Int'l Brotherhood Electrical Workers, Local 861

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discharged Marvin Rochon because he gave testi- mony under the Act in a proceeding arising out of charges filed by the Union, thereby violating Section 8 (a) (3) and (4) of the Act. Accordingly, I shall recom- mend that Respondent be ordered to reinstate Rochon to the position that he would have occupied but for the Respondent's discrimination against him , or to a sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges . I shall also recommend that Respondent be ordered to make Rochon whole for any loss of pay that he may have suffered because of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from date of such discrimination to the date of the offer of reinstatement , less his net earnings . F. W. Woolworth Company, 90 NLRB 289.24 In view of the violations herein and the violations previously found by me against Respondent , it is apparent that the commission of other unfair labor practices by Respondent may reasonably be anticipated by its past conduct and that the pre- ventive purposes of the Act may be thwarted unless the recommendations herein are coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner on the rights guaranteed employees in the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. General Drivers and Dairy Employees Local Union 563, International Brother- hood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Marvin Rochon, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (4) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 24 There is additional evidence In the record herein of discrimination by Respondent against his employees because of their testimony in the proceeding in question Since these were not alleged in the complaint nor claimed by the General Counsel as additional violations of the Act, I shall recommend no affirmative order regarding them and will rely on the cease and desist portion of the order herein to remedy such violations International Brotherhood of Electrical Workers, Local 861, AFL-CIO and Cleveland Construction Corp. International Brotherhood of Electrical Workers, Local 861, AFL-CIO and Elco Electric, Inc. Cases Nos. 15-CC-129 and 15-CC-130. November 22, 1961 DECISION AND ORDER Upon charges and amended charges duly filed by Cleveland Con- struction Corp., herein called Cleveland, and Elco Electric, Inc., 134 NLRB No. 62. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 587 herein called Elco, the General Counsel of the National Labor Re- lations Board, by the Regional Director for the Fifteenth Region, issued an "Order Consolidating Cases, Consolidated Complaint and Notice of Hearing," and an amendment thereto, alleging that Inter- national Brotherhood of Electrical Workers, Local 861, AFL-CIO, herein called the Respondent, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended. Copies of the charges, the consolidated complaint, and notice of hearing were duly served upon the Respondent and the Charging Parties. On April 28, 1961, all parties entered into a stipulation of facts, which provides in pertinent part that the parties waive their rights to a hearing before a Trial Examiner and the issuance of an Inter- mediate Report and Recommended Order; that the entire record in this proceeding shall consist of the aforementioned charges, con- solidated complaint, notice of hearing, and the stipulation; and that the Board make findings of fact, conclusions of law, and issue a De- cision and Order upon the stipulated record. On May 11, 1961, the Board issued an order approving the stipulation, transferred the cases to the Board, and granted the parties an opportunity to file briefs. A brief was filed by the General Counsel.' Upon the basis of the aforesaid stipulation, and the entire record herein, including the brief filed by the General Counsel, the Board .2 makes the following : FINDINGS OF FACT I. THE BUSINESS OF TIIE COMPANIES INVOLVED Cleveland Construction Corp., a Louisiana corporation, is en- gaged at Crowley, Louisiana, as a general contractor in the building and construction industry. It annually receives goods and materials from points outside the State of Louisiana valued in excess of $50,000. ' On July 12, 1961, the Respondent filed a motion in which it seeks to withdraw from the stipulation herein In the alternative, it requests that this proceeding be consolidated with Case No 15-CC-134 (not published in NLRB volumes), a case involving the same parties, then pending before a Trial Examiner. The General Counsel filed an opposition to the motion The Respondent's motion is based on an alleged discrepancy between facts stipulated to in the stipulation and testimony given at the hearing in Case No 15-CC-134 with respect to a certain incident However, even if a discrepancy exists as alleged, it is an immaterial one. For the validity of the other facts in the stipulation has not been questioned and, as appears hereinafter , they clearly show the Respondent to have violated the Act. In view thereof, and as the Intermediate Report in Case No 15-CC-134 has issued , and its recommendations complied with, we hereby deny the Respondent's motion in its entirety 2Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [ Members Leedom, Fanning and Brown) 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elco Electric, Inc., a Louisiana corporation, is engaged in business at Rayne, Louisiana, as an electrical contractor in the building and construction industry. It annually receives goods and materials from points outside the State of Louisiana valued in excess of $50,000. We find that Cleveland and Elco are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effec- tuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 861, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR- PRACTICES In December 1960, Cleveland signed an agreement with the Louisi- ana Bank and Trust Company for the construction of a bank building at Crowley, Louisiana. Cleveland subcontracted the electrical work for this project to Elco. Other subcontractors were also hired on the bank building job. At times material herein, the Respondent had a labor dispute with Elco, but not with Cleveland or any subcontractor on the bank building job other than Elco. Construction of .the bank building began in January 1961. Elco's employees worked on the job on February 17, 27, and 28 and on March 6 and 9, 1961. On the night of February 28, 1961, Patrick Derouen, Elco's president, was informed by Elias Broussard, a fore- man of Cleveland, that there might be a picket line and that it might be a good idea if Elco held off working. As a result of said conversa- tion, Elco's employees did not report for work on March 1, 1961. On March 1, 2, 3, 13, 14, 15, 16, and 17, 1961, the Respondent pick- eted the bank building jobsite with signs bearing the legend: "No dispute with any other employer. Elco Electric Co. has sub-standard wages and working conditions. IBEW Local 861, AFL-CIO." Dur- ing the course of this picketing, which was carried on during working hours from 7:30 a.m. until 3:30 p.m., the employees of Cleveland and of the various subcontractors refused to cross the picket line. No Elco employee worked on these dates. We agree with 'the General Counsel that the Respondent's picketing violated Section 8(b) (4) (i) and (ii) (B) of the Act. The record is clear that the Respondent had a dispute with Elco and that it engaged in picketing at the bank building job where employees of employers other than Elco with whom the Respondent had no dispute were work- ing. The Board has defined the right of a union to picket in such com- mon situs situations, where a secondary employer is harboring the situs INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 589 of a dispute between a union and a primary employer 3 One of the con- ditions which must be satisfied if such picketing is to be deemed lawful is that the picketing be conducted at a time when the primary em- ployer is engaged in its normal business at the situs. This requirement was not met in the instant case, as the Respondent picketed the bank building job on 8 days, during the whole working day, at times when no Elco employees were at work on the project. In view thereof, we find that the Respondent engaged in secondary picketing for the un- lawful object of causing Cleveland to cease doing business with Elco, in violation of Section 8(b) (4) (i) (B) of the Act.' Such activity by Respondent is also unlawful under Section 8(b) (4) (ii) (B).5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, oc- curring in connection with the operations of the Companies here in- volved, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. V., THE REMEDY Having found that the Respondent has violated Section 8 (b) (4) (i) and (ii) (B) of the Act, we shall order it to 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, the Board makes the following : CONCLUSIONS OF LAW 1. Cleveland Construction Corp. and Elco Electric, Inc., are em- ployers engaged in commerce or in an `industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2 (5) of the Act. 3 See Moore Dry Dock Company, 92 NLRB 547, 549 Section 8(b) (4) (A) Involved in Moore Dry Dock is now substantially Section 8 ( b) (4) (1) (B ) of the Act as a result of the Landrum -Griffin amendments of 1959. 4 Member Leedom, while agreeing with the majority that the picketing at the bank build- ing jobsite was unlawful because Elco , the primary employer , was not engaged in its normal business there at the times of the picketing , would also rely upon all the facts and circumstances surrounding the picketing , including the fact that the Respondent failed to limit its picketing to Elco's Rayne, Louisiana, location where Elco's employees reported to work each day, and where they could have been effectively reached . Dallas County Construction Employers' Association, Inc, 124 NLRB 696, enfd. as modified 281 F 2d 593 (C A 5). Cf. Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, 303, enfd 220 F. 2d 380 (C A.D C ) i International Hod Carriers , Building and Common Laborers Union of America, Local No. 1140, AFL-CIO (Gilmore Construction Company ), 127 NLRB 541, enfd as modified 285 F. 2d 397 (C A 8) ; Sheet Metal Workers' International Association, Local Union No. 3, AFL-CIO ( Siebler-Heating & Air Conditioning, Inc.), 133 NLRB 650. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By inducing and encouraging employees of Cleveland and of other persons engaged in an industry affecting commerce to engage in a strike or a refusal in the course of their employment to perform services, and by threatening, coercing, or restraining Cleveland and such other persons, in each case with an object of forcing or requiring Cleveland to cease doing business with Elco, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8 (b) (4), (i) and (ii) (B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices. within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent,. International Brotherhood of Electrical Workers, Local 861, AFL- CIO, Lake Charles, Louisiana, its officers, representatives, agents, suc- cessors, and assigns, shall : 1. Cease and desist from inducing or encouraging any individual employed by Cleveland Construction Corp. or by any other person, other than Elco Products, Inc., similarly engaged at the Louisiana Bank and Trust Company building site, to engage in a strike or a, refusal in the course of his employment to use, manufacture, process,, transport, or otherwise handle or work on any articles, materials, or commodities, or to perform any services; or threatening, coercing, or restraining Cleveland Construction Corp., or any other person similar- ly engaged at the aforesaid building site; where in either-case an object thereof is to force or require Cleveland Construction Corp. or any other person similarly engaged at the aforesaid building site to cease doing business with Elco Electric, Inc. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in the Respondent's business offices and meeting halls,, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. Upon request of the Regional Director, the Respondent shall supply him with a sufficient e In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " GLADIOLA BISCUIT COMPANY 591 number of signed copies of said notices for posting by Elco Electric, Inc., and Cleveland Construction Corp., if they desire to do so, at the site which was involved in this proceeding. (b) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 861, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board and in order to, effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT induce or encourage any individual employed by Cleveland Construction Corp. or by any other person, other than Elco Electric, Inc., similarly engaged at the Louisiana Bank and Trust Company building site to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform services; or threaten, coerce, or restrain Cleveland Construction Corp. or any other per- son similarly engaged at the aforesaid building site; where in either case an object thereof is to force or require Cleveland Con- struction Corp. or any other person similarly engaged at the aforesaid building site to cease doing business with Elco Electric, Inc. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 861, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Fant Milling Company, Inc., d/b/a Gladiola Biscuit Company and John H. Jones, Joseph W. Jones, and Edward H. Martin. Oases Nos. 1.1-CA-1766-1, 11-CA-1766-2, and 11-C,A-1766-3. November 22, 1961 DECISION AND ORDER On August 9, 1961, Trial Examiner Stanley Gilbert issued his Intermediate Report in the above-entitled proceedings, finding that 134 NLRB No. 70.