Local 3, Int'l Brotherhood of Electrical Workers

LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 729 and, if an understanding is reached, embody it in a signed agreement The bargaining unit is: All our production and maintenance employees, excluding office clericals, professional employees, salesmen, guards , and supervisors as defined in the Act. WE WILL NOT threaten that we will close our plant rather than deal with a union, or coercively interrogate our employees about their union activities, threaten employees with reprisals for union activities, threaten surveillance of union activities, or forbid any union activities in our plant during nonworking hours. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form, join, or assist Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a) (3) of the Act, as amended. WE WILL offer the following employees immediate and full reinstatement to their former or substantially equivalent positions, and make them whole for any loss of pay suffered by reason of the discrimination against them: Alderson, Dimple Duncan , Emma Stevens, Carol A. Bornstein , Rose M. Looper, Sandra White, Earline Burkhardt, Bertha Purvis, Janet White, Ella Virginia Charles. Mary Riley, Ethel Marie Willis, Betty Day, Charlotte Roberts , Margaret All of our employees are free to become , remain , or refrain from becoming or remaining, members of Local 135, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization GENERAL MEDICAL SUPPLY CORP., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose 3-8921, if they have any question concerning this notice or compliance with its provisions. Local 3, International Brotherhood of Electrical Workers, AFL- CIO and New York Telephone Company. Case No. 2-CC-668. January 22, 1963 DECISION AND ORDER On July 5, 1962, Trial Examiner Eugene F. Frey issued his Inter- mediate. Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Interme- diate Report. He also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal as to them. Thereafter, the General Counsel and the Respondent filed ex- ceptions to the Intermediate Report with supporting briefs. 140 NLRB No. 71. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record. The Board affirms the Trial Ex- aminer's rulings. It finds merit in certain of the General Counsel's exceptions and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations, with the modifications and additions noted below. 1. The Trial Examiner found that Respondent's agent, Robertson, threatened New York Telephone Company (hereinafter referred to as the Company) that it would withdraw its members from the Com- pany's Idlewild Airport construction project 1 if the Company did not renegotiate its contract with Delee General Construction Corp., to require that certain conduit work be performed by Respondent's mem- bers rather than by Delee's employees who were represented by a dif- ferent union. The Trial Examiner concluded that this threat by Re- spondent did not violate Section 8(b) (4) (ii) (B) of the Act, because its object, forcing the Company to put pressure on Delee to change its work assignments so as to provide work for Respondent's members, was not the equivalent of forcing the Company to cease doing business with Delee. We disagree. While it does not appear that Respondent explicitly demanded that the Company cancel the Delee contract if Delee refused to use its mem- bers, this was the only alternative the Company had if Delee continued to refuse replacement of its employees by members of Respondent. We conclude, therefore, that Respondent's threat to the Company had an object of forcing the Company to cease doing business with Delee. Even assuming, arguendo, that Respondent did not consciously con- template imposition of this sanction, it is nonetheless clear that Re- spondent sought by its threat to require that the Company superim- pose upon its existing agreement with Delee an added condition of performance, that the work had to be done by Respondent's members. Acceptance of this condition by Delee would require the Company to cease doing business with Delee on the basis of their original ar- rangement. The objective of causing such a disruption of an existing business relationship, even though something less than a total can- cellation of the business connection, is a "cease doing business" object within the meaning of Section 8 (b) (4) (B) of the Act 2 I Respondent's members who worked at Idlewild included employees of Johnson Elec- trical Corporation (Johnson), which was performing certain eloctrical work on the Com- pany's project pursuant to a contract with Auserehl & Son Contracting Corp. (Auserehl), the Company's general contractor 2International Brotherhood of Electrical Workers, AFL-CIO , et al (Rendis; Radio Division of The Bendix Corporation ), 138 NLRB 993 (Member Fanning dissenting) ; Local Union 825, International Union of Operating Engineers , .4 FL-CIO (Nichols Elec- tric Company), 138 NLRB 540 ; Local 1066 International Longshoremen's Association, AFL-CIO, et al (Wiggin Terminals, Inc) (Members Fanning and Brown dissenting), LOCAL 3, IKT'L BROTHERHOOD OF ELECTRICAL WORKERS 731 We conclude, therefore, that Respondent's threat to the Telephone Company violated Section 8(b) (4(ii) (B) of the Act.3 The Trial Examiner also found that Respondent induced and en- couraged its members employed by Johnson, the electrical subcon- tractor at the Company's Idlewild project, to engage in strikes which had as objects (1) forcing or requiring Johnson to cease doing business with Auserehl, the general contractor; (2) forcing or requiring Auserehl to cease doing business with the Company ; and (3) forcing or requiring the Company to put pressure on Delee to change its work assignments. He further found that by causing these strikes for the first and second objects above, Respondent violated Section 8 (b) (4) (i) and (ii) (B). Consistent with his finding that the object of the afore- mentioned threat to the Company was not illegal, he did not find that Respondent violated Section 8(b) (4) (B) by causing a strike for the third object. We find, in agreement with the Trial Examiner, that Respondent violated Section 8(b) (4) (i) and (ii) (B)4 by caus- ing a strike for the first and second objects set out above and, for the reasons stated previously, we find that Respondent also violated Sec- tion 8(b) (4) (i) and (ii) (B) by inducing or encouraging the Johnson employees to engage in a strike with an object of forcing or requiring the Company to cease doing business with Delee. 2. The Trial Examiner found that on November 13 Respondent's business agent, Lombardi, telephoned Lite-Rite Electric Company (herein referred to as Lite-Rite), which was engaged in performing electrical work at various locations for the Company. Lombardi spoke with Lite-Rite's bookkeeper and told her to inform Stasio, the proprietor of Lite-Rite, that the "boys are going to be sick tomorrow" and that Stasio should not send anyone out on telephone work.' Lom- bardi gave as his reason for this statement the fact that there was "a little trouble out at Idlewild." Between November 14 and December 1, 1961, Lite-Rite employees stayed away from certain Company jobs on which they had been working. At the same time, Respondent's members were on strike against Johnson at Idlewild. The Trial Examiner found, and we agree, that by causing a work stoppage of the Lite-Rite employees, Respondent had an object of forcing Lite- 137 NLRB 45; New York Mailers' Union No. 6, International Typographical Union, AFL- CIO (The Publishers Association of New York City), 136 NLRB 196 ; Plumbers Union of Nassau County , Local 457, etc (Jerry Body, d/b/a Bomat Plumbing and Heating), 131 NLRB 1243, 1247-1248, enfd. 299 F. 2d 497 (CA 2) ; Highway Truck Drivers and Helpers, Local 107, etc ( E A Gallagher & Sons), 131 NLRB 925 , 931-932 , enfd 302 F. 2d 897 (CAD.C ). 3 Contrary to the Trial Examiner, Respondent's contention that it only sought to obtain work for its members from Deice does not excuse its unlawful secondary activities against the Company for this purpose . Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada , AFL-CIO (Arthur Venneii Company), 137 NLRB 828 4Local Union 825, International Brotherhood of Operating Engineers , AFL-CIO ( Carle- ton Brothers Company), 131 NLRB 452, 453 5 Lite-Rite employed members of Respondent to do electrical work for the Company 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rite to cease doing business with the Company and therefore violated Section 8(b) (4) (i) and (ii) (B).s The Trial Examiner did not find, however, that Lombardi's warn- ing of the strike was also a violation. The General Counsel contends that it was, and we find merit in his argument. Lombardi's warning obviously had the same object as the actual stoppage, that is, to force Lite-Rite to cease doing business with the Company.' THE REMEDY As we have found that the Respondent has engaged in unfair labor practices in violation of Section 8(b) (4) (i) and (ii) (B) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action to remedy its unfair labor practices and otherwise effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Company, Delee, Auserehl, Johnson, and Lite-Rite are em- ployers engaged in commerce within the meaning of the Act. 2. Respondent is a labor organization within the meaning of the Act. 3. By threatening, coercing, and restraining the Company with an object of forcing or requiring it to cease doing business with Delee, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b) (4) (ii) (B) and 2(6) and (7) of the Act. 4. By inducing and encouraging employees of Johnson to engage in strikes or refusals in the course of their employment to perform services with objects of (1) forcing the Company to cease doing busi- ness with Delee, (2) forcing Johnson to cease doing business with Auserehl, and (3) forcing Auserehl to cease doing business with the Company, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(b) (4) (i) and (ii) (B) and 2(6) and (7) of the Act. 5. By inducing and encouraging employees of Lite-Rite to engage in strikes or refusals in the course of their employment to perform services; and by threatening, coercing, and restraining Lite-Rite with an object, in either case, of forcing Lite-Rite to cease doing business with the Company, Respondent has engaged in and is engaging in 6In the light of certain testimony by Phillip C. Smith, a company building supervisor, the Trial Examiner also found that Respondent violated Section 8 ( b) (4) (B) by causing work stoppages of employees of unnamed employers who, in addition to Lite-Rite, had been performing work under contract to the Company at other company locations in New York City We do not adopt the Trial Examiner 's finding that strikes by employees of these unnamed employers constitute violations of Section 8(b) (4) (B) since the complaint did not allege these strikes as separate violations of the Act '' Hsghwasj Truckdravers and Helpers , Local No 107, International Brotherhood of Teamsters etc. (Riss & Company, Inc ), 130 NLRB 943, 947 , enfd 300 F. 2d 317 (C.A 3). LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 733 unfair labor practices within the meaning of Sections 8 (b) (4) (i) and (ii) (B) and 2(6) and (7) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(e) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Local 3, Inter- national Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Engaging in or inducing or encouraging individuals employed by Joseph Stasio, doing business as Lite-Rite Electric Company, or any other person engaged in commerce or in an industry affecting com- merce, to engage in strikes or refusals in the course of their employ- ment to use, manufacture, process, transport , or otherwise handle or work on any goods, articles , materials, or commodities, or to perform any services ; or threatening, coercing , or restraining Joseph Stasio, or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require Joseph Stasio or any other employer or person to cease doing business with New York Telephone Company. (b) Engaging in or inducing or encouraging individuals employed by Johnson Electrical Corporation , or any other person engaged in commerce or in an industry affecting commerce, to engage in strikes or refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities , or to perform any services ; or to threaten, coerce, or restrain Johnson Electrical Corporation , or any other per- son engaged in commerce or in an industry affecting commerce, where, in either case, an object is to force or require New York Telephone Company, or any other employer or person , to cease doing business with Delee General Construction Corp.; to force or require Johnson Electrical Corporation , or any other employer or person, to cease doing business with Auserehl & Son Contracting Corp. or to force Auserehl & Son Contracting Corp., or any other employer or person , to cease doing business with New York Telephone Company. (c) Threatening, coercing, or restraining New York Telephone Company, or any other person engaged in commerce or in an industry affecting conunerce , where an object is to force or require New York Telephone Company, or any other employer or person, to cease doing business with Delee General Construction Corp. 2. Take the following affirmative action which is necessary to ef- fectuate the policies of the Act: (a) Post in conspicuous places in Respondent 's business offices, meeting halls, and all. places where notices to members are customarily 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted, copies of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Second Region for posting by each of the employers named in the preceding paragraphs who are willing, at all places where notices to their respective employees are customarily posted. (c) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. s 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." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL No. 3, INTERNATIONAL BROTHERHOOD OF ELECTRIC WORKERS, AFL-CIO, AND TO ALL EINTPLOYEES 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 engage in or induce or encourage individuals em- ployed by Joseph Stasio, an individual doing business as Lite- Rite Electric Company, or any other person engaged in commerce or in an industry affecting commerce to engage in strikes or re- fusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, ma- terials, articles, or commodities, or to perform any services, nor will we threaten, coerce, and restrain Joseph Stasio, or any person engaged in commerce or in an industry affecting commerce where, in either case, an object is to force or require Joseph Stasio, or any other employer or person, to cease doing business with New York Telephone Company. WE WILL NOT engage in or induce or encourage individuals employed by Johnson Electrical Corporation, or any other person engaged in commerce or in an industry affecting commerce, to engage in strikes or refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, nor will we threaten, coerce, or restrain Johnson Electrical Corporation or any other person eilgaged in commerce, LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 735 or in an industry affecting commerce, where an object thereof is to force or require " ew York Telephone Company, or any other employer or person, to cease doing business with Delee General Construction Corp., or to force or require, Johnson Electrical Corporation, or any other employer or person, to cease doing business with Auserehl & Son Contracting Corp. or with an ob- ject of forcing or requiring Auserehl & Son Contracting Corp., or any other employer or person, to cease doing business with ^Tew York Telephone Company. WE VILL NOT threaten, coerce, or restrain Yew York - eleplione Company, or any other person engaged il commerce o,, in an industry affecting comme'lce, where aii objcc' :s to force or require New York Telephone Company, or any otlic- employer e: person, to cease doing business with Lelee General Construct )on Corp. LOCAL NO. 3, IN' EINAT_TONAL ,l3noTItERiIOOn OF ELECTRICAL V`'oRIKLRS. AAFL-CIO, Labor Orga,iization. Dated---------------- B)-------------------------------------- (Reprc,entu,ive) (Ti l(-) ,,his notice must remain posted for e0 consecutive days ;rclii the date of posting and must not be altered, defaced, or coveied by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, in which all parties were represented and participated fully through counsel, was heard before Trial Examiner Eugene F. Frey in New York, New York, on April 9 and 10, 1962, on complaint of the General Counsel of the National Labor Relations Board,' and answer of Local 3, International Brotherhood of Electrical Workers, AFL-CIO (herein called Respondent or the Union). At the close of the hearing General Counsel presented oral argument, but filed no brief; Respondent and the Charging Party waived oral argument but have filed written briefs which have been carefully considered by the Trial Examiner. Motions of Respondent to dismiss the complaint on the merits have been taken under advise- ment and are now disposed of by the findings and conclusions herein. The issues are whether Respondent violated Section 8(b)(4)(i) and (ii) of the National Labor Relations Act, as amended, 29 U.S.C. 151, el seq. (herein called the Act), by causing employees of Johnson Electrical Corporation (herein called Johnson), a subcontractor doing work for Auserehl & Son Contracting Corp. (herein called Auserehl), a contractor of the Telephone Company, and Joseph Stasio, an individual doing business under the name and style of Lite-Rite Electric Company (herein called Lite-Rite), a contractor of the Telephone Company, to engage in strikes and work stoppages against their respective employers and thus refuse to perform services for their employers, and has threatened and coerced Telephone Company, Johnson, and Lite-Rite that their employees would be induced to with- 1 The complaint was Issued December 8, 1961, after Board investigation of a charge filed November 20, 1961, by New York Telephone Company (herein called Telephone Company). 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hold their services and engage in work stoppages , all with the object of causing said persons to cease doing business with Delee General Construction Corp. (herein called Delee), a contractor of the Telephone Company, with whom Respondent has at all material times been engaged in a labor dispute , and causing said persons to cease doing business with each other, in furtherance of said dispute with Delee. Upon the entire record and from my observation of witnesses on the stand, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS INVOLVED Telephone Company is a New York corporation with its principal office and place of business in New York , New York, where it provides local and long-distance communications and related services as part of a nationwide telephone system. During 1961 it derived from its operations gross revenues exceeding $ 1,000,000 of which over $1,000,000 was received for communications services between New York State and other States. Delee is a New York corporation with its principal office and place of business in the Borough of Brooklyn , city and State of New York, and other places of business at construction sites, where it is engaged in performing excavation services , installing pipelines, and related services in the building and construction industry. During 1961 in the course of its business , Delee rendered services valued in excess of $2,000,000, of which services valued in excess of $50,000 were performed for the Telephone Company. Auserehl is a New York corporation with its principal office and place of business in the Borough of Queens, city and State of New York, and other places of business at construction sites, where it is engaged in providing general construction and related services in the building and construction industry. During 1961, in the course of its business, Auserehl bought and had delivered to its place of business goods and materials valued in excess of $50,000 , of which goods and materials in excess of that value were transported to its places of business in New York State directly from points outside that State. In 1961 Auserehl also performed services valued in excess of $2,000,000 of which services valued in excess of $50 ,000 were performed for the Telephone Company. Johnson is a New York corporation with its principal office and place of business in New York, State of New York, and other places of business at construction sites, where it is engaged in electrical installation and related services in the building and construction industry. During 1961 , in the course of its business, Johnson per- formed services valued in excess of $2,000 ,000, of which services valued in excess of $50,000 were performed for various enterprises , including Auserehl, each of which annually buys goods valued in excess of $50,000 which are transported to its place of business directly from States of the United States other than the State in which its business is located. Lite-Rite has its principal office and place of business in the Borough of Queens, city and State of New York , and other places of business at jobsites, where it is engaged in the installation of electrical wiring, electrical fire detection systems, and related services. During 1961 , in the course of its business , Lite-Rite performed services valued in excess of $100,000 , of which services valued in excess of $ 100,000 were performed for the Telephone Company. Respondent admits, and I find on the above facts, that the Telephone Company, Delee, Auserehl , Johnson, and Lite-Rite, and each of them , are and have at all material times herein been engaged in commerce and in industries affecting com- merce, within the meaning of Sections 2(1), (6), and (7), and 8(b)(4) of the Act. H. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. The background of the work stoppages During September and later months of 1961, the i elephone Company was building a communications building (herein called the central office building) at New York International Airport (herein called Idlewild) in the Borough of Queens, city and State of New York. Auserehl was the general contractor for the construction. Johnson was the subcontractor doing electrical work in the building for Auserehl. Prior to September, the Telephone Company sought bids for installation of under- ground concrete electrical conduits, with accompanying excavation work, which LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 737 would connect the central office building with other points at Idlewild. On Septem- ber 3, the Telephone Company awarded the contract to Delee, which intended to do the work with laborers who were members of Local 731, International Hod Carriers and Laborers Union, AFL-CIO, with whom it nad a collective-bargaining contract. About this time, David Robertson, business agent of the Union, whose jurisdiction included electrical work at Idlewild, learned of the award, and called a Mr. Kelly, an official of the Telephone Company, told him he had learned that no electrical contractors had been asked to bid on that conduit work, and reminded him that members of the Union had done that work at the airport for 16 years. Robertson told Kelly this with the purpose of getting that work for Local 3 members. Kelly said he would look into it. Shortly after, Robertson was told by one Fallon, an official of A-Molite Electric Company,2 that Delee was awarded the contract and that he (Fallon, who was a friend of Robert Lee, an officer of Delee) had a chance to get the work, and suggested Robertson call Lee. Robertson promptly called Lee, said he had learned that Delee was low bidder for the conduit work, and that the Union claimed that work for its members. Lee replied that, before bidding on that job, Delee got an opinion from the General Contractors Association, which negotiated collective-bargaining contracts for Delee and other contractor-members, and that the work should be handled by members of Local 731 and other trades unions with which Delee had contracts. Robertson insisted that Local 3 members had always done that work at the airport, and it was their work. Lee said it was not his job to decide whose work it was. Robertson then said that if Delee came into the airport to do that work with members of other trades, the electricians might not like it, and "would possibly go out of the airport." On or about September 11, Lee had a conference with Robertson, at Fallon's request, for the purpose of trying to work out a comprise by having part of the disputed work assigned to A-Molite. Fallon attended the conference. Lee asked Robertson if Fallon were qualified to do the conduit work. Robertson said he was, that he was licensed, and that "any one of our contractors can handle a job like this." Lee asked what part of that work the Union claimed, and Robertson replied Local 3 members must install all ducts or conduits, including manhole forms and installing manhole castings. Lee said he had to use laborer members of Local 731, so the meeting ended in an impasse. Sometime between September 5 and 18, William Hermann, the Johnson foreman at the central office building, told Julius Auserehl, president of Auserehl, that Delee was moving equipment and material to the jobsite, and commented, "We expect to have trouble because they intend to lay conduit with their laborers." Auserehl asked how trouble could occur, because he had used laborers for his own telephone conduit work at the airport. Hermann replied that those conduits were tile, while Delee would install concrete conduit. Auserehl asked what difference that would make. Hermann replied, "Well, we are going to have trouble," and that it would affect not only this job but all Telephone Company work in the city. Auserehl asked, "How come?" and Hermann replied, "There is a big thing at stake here, there is a two million dollar job in the making," that "we are doing all the work at the World's Fair, this is our work and we are not going to lose it, the Union won't stand for losing that kind of work." 3 B. The September stoppages On September 18, Delee started the conduit work with laborers. They worked 2 days, when Delee was advised by an official of the New York Port Authority (which operates the whole airport) that the permit for the work had been rescinded, and the same day a Telephone Company official ordered Delee to stop work. Delee re- sumed work on the job on October 30, 1961, after advice from the Telephone Com- pany that the permit had been reinstated, and worked steadily on the job until mid-February 1962. On the day that Delee started work, Robertson telephoned Herman Hager, super- visor of contract labor for the Telephone Company, and told him Delee was installing conduit at Idlewild with laborers instead of Local 3 members. Hager told 2An electrical contractor who employed members of Local 3 and had a collective- bargaining contract with it. 3 This conversation is based on credited testimony of Auserehl, and the admissions of Ilermann I do not credit testimony of the latter that his remark re the effect of the trouble with Deice on other Telephone Company work was merely his opinion and .tated "jokingly," in view of his relationship to the Union and other circumstances noted here- after which show his partisanship and actual participation in certain work stoppages 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him to discuss it with the contractor. Robertson said he was very much disturbed because Local 3 members had been doing this work at the airport for 16 years, that the members were calling his office about it, that he knew "the men will be unhappy if it is not cleared up." 4 He said he hoped Hager would do something to "try to help the situation," and that he would take his electricians off the job if the Telephone Company did not renegotiate its contract with Delee to require use of Local 3 members instead of laborers. Hager said he would look into it.5 On that date, Johnson was performing electrical work in the central office building under its subcontract with Auserehl, with a work force of Foreman Hermann and two electricians, all members of Local 3.6 On the 19th, none of the crew reported for work, and they stayed away from the job until September 27. On September 22, Robertson telephoned Hager again, but Hager was not in, so he talked to Thomas Ennis, Telephone Company plant supervisor, and asked him what Hager was doing about renegotiating the Delee contract to include Local 3 electricians. Ennis replied that Hager did not negotiate the contracts and, so far as he knew, no Telephone Company contracts specified what labor would be used on its jobs. Robertson said, "That sounds like hell," and asked Ennis when Hager would be available, saying it was very important that Hager get in touch with Robertson, so that "we could clear the situation up down there." Ennis said Hager would be in the next day. There is no proof of later discussions between Robertson and Hager on the subject. Foreman Hermann and several other Johnson employees returned to work on September 27, and thereafter Hermann and a normal work force worked steadily until October 30 7 C. The November work stoppages On October 31, 1961, the Johnson employees at Idlewild, including Foreman Hermann, did not report for work. On November 1, Hermann and another Johnson foreman reported and both continued at work through November 13. On Novem- ber 14, they did not report for work, and thereafter no Johnson employee worked on the job until November 29, when Hermann and one electrician returned to work. Thereafter, the crew increased periodically until Johnson had a foreman and 22 electricians working on December 15. In the period between November 1 and 14, Clayton Volce, a representative of the architect on the central office building whose duty it was to observe the daily progress of the job and the work of the various contractors, noted that lack of Johnson electricians was effecting other aspects of the construction, and complained to Hermann about it. Hermann said he could do nothing about it, that the men simply refused to come back to work. He also told Voice that Local 3 might "pull" other telephone jobs throughout the city of New York.8 During November, Lite-Rite was making electrical installations for the Telephone Company at various points in the Borough of Manhattan, notably at 140 West Street and 221 East 37th Street, using Local 3 members on all the jobs. On November 13, Ralph Lombardi, the Union's business agent with jurisdiction over these jobs, called Lite-Rite and asked for Stasio, its proprietor. On learning from the Lite-Rite book- keeper that he was not in, he requested the bookkeeper to inform Stasio that "the boys are going to be sick tomorrow" and that Stasio should not send anyone out on telephone work. When the bookkeeper asked if this applied only to 140 West Street (where Lite-Rite men were not working on that day because of lack of equipment), Lombardi replied, "No, all telephone work. Keep in touch with me." When the bookkeeper asked what the trouble was, Lombardi said, "We have a little trouble out at Idlewild." Between November 14 and December 1, 1961, no Lite-Rite employees 4 By "the men," Robertson admitted he was referring to all Local 3 electricians work- ing at Idlewild, including employees of Johnson. 6 I find this conversation on credited testimony of Hager, corroborated in substantial part by admissions of Robertson. Testimony of the latter denying the threat to take electricians off the job is not credited, for he admitted much of the conversation, after hearing Hager testify, although on his own previous testimony he professed lie could not recall any such talk; he does not deny Hager's story, merely says he was "a little con- fused" ; and he admits that during his talks with Lee and Fallon, his purpose was to get the conduit work for Local 3 members. 9 Johnson had been doing the work since May 1961. 7 The above findings are based on credited testimony of Herman Hager, Robert Lee, Thomas Ennis , and admissions of Robertson. Testimony of the latter in conflict there- with is not credited. 8 Hermann testified he could not recall this talk, but says that if he made the remarks attributed to him, they were only his personal opinion LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS (3n worked on the above Telephone Company jobs, and no electrician employees of other contractors did any work on four other Telephone Company installations in New York City ( 811 10th Avenue , 32 Avenue of the Americas , 227 East 30th Street, and 20th and 21st floors of Pan American Building).a D. The issues and conclusions thereon 1. "Inducement" and "encouragement" of the work stoppages Respondent's principal defense as to the stoppages at Idlewild is that the Johnson employees quit work "on their own in order to protect their own work opportunities," when they saw laborers doing work which the Union claimed for its members, and without any inducement or encouragement from the Union or its agents. In sup- port of this claim, Robertson denied that he knew about the work stoppages until after they occurred, and that he removed the men from the job, and Respondent presented other testimony of Robertson and Foreman Hermann to the effect that- When Johnson employees saw laborers doing "their work," on the 19th, they told Hermann about it, said they would not work "under those conditions," and left the job Hermann tried to hold them at work until he could contact someone about the problem, but they left their work anyway. Hermann at once told his employer about it, who told him to notify the Union. Hermann called Robertson and reported the walkoff, and when Robertson asked why it occurred, Hermann said there were "men doing our work down here, and the men won't stand for it." Robertson said he "take care of it," and thereafter, "in 5 days to a week" after the stoppage, Robertson talked to the Johnson employees, and they returned to work. While there is no proof of direct communication between Robertson or any other union agent and the Johnson employees before the walkout, it is well known that in these cases inducement or encouragement deed not take the form of a direct order, but may be established by circumstantial as well as direct evidence.10 There are cogent circumstances shown in the record which lead me to discredit the testimony of Robertson and Hermann noted above. At the outset, it must be noted that both Hermann and Robertson were partisan witnesses, both union members, that Her- mann testified for the Union voluntarily, though he claims he was a management rep- resentative on the job, and that he was very explicit about what the Johnson em- ployees told him, and his ensuing talks with Robertson, all of which testimony was self-serving in that it purported to absolve his Union and lay the blame for the walk- outs entirely on voluntary action of Local 3 members; however, the Union called 6 The above findings are based on credited testimony of Clayton Voice, Kathryn H. Miller, Philip C Smith, and admissions of Hermann Testimony of Lombardi denying the discussion with Miller, and stating he called her sometime in November to remind Lite-Rite it was again delinquent in its payments into the union pension fund, and that Lombardi would take Lite-Rite employees away from it if it did not pay up, is not credited because he did not state, and Respondent did not prove otherwise, that Lite-Rite paid up and avoided a strike, or that the Union carried out the threat by actually pulling its members off Lite-Rite jobs; instead Lombardi admitted that he knew of the work stoppage at 811 10th Ave, which was in his jurisdiction, and that "we had a little difficulty with the Telephone Company," although he then, after objections by Respondent's counsel, pro- fessed ignorance of all the others , and Respondent did not offer any proof through other witnesses which would show the reasons for the stoppage at 811 10th Ave, if it was not in fact connected with the Idlewild stoppages It is obvious that Lombardi seized upon one of his frequent calls and threats to Lite-Rite about pension payment delin- quencies, after Miller admitted he had made such calls in the past, in a palpable effort to offset her credible testimony about his threat, and try to indicate the threat dealt only with a dispute between Lite-Rite and the Union over their contract Respondent objected to admission of testimony of Smith, building engineer for Telepiione Company, that he received reports in the usual course of his duties about the stoppages at six Telephone Company jobs. Though it was not the best evidence of what occur red at each job, I have accepted it, and found the fact of the stoppages on it, because it had some weight as business reports received by an official in the usual course of his duties from subordinates, particularly since it is corroborated to some extent by credible evidence of Miller about the threat of a strike at all telephone jobs, and by Lombardi's admission that a stoppage at one location at least occurred , and Respondent's failure to deny that any of the others occurred. See N.L.R.B. v. Imparato Stevedoring Corporation, 250 F. 2d 297, 303 (CA 3). "International Brotherhood of Electrical Workers, Local 501, et al (Samuel Langer) v. N L R B., 341 U S 694, 701-702. 681-492-63-vol. 140-48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD none of the strikers to support Hermann's version of the reason for the strikes. These circumstances raise grave suspicions about his veracity and the Union's defense on this point, particularly since he was exceedingly vague about many of his own actions during both work stoppages. In addition, Respondent admits that in Robertson's negotiations with Delee and talks with the Telephone Company, the Union was trying to get the conduit work for its members. Article XIV, section 9, of the Union's bylaws provides- No member is to give away work coming under the jurisdiction of this Local, or to allow any other tradesmen to do work coming under the Local's jurisdic- tion, without being subject to such penalty as decided upon by the Executive Board. Section 3 of the same article imposes on all members the duty of reporting to the business agent within 36 hours any violation of the working rules or bylaws of the Union, subject to discipline for failure to so report. Robertson admitted that the Union would be "unhappy" to hear that laborers were suddenly doing the conduit work. Hermann, an active member of the Union,ti admitted that members of the Union want to protect their work, and are instructed to do so He also admits it was "possible" that the Johnson employees who stopped work were following the section of the bylaws quoted above. In light of these facts, I must conclude that this provision of the bylaws placed a binding obligation on members of the Union to take positive action on a job where they found that work within their jurisdiction was being taken from them, and performed by "nonunion" workers. The tradi- tional action of labor organizations and their members in such case is a strike, refusal to handle "nonunion" material or to work with "nonunion" employees, etc. Here there was a concerted work stoppage, or strike. It was not necessary for the Johnson employees or Hermann to get a specific call or command from their business agent to take this action at Idlewild when they found Delee doing work they claimed with other crafts, for the bylaw itself constituted an "inducement" or "encourage- ment" to the action.12 Aside from this, it is clear that Robertson himself was obligated to enforce the bylaw, and his admitted efforts to get the Telephone Com- pany to force Delee to use Local 3 members, and his threat to take union members off the Johnson job if the Telephone Company did not achieve this result, was clearly an attempt to enforce that bylaw. Hence, when the Johnson men left the next day, it is a legitimate inference that they did so at the orders of Robertson and in com- pliance with his threat of the day before. The inference is further supported by (1) Hermann's remarks to the general contractor, Auserehl, shortly before the stop- page, but after Delee got the conduit contract, that the Union would not "stand for losing that kind of work", this was not the idle remark of a mere workman, but came from an experienced, active union member who knew the union bylaws and the work-protection policy expressed in it, and was bound like all other union mem- bers to enforce it, and (2) Robertson's failure to do anything about the strike for a week after it was reported by Hermann, although he was available in New York City all the time, and on the 22d made his second attempt to persuade the Telephone Company to carry out his previous suggestion for employment of Local 3 members. His failure to move promptly to call the Johnson men back the same day further shows they were acting in accordance with the Union's orders and policy, and Robertson knew it. Finally, although the International Brotherhood constitution which is binding on Local 3 and its members 13 imposes on local unions and their members a prohibition, enforceable by penalty, against causing unauthorized work stoppages (IBEW constitution, article 27, section 2(19)), and Robertson and Hermann say in effect that the walkout of Johnson employees was unauthorized, there is no proof that the strikers were subjected to any penalties under the IBEW constitution, which again impels the inference that the strike was authorized. On all of the above facts, I conclude and find that the union by its agent Robertson induced and encouraged employees of Johnson to engage in a work stoppage at the central office building at Idlewild on September 18, 1961.14 '1 Hermann had been an active, paid-up member of the Union since 1948, and Robertson admitted that the Union represented him, like other members, on all jobs. 1J See International Brotherhood of Electrical Workers. etc., cited in footnote 10 above Joliet Contractors Association v. N.L.R B , 202 F. 2d 606, 611, 612 (C A. 7), cert. denied 346 U S 824. 13 See article XIV, section 1, of the Union's bylaws ; article 17, sections 7, 8, and 9 of the IBEW constitution. 11 See cases cited in footnote 12, above, and The Martin Company, 131 NLRP, 1010, 1016, 1017 , Local 598, Plumbers and Steamfttters etc (MacDonald-Scott d Associates), 131 NLRB 787, 798, 799. LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 741 Respondent asserts the same defense to the work stoppage at Idlewild between October 31 and November 29, 1961. Robertson testified that, after receiving the same report from Hermann giving the same reasons as in the September stoppage, he tried to end the strike by telling the men to go back, but they refused, having transferred to other work at the airport.15 The same circumstances prevailed as in the September stoppage: Delee had resumed Work with laborers on October 30, creating the same grievance which caused the Union to act before. The next day the whole Johnson work force, except the foreman, walked off, which was consistent with the standing order in the Union's bylaws. it is significant that, according to Robertson, the employees here deliberately disobeyed his orders to return, and according to Hermann they were warned of possible ejection from the Union for an unauthorized work stoppage, but this was never imposed. In addition, Robertson knew the Johnson men had gone to work on other jobs in the area, which would not have been possible without his knowledge or sanction.is Hence, I must conclude and find under all the circumstances that the November stoppage at Idlewild was also induced and encouraged by the Union. The work stoppages on six Telephone Company jobs within Manhattan Borough are connected with the Idlewild strikes by the facts that (1) they coincided with the second airport strike, (2) notice of them was given to Lite-Rite the day before by Lombardi's warning that the men would be "sick" the next day, and all telephone jobs would be affected, because of the "trouble at !dlewild," and (3) Hermann's warnings to Auserehl beforehand and to Volce later that the Union would not only take positive action at Idlewild to prevent loss of the conduit work, but would also stop other Telephone Company jobs in the city. The coincidence of the strikes by Local 3 members in two different areas, and the same close sequence of warning and strike as in the September stoppage, indicates that the simultaneous walkouts at six Telephone jobs in Manhattan were not fortuitous, but warrants the inference that they were part of the same pattern of strike action by the Union in September. I find that Respondent also induced and encouraged Lite-Rite employees to stop work an Telephone Company jobs within New York City between November 14 and 29, 1961. 2. The object of the work stoppages The complaint alleges that the Union's threats and inducements of actual work stoppages had three objects: (1) to force Telephone Company to cease doing business with Delee, (2) to force Auserehl, Lite-Rite, and other persons to cease doing busi- ness with Telephone Company, and (3) to force Johnson to cease doing busi- ness with Auserehl. The above facts and their sequence show that: The Union had a primary dispute with Delee over its use of laborers to do work at Idlewild which the Union claimed for its members. In preliminary discussions with Delee in Sep- tember, the Union tried to persuade Delee to use its members for that work, and warned Delee that if it used laborers, Local 3 members working at the airport would go on strike. This threat clearly included the Johnson job. When Delee started the job with laborers on September 18, the Union at once warned the Telephone Com- pany that if it did not cause Delee to use Local 3 members on the job, the Union would take its members off their work in the central office building. The next day the Johnson employees walked off the job and did not return until September 27. in the interim, the Union kept after the Telephone Company (not Delee) to take steps to change its contract with Delee as first suggested. The record does not show that Telephone Company employed any Local 3 members at the times material herein directly in the construction of the airport building or that the Union's threat or later action caused employees of that company to stop work. Thus, it seems clear that the Union's threat to the Telephone Company to withdraw its members from 'nor'.: in that building was only for the purpose of coercing or persuading Telephone Com- pany to prevail on Delee to use Local 3 members instead of laborers in performing its contract for outside conduit work. There was no attempt by Respondent, as claimed by the Telephone Company, to compel it to give up its contract with Delce and make a new contract with another contractor who used Local 3 members. fit most, after the Union tried unsuccessfully to persuade Delee to subcontract the conduit work to a "union" contractor, it tried to accomplish the same end by at- tempts to persuade Telephone Company to apply pressure on Delee to make such a subcontract. In one sense, the Union's objective was to cause Telephone Company 15 At the time Johnson had other electrical jobs in the airport area, and there were, all told, at least 10 electrical contractors, employing about 200 mon working at the airport. 19 Under the Union's practices, the union foreman on each job sends the usual foreman's reports weekly to the Union, listing the union book numbers of members on the job 7 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to cease doing business with Delee under the terms of its contract with Delee, as then written, and to change that contract to require Delee to use Local 3 members. Under one case cited by General Counsel, Local 598, Plumbers and Steam fitters etc. (MacDonald-Scott & Associates), 131 NLRB 787, the threat to a neutral person of a work stoppage an its project, and actual inducement of the work stoppage, with this objective, appears to be a violation of Section 8(b)(4)(i) and (u) (B). How- ever, the Board has more recently held in like circumstances that the union ob- jective was not to "sever any business relationships," but rather "to pressure the (owners) to prevail upon the (prime contractor) to assign certain work to its mem- bers instead of to members of the (rival union)," and that a strike with this objective did not violate Section 8(b) (4) (i) or (ii) (B) of the Act.17 I am constrained to follow the latest pronouncement of the Board and thus find that the Union did not violate the sections aforesaid of the Act by its threats to the Telephone Company of a work stoppage at Idlewild, or by its mducement and encouragement of Johnson employees to engage in such work stoppage, with that objective. However, under the same case, 1 also hold that Respondent, in furtherance of its dispute with Delee, caused both strikes of Johnson employees at Idlewild, and the strikes of employees of contractors on other Telephone Company jobs in New York City, with the object of forcing Johnson to cease doing business with Auserehl at idlewild, and Lite-Rite, Auserehl, and other contractors to cease doing business with Telephone Company in New York City, and that by this conduct Respondent violated Section 8(b) (4) (i) and (ii)(3) of the Act. While have considered Hermann's remarks to Volce and Auserehl as evidence of the Union's policy and determination to enforce it which supports the above find- mg of violations of the Act, there is also the question whether Hermann's remarks to Auserehi indicating that the Union would not "stand for losing that kind of work" and that its trouble with Delee would affect all Telephone Company jobs in the city, amounted to a threat chargeable to the Union (assuming that, if so chargeable, the threat was an independent violation of Section 8(b) (4) (ii) (B). This depends on whether Hermann was acting as agent of the Union in making the threat Hermann was an active, paid-up member of the Union of long standing. He was designated by Johnson as foreman on the Idlewild job as required by its collective-bargaining agreement with the Union. While he had authority to hire and fire employees and was responsible to Johnson for proper layout of the work and procurement of the proper number of electricians at all times to do the job properly, he received fore- man's pay at the union rate, as well as all other benefits of union members, as prescribed by the union contract. When the first strike began, he was working with two electricians under him, so that under union rules and the contract, he was only a working foreman using tools like other electricians.18 As a loyal union member, he had taken the oath of membership in the Union, and was bound to comply with and enforce its bylaws, one of which prohibited any member from "giving away work coming under the jurisdiction of the Union." He admitted that union members want to protect their work, and are instructed to do so; it is a reasonable inference that this instruction comes from the bylaws and the union officials who are sworn and duty- bound to enforce them. After Delee came on the airport job, Hermann's remarks to Volce and Auserehl were clearly a warning of implementation of the policy against loss of work contained in the bylaws which he and all union members were obligated and instructed to uphold. He admits he would obey all orders of the Union. When the Union induced the Johnson employees to leave their work, as found above, Hermann went out with them the first time; and while he stayed at work as an ordinary journeyman electrician during the second strike, he acquiesced in that stoppage when he did not exercise his right, as foreman for Johnson, to discharge the men for violation of the Johnson contract with the Union, but "felt it was up to the delegate to tell them about the conditions"; and although he was advised during that stoppage that the lack of electricians was affecting the progress of the construction, he made no demand on Robertson to send the men back to work, thus completely abdicating his alleged duties as a representative of Johnson. Though a purported Johnson official, he testified for Respondent in this case without subpena. All of these circumstances show that, while Hermann was acting technically as foreman for Johnson to supervise the work and see that it was done properly, he acted (and 17Local 101, International Union of Operating Engineers, AFT CIO (Ets-Holiin & Galvan, Inc ), 133 NLRB 1728, cited by both General Counsel and Respondent is The working rules int he union contract provide that one electrician shall be chosen as foreman by the employer, and shall hire all men as directed by the employer, but he shall not work with tools if he has 10 or more journeymen electricians under him Hermann admits he was at most a "working foreman." LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS '743 failed to act) and spoke during the dispute with Delee, mainly as a union member who was well aware of the Union's "protection of work" policy and his obligation to enforce it at all times, like any other union member. However, the record shows that there was a shop steward on the Johnson job with Hermann at least during the first stoppage and up to the second. Under the Union's bylaws and the 1BEW constitution, the shop steward is the official union representative on each job, with specific duties among other things to report any encroachment "upon the jurisdiction of this Local Union" and generally to work under the direction and authority of the business agent. However, similar duties are not placed on foremen, and there is no proof in the record showing that Hermann, as foreman (or working foreman), was specifically or by implication charged with the responsibility to speak or act on behalf of the Union to insure the enforcement of its "protection of work" policy (aside from his duty as a union member to report promptly to the business agent any viola- tions of union working rules or bylaws), either by way of warnings, predictions, threats, or other dealings with contractors or other persons. Nor during the stoppages did he take any overt action to create or prolong them under circumstances indicat- ing union approval which would tend to show that he was acting as agent of the Union for enforcement of its policy and bylaws. Hence, when he gave warnings of possible work stoppages to Auserehl before the first strike, and to Volce during the second, I conclude that he was speaking only as an active union member, not as its agent by direct by direct, implied, or apparent grant of authority. I consider this status insufficient to charge Respondent with responsibility for his remarks to Auserehl.19 I find that Respondent has not specifically violated the Act through Hermann's remarks to Auserehl found above.20 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii) (B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to remedy the unfair labor practices and otherwise effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Telephone Company, Delee, Auserehl, Johnson, and Lite-Rite are each employers engaged in commerce, and Respondent Union is a labor organization, all within the meaning of the Act. 2. By inducing and encouraging employees of Johnson, Lite-Rite, and other em- ployers to engage in strikes or refusals in the course of their employment to perform services, with the object of forcing or requiring said employers and each of them to cease doing business with the Telephone Company, and forcing Johnson to cease do- ing business with Auserehl, and forcing Auserehl to cease doing business with the Telephone Company, Respondent has engaged in and is engaging in unfair labor prac- tices affecting commerce within the meaning of Sections 8(b) (4) (i) and (ii ) (B) and 2(6) and (7) of the Act. 3. Respondent has not threatened, coerced, or restrained Auserehl as alleged in the complaint, or threatened, coerced, or restrained Telephone Company with the object of forcing or requiring that employer to cease doing business with Delee, within the meaning of Section 8 (b) (4) (ii) (B) of the Act. [Recommendations omitted from publication.] i0 See Manhattan News Company, 121 NLRB 1287, 1288 -u I have carefully considered various cases cited by the Charging Party on this point, and find them inapposite on the facts, for in all of them the foreman who was drolly bound to enforce union bylaws (as Hermann was here) took overt, affirmative action, either on direct orders from the Union or under circumstances showing he was acting for the Union within the scope of his contemplated authority, to refuse to hire nonunion employees, or cause union members to engage in work stoppages The facts here fall short of that situation