Local Union No. 3, IBEW

National Labor Relations Board - Board Decisions

Sep 6, 1973

205 N.L.R.B. 1102 (N.L.R.B. 1973)

1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 3, International Brotherhood of Elec-
trical Workers, AFL-CIO (Forest Electric Corp.)
and Comtech Telephone Contractors Corporation.
Case 2-CC-1259
September 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On May 18, 1973, Administrative Law Judge Mil-
ton James issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and the Respondent filed cross-exceptions and an an-
swering brief.
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 and to
adopt his recommended Order.
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
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 We do not adopt the language in the Administrative Law Judge's Deci-
sion that the General Counsel may not rely upon Respondent's past viola-
tions of the Act to establish a pattern of harassment by the Respondent
against the Charging Party In this context, we note that if the General
Counsel had offered to prove, as reported by the Administrative Law Judge,
that the Respondent was responsible for a pattern of harassment against
Comtech , such evidence clearly would have been admissible However, an
examination of the General Counsel's offer of proof indicates that the only
past conduct relied on was that of individual members and was, therefore,
not admissible to prove a pattern of harassment by the Respondent
DECISION
MILTON JANUS, Administrative Law Judge: The General
Counsel issued his complaint in this proceeding on March
9, 1973, after a charge filed on February 15, 1973, by Com-
tech Telephone Contractors Corporation (Comtech). The
complaint alleges that Respondent (Local 3) violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act by engaging in certain
secondary boycott activities, which were initiated by one of
its members, Eugene Medaglia. The answer of Local 3 de-
nies that it has committed any of the alleged violations, and
specifically denies that Medaglia was its representative.
A hearing was held before me in New York, New York,
on March 26, 1973, at which Respondent and the Charging
Party (Comtech) appeared and were afforded full opportu-
nity to be heard. Briefs have been received from the Re-
spondent, the General Counsel, and the Charging Party and
have been fully considered. Subsequently, the Charging
Party called my attention to an injunction recently issued
against Local 3, while the Respondent answered by denying
that the injunctive order was a valid precedent here.
Upon the entire record in the case, including my observa-
tion of the witnesses and their demeanor, I make the follow-
mg:
FINDINGS OF FACT
I BUSINESS OF THE EMPLOYERS INVOLVED
Usmor Sales Corporation (Usinor) is a Delaware corpo-
ration which maintains an office and place of business in
New York City where it is engaged in the sale and distribu-
tion of raw steel. During 1972, Usinor had sales in excess
of $1 million of which in excess of $50,000 worth of steel was
imported directly from outside the United States.
Sigmund Sommer, an individual (Sommer), invests in,
builds, and manages commercial property. He maintains an
office and principal place of business in New York City.
During 1972, he derived in excess of $1 million from his
operations, and during the same period purchased in excess
of $50,000 worth of materials from Grand Iron Works, Inc.,
and other firms located within the State of New York, which
firms received such materials directly from points located
outside that State.
I find that at all material times Usinor and Sommer have
been employers and persons engaged in commerce and in
industries affecting commerce within the meaning of the
Act, and that assertion of jurisdiction here is proper.
II THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
Background
Sommer is engaged in the construction, leasing, and man-
agement of commercial property in New York. One of his
newly built office buildings, located at 600 Third Avenue,
was ready for leasing and, as tenants were obtained, work
had to be done in the areas so leased to meet tenant specifi-
cations. Usinor was a tenant scheduled to move into part of
the 24th floor about February 15.
Forest Electrical Corp. (Forest) is an electrical contractor
which had been doing electrical work for Sommer at 600
Third Avenue, such as installing outlets and fixtures as ten-
ants prepared to move in. It had a crew of three or four
electricians who moved from floor to floor to do its work,
205 NLRB No. 134
LOCAL UNION NO. 3, IBEW 1103
in accordance with a schedule prepared by Sommer's super-
intendent . Forest's foreman at the building was Eugene
Medagha . He and the other members of the crew were
members of, and represented by, Local 3.
Comtech is in the business of installing intercom and
paging systems. Usinor contracted with it late in January to
install such a system in its new quarters . Comtech's employ-
ees are represented by Local 1156, Communications Work-
ers of America , AFL-CIO.
The Complaint
The General Counsel alleges that Local 3 claims that the
work of installing intercom systems of the type which Usi-
nor contracted for Comtech to perform is work within its
jurisdiction ; Local 3's bylaws require that no member per-
mit work within its jurisdiction to be given away or be done
by other tradesmen and that intraunion discipline may be
exercised against any member who violates its rules; Re-
spondent, through its member , Medagha, informed Ham-
burg, Sommer 's construction superintendent , on or about
February 2, that the Forest electricians would walk off the
jobsite if Comtech employees installed Usinor's intercom
system ; Hamburg, bowing to Local 3's demands , required
the Comtech employees to leave thejobsite; Respondent, by
maintaining these bylaws in effect and by Medaglia's con-
duct, in furtherance of its claim for Comtech' s work, had as
an object forcing or requiring Usinor, Comtech , Sommer,
and Forest to cease doing business with other employers;
and, by the same acts and conduct, Respondent induced the
Forest employees to engage in a strike and threatened Ham-
burg that they would do so.
Respondent 's Bylaws
The bylaws of Local 3 are in evidence as General
Counsel 's Exhibit 2. It shows that they were approved by the
International president , and therefore became effective
upon such approval , in accordance with sec. 1 of article XV
of the bylaws . The date of such approval is shown on the
title page as September 24, 1971.
Pertinent sections of article XIII of the bylaws headed
"General Laws" read as follows:
Sec. 1. The Executive Board shall act as the Trial
Board to hear charges and try members (not an officer
or representative of a Local Union, Railroad Council,
or System Council) for violation of the I.B.E.W . Const-
itution , these bylaws , or an approved working agree-
ment . All charges against a member must be in writing
and signed , specifying the provision(s) of the Constitu-
tion , Bylaws or working agreement allegedly violated;
and should give a short factual statement of the act(s)
considered to be the violation , including relevant dates,
places and names . A copy of the charges must be fur-
nished to the accused , by the Recording Secretary with
notice of when to appear before the Trial Board.
Sec. 12 . No member is to give away work coming un-
der the jurisdiction of this Local, or to allow any other
tradesmen to do work coming under this Local 'sjuns-
diction.
Despite the recent adoption of these bylaws and the fact
that the sections set out above are substantially similar to
provisions in the Union 's previous bylaws, a business repre-
sentative of Local 3, McCarren , testified that he knows very
little about them , except that he knows that the trial board
procedure , covered in section 1 , and the prohibition in sec-
tion 12 were not being maintained in force and effect, as
alleged in the complaint . I find no merit in the Union's
contention . As official pronouncements of the Union they
constitute the governing rules for the relationship between
the Union and its members, and failure by a member to
abide by them is done at his peril.
February 1-2
Usinor was scheduled to occupy its new offices on the
24th floor about February 15, while another incoming ten-
ant was scheduled to move in on the same floor about
March 30 . Work had to be done by Forest to prepare the
space for both tenants , as well as on other floors where
space had been rented . As of February 1, Usinor's space
had to be readied before that of any of the other prospective
tenants.
On that date, the Forest crew was scheduled by Ham-
burg, Sommer's superintendent, to work in the Usinor office
area . Comtech sent some of its employees the same day to
inspect the Usinor premises , preliminary to starting installa-
tion . When Medaglia saw the Comtech employees near
where his crew was working, he asked one of them if he was
going to work there and was told that they were just deliver-
ing some material and would start work the next day. Med-
aglia said he asked the Comtech employee if he was union.
The man said he was, and showed him his CWA card.
The following recital of what happened the next day,
February 2, when the Comtech crew came prepared to in-
stall the intercom system, is based on the testimony of Ham-
burg and Medaglia . Hamburg testified that the Comtech
crew arrived in the Usinor area on the 24th floor where the
Forest crew was and began to work . A short while later,
Medaglia told Hamburg that there might be trouble be-
tween the electricians and the Comtech crew and advised
Hamburg to check back with him later . After a few hours,
during which time the Comtech men continued to work,
Medaglia told Hamburg that he would have to call the
Union to see if he could keep working . Hamburg testified
that, about a half hour later , he had a third conversation
with Medaglia who told him that he had checked with the
Union and that he would walk off the floor if Comtech
continued to work there.
During the 2- or 3-hour period in which Medaglia and
Hamburg were conferring intermittently , Hamburg had
also spoken with Mellett , a Usinor official, alerting him to
the possibility of some difficulty between the two crews.
Then , when Medaglia told him that the electricians would
not work while the Comtech crew was present , Hamburg
reported it to one of Mellett's aides. By the time that Ham-
burg returned to the 24th floor to tell the Comtech employ-
ees to leave, they had already packed up, although they had
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not completed their work. Later that morning, Medaglia
told Hamburg that he personally did not want to work at
the same time and place with the Comtech employees.
That afternoon, or the following Monday, Hamburg ar-
ranged with Medaglia that his crew could complete their
work in the Usinor area and that Comtech would not return
until the electricians had left.
Medaglia testified that he had a number of conversations
with Hamburg on February 2, in one of which he told him,
on seeing the Comtech crew at work, that he was going to
call Local 3. He said he wanted to learn if Comtech had an
agreement with Local 3, and when he first called he was told
by a woman in the office that she would have to check and
he should call back in an hour. On calling back he was told,
again by a woman, that Comtech had no agreement with
Local 3. On hearing that, Medaglia said he told Hamburg
that the Comtech people were not associated with Local 3
and he did not care to work with them or be in the same
area. Medaglia denied saying to Hamburg that Local 3 had
asked him to do, insisting instead that it was a personal
decision, prompted solely by his feeling that members of
Local 3 were qualified to do the work, which Comtech had
been hired to do by Usinor, and should have the opportuni-
ty to do it. He told his crew that Comtech did not have a
contract with Local 3 and that he would not work with
Comtech employees. They agreed that they would not
either. He denied that he was acting as a representative
either of Local 3 or of Forest.
February 21
It was Hamburg's recollection that a Comtech crew re-
turned a week or 10 days later to complete the Usinor job,
but I find that they actually returned on Wednesday, Febru-
ary 21, as testified to by Robert Hanley, the Comtech fore-
man, and Medaglia, the Forest foreman. That morning,
when the Comtech crew appeared in the Usinor area on the
24th floor, its foreman, Hanley, saw Medaglia exchange
cards with a Comtech employee, who later told him they
had shown each other their respective union cards.' Hanley
testified that he then saw Medaglia call the carpetlayers,
who were working in the area, into a hallway for a meeting
and ask them if they would walk off the job if the electri-
cians did. Hanley said he heard one of the carpetlayers say
that they would honor a bona fide picket line if the electri-
cians put one up. Medaglia then left.
A short while later, Medaglia returned with Hamburg.
Medaglia went over to his crew, while Hamburg told Han-
ley that his men were not supposed to be on the job until
the electricians had finished their work. Hamburg asked
them to leave for an hour, that Local 3 would walk off the
job if they did not leave. Hanley and his crew left, and when
they returned the electricians had departed. The Comtech
crew then proceeded with their installation. It took them 3
days to finish what Hanley said they could have done in 1
day early in February, because in the meantime ceiling tiles
had been installed which now had to be removed.
Medaglia testified that his crew was due to finish up in
1 Medaglia testified after Hanley did and was not asked whether he had
in fact seen the union card of the Comtech employee
the Usinor area on February 21, and that Hamburg had told
him that Comtech would not be back before the 22nd.
When he saw the Comtech crew arrive on the 21st, he had
only about 20 more minutes of work to do. However, the
sight of the Comtech people apparently induced him to start
removing a ladder then in use. It was this, Medaglia said,
which may have prompted one of the carpetlayers to ask
him if he was walking off the job. Since he did not want to
get the carpetlayer into trouble, he told him to check with
his Union, at which the carpetlayer said that he would stay
on the job.
Resolutions of the Factual Issues
Medaglia had asked the Comtech employees to show him
their union cards when they first came to the Usinor prem-
ises on February 1, and he therefore knew on that date that
they were members of Local 1156, CWA. It is difficult to
understand then why he felt he ought to call the Local 3
office the next morning to learn if Comtech had a bargain-
ing agreement or some arrangement with Local 3. Medaglfa
in effect denied that he spoke to a union business represen-
tative, insisting that the only person he spoke to at the union
office was a woman who confirmed what he already knew,
that Comtech was not an employer under contract with
Local 3, since its employees were not Local 3 members.
Medaglia did not ask the woman in the office what he
should do on learning that Comtech did not have a contract
with Local 3, nor is there any testimony that he asked her
to check the matter out with a union business agent. So far
as the record shows, no union official knew in advance what
Medaglfa intended to do, or learned of it on February 2, or
gave him advice or approval on his course of action.
Medaglia's testimony is that he decided on his own, act-
ing on his personal convictions as a union member, that he
would not work in the same area with Comtech employees,
because he felt that the installation of the intercom system
was work which could and should be done by Local 3
members.
In any event, I find, crediting Hamburg, that Medaglfa
told him, even before he called the Union the first time, that
there might be trouble between the electricians and the
Comtech crew, and then told him that he had checked with
the Union and that he would walk off the floor if Comtech
continued to work there. I also find, as Medaglia himself
testified, that the other electricians agreed that they too
would not work if the Comtech employees tried to work in
the Usinor area while they were there. Setting aside for the
moment the question whether Local 3 is responsible there-
for, I find that Medaglia's statement to Hamburg that he
and his crew would walk off is a threat within the meaning
of Section 8(b)(4)(ii), and that Medaglia's telling his crew
why he was going to walk off was inducement or encour-
agement of them to do likewise within the meaning of Sec-
tion 8(b)(4)(i).
As for the events of February 21, there is a conflict be-
tween Hanley's and Medaglia's testimony. Hanley testified
that he heard Medaglia ask the carpetlayers if they would
walk off the job if the electricians did, while Medaglfa testi-
fied that it was one of the carpetlayers who first asked him
if the electricians were going to walk off, on seeing Medaglia
LOCAL UNION NO. 3, IBEW
preparing to leave before the job was completed. I assume,
although it is not explicitly argued by the General Counsel
or the Charging Party, that Hanley's evidence was adduced
to prove a violation of Section 8(b)(4)(i)(B), that is, that
Medaglia induced or encouraged the carpetlayers to engage
in a refusal in the course of their employment to perform
any services for a proscribed object. I note in this connec-
tion that the complaint does not allege this incident or any
other occurring on or about February 21 as a violation, and
I would be prepared to find no violation as to this matter
for that reason alone. Moreover, even finding Hanley's ver-
sion more credible than Medaglia's, I find that Medaglia's
question of the carpetlayers, whether they would walk off
if the electricians did, is not "inducement or encour-
agement," since it was not a request or a demand that they
do so. In fact, the carpetlayers did not consider Medaglia's
question as inducing them to leave with the electricians,
since their spokesman replied that they would walk off only
if the electricians first put up a bona fide picket line.
Analysis and Conclusions
I have already found that Medagha told Hamburg in
their conversations on February 2 that there might be trou-
ble between the electricians and the Comtech crew and,
after checking with the union office, that he would walk off
the floor if Comtech continued to work there. Medaglia also
told Hamburg that he did not want to work at the same time
and place with Comtech employees. I also find that the
Comtech crew left the Usinor area that day, without com-
pleting its work, because of Medaglia's threats that the For-
est crew would walk off otherwise.
I am also satisfied that Medaglia's threat that his crew
would stop work was for a proscribed object under Section
8(b)(4)(B), that is, it was intended to force Sommer and
Usinor to cease doing business with Comtech.
The critical element in finding violations of Section
8(b)(4)(i) and (ii)(B) based on these findings, however, is the
responsibility of Local 3 therefor. The General Counsel and
Charging Party urge that Local 3 is responsible for
Medaglia's actions and statements because his objective at
the site coincided with the Union's longstanding claim that
it was entitled to perform the type of installation work
which Comtech was doing, and because the Union's bylaws
required Medaglia to insist on such claims on pain of union
discipline.
The propensity of Local 3 and its sister local in the New
York metropolitan area, Local 25, to engage in illegal action
in support of their claims to certain telephonic installation
work is well established.2 There are, however, sufficient dif-
ferences between those cases and this which, in my opinion,
require me to hold that the General Counsel has not proved
that Local 3 was responsible for Medaglia's actions here.
1. I am not persuaded that Medaglia was an agent for
2 Local 3, IBEW, 140 NLRB 729, enfd 325 F 2d 561 (C.A 2, 1963), Local
3, IBEW, 141 NLRB 888, and 144 NLRB 1318, enfd 339 F 2d 145 (C A 2,
1964), Local 3, IBEW, 193 NLRB 758, enfd 467 F 2d 1158 (C A. 2, 1158),
Local 3, IBEW, 197 NLRB 328, enfd 477 F 2d 260 (C A 2, 1973), Danielson
v. EBEW, Local 3, U S District Court (S D N Y) No 73, Civ 370, Feb 26,
1973.82 LRRM 3114; Local 25, IBEW, 162 NLRB 703, enfd 396 F.2d 591
(CA 2, 1968), Local 25 IBEW, 202 NLRB No 135
1105
Local 3. He has been a foreman of Forest for many years
and a longstanding member of the Union. He was not ap-
pointed as the steward for the Forest crew at 600 Third
Avenue, nor was anyone else in his crew designated to hold
that position. Hamburg testified that he regarded Medaglia
as a representative of the Union when he talked about walk-
ing off the job, but he admitted that Medaglia had never
told him so, nor had he ever asked him. Medaglia settled the
crew's disputed pay and time problems, but that is more
consistent with a status as foreman than with one as stew-
ard.
Proceeding then from the assumption that there was no
one at the site who can be considered either as being desig-
nated or acting as steward, I am left with the question
whether Medaglia, in his capacity as foreman or as a union
member, was an agent for Local 3.
The Board has recently emphasized, in the context of
alleged violations of Section 8(b)(2), ". . . the well-estab-
lished principle that a supervisor's membership in a labor
organization does not, of itself, establish union responsibili-
ty for his actions, even though his conduct as an employer
representative may well satisfy union objectives." 3 There
are Board precedents clustering about this norm, some
holding under particular circumstances that a foreman/
member was an agent for his Union, and some holding,
under slightly different circumstances, that he was not.
In Local 3, IBEW, 140 NLRB 729, 742-743, the Board
adopted, without discussion, the finding of a Trial Examiner
that a foreman and member, Herrmann, was not the agent
of Local 3, on facts not unlike those here.
In Local 3, IBEW, 141 NLRB 888, 893, footnote 5, the
Board (two members finding it unnecessary to consider this
point) held that the union was responsible for threats and
inducements made by two foremen, Feidner and Remielus,
in the presence of a union steward who made similar threats.
In Local 340, IBEW (Dade Sound and Controls), 149
NLRB 430, 439, 440, the Board (Members Fanning and
Jenkins dissenting) held the union responsible for the refus-
al of its members to work while members of another union
were assigned work within its claimed jurisdiction, on the
ground that Local 340 had induced other work stoppages in
a continuing dispute with the primary employer. However,
in another incident in the same case, the Board found that
a member who worked alone or with a helper was not a
steward and that the union was not responsible for his
threats to leave work when members of the other union were
present at the site.
Local 3, IBEW, 193 NLRB 758, also involved an incident
in which the Union's responsibility for the acts of a fore-
man/member was in issue. The Board adopted the finding
of an Administrative Law Judge that the foreman, Fedor,
was an agent of the union because he had held himself out
to be a steward, because as a member he was bound by the
union 's bylaws not to give away work within its jurisdiction,
and also because he had checked with a business agent who
had tacitly approved his threat to a secondary employer that
he would turn off the electricity if the primary employer's
men did not leave.
In Local Union 25, IBEW(Comtech), 202 NLRB No. 135,
3 Walter J Barnes Electrical Co, Inc , 188 NLRB 183.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board held that Deasey, a foreman and member of
Local 25, was an agent of the union because he held himself
out as a steward, had acted in concert with a union business
representative in threatening a walkout, and because, in
addition, he "was expected to and acted for and on behalf
of Respondent in protecting its jurisdictional claim to the
disputed work."
It is apparent from the summary recitals of the Board
holdings in these cases that the issue of a union's responsi-
bility for the acts of a foreman/member who is not also a
steward turns on more than the fact that he has induced or
encouraged employees to refuse to work, or has threatened
a secondary employer. It may also depend on whether he is
claiming to act as a steward, whether he has acted in concert
with an admitted union agent, or whether the particular
inducement or threat engaged in was part of a pattern of
violations committed by union agents in pursuance of its
objective.
2. The current bylaws of Local 3, prohibiting members
from allowing "any other tradesman to do work coming
under this Local's jurisdiction," and providing for discipli-
nary action by its executive board against members who
violate the bylaws, are substantially the same as earlier ver-
sions of the bylaws of Local 3 and other IBEW locals, which
the Board and courts have relied on in holding the union
responsible for the actions of foremen/members. In all
these cases, nevertheless, there was additional support for
finding union responsibility. See cases cited in footnote 2.
In no case that I am aware of, including the one that goes
farthest in that direction, Joliet Contractors Association v.
N.LR.B., 202 F.2d 606 (C.A. 7, 1953), has the Board or a
court relied solely on a union's bylaws of this nature, in
holding the union responsible for the acts of foremen or
members. The court in that case said, at page 612:
In International Brotherhood of Electrical Workers v.
N. L R B. , 341 U.S. 694, . . . the court analyzes and
discusses the meaning of the words "induce or encour-
age" as used in the Act. In doing so the court, states,
341 U.S. at page 701 ... .
"The words `induce or encourage' are broad enough
to include in them every form of influence and per-
suasion."
We have already agreed with the Board that the Union
by-laws per se do not constitute a violation but we
disagree with the Board in its holding that they do not
constitute the inducement or encouragement which is
an element essential to a violation. We hold that they
do....
The Union by-laws not being illegal per se, we think
that neither the Board nor this court could order their
discontinuance. At the same time, in view of what we
have held, their continued use would seem to be a
hazard for the Union because they in themselves con-
stitute one of the required elements, that is, inducement
or encouragement on the part of the glazier employees.
In N.L.R.B. v. Local 3, IBEW, 325 F.2d 561, 562 (C.A.
2, 1963), enfg. 140 NLRB 729, the court said:
The respondent contends that three questions are
presented. The first is whether the by-law of Local 3,
which prohibits union members from "giving away
work" constitutes an illegal "inducement" violative of
section 8(b)(4)(i) of the National Labor Relations Act,
as amended. The Board concluded that Local 3 was
responsible for inducing Johnson's employees to cease
work at Idlewild, and said that its conclusion was "but-
tressed" by the by-law. This was correct. See Joliet
Contractors Association v. N.L.R.B., 7 Cir., 202 F.2d
606,611-612. . . .
My understanding of these court opinions is that a
union's bylaws which seek to prevent infringements of its
work jurisdiction constitute "inducement or encour-
agement" by elucidating what might otherwise be ambigu-
ous or unclear, but that the bylaws in themselves do not
constitute proof that one whose actions effectuate the
union's policies is in fact its agent.
I have also considered the impact of Section 2(13) of the
Act, which reads:
In determining whether any person is acting as
"agent" of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
Here too, it seems to me, a prerequisite for finding union
responsibility is some independent evidence that the puta-
tive principal-agent relationship is based on something
more than adherence to union objectives on the part of
union members. Otherwise, it would follow that each of
Local 3's 35,000 members could bind the Union by under-
taking any action which he considered advantageous to
himself as a union member.
3. That Local 3 has shown indifference to, and disdain
for, the Act's proscriptions against secondary boycott activ-
ities when its jurisdictional claims to telephone installation
work have been involved is amply borne out by the cases
previously cited. Earlier violations may prefigure a pattern
of continued violations but are not sufficient to prove that
all successive incidents bear the same taint. They may in-
duce the feeling that Local 3's protestations of injured inno-
cence are as bogus as they have been in the past, but each
case based on a complaint issued by the General Counsel
must be proven anew by a preponderance of the evidence,
including a fresh showing of the union's responsibility for
the acts of the particular individual involved.
Besides the series of contested cases in which the Board
and the courts have found Local 3 guilty of violating Section
8(b)(4)(B) by interfering with telephone installation work
performed by members of another union, the General
Counsel also sought to rely here on an alleged pattern of
harassment by Local 3 against Comtech before February
1973. He sought to have a Comtech foreman testify about
such incidents, but I refused to admit his testimony. It
seemed to me to be improper to require Local 3 to defend
itself, in this proceeding, against alleged violations of the
Act not specified in this complaint, and perhaps even barred
by Section 10(b) of the Act, relating to other secondary
employers.
In summary, I find that Medaglia was not a steward and
that he did not speak to a union business representative on
February 2 when he called the union office to learn whether
LOCAL UNION NO. 3, IBEW
Comtech had a contract or arrangement with Local 3. On
that basis I hold that Medaglia acted on his own, out of
personal convictions, in inducing and encouraging the
members of his crew to join him in refusing to work in the
Usinor area while Comtech employees were also there and
in threatening Hamburg that he would walk off the job
under those circumstances.
I have considered the effect of Section 2(13) of the Act,
Local 3's past violations and harassments of secondary em-
ployers in pursuance of its aim to control certain telephone
installation work and the pressure exerted on all its mem-
bers by sections I and 12 of article XIII of its bylaws. I do
not think that these factors overcome the lack of a showing
that Medaglia was an agent of Respondent, and I shall
therefore recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. Usinor Sales Corporation and Sigmund Sommer are
employers engaged in commerce and in activities affecting
commerce within the meaning of Section 2(6) and (7) of the
1107
Act.
2. Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. Eugene Medaglia, a foreman for Forest Electric Corp.
and a member of Local 3, was not an agent of Local 3 when
he engaged in the activities described above on February 2,
1973, at the building located at 600 Third Avenue, New
York City.
4. The Respondent, Local 3, has not engaged in any un-
fair labor practices alleged in the complaint.
RECOMMENDED ORDER 4
It is hereby recommended that the complaint be dis-
missed in its entirety.
° 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