ap-
pended to Respondent's bnef.
Conclusions
A. Section 8(e)
Although the contract involved herein was executed out-
side the Section IO(b) period. the Board has consistently
held that the words "enter into" in Section 8(e) of the Act
encompass the concepts of "maintenance. enforcement and
reaffirmation." See International Organization of Masters,
Mates and Pilots, AFL ('IO (Cove Tankers Corporation),
224 NLRB 1626 (1976): Dan McKinnev, Co., e al., 137
NLRB 649 (1962); Los Angeles Mailers Union No. 9. 1.T7 U.
(Hillbro Newspaper Printing Comnpanv), 135 NLRB 1132
(1962). It is clear from the undisputed facts that Respon-
dent invoked the provisions of article 11, section 7, in its
January 27 telegram to Walsh and has claimed reliance on
the section to protect the employees it represents from disci-
pline for refusing to cross the neutral gate reserved for
them. Therefore, it is found that Respondent reaffirmed the
clause within the 10(b) period in order to bring it within the
"to enter into" language of Section 8(e).
The instant case is strikingly similar to Bricklayers and
Stone Masons Union, Local No. 2, et al. (Gunnar 1. Johnson
& Son, Inc.), 224 NLRB 1021 (1976), enfd. 562 F.2d 775
(D.C. Cir. 1977), both postdating the Connell decision,
which issued June 2. 1975, by more than 1 year and 2 years,
respectively. In the Bricklayers case, a school district en-
tered into contracts for the construction of a school build-
ing with () a general contractor who employed members of
various locals of the Laborers, Bricklayers and Operating
Engineers, all AFL CIO affiliates; (2) a prime mechanical
contractor who employed members of the Plumbers, also
an AFL CIO affiliate; and (3) an electrical contractor
whose employees did not belong to an AFL CIO union.
Several weeks after work commenced IBEW Local 110. an
AFL-CIO affiliate, posted a sign at the construction site
notifying the public that the electrical work was being per-
formed by the electrical contractor at substandard wages
and benefits. Employees of the general and mechanical con-
tractors left the jobsite upon seeing the sign. Thereafter, a
separate gate was established fbor the neutral employers,
some 450-500 feet from the gate reserved for the employees
and suppliers of the electrical contractor, the primary em-
ployer. While IBEW Local 110 continued to picket only the
gate reserved for the electrical contractor, the employees of
the neutral employers continued to refuse to enter the other
neutral gate until after a temporary restraining order had
entered against the work stoppage and the various unions
ordered to arbitrate the dispute. The collective-bargaining
agreements between the neutral employers and the unions
whose members refused to work contained clauses protect-
ing employees from discipline if they refused to cross a
picket line.8 Before the arbitrator the unions defended the
I'he Bricklayers, Laborers, and Operating Engineers contracts essentially
read as follows:
PI(KFIS. BANNERS ANI) SIRIKIS. The Employer may not request or in-
struct any Employee .. to go through a picket line except to protect life
or property The Unions agree that there shall be no cessation of work
or any recognition of picket lines of an) union without first giving prior
notice to the Emploser or his Association.
The Plumbers clause reads as follows:
Refusal to pass through a lawfully permitted picket line will not consti-
tute a violation of the agreement.
554
LOCAL UNION 684. IBEW
use of the picket line clauses against Section 8(e) on the
basis the decision not to work was made solely by the em-
ployees, and that the unions took no action to encourage or
instigate the refusal to work. 'The arbitrator held that the
clauses were broad enough to protect the employee refusals
to work on the project, rejected the employer's argument
the clauses violated Section 8(e). and concluded "the picket
line clauses may be used to protect the individual decision
of neutral employees to honor it." The unions immediately
posted notices to their membership that "Accordingly, un-
der our contract, you have the right to decide whether or
not to work on this job in the presence of the Electricians
Local 110 banner. It is up to you to decide whether to
honor or not the Electricians' banner." Thereafter. the
charge alleging Section 8(e) violations was filed.
In holding that the clauses of the Laborers, Bricklayers,
and Operating Engineers were overly broad on their face
and violated Section 8(e), the Board stated in Brickltters at
1025:
The Board has repeatedly held that to the extent
that picket line clauses are "broad enough to apply to
secondary picketing having no connection with dis-
putes concerning jobsite subcontracting. [such clauses
are] prohibited by 8(e) .... "" It is clear here that the
clauses of the Laborers, Bricklayers, and Operating
Engineers are broad enough, on their face, to apply to
such conduct. Further, contrary to the Respondents'
contention, even if we were to find, arguendo, that Re-
spondents were attempting to have the clauses inter-
preted and applied in a lawful and restricted manner
before the arbitrator, it would not change the fact that
the clauses originally entered into are overly broad on
their face. It is clear from the legislative history of Sec-
tion 8(e) that Congress intended to proscribe the enter-
ing into of a hot cargo clause as well as its subsequent
enforcement." except to the extent that the construc-
tion industry proviso to that section exempts the enter-
ing into of agreements "relating to the contracting or
subcontracting of work to be done at the site of the
construction." Since the clauses of the Laborers, Brick-
layers, and Operating Engineers clearly are not re-
stricted to contracting or subcontracting of work to be
done on the construction site, we find those clauses to
be overly broad and Respondents' entering into those
clauses by their reaffirmance of of them was violative
of Section 8(e).'"
" Hodcarriers' and Construction Laborers' Union Local 300., Interna-
tional Hodcarriers' Building and Common laborers' Union of America.
AFL CIO (Jones & Jones, Inc 154 NLRB 1744. 1745. fn. 7 ( 1965): see
also Brotherhood of Painters, Decorators and Paperhangers of America.
Local Union No. 823., .4 FL-CIO (Independent Painting Contractorr of
New Mexico). 161 NLRB 620. 629, fn. 15 (1966). and accompanying
text.
"1 Drivers. Salesmen, Warehousemen, Milk Processors, Cannery. Daiur
Employees and Helpers Local Union No 6t95, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al.
(John B. Threlfall d/bla Threlfall Construction Compan.), 152 NLRB
577 (1965), enfd. 361 F.2d 547 ([).C. Cir. 1966).
11 See Local 294, International Brotherhxod of Teamsters, Chauffurs.,
Warehousemen & Helpers of America (Clemence D. Stanton dhb/a Rex-
ford Sand and Gravel Co.), 195 NLRB 378, 381 (1972): and Local 445.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Edward L. Nezelek. Inc.). 194 NLRB 579. 585
(1971), where the Board found similar clauses to be overly broad and
violative of Sec. 8(e).
It is equally clear here that article II, section 7, providing
that Respondent may "render assistance to other labor or-
ganizations, by removal of its members from jobs . . ." is
broad enough to apply to secondary activity and is. on its
face, violative of Section 8(e). Nor does the March 16 letter
of interpretation legitimize the unlawful character of article
11, section 7. The clause, as Respondent interprets it, pro-
tects its individual member-employee's refusal to work at
the premises of another picketed employer, regardless of
whether the refusal occurs at a separate neutral gate where
no picketing has taken place and regardless of whether Re-
spondent or the individual makes the choice. Quoting from
Muskegon Bricklavers Union t 5. Brick/aers Masons and
Plasterers Inlernational Union o America (,4 F. CIO)
(Greater Muskegon General Contractors . s.socialion) 152
NLRB 360 (1965)., enfd. 378 F.2d 859 (6th Cir. 1967), the
Board noted in Bricklavers at 1026.
An employer's agreement with a labor organization
permitting employees to refuse to work in the event the
employer does business with another employer consid-
ered objectionable by the labor organization is in prac-
tical effect the equivalent of an agreement by the em-
ployer not to do business with other employers within
the meaning of Section 8(e).
The Board went on to state in Bricklayers:
. . .it is well established by now that properly estab-
lished reserved gates for neutral employers, their em-
ployees, and their suppliers on a construction site func-
tionally serve the purpose of isolating the dispute to
the primary employer. Respondents therefore admit
that, had a picket line been established in front of the
neutral gate which the employees refused to cross, it
would have been a secondary picket line and the picket
line clauses in their contracts could not be used to pro-
tect refusals to cross such a secondary picket line.
However, they would have us do by indirection what
they can obtain directly that is, achieve contractual
protection for the employees when refusing to enter the
premises of a neutral employer because another em-
ployer is involved in labor problems on the same job-
site.
Contrary to what Respondents suggest, the employ-
ees' response in this case does not comport with what
has been traditionally deemed to be primar) activity.
Thus, the Board and courts have held that the scope of
Section 8(b)(4) and Section 8(e) does not go so tfar as to
prohibit such traditional primary activity as employ-
ees' refusal to cross primary picket lines established at
the premises of their own employer or primary picket
lines established at the premises of another employer:
[citation omitted] but it has never been held to be pri-
mary activity when employees refuse to work for their
employer who is a neutral in the dispute because pick-
eting of another employer is taking place nearby on the
common situs. The only way that the employees' ac-
tivity here could be deemed a legitimate response to
primary activity would be to hold that the construction
site is of such an integrated nature that a primary dis-
pute against one employer on the site makes the entire
project a primary situs. However, that is contrary to
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the long-established principles of Denver Building and
Construction Trades Council' and Mark well and
Hartz8 which have been and continue to be the law of
the land.
17 N.L.R.B v. Denver Building and Construction Trades Council,
IGould & Preisner], 341 U.S. 675 (1951).
'i Markwell and Hartz, Inc. v. N.L.R.B., 387 F.2d 79 (5th Cir. 1967).
cert. denied 391 U.S. 914 (1968).
With respect to Respondent's contention that article 11,
section 7, both as written and as interpreted by Respon-
dent, is lawful under the "construction industry proviso" to
Section 8(e) as interpreted in Connell and post-Connell
guidelines issued by the General Counsel, it is again noted
that Connell was decided approximately I year before the
Board issued its decision in the Bricklayers case and ap-
proximately 2 years before the District of Columbia Circuit
enforced the Board's Order in that case. I have been unable
to find an indication in Bricklayers or any subsequent
Board or court decision, and none has been called to my
attention, which would indicate that Connell has broadened
the scope of the construction industry proviso. Hence, I
conclude that Connell has not changed Board law in this
regard. Since article II, section 7, on its face, is not re-
stricted to the contracting or subcontracting of work to be
done on the construction site, it does not come within the
first proviso to Section 8(e). Moreover, Respondent's at-
tempt to bring the section within the construction industry
proviso by limiting its application in the "clarification" let-
ter of March 16 to construction site work is unsuccessful.
Even as "clarified," Respondent may "withdraw" its mem-
bers from a construction site. Thus, it expressly provides for
work stoppages. In Bricklayers, the Board discussed this
precise issue and noted that while "parties can agree to
enter into a hot cargo provision and a union can use eco-
nomic pressure to obtain such a provision under Section
8(e), it cannot use economic means to enforce it." The
Board then discussed the self-help nature of clauses which
"sanctioned 'private economic action by the employees'"
and, quoting extensively from Muskegon Bricklayers, supra,
noted that such "self-help" provisions have the same effect
as a union's inducing employees to strike to enforce such a
"hot cargo" clause. The Board went on to find that since
the clauses in issue in the Bricklayers case were "inter-
twined with self-help provisions permitting employees to
refuse to perform services for their employer and remain
free from disciplinary sanctions . . ." they were "outside the
construction industry exemption and are violative of Sec-
tion 8(e)." The March 16 clarification provides the same
sort of self-help action and consequently exceeds the pre-
scribed bounds of the first proviso to Section 8(e) and is
therefore unlawful.
B. Section 8(b)(4)(i) and (ii)(B)
By invoking article II, section 7, to remove its employee-
members from the jobsite in order "to render assistance" to
the Carpenters in their primary dispute with Stanley and in
distributing the "Know Your Rights" leaflet to its em-
ployee-members for the same reason, it is all too obvious
that Respondent sought to enmesh Walsh, a neutral em-
ployer, in the Carpenters' dispute with Stanley. By such
conduct Respondent induced and encouraged Walsh's em-
ployees to engage in a strike or a refusal to perform services
and coerced and restrained Walsh, all for the purpose of
forcing or requiring Walsh to cease doing business with
Stanley. Such conduct is prohibited by Section 8(b)(4)(i)
and (ii)(B) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in the case I make the following:
CONCI.USIONS OF LAW
1. Walsh & Maddox is an employer and person engaged
in commerce within the meaning of Section 2(1), (2), (6),
and (7) of the Act.
2. Guy R. Stanley Construction is a person engaged in
commerce within the meaning of Section 2(1), (6), and (7)
of the Act.
3. Local Union 684, International Brotherhood of Elec-
trical Workers, Respondent, and Delta Yosemite District
Council of' Carpenters, each is a labor organization within
the meaning of Section 2(5) of the Act.
4. By entering into, maintaining, enforcing, and giving
effect to article II, section 7, contained in the collective-
bargaining agreement with Walsh & Maddox, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(e) of the Act.
5. By inducing and encouraging individuals employed by
Walsh & Maddox to engage in a strike or refusal in the
course of their employment to perform services with an ob-
ject of forcing Walsh & Maddox to cease doing business
with Guy R. Stanley Construction, Respondent has en-
gaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(4)(i)(B) and Section 2(6) and
(7) of the Act.
6. By threatening, coercing, and restraining Walsh &
Maddox with an object of' forcing said person to cease
doing business with Guy R. Stanley Construction, Respon-
dent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(4)(ii)(B) and Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act I hereby issue the following recommended:
ORDER9
The Respondent, Local Union 684, International Broth-
erhood of Electrical Workers, Modesto, California, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Entering into, maintaining, enforcing, and giving ef-
fect to article 11, section 7, contained in the collective-bar-
gaining agreement with Walsh & Maddox or in its collec-
tive-bargaining agreement with any other employer to the
extent unlawful herein.
(b) Inducing and encouraging individuals employed by
Walsh & Maddox to engage in a strike or refusal in the
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 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.
556
I.OCAL UNION 684. IBEW
course of their employment to perform services where all
object thereof is to firce or require Walsh & Maddox to
cease doing business with Guy R. Stanley Construction un-
der circumstances prohibited by Section 8(b)(4)(i)(B) of the
Act.
(c) Threatening, restraining, or coercing Walsh & Mad-
dox where an object thereof is to force or require said per-
sons to cease doing business with Guy R. Stanley Construc-
tion under circumstances prohibited by Section
8(h)(4)(ii)(B) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at their business offices and meeting halls copies
of the attached notice marked "Appendix."' ° Copies of said
notice, to be furnished by the Regional Director for Region
l In the event that this Order is enforced bh a Judgment of a t nited
States Court of Appeals. the words in the notice reading "Posted by Order of
32, shall, after being duly signed by the Union's representa-
tive, he posted by the Union immediately upon receipt
thereofl and he maintained by it for 60 consecutive days
thereafter. in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall he taken by the Union to insure that said notices
are not altered, defaced, or covered by any other material.
(h) Sign and mail to the Regional Director for Region 32
sufficient copies of said notice, to be furnished by him, for
posting by Walsh & Maddox. if willing.
(C) Notify the said Regional Director, in writing, within
20 days from the date of this Order. what steps have been
taken to comply herewith.
the National L.abor Relations Board" shall read "Posted Pursuant ito a Judg-
nient of the Utnied States Court of Appeals nfoircing ain Order of the Na-
tional Lahor Relations Board"
557