Int'l Brotherhood Electrical Workers, Local 712

812 DECISION'S OF NATIONAL LABOR RELATIONS BOARD -International Brotherhood of Electrical Workers, Local 712,. AFL-CIO [Golden Dawn Foods] and W. H. Hauer, d/b/a Industrial Electric Service United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 115, AFL-CIO and Fred P. Gallo, d/b/a Gallo Refrigeration Company. Cases Nos. 6-CC-241 and 6-CC- 242. November 28, 1961 1 DECISION AND ORDER Upon charges duly filed by W. H. Hauer, d/b/a Industrial Electric Service, herein called Industrial, and Fred P. Gallo, d/b/a Gallo Re- frigeration Company, herein called Gallo, the General Counsel of the National Labor Relations Board, by the Regional Director for the Sixth Region, on April 14, 1961, issued a consolidated complaint al- leging the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 115, AFL-CIO, herein called Respondent Local 115, and Inter- national Brotherhood of Electrical Workers, Local 712, AFL-CIO, herein called Respondent Local 712, had engaged in and were engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) and Section 2(6) and (7) of the National Labor Relations. Act, as amended. Copies of the charges, complaint, and notice of hear- ing were duly served upon the Respondents and the Charging Parties. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondents have caused to be distributed and have distributed handbills at the entrance to the parking lot of Loccisano's Golden Dawn Supermarket, operated by Loccisano Brothers No. 2 Corporation, herein referred to collectively as Loccisano, and by so, doing did threaten, restrain, and coerce, and are threatening, restrain- ing, and coercing, Loccisano with the object of forcing Loccisano to cease using the services of and doing business with other persons. Respondents' answers, filed on May 11, and 12, 1961, admit certain jurisdictional and factual allegations of the complaint, but deny the commission of unfair labor practices. On June 13, 1961, all parties to the proceeding entered into a motion to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and Decision and Order. The parties stipulated that they have waived their rights to a hearing before a Trial Exam- iner and to the issuance of an Intermediate Report, that the charges, order consolidating cases, consolidated complaint, answer, and the transcript of testimony in Henry Shore Reg. Dir. v. Local 712, Inter- national Brotherhood of Electrical Workers, AFL-CIO (Gallo Re- frigeration Co.), 48 LRRM 2231 (D.C. W. Pa.), shall constitute the 134 NLRB No. 73. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 712 813 entire record in the case, and that no oral testimony is necessary or desired by any of the parties. On June 16, 1961, the Board granted the motion, ordered the transfer of the proceeding to the Board, and granted permission to the parties to file briefs. The General Counsel filed a brief. Upon the basis of the parties' stipulation, the General Counsel's brief, and the entire record in the case, the Board 1 makes the following : FINDINGS OF FACT I. COMMERCE Industrial, a sole proprietorship, is an electrical contractor in the building and construction industry and has its only office and place of business in New Brighton, Pennsylvania. Gallo, a sole proprietorship, is a refrigeration installation and maintenance contractor and has its only office and place of business in New Castle, Pennsylvania. Both Industrial and Gallo are members of Associated Electrical Contrac- tors,' an employer association comprised of various electrical con- tractors, which engages in collective bargaining with labor organiza- tions on behalf of its employer members. In the operation of their businesses, the members of Associated Electrical Contractors annually receive goods and materials from outside the State of Pennsylvania valued in excess of $50,000; and they annually sell goods to and per- form services for other employers within the State of Pennsylvania valued in excess of $50,000 which other employers, in turn, individu- ally ship goods or perform services outside the State of Pennsylvania valued in excess of $50,000 annually. Loccisano Brothers No. 2 Corporation is a ,Pennsylvania corpora- tion having its sole office and place of business in Chippewa Township, Pennsylvania, and is engaged in the operation of a retail food market under the trade name of Loccisano's Golden Dawn Foods. The corpo- ration began operations on March 7, 1961. On the basis of its business to date, by projection, Loccisano will gross in excess of $500,000 from sales for the period March 7, 1961, to March 7, 1962. During the same period Loccisano will purchase goods outside the State of Pennsyl- vania valued in excess of $50,000. Golden Dawn Foods, herein called Foods, a partnership having its principal office and place of business in Sharon, Pennsylvania, is a wholesaler engaged- in the business of supplying retail food stores with food products and other supplies. During the past year, Foods, in the course and conduct of its business operations, purchased and received at its Sharon, Pennsylvania,, place of business, goods and materials valued in excess of $50,000 directly from States other than Pennsyl- Pursuant to the provisions of Section 3(b) of the' National ' Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman McCulloch and Members Rodgers and Fanning]. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vania, and during the same period Foods sold and shipped from its Sharon, Pennsylvania, place of business, goods and products valued in excess of $50,000 to points located outside the State of Pennsylvania. Accordingly, we find,, and the Respondents admit, that Industrial, Gallo, Loccisano, and Foods are engaged in commerce within the mean- ing of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood.of Electrical Workers, Local 712, AFL- CIO, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 115, AFL-CIO, are labor organizations as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On September 6, 1960, Loccisano began construction of a building at Beaver Falls, Pennsylvania, to be used as a supermarket. In No- vember 1960, Loccisano entered into a contract with Industrial for the performance of electrical work necessary in the construction of the- building. Loccisano purchased refrigeration equipment for the super- market from Foods, which hired Gallo to install the equipment and maintain it for 1 year. The market opened for business on March 7,, 1961. On March 25,1961, from approximately 10:30 a.m. until 8 p.m., two to three men distributed handbills at the entrances to the parking lot of Loccisano which is used by Loccisano's customers. The hand- billers, admittedly under the direction and control of the Respondents,, continued to distribute the handbills during business hours almost, every day thereafter until enjoined pursuant to Section 10(1) .1 The handbills stated : PLEASE DO NOT PATRONIZE GOLDEN DAWN SUPER MARKET (LOCCISANO BROTHERS) Because Electrical & Refrigeration Work was done by persons other than members of L.U. 712-International Brotherhood of Electrical Workers L.U. 115-Plumbers and Steamfitters We are affiliated with Beaver County Building Trades Council 2 Henry Shore, Regional Director v. Local 712, International Brotherhood of Electrical Workers, AFL-CIO, anpra. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 712 815 Persons distributing the handbills stood on public property near the customer entrances and did not block the entry or exit of any person.' No work stoppage resulted from the handbilling, nor was there any refusal by employees to handle products or to perform services. The record further indicates that both Industrial and Gallo em- ployed employees on the Loccisano job who were either nonunion, or members of Associated Arts and Crafts, a labor organization not affili- ated with the Beaver County Building Trades Council, and that In- dustrial had, in 1959, severed its relationship with Respondent Local 712 because it could get employees from Associated Trades and Crafts for less money. At the time of the Federal district court hearing on April 14, 1961, Industrial had completed approximately 95 percent of the electrical work at the supermarket. Gallo had completed the installation of the refrigeration equipment, and the only obligation remaining under its contract with Foods was the 1 year of maintenance. The General Counsel contends that the Respondents, by their hand- billing, threatened, restrained, and coerced Loccisano within the mean- ing of Section 8(b) (4) (ii) (B) of the Act.4 The General Counsel reasons that the object of the handbilling was to require Loccisano, the secondary employer, to cease doing business with Industrial and Foods, and also to force Foods to cease doing business with Gallo, and that the Respondents engaged in this activity in furtherance of their dispute with Industrial, Foods, and Gallo. The General Counsel fur- ther contends that the handbilling is not protected by the "publicity" proviso of Section 8 (b) (4),5 because it involves no product or prod- ucts, and because there is nothing in the Act which allows a union to enlist the aid of the public in a boycott of the secondary employer's entire business rather than the boycotting of a particular product. We disagree. 3 One incident was shown in which an auto containing the handbillers blocked one en- trance for a 15-minute period until, at the request of the State police, it was moved The 'record indicates, however, that the persons distributing the handbills were in the automobile because of inclement weather * Section 8(b) (4) (ii) (B) states in pertinent part It shall be an unfair labor practice for a labor organization or its agents-to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting com- merce, where . . an object thereof is . . . forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other 'producer, processor, or manufacturer, or to cease doing business with any other person ,. . . . The proviso to Section 8(b)(4) states: Provided further, That for the purposes of this paragraph (4) only, nothing con- tained in such paragraph shall be construed to prohibit publicity, other than picket- ing, for the purpose' of truthfully advising the public, including consumers and members' of 'a ' labor organization, that' a, product 'or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any Individual employed by any person other 'than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution d i s t r i b u t i o n ; 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The proviso to Section 8 (b) (4) protects publicity, other than picket- ing, providing certain requirements are met. The first requirement is that the publicity be truthful. Although there is no serious alle- gation that the handbills were misleading or fraudulent, we do note that the handbills state that "Electrical & Refrigeration Work was done by persons other than members of" the Respondents, when in fact at the time of the hearing neither the electrical work nor the refrigeration work was entirely completed. However, in view of the fact that Industrial had completed 95 percent of its work and Gallo's remaining obligation under its subcontract was solely main- tenance, we find that the handbills were substantially accurate in their representations. As there is no evidence of an intent to deceive and there has been no substantial departure from fact, we find that the contents of the handbills were truthful and that that requirement of the proviso has been met .6 For the reasons stated in the Lohman Sales 7 case, supra, we find without merit the General Counsel's contention that the handbilling herein is not protected by the proviso because no product or products are involved. We further find without merit, for the reasons stated in Middle South Broadcasting Co.,8 the General Counsel's contention that the handbilling is not protected by the proviso because the pro- viso was not intended to permit a consumer boycott of a secondary employer's entire business. As the record indicates that the handbilling did not cause a work. stoppage or a refusal by employees to handle products or perform services, we find that the Respondents' leaflet circulation and distri- bution was protected by the publicity proviso to Section 8(b) (4), and therefore was not violative of Section 8(b) (4) (ii) (B), as alleged. CONCLUSIONS OF LAW 1. W. H. Hauer, d/b/a Industrial Electric Service, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Fred P. Gallo, d/b/a Gallo Refrigeration Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Loccisano Brothers No. 2 , Corporation is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Golden Dawn Foods, a partnership, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 6 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Milk Drivers and Dairy Employees Local 537 (Lohman Sales Company), 132 NLRB 901. 7 Ibid See also Plumbers and Pipefitters Local Union No. 142, AFL-CIO (Shop Rite Foods, Inc., d/b/a Piggly Wiggly ), 133 NLRB 307. 8 Local No 662, Radio and Television Engineers, affiliated with International Brother- hood of Electrical Woikers, AFL-CIO (Middle South Broadcasting Co.), 133 NLRB 1698. BOOTH BROADCASTING COMPANY 817 5. International Brotherhood of Electrical Workers, Local 712, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 6. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 115, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 7. The Respondents have not engaged in unfair labor practices in violation of Section 8(b) (4) (ii) (B) of the Act. [The Board dismissed the complaint.] MEMBER RODGERS dissenting : As I noted in my opinion in International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Milk Drivers and Dairy Employees Local 537 (Lohman Sales Company), 132 NLRB 901, and Electrical Workers Local Union No. 73 (North- western Construction of Washington, Inc.), 134 NLRB 498, the so- called publicity proviso to Section 8(b) (4) is applicable only if the primary employer, with whom the union has a dispute, produces a product or products which are distributed by another employer. One primary employer here, Industrial, is an electrical contractor. The other, Gallo, is a refrigeration installation and maintenance contractor. Neither produces anything. Each merely provides services, and cer- tainly by no stretch of anyone's imagination can it be said that there is distribution by another employer of the results of their labors. Ac- cordingly, I would find the proviso inapplicable here, and would hold that by handbilling Loccisano, the Respondent violated Section 8(b) (4) (ii) (B) of the Act. Booth Broadcasting Company and Oral F. Osman a/k/a Bob Fields,' Petitioner Booth Broadcasting Company and National Association of Broadcast Employees and Technicians , AFL-CIO, Petitioner. Cases Nos. 7-RD-363 and 7-RC-4875. November 28, 1961 DECISION AND DIRECTION OF ELECTIONS Upon petitions filed under Section 9 (c) of the National Labor Rela- tions Act, a hearing was held before Thomas R. Wilks, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. 'The Petitioner's name appears as amended at the hearing. 134 NLRB No. 80. 630849-62-vol. 134-53