Local 3, Int'l Brotherhood of Electrical Workers

LOCAL 3, INT' L BROTHERHOOD OF ELECTRICAL WORKERS 1089 The bargaining unit is: All out-of-town and city bundle-delivery drivers, including bundle drivers who operate from substations and all tube or mounted motor distributors employed at our Danville, Illinois, plant, but excluding all other employees and supervisors as defined in the Act. WE WILL reinstitute our delivery system as it existed prior to September 4, 1962, and will offer to Frances Arrasmith , James Frye, Flossie Frazee, Eugene Hurley, Bernice Pollitt , Don Reed, Eulah Swift, Loretta Turner, Harold Young- blood, and Winifred Youngblood immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make each of them whole in the manner provided in the Trial Examiner's report for any loss of pay he may have suf- fered as a result of our discrimination against him. All our employees are free to become or remain , or to refrain from becoming or remaining, members of the above-named or any other labor organization. NORTHWESTERN PUBLISHING COMPANY, Employer. Dated- ------------------ By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act after discharge from the Armed Forces. 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, Midland Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660, if they have any questions concerning this notice or compliance with its provisions. Local 3, International Brotherhood of Electrical Workers, AFL- CIO and New Power Wire and Electric Corp. and P & L Serv- ices, Inc. Cases Nos. 2-CC-703 and P2-CB-3417. October 14, 1963 DECISION AND ORDER On October 10, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceedings finding that Respondent 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 Intermediate Report. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report, exceptions, and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein. The Company, an electrical contractor, is engaged in the business of electrical rewiring of residential apartment buildings throughout 144 NLRB No. 100. 1090 DECISIONS Or NATIONAL LABOR RELATIONS BOARD the New York City area.' The Company and the particular apart- ment house owners or managers enter into contracts providing that the Company shall do the rewiring work. Prior to November 1961, the Company employed electricians who were members of Respondent Union. After November 1961, however, they were replaced with nonunion electricians. As a consequence, Respondent Union began to organize the Company' s nonunion elec- tricians. About February 12 and 28, Respondent's business repre- sentative, floe Smith, held meetings with about 35 of the electricians employed by the Company, asked them to solicit union membership of the other employees, and advised them that they might have to go out on strike, and that if a strike occurred, they were expected to engage in no misconduct. At the February 2S meeting, the employees and Smith elected a strike committee, including two individuals employed by the Company named Petilli and Brurnmer. On March 5, 1962, 32 of the Company's 58 employees went out on strike. It is not dis- puted that the object of the strike was to secure recognition of Respondent as the exclusive bargaining agent of the Company's electricians. The strikers started picketing on March 5 in front of most of the buildings in which the Company was currently engaged in the per- formance of its contracts. Strikers also picketed in front of the Company's headquarters. The pickets carried signs stating that elec- tricians employed by the Company at the particular apartment houses were not members of Respondent Union a At the beginning of the picketing the Company' s employees were actively engaged in rewiring work at each of the sites, and the pickets went into basements of the buildings in an effort to persuade them to The Trial Examiner in determining jurisdiction in Case No 2-CC-703 states that although the Company meets the $50 ,000 direct and indirect inflow test for nonretall concerns, he must also find under Sheet Metal Workers International Association, Local Ur4on No. 299, etc. iS. M Kisner & Sons), 131 NLRB 1130, 1200, that the secondary employers are engaged in an industry affecting commerce before the Board may assert jurisdiction . A careful reading of the Kisser case shows that no such requirement is made as a prerequisite to the Board's assertion of jurisdiction . Accordingly, we do not adopt the Trial Examiner's jurisdictional holding in this limited respect. a The exact legend was as follows: ELIdCPRTCIANS EMPLOYED ON THIS TOB BY NEW POWER WIRE AID ELECTRIC CORP. ARE NOT MI;_1LBERS OF LOCAL UNION NO. 3 I.B.E W. AND ARE EMPLOYED BY NEW POWER WIRE AND ELECTRIC CORP IN 'VIOLATION OF ITS AGREEMENT WITH ELECTRICAL WORKERS LOCAL UNION NO. 3 At times the pickets also carried a sign reading in pertinent part as follows: New Power & P & L Services V on strike Electrical Workers Local Union No. 3 LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1091 join the strike. During this period considerable misconduct occurred, as set forth in the Intermediate Report. Apparently, during its later stages, the picketing was confined generally to two pickets pacing back and forth in front of each build- ing involved. As found by the Trial Examiner, picketing continued during periods when no Company employees were working at some of the apartment houses. However, Company employees not on strike reappeared intermittently to work at the sites. The record also shows that the Company left some materials at the sites. Further, company supervisors visited the sites "almost daily," either to check for vandalism, to remove materials, or to observe the picketing. The Company's service manager, Levine, testified in es- sence that the absence of its employees was due to the fact that most of the employees were on strike. Its remaining employees were in- sufficient in number to cover all the apartment houses where the Com- pany was under contractual obligation to do the work. Though the Company hired some replacements, at least three of them, according to Levine, joined the picket line. It appears that once the Company had completed operations at any of the various apartment buildings, the picketing promptly ended at that particular site,' and the employees moved to another site. 1. Case No. 2-CB-3417.-The Trial Examiner found that members of Respondent's strike committee, Petilli and Brummer, engaged in various coercive acts against the non-striking company employees. Further the Trial Examiner found that picket Weisberg's threats to a company supervisor conformed to a pattern of conduct established by Petilli and Brummer and occurred in the presence of Petilli. The Trial Examiner found that Respondent was responsible for this con- duct because its agent, Smith, had specifically authorized Petilli and Brummer, among others, to solicit the Company's employees to join the Respondent. He concluded that Respondent, having made them its agents for carrying out its organizational activities, was respon- sible for all their conduct which was in furtherance of that organi- zational purpose. We agree that Respondent is responsible for the conduct of Petilli, Brummer, and Weisberg, found by the Trial Examiner to have been coercive; however, we do not rest our finding solely on the narrow 8 The record shows one occasion where the picketing ceased a few days after the Com- pany represented to a building superintendent that the work was finished. However, the record shows that, in fact , the work had not been finished at the time of the statement ; and the picketing did cease about the time of its actual completion Further, we base this finding on testimony in the record that the picketing ceased when the Company completed all of its work at a site and that the picketing continued at the sites only while rewiring work was still to be performed . Neither the record nor the General Counsel's offer of proof shows that the picketing continued after the Company had completed its work at any of the apartment buildings. 727-083-64-vo1 111 70 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis he relied upon. In addition to the organizational duties dele- gated to the "strike committee," Smith gave them authority to over- see the picket lines. Thus they were to function as a channel of communication between the pickets and Smith, reporting all signifi- cant developments; they were to monitor the picket lines, distribute picket signs, and determine which of the pickets should be placed at particular locations. It is clear that the "strike committee" was established in order to keep Smith informed at all times of all signifi- cant developments on the picket line, and of the progress of the strike, as that progress was affected by picket line activities. Smith, accord- ing to his own testimony, visited the picket lines about three times a week. In these circumstances, we find that Smith had delegated significant elements of control to the "strike committee." We further find that Smith must have known of the coercive conduct of the "strike committee" members, but failed to take any steps to disavow such conduct. We find that in either event Respondent is legally responsible for such conduct. We therefore affirm the Trial Exam- iner's conclusion that Respondent violated Section 8(b) (1) (A) by the conduct of Petilli, Brummer, and Weisberg. The General Counsel excepted to the Trial Examiner's failure to find additional violations of Section 8(b) (1) (A). The Trial Exam- iner refused to consider additional allegations of Section 8(b) (1) (A) violations because such findings would be cumulative and would not affect the remedy. The record does, however, support the finding of an additional violation which does affect the remedy. Thus, the record shows through the testimony of the Company's employee Tacktickus, who was credited by the Trial Examiner as to other testimony, that on March 9, at 266 Washington Avenue, he saw Petilli and others ripping down meter boards that Tacktickus had just installed and also cutting cables, wrecking troughs, and damaging meter equipment. Petilli, whom the Trial Examiner discredited in other respects, denied committing any sabotage of the Company's properties. On the record and in view of the Trial Examiner's other credibility resolutions, we accept Tacktickus' testimony and find that Petilli engaged in sabotage of the Company's properties. Further, we find that this conduct was such as to have a coercive effect on the employees who observed it- and that Respondent thereby violated Section 8(b) (1) (A) of the Act.4 2. Case, No. 2-CC-703.-Contrary to the conclusion of the Trial Examiner, we find that Respondent Union did not violate Section 8(b) (4) (i) and (ii) (B) by picketing the apartment buildings, be- cause the picketing complied substantially with Moore Dry Dock con- ditions for permissible primary picketing at a common situs 5 In so North Electric Manufacturing Company, 84 NLRB 136, 155. Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547. The conditions are: (a ) The picketing is strictly limited to-times when the situs of dispute is located on the secondary employer 's premises ; (b ) at the time of the picketing the pri- LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1093 finding, we disagree with the Trial Examiner's conclusion that the absence of primary employees from some of the sites of picketing for substantial periods of time demonstrates that Respondent's picketing was directed toward the unlawful inducement of employees of second- ary employers, and the restraint sand coercion of their employers. In a situation such as this, the absence of the primary employer's em- ployees is merely one of the factors to be evaluated in determining whether the situs of the primary dispute is located at the common situs during the picketing, and whether the primary employer is then engaged in his normal business at the site. In the circumstances of this case the absence of these employees, standing by itself, does not require a finding that the Company is not engaged in its normal business at the common situs or that the common situs is not the situs of the primary dispute. In International Brotherhood of Electrical Workers, Local Union 861 (Plauche Electric, Inc.), 135 NLRB 250, the Board stated that the Moore Dry Dock conditions "are not to be applied on an indiscriminate `per se' basis, but are to be regarded merely as aids in determining the underlying question of statutory violations." In the General Electric case,6 the Supreme Court stated with reference to a determination of whether picketing at a separate gate is lawful primary picketing or proscribed secondary picketing: The nature of the problem as revealed by unfolding variant situations inevitably involves an evolutionary process for its rational response, not a quick definitive formula as a comprehen- sive answer. The Trial Examiner and Member Leedom in his dissent cite Hans- berger Refrigeration c€ Electric C0.7 as authority for finding that the picketing herein violated Section 8(b) (4) (i) and (ii) (B). But Hansberger, carefully read, reveals that the two situations are wholly dissimilar. In Hansberger the absence of primary employees during the common situs picketing was not the sole basis for finding an un- lawful secondary boycott. The Board considered that factor as part of the total evidence which showed that, unlike the situation involved herein, the picketing was confined to times when no primary employees were present; and the union made no attempt to communicate with the primary employer or his employees. Further, the union picketed at a time when, for reasons unrelated to the picketing, the primary em- ployer was not engaged in performing work at the site. We find, contrary to the Trial Examiner and Member Leedom, that this case involves only primary picketing; and that the Hansberger decision in- mary employer is engaged in its normal business at the situs ; ( c) the picketing is limited to places reasonably close to the location of the situs ; and (d ) the picketing discloses clearly that the dispute is with the primary employer 9 Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L.R.B. ( General Electric Co.), 366 U.S. 667. 7 135 NLRB 492. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volved secondary picketing and does not compel the finding of a viola- tion here. If anything, Hansberger points to an opposite result be- cause of the significant factual difference in the two situations. In deciding this case, we must evaluate the absence of company em- ployees in the light of: (a) the Company's contractual obligation to perform the rewiring work at each of the picketed apartment houses; (b) the fact that the Company was engaged in performance of its contracts at each of the sites and company employees were working at the sites when the picketing started; (c) the visits to the sites by company supervisors, made almost daily; (d) the fact that work was intermittently resumed at each of the sites; (e) the Company's efforts to recruit new employees for work at the sites; (f) the cessation of picketing when the Company completed its contracts at a particular apartment building; (g) the fact that the picketing occurred during a normal workday; (h) the further fact that the picketing was not con- ducted at a construction site where substantial complements of other employers' employees were working. We also consider it significant in this case that the absence of company employees was attributable to the fact that a majority of them were on the picket lines, in support of the Respondent's organizational efforts directed at the other com- pany employees. These factors demonstrate that the apartments were the situs of the dispute and that the Company was in fact engaged in its operations at the situs of the dispute e or would have been so en- gaged but for the picketing, and that the object of the picketing was to force a shutdown of the Company's operations in furtherance of a primary dispute with the Company. Of course, the Company's opera- tions were not "normal," but only because the picketing was suc- cessful in depleting the Company's employee complement at the sites to the point where all the Company could do was to engage in a frac- tion of its normal operations. However, Congress did not intend to outlaw all picketing, or even such picketing as was successful,9 but intended only to outlaw secondary picketing (whether successful or unsuccessful)." On the facts in this case we find, as stated above, that the picketing was primary, and not secondary." In reaching this conclusion, we have considered the fact that pickets requested superintendents of at least two of the apartment buildings 8 Clearly, the other Moore Dry Dock conditions are met, i.e., the picketing was limited to places reasonably close to the location of the situs and the picketing disclosed clearly that the dispute was with the primary employer. 9 Seafarers International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO v. N.L.R.B. (Salt Dome Production Co.), 265 F. 2d 585 (C.A.D.C.). 10Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, and Los Angeles Country District Council of Carpenters and Nathan Fleisher v . N.L.R.B. (Sand Door ct Plywood Co.), 357 U.S. 93. u The picket misconduct which we have found to be in violation of another section of the Act, supra, does not make the picketing secondary. International Rice Milling Co., Inc. v. N.L.R.B., 341 U.S. 665 . If anything, such misconduct, directed as it was against the Company's employees, emphasizes the primary objective of Respondent. LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1095 not to admit company electricians to the buildings when they appeared for work. To the extent that such appeals sought to induce the su- perintendents not to perform their normal duties, i.e., admit persons having proper reasons to enter the apartment buildings, they did so only with respect to duties which involved direct contact between the superintendents and employees of the Company. In essence, this would not differ from appeals to secondary employees not to cross a primary picket line. Though such appeals seek to induce u cessation of business between the secondary employer and the primary employer at the picket line, they are a permissible incident of such a picket line, not prohibited by Section 8 (b) (4) .12 In view of the foregoing, we shall dismiss the complaint, insofar as it alleges violations of Section 8(b) (4) (i) and (ii) (B). REMEDY Having found that Respondent violated Section 8(b) (1) (A) by the conduct detailed herein, we shall, in view of the serious nature and extent of such conduct, issue a broad order requiring Respondent to cease and desist from engaging in such conduct and from in any other manner restraining and coercing employees in the exercise of their Section 7 rights. ORDER Upon the entire record in these cases and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Boardhereby orders that Respondent, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from restraining or coercing employees of New Power Wire & Electric Corp. and P & L Services, Inc., in the exercise of their rights as guaranteed in Section 7 of the Act (including the right to refrain from self-organization and concerted activities, and from joining or assisting Local 3, International Brotherhood of Elec- trical Workers, AFL-CIO) by threatening loss of employment; by threatening or inflicting physical harm; by threatening the Employer's supervisors with physical harm; by tearing out equipment; by cutting cables or otherwise destroying property; or in any other manner. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ii International Rice Milling Co, Inc. v . N L.R B., supra ; see Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N L .R.B. (General Electric Co.), supra. We also find no merit in the allegation that the two instances of oral appeals to deliverymen or tradesmen having business with the apartment houses or their tenants not to cross the picket line, considered in the light of the long period of time covered by the picketing, converted a picket line, which demonstrably was established for achievement of lawful primary objectives, into a picket line having unlawful secondary objectives. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at Respondent's business offices and meeting halls copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by official representatives of the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Second Region signed copies of the aforementioned notice for posting by New Power Wire & Electric Corp. and P & L Services, Inc., in places Where notices to their employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by the Respondent, as indicated, be forthwith returned to the Regional Director for disposition by him. (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. FURTHER, IT IS HEREBY ORDERED that the complaint in Case No. 2-CC-703 be, and it hereby is, dismissed. MEMBER LEEDOM, concurring in part and dissenting in part : I agree with the majority's findings that the Respondent violated Section 8(b) (1) (A). However, unlike the majority but like the Trial Examiner I would also find that Respondent's picketing violated Sec- tion 8(b) (4) (i) and (ii) (B). The Company was doing electrical work on a number of apartment houses when the Union called its strike and commenced picketing all the various apartment jobsites. Although the Company did not, for extended periods of time after the strike commenced, have its em- ployees working at a number of the apartments, the Union neverthe- less continuously picketed all the apartment sites, whether the Com- pany's employees were present or absent. Further, the record shows that at all times union representatives could have entered the apart- ments to see if the Company's employees were working there, but that they made no attempt to do so or otherwise to determine if the Com- pany was actually performing work at the apartments being picketed. In these circumstances I can only infer, to paraphrase the Board in the Hansberger case cited above,14 that an object of the picketing 13 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be sub,tituted for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order" 14 See footnote 7 We are not dealing here with the picketing of a "common" situs during the temporary absence of primary employees which a majority of the Board held not unlawful in Plauche Electric, Inc, 135 NLRB 250, 255 Thus , there were no pri- mary employees working at the picketed sites for periods of a few days up to 2 months, and during such periods the primary employer was not engaged in active operations at LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1097 was the inducement of employees other than those of New Power at the various apartment jobsites to cease work with the further objec- tive of requiring other employers to cease doing business with New Power. Certainly nothing in the majority decision affords any sub- stantial basis for ruling out such an inference, which the Board found warranted in a similar situation in the Hansberger case. MEMBERS BROWN and JENKINS took no part in the consideration of the above Decision and Order. these sites In my opinion these were the salient considerations in Hansberger; con- sequently , I cannot agree with the majority that there is any meaningful distinction between the facts in Hansberger and the facts herein APPENDIX NOTICE TO ALL OUR MEMBERS, AND TO ALL EMPLOYEES OF NEW POWER WIRE & ELECTRIC CORP. AND P & L SERVICES, INC. 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, by threatening loss of employment; by threaten- ing or inflicting physical harm ; by threatening the Employer's supervisors with physical harm; by damaging property; or in any other manner restrain and coerce employees of New Power Wire & Electric Corp. and P & L Services, Inc., in the exercise of their right not to engage in concerted activities. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. 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, 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 Copies of the charges herein were served upon the Respondent on or about March 30, 1962, and the hearing was held before Trial Examiner Sidney Sherman on June 11 and 12, and from July 16 to 20, at New York City. The issues litigated were whether the Respondent had violated Section 8(b) (1) (A) by coercion of non- strikers, and Section 8(b) (4) (i) and (ii) (B) by picketing in front of various apart- ment buildings. Respondent filed a brief after the hearing. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record,' and my observation of the witnesses, I hereby adopt the following, findings and conclusions: I. THE LABOR ORGANIZATION INVOLVED Local 3, International Brotherhood of Electrical Workers, AFL-CIO, herein re- ferred to as the Respondent, is a labor organization within the meaning of Section 2(5) of the Act. II. THE BUSINESS OF THE COMPANY; THE JURISDICTIONAL ISSUE New Power Wire & Electric Corp., hereinafter called New Power, and P & L Services, Inc., hereinafter called P & L, are New York corporations, with a common principal office and place of business in New York City. It was stipulated at the hearing that both corporations are under common management and control, and are otherwise so integrated that they may be treated as a single employer for the purposes of the Act, and I so find. Hereafter, both corporations will be referred to collectively ,as the Company. The record shows, and I find, that the Company is engaged in installing electrical wire, cable, and other electrical equipment in apartment buildings and other struc- tures in New York City; that it annually receives from out-of-State sources $30,000 worth of materials and tools; and that it annually purchases more than $50,000 worth of goods from suppliers within the State of New York, who in turn obtain such goods directly from out-of-State manufatcurers. I find therefore that the Company is engaged in commerce within the meaning of the Act, and that there is sufficient basis for the assertion of jurisdiction by the Board in Case No. 2-CB-3417, which alleges violations of Section 8(b)(1)(A) of the Act. However, with respect to Case No. 2-CC-703, which alleges violations of Section 8(b) (4) (i) and (ii) of tht Act, the Board may not assert jurisdiction unless it appears that the secondary employers involved were "person(s) engaged in commerce or in an industry affecting commerce." 2 (The term "person" as here used is defined in Section 2(l) of the Act as including, inter alia, individuals, partnerships, or corporations.) The secondary employers named in the amended complaint are engaged in the management of residential apartment buildings located in New York City. In determining whether such employers are in an industry affecting commerce it is appropriate to consider that apartment buildings house a relatively large segment of our population,3 and that it is inevitable that a substantial part of the supplies purchased by apartment house managers in the course of their operations will come to them directly or indirectly from out-of-State suppliers. The most striking ex- ample of this is fuel oil used for heating which, in a State like New York, that produces little or no oil,4 must be imported from other States. Indeed, in the instant case, the record shows that one of the secondary employers (Cosmopolitan Asso- ciates) purchases at least $60,000 worth of fuel oil annually from a local supplier, who obtains such oil directly from ouVof-State sources; that another secondary employer (Columbia Management Corporation), annually purchases about $50,000 worth of fuel oil; and that still another secondary employer (Henry Moskowitz) annually buys more than $100,000 worth of fuel oil for all buildings managed by it in New York State. 'The transcript of testimony taken herein Is hereby ordered corrected in the following respects: Page 208, line 19, change "indicate" after "will" to "receive"; page 332, line 16, change "22nd" to 222nd"; line 18, same change ; page 656, line 15, Insert "not" be- fore "be"; page 708, line 9, change "4869" to "4816"; page 757, line 19, change "I" to "He"; page 1009, line 9, change "May" to "March". 2 See, 8 M. Kisner & Sons, 131 NLRB 1196 8 According to the Statistical Abstract of the United States for 1962 (p. 760,), published by the U.S Department of Commerce, aboh t 40'percent of all housing units in this coun- try are rental units It seems safe to assume that the bulk of these rental units are in apartment buildings as opposed to single-family or two-family dwellings This is attested by the fact that between 1940 and 1961, alone, nearly 2,000,000 housing units were con- structed in buildings occupied by 3 or more families (ibid., p 754) and that the total value of all 5 or more family units for which building permits were issued in this country in 1960 and 1961 alone approached $31/2 billion (ibid., p. 746) 4 Respondent stipulated at the hearing that no oil is produced in New York State LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1099 I find, therefore, that the secondary employers named in the amended complaint, whatever their individual involvement in commerce , are engaged in an industry which in the aggregate substantially affects commerce. Moreover, even if the more specific statutory test ("person engaged in commerce") were applied here, it is clear that some , at least, of the named secondary employers would qualify thereunder. Reference has already been made to the evidence con- cerning purchases by three of the secondary employers of fuel oil which concededly was not produced in New York State . Moreover, as to one of these secondary employers (Cosmopolitan Associates ), the record shows that it purchases annually $20,000 worth of brass pipe, which is manufactured in Missouri , and shipped in part (at least $5,000 worth) directly to Cosmopolitan , and in part to a New York supplier who delivers the pipe to Cosmopolitan .5 As to another of the secondary employers mentioned above (Henry Moskowitz ), the record shows that he manages altogether 45 buildings or groups of buildings of which at least 10 are located in States other than New York. In addition , as to Hong, Kelmar Realty Corporation, and Village Realty, the record shows purchases of fuel oil. I find, therefore, that the foregoing six secondary employers are persons engaged in commerce , within the meaning of Section 8 (b) (4) of the Act. Finally, under the alternative rationale of the Kisner case,6 I find that all the secondary employers listed in the amended complaint are engaged in an "industry affecting commerce" by virtue of their dealing with the primary employer-the Company. As pointed out in that case , "industry affecting commerce" is defined in Section 501 ( 1) of the Act as applicable to an "activity . . . in which a labor dispute" would burden or tend to burden the free flow of commerce . Here the record shows that all the secondary employers have contracted with the Company for electrical work to be done on premises owned or managed by them, and may therefore be deemed to be engaged together with the Company in an activity in which a labor dispute would tend to burden commerce , inasmuch as it would tend to interfere with the operations of the Company, which , it has been found, is engaged in commerce. For all the foregoing reasons, it is concluded that the jurisdictional requirements of the Act, as well as those of the Board,7 are met in Case No . 2-CC-703. III. THE UNFAIR LABOR PRACTICES A. Case No. 2-CB-3417 The complaint in this case alleges that on various dates in March 1962 8 certain individuals, alleged to be agents of the Respondent , (a) threatened to inflict, and inflicted, bodily harm upon various employees of the Company; (b) threatened to inflict, and inflicted , bodily harm upon "supervisors , agents and representatives" of the Company, in the presence of employees of the Company ; (c) threatened em- ployees of the Company that Respondent would cause their discharge ; and (d) in the presence of employees of the Company , threatened to inflict, and inflicted, dam- age to property belonging to, or entrusted to, the Company . The complaint fur- ther alleges that the Respondent engaged in the foregoing acts in order to induce the employees of the Company to join, support, and assist the Respondent, and that the Respondent thereby violated Section 8(b) (1) (A) of the Act. 1. Sequence of events The Company contracts with owners and managers of apartment buildings for the installation of "adequate wiring"-that is, electrical wiring in addition to that already in place, where such existing wiring has become inadequate to service all the electrical appliances and equipment in the buildings. For some time prior to November 1961, the Company employed electricians who were members of the Respondent . Between November 1961 and March 5, 1962, the Company replaced these electricians with others who were not members of the Respondent, and on March 5 the Company had 58 such electricians in its employ. s Moreover, Cosmopolitan annually buys $10,000 to $15,000 worth of paint In New Jersey through an affiliated company 9 S If. Kisner & Sons , supra, at 1200 'The Board's Jurisdictional standard with respect to secondary boycott cases Is satisfied here by virtue of the fact that the primary employer herein, as already found, has an annual indirect inflow in excess of $50,000 sAll events hereafter related occurred In 1962, unless otherwise stated 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On that date, 32 of these electricians struck at the behest of the Respondent. Dur- ing the ensuing months others joined the strike. It is not disputed that the object of the strike was to secure recognition of the Respondent as the exclusive representa- tive of the Company's electricians . The strike continued until the commencement of the instant hearing.9 Pickets patrolled in front of the Company's office and in front of various apartment buildings where the Company had begun to install elec- trical wiring. 2. The incidents One of the apartment buildings picketed was located at 515 West End Avenue. On March 5 Poirier, an electrical foreman , was assigned to work at that address. He reported to Haber, who was in charge of the job, and thereafter, according to his testimony, the following occurred: He was invited by Haber to ride with him in the elevator of the apartment build- ing. Upon entering the elevator, Poirier found Petilli and Buono already there. The others took the elevator up and down four or five times, while they solicited Poirier to sign an authorization card for the Respondent, warning him that he had "better sign up" or he would be "without a job." Poirier did sign a card. Haber admitted giving Poirier a card to sign on the foregoing occasion, but denied, at least by inference , that there was any solicitation of Poirier in an elevator. He also denied generally that he threatened any employee of the Company on March 5. Petilli also denied generally that he had told any employee of the Com- pany that he would lose his job if he "continued to work." However, Poirier's testimony was that the threat in the elevator was conditioned on his not signing the card and not on his continuing to work , and he did not attribute the threat specifically to Petilli or to Haber. Buono, although present at the hearing and called to testify on another matter, was not asked to testify about the foregoing in- cident. Accordingly, there is at most merely a denial by Haber that he solicited Poirier in an elevator, and the general denial by Haber and Petilli noted above with respect to the alleged threat. In view of the meagerness of Respondent's re- buttal of Poirier's testimony , and since, for reasons discussed below , I deem Poirier to be a more credible witness than Haber or Petilli , I credit Poirier's version of the foregoing incident. In connection with that incident , the General Counsel con- tends that Poirier was coerced in that he was confined in an elevator until he signed a card. However, there is no evidence that Poirier entered the elevator involuntarily or that he made any effort to leave, or that he signed the card because of any intimida- tion by reason of the fact that he was alone in the elevator with the others . Indeed, the fact that the others threatened only that he would lose his job if he did not sign a card would tend to negate any intention on their part to resort to other, more violent reprisals . Accordingly, I find no coercion in the fact that Poirier was solicited during the course of a protracted elevator ride . However, I find coercive in the foregoing threat that Poirier would lose his job if he did not sign a card for Respondent.lo Poirier testified further that on March 8, while working in the basement of 266 Washington Avenue with Tacktickus , he was approached by a group of strikers, about 15 in number, including Brummer, Petilli , and Haber , and that Brummer stated , "You better get off this job and don't come back or we'll kill you " Poirier left the job and reported to Respondent's office. Poirier's account was substantially corroborated by Tacktickus, who testified that he was working with Poirier at the time,il that a group of 13 to 15 strikers , includ- ing Brummer, Petilli , and Haber, approached them, and that Brummer said to Poirier, "You better get off the job or else you are going to wind up in the hospital." Tacktickus testified also that Brummer warned another employee 12 on the same occasion, "If I see you again in any of the buildings , I'm going to break your head." The strikers then accompanied Tacktickus and some other employees when they left the building for lunch , and returned to the building with them after lunch. Accord- ing to Tacktickus, as the group approached the building, Brummer admonished the 9 However , picketing at some of the buildings here involved ceased late in May or early in June " Central Veneer, Incorporated, 131 NLRB 189 ; Harbor Carriers of the Port of New Fork, 136 NLRB 815 ( IR), and cases there cited. 11 Although Tacktickus gave the date of this incident as Wednesday ( March 7), he placed it as occurring the day before the fracas between Poirier and Brummer , discussed below, which it is clear occurred on Friday ( March 9 ). Accordingly, I find that Tacktickus' testimony set forth above in the text relates to the March 8 incident. 12 Identified by Tacktickus as "Santos " Brummer's testimony indicates that this em, ployee's name was Santos Castelluzzo LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1101 employees , "I don't want you to go back in the building or else you will wind up in the hospital just like I told Joe," 13 and, brandishing a pair of pliers, Brummer added, "I got my little persuader on me." Brummer denied uttering any of the foregoing threats attributed to him by Poirier and Tacktickus. On March 9 an incident occurred at the Washington Avenue job which produced another sharp conflict in testimony . On that date, according to Poirier , who was corroborated by three of his fellow employees (Barnes, Tacktickus, and Carroll), a group of about 15 pickets entered the basement of the Washington Avenue build- ing, and one of them, Brummer , attacked Poirier while Petilli held him, striking Poirier in the face with a pair of steel pliers, punching him, and knocking him to the floor. Tacktickus testified that when he attempted to intervene he was also thrown to the floor, and Brummer bade him pack his tools or he would "get the same medicine." Brummer's version, corroborated by four of his fellow strikers (Haber, Petilli, Ventura, and Viera ), was that Brummer, accompanied by eight strikers, accosted Poirier in the basement of the building and called him a scab because he had con- tinued to work despite having signed a union card , whereupon Poirier attacked Brummer; and, after a few blows were exchanged , Haber and Petilli pulled Poirier away, while Ventura and Viera restrained Brummer. I have determined to credit Poirier's version of the foregoing incident , principally because of the inherent unlikelihood that Poirier would have attacked Brummer, a considerably larger man,14 while surrounded by a group of at least eight strikers. While it is conceivable that a quick-tempered or pugnacious individual might so act, Poirier did not impress me as that sort of person. As I do not credit Brummer 's testimony with respect to the March 9 episode, even though corroborated, I am not disposed to credit his uncorroborated denials of the threats on March 8 attributed to him by Poirier and Tacktickus. Accordingly, I find that on March 8 , Brummer threatened Poirier, Tacktickus, and other employees with bodily injury if they did not make common cause with the strikers , and that on March 9 Brummer, aided by Petilli, assaulted Poirier in reprisal for his refusal to join the strike, and threatened Tacktickus with similar treatment Colon, an electrician's helper, testified that on March 5 , while working at one of the picketed buildings , Petilli warned him that if he did not sign a card for Re- spondent he would not be able to work any more. The foregoing testimony is contradicted only by Petilli's general denial that he ever threatened an employee with loss of employment if he continued to work . He was not asked, however, whether he had threatened loss of employment for failure to sign a card . For reasons stated above in connection with a similar threat to Poirier , I credit Colon and find that Petilli uttered the foregoing threat. Errigo, who worked during the strike as the Company's electrical supervisor, testi- fied without contradiction ,15 and I find, that on April 3 he encountered several pickets at one of the picketed apartment buildings , and one of them, Weisberg, threatened to "bust" his head if he did not join the strike , that Petilli and Haber were in the vicinity when this threat was uttered ; and that on April 5 certain pickets threatened to turn his car over if he parked at one of the picketed buildings. Levine, one of the Company's supervisors , testified that on April 10, as he ap- proached a picketed building in his car, one of the pickets (Wierl) banged on the windows of his car and threatened to beat him up; that on March 9 Levine saw Haber in the Company's warehouse, and Haber advanced upon him and threatened to "get" him; and that about a week later , as he attempted to drive into the Com- pany's warehouse, a group of pickets blocked his path, and one of them (Wierl) banged on the car window, spit at him, causing Levine to close the window, and threatened to beat him up. Wierl did not testify, and Haber , while denying generally any threats to the Company's "employees," was not asked specifically about the Levine incident. In view of this, and as I have rejected Haber's testimony with respect to the attack on Poirier, I do not credit him here . I find , therefore, the threats by Haber, the "This presumably had reference to the threat addressed earlier that day to Poirier, whose first name was Joseph. 111` , rummer was 4 inches taller than Poirier and outweighed him by more than 30 pounds While Petilli observed that Poirier was a "muscular" individual, Brummer also appeared to me to be well endowed in that respect 15 Although Weisberg testified about other matters , he was not asked about the April 3 incident 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threats and assaults by Wierl, and the debarring incident in the warehouse driveway, as related by Levine. Agency Issue Respondent contends that, even if it be found that the pickets engaged in coercive acts, such conduct may not be imputed to it. - To meet this contention, the General Counsel relies, in part, on the roles played by the members of the so-called strike committee 16 in the conduct of the strike. Smith, Respondent's business agent, testified that the strike committee consisted of Haber, Brummer, Petilli, Buono, and Henderson; that this committee was selected on February 28 by the Respondent's adherents; that their duties were to advise Smith as to how many pickets were required at each location, to select the pickets to be posted at a particular location, to inform Smith when a picket failed to report for picket duty, and of any personal problems of the pickets that affected their availability, and to report to him when the Company completed its work in a picketed building. Smith's testimony was in the main corroborated by Petilli, Haber, Buono, and Brummer. However, Brummer and Buono admitted that, in addition to the foregoing duties, they distributed picket signs and Brummer and Haber acknowledged that it was their function to see that the pickets were carrying out their assignments in an orderly fashion. While Petilli and Buono denied that the latter was one of their duties as committee members, I do not credit such denial in the face of the foregoing admissions. Under cross-examination Haber admitted that he had testified in a court proceed- ing, under Section 10(1) of the Act, that he was "in charge of' the picketing at a particular location, but explained that he meant only that he was responsible for ascertaining that the picket line at the job was fully manned and for apprising Smith of the financial needs of the pickets. Kozlowski, a picket, testified that Haber distributed picket signs to him and others at one of the buildings and instructed them to picket peacefully and stay out of the buildings. I find from the foregoing that Smith determined the overall strategy of the strike and the task of the committee members was to function as a channel of communi- cation between the pickets and Smith, to monitor the picket lines, to distribute picket signs, to report to Smith any significant developments on the picket lines, and that they had discretion only to determine which of the pickets should be posted at a particular location. The question remains whether it fell within the scope of the committee members' authority, as delineated above, to engage in the coercive con- duct which I have attributed to certain members of the committee. This is an intriguing question, and, so far as I can determine, a novel one. However, I do not deem it necessary to resolve it, in view of my finding below that the Respondent is responsible for such coercive conduct on other grounds.17 Smith testified that in February he had 2 meetings with 30 to 35 of the Company's electricians; that Petilli was the prime mover in arranging these meetings, and in stimulating interest in the meetings among the employees; and that at the first of these meetings Smith gave several authorization cards to most of those attending, including Petilli, Buono, and Haber, which were to be used in soliciting other employees to pledge their support of the Respondent. In addition, Haber and Brummer admitted that during the strike they carried with them cards furnished by Smith, and solicited signatures on such cards. I find, therefore, that Haber, Buono, Brummer, and Petilli, among others, were authorized by Respondent to solicit the Company's employees on behalf of the Respondent. The question remains whether the Respondent was responsible for the particular coercive tactics resorted to by Petilli and Brummer in connection with such solicitation, as described above. In the Central Veneer case,18 the Board majority held that the respondent union was responsible for coercive statements by a "rank-and-file union member" who solicited 19 Also referred to in the record as the shop committee. 171 attach no weight to testimony by witnesses for the General Counsel that various committee members admitted that they were "in charge of" the picketing or were "super- vising" the picketing Such conclusionary statements are not necessarily inconsistent with the testimony of Respondent's witnesses as to the specific duties of the committee members with respect to the management of the picketing. Nor do I attach any sig- nificance to Polansky's testimony, denied by Smith, that when, on March 15, in a dis- cussion of the strike with Smith at the Company's office, Polansky deplored the "violence and vandalism" at the jobsites, Smith made no comment. Even if Polansky be credited, there is no evidence that Smith observed such violence or vandalism, Or believed that such acts had occurred. Accordingly, I do not deem it to have been incumbent upon him to disavow them >s Central Veneer, Incorporated, 131 NLRB 189 (Member Fanning dissenting). LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1103 employees to sign cards for the union under circumstances deemed to constitute him the union's agent for the purpose of such solicitation. The Board reasoned that, since the union had made the individual its agent for the purpose of organizing the employees involved, it was responsible for his "conduct in furtherance of that or- ganizational purpose, whether or not the specific conduct was authorized or ratified." 19 This rule seems to accord with common-law principles of agency, which have been held by the Board to be controlling in this area 20 Nor would it seem to be material that Smith, as he testified, counseled the strikers against resorting to violence21 I find, therefore, that Smith, who was admittedly empowered by the Respondent to supervise the conduct of the strike, expressly authorized Petilli and Brummer, among others, to solicit the Company's employees on behalf of the Respondent, and that the various coercive acts found above to have been committed by them to induce employees of the Company to join the strikers were in furtherance of that organizational purpose. It follows that the Respondent is responsible for such acts, and that it thereby violated Section 8(b)(1)(A) of the Act. I find also that Re- spondent is also responsible for Weisberg's threat to attack Errigo unless he joined the strike. Although it does not appear that he was entrusted by Smith with any authorization cards, or was otherwise authorized to solicit for the Respondent, Weisberg's conduct is nevertheless chargeable to the Respondent because it conformed to the pattern of conduct established by Brummer and Petilli, whom I have found to be agents of Respondent,22 and, in fact, occurred in the presence of Petilli as well as Haber. As to the other coercive acts of the strikers vis-a-vis Errigo and Levine, related above, it is not clear whether they were in furtherance of any organizational purpose or were merely expressions of animus against management, as symbolized by Errigo and Levine. It may be argued that any attack by union adherents upon supervisors during the course of a strike, whatever the motive therefor, furthers the Union's organizational objectives, as it tends to enforce allegiance, and deter opposition, to the Union.23 However, as a finding as to these incidents would not affect the remedy herein, I do not deem it necessary to resolve the question of the Respondent's responsibility therefor.24 Concluding Findings It is found, therefore, that the Respondent violated Section 8(b) (1) (A) of the Act by reason of: 1. The threats of loss of employment addressed to Poirier and Colon. 2. The threats of physical harm addressed (1) to Poirier, Tacktickus, and other employees on March 8 by Brummer; (2) to Tacktickus on March 9 by Brummer; and (3) to Errigo on April 3 by Weisberg. 3. The attack on Poirier on March 9. B. Case No. 2-CC-703 The amended complaint in this case alleges that, because of a dispute with the Company over recognition, Respondent picketed in front of various designated >e Member Fanning dissented solely on the ground that under the facts of that case he would not find an agency relationship for any purpose. He did not, however, question the premise of the majority that, where a union authorizes an individual to solicit for it, or otherwise constitutes him its agent for that purpose, the union is responsible for threats uttered by that individual to induce employees to join the union. 21 Sunset Line & Twine Company, 79 NLRB 1487, footnote 44. See Section 2(13) of the Act, and Restatement of the Law of Agency, American Law Institute, 1933, Sections 229-231. 2i See Restatement of the Law of Agency, supra, Section 230. 22 Sunset Line & Twine Company, Supra; Stephenson Brick & Tile Company, 129 NLRB 610. 23 Ohio Consolidated Telephone Company, 120, NLRB 684. 24 For the same reason of redundancy I do not make any findings whatsoever as to alleged coercive acts of the strikers other than those discussed above, including alleged admonitions to employees not to work or to go home, and alleged acts of sabotage directed, in the presence of employees, at equipment installed by the Company in the picketed apart- ment buildings (As to the latter, it may be noted parenthetically that, while there is precedent for finding coercion in acts of violence directed by strikers against property of employees or against vehicles being operated by them, no authority has been cited for such a finding with respect to sabotage of the type here alleged ) 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apartment buildings, in which the Company was performing services for the owners or managers of such buildings, and that such picketing was conducted at times when no employees of the Company were present. The amended complaint alleges further that the object of such picketing was to force said owners and managers to cease doing business with the Company, to force third persons to cease doing business with said owners and managers, and to force the Company to recognize and bargain with the Respondent as the representative of the Company's employees, notwith- standing that the Respondent had not been certified as such representative, and that by the foregoing picketing the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act. The answer controverts all the foregoing allegations, but asserts that Respondent picketed premises where the Company's employees were performing services for the purpose of organizing such employees, and that Respondent has filed a petition with the Board for representation of the Company's employees. In his brief, Respondent's counsel concedes, in effect, that the Respondent has not been certified by the Board to represent the Company's electricians, but urges that all times here material there was a contract in effect between the Company and the Respondent, and that such contract should be deemed equivalent to certification. I find no merit in this contention 25 I find, therefore, that it was an object of the picketing to force the Company to recognize the Respondent as the representative of the Company's electricians, notwithstanding that Respondent has not been certified by the Board for that purpose. The main issue in this case is whether the picketing conformed to the Board's standards for common situs picketing as enunciated in the Moore Dry Dock case 26 and subsequent cases. One of those standards is that where the common situs consists of premises of a secondary employer at which the primary employer is performing services, the picketing must be limited to periods when the employees of the primary employer are actually present.27 Here the primary employer was the Company, which had contracted to perform services at various apartment buildings operated by neutral employers. The Re- spondent posted in front of those buildings pickets, who patrolled continuously (except for Sundays) from March 5 to at least early in June, from 8:30 or 9 each morning to 4 or 5 in the evening. The picket signs stated: Electricians employed on this job by New Power . . . are not members of Local Union No. 3 IBEW . .. 28 The General Counsel adduced considerable evidence that during extensive periods after March 5 there were no primary employees at the picketed sites. Polansky, the Company's comptroller, testified, on the basis of records compiled by him, as to certain periods between March 5 and May 31 when no work was performed by company employees at each of the locations here involved. According to these records, such inactive periods ranged from single days to 6 or 7 weeks. Thus, at 500 West 190th Street, according to Polansky, no work was performed between March 7 and May 20, nor was any work performed on May 26, 27, and 30, so that at that location only about 1 week was worked in a 2-month period. However, Polansky admitted that his records were based only to a limited extent on personal observation, and to a large extent on reports filed by employees and supervisors. The reliability of these records was impugned at the hearing. More- over, there is abundant, independent, eyewitness testimony, discussed in detail below, that picketing continued at certain locations for substantial periods, even though no primary employees were present. Accordingly, there is no need to, and I do not, rely on Polansky's tabulation. Picketing at 222d Street Kelmar Realty Corporation and Louis Weinstock, doing business as Village Realty, own and manage adjoining buildings at 222d Street. In December 1961 the Com- pany began to install electrical wiring in these buildings, which work was interrupted w The case of National Broadcasting Company, 105 NLRB 355, cited by Respondent, deals with a different section of the Act, and is not apposite here. 26 Moore Dry Dock Company, 92 NLRB 547 27 llansberger Refrigeration & Electric Co , 135 NLRB 492, and cases here cited 28 At times the pickets also carried it sign reading in pertinent part as follows: New Power & P & L Services on strike Electrical Workers Local Union No. 3 C LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1105; by the strike . Virok, the superintendent of these buildings, testified that the picket- ing continued to May 15 and that no employees of the Company were present in the building from the beginning of the strike to March 26 , that a porter and part- time handyman worked with him in the buildings, and that employees of various firms which supplied services and fuel oil to the buildings crossed the picket line, but an employee of an elevator firm refused to do so. There is no denial of this testimony, except insofar as it relates to the absence of the Company 's employees be- tween March 5 and 26. Lampone testified on direct that he picketed at 222d Street during the first 7 weeks of the strike, that Robert Unger , the Company's delivery- man, came to the job almost every day with materials , and that Supervisors Levine and Errigo appeared on the job every day during this period and brought materials and, sometimes, men. However, under cross-examination Lampone was unable to recall the exact date when men were first brought to the job during the strike, and admitted it could have been March 26 29 Levine denied that he visited the 222d Street job at all between March 6 and 26 3o Errigo testified that he visited all the jobsites involved in this case during the first week of the strike to pick up tools and to restore electrical service , which had been disrupted by the strike, that such visits did not last more than 15 minutes , and that he visited each building from one to three times during the strike to check on vandahsm 31 Robert Unger did not testify. Ventura testified that: he picketed at 222d Street the first 4 weeks of the strike; he saw Levine there "after the first week or two," and he "often" saw Errigo and Robert Unger there; Levine brought men with him "five out of six times "; Errigo and Unger were usually alone; and one or more of these three individuals brought materials to the site.32 Alexander testified that: he picketed at 222d Street during the first week of the strike and for 3 weeks after March 26; deliveries were made during the picketing; and he saw Errigo at the building about three or four times a week , and saw him bring men and materials on two occasions , but did not specify whether these oc- casions were before or after March 26. In view of Virok's neutral status in this matter ,33 I credit his testimony that there was no work done by the Company from March 5 to 26, when he personally called the Company and insisted that work be resumed . It follows that any visits made by Levine and Errigo during this period could not have been for the purpose of bringing men or materials to the job, but only for the purposes stated by them and, in the absence of any specific contradiction, I credit their testimony that their visits for those purposes were relatively infrequent and for relatively brief periods. While there is no direct denial of Lampone's testimony that Robert Unger brought mate- rials to the job every day during the period in question , such testimony becomes inherently incredible, in view of the improbability that the Company would con-- tinue to deliver materials for a period of 3 weeks to an idle job. Accordingly, I find that during the first 3 weeks of the strike ( 1) there were no nonsupervisory employees of the Company at work at 222d Street , (2) Levine visited that site only once (on March 6), and (3 ) Errigo drove by the site frequently to observe the picketing, but did not enter the buildings on those occasions. I find fur- ther that Errigo did enter the buildings during the first week of the strike but only for the purpose of removing tools and restoring service disrupted by the strike, that none of these visits lasted more than 15 minutes , and that thereafter he entered the buildings not more than three times to check on vandalism. 29 Moreover, Lampone admitted that the pickets arrived at the jobsite each morning about 45 minutes before the employees. ao According to Levine , the purpose of such visits as he made to jobsites was to observe the picketing and check on vandalism ; he entered the buildings only on those occasions when he was checking on vandalism ; he made only about two such visits to each building, and did not stay in the building more than 15 minutes 81 Errigo admitted that he frequently drove by each job to observe the picketing but insisted that on such occasions he did not stop or enter the building 12 While Niedzwiecki testified on direct that he picketed at 222d Street from March 20 to the end of May, and he saw Errigo, Levine , Robert Unger, and Annunziata (an officer of the Company ) at that location "almost every day " and that they brought men and mate- rials with them, he admitted under cross-examination that it was possible he did not begin picketing at 222d Street until March 26 Under these circumstances , his testimony re- quires no further comment. 53At the time of the hearing he was no longer in the employ of Kelmar or Village Realty , and had moved to Florida 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 500 West 190th Street This building is owned by Al-Ri Corporation and managed by Columbia Manage- ment Corporation, which employed a building superintendent at this location. Pur- suant to its contract with Al-Ri, the Company began work at this site in December 1961. Picketing here began on March 5. Milner, the building superintendent, testified that: this site was picketed between March 5 and May 21 daily except Sunday, from 8:30 a.m. to 5 p.m.; during this period there were no employees of the Company at the jobsite; an employee of a plumbing firm refused to cross the picket line to make repairs in the building; a telephone company employee refused to install a telephone in one of the apart- ments during the picketing until after he had consulted with his supervisor; and employees of another firm refused to install a sink in one of the apartments until after they had consulted with the pickets. According to the uncontradicted testi- mony of Matfus, a representative of Milner's employer, Milner himself asserted that he would not admit any of the Company's electricians to the building because of the picketing. Cancel, a picket, testified that: except for 1 week he picketed at this site from March 5 to early in June; he saw Errigo, Levine, Robert Unger, and Annunziata (an officer of the Company) at the site; one or the other of these four came to the job about once a week; and electricians were brought to the job a few times. Under cross-examination the witness admitted that Levine did not enter the build- ing but stayed outside in his car, that he saw Annunziata enter only 4 times, and Errigo about 10 or 12 times during the last month of the picketing, and that the witness picketed in front of all the entrances to the building. Even if Cancel's tesitmony is credited, it is clear from a synthesis of such testi- mony with Milner's that there were substantial periods of time, during the picket- ing, when no electricians or other representatives of the Company were at the job- site, and that the picketing was witnessed by Milner and by employees of neutral employers doing business with Columbia Management Corporation. 47th Street The apartment buildings at 4808, 4816, and 4826 47th Street are owned and managed by Cosmopolitan Associates. Work was begun there by the Company in the spring of 1961, pursuant to its contract with Cosmopolitan, and had not yet been completed at the time of the hearing. Kuhlsen testified that: he was the janitor for these three buildings, and Cosmopoli- tan's porters work in the buildings; the Company's employees worked there from February 1 to early March, but did not, so far as the witness knew, do any work for about 2 months thereafter; 34 milk and oil deliveries were made during the picket- ing; and painters employed by an a lilitate of Cosmopolitan worked in the buildings during that time. Niedzwiecki testified that: he picketed these buildings during the first 2 weeks of the strike; there were employees of Cosmopolitan in the buildings; and Unger, Errigo, Levine, or Annunziata visited the buildings "almost every other day" but did not bring men or materials with them 35 Murino testified that: he picketed at the instant buildings from March 6 to the end of May; during the picketing maintenance work was done at the building by Cosmopolitan employees and deliveries were made; Robert Unger came to the build- ings every day, Annunziata about eight times, and Errigo every day during the last 4 weeks of the picketing; and one or more of these individuals brought men and materials, but only during the last 4 weeks of this period. Under cross-examination the witness testified that Unger would stay from 5 minutes to a "couple of hours." There is thus no effective contradiction of Kuhlsen's testimony that no work was done by the Company at the instant jobsite between early March and early May 36 (with the possible exception of 2 weeks in April 37), that picketing continued through- 34 The witness was on vacation for 2 weeks early in April and so was unable to testify concerning that period 35 The witness so testified as to these visits under cross-examination. While his testi- mony on direct was less favorable on this point to the General Counsel's case, it is not clear whether such testimony related to the instant jobsite or to another jobsite at which the witness picketed after the first 2 weeks of the strike. See footnote 32 above. 3e Munno's testimony that electricians were not brought back to the job until the last 4 weeks that he picketed (I e., the month of May) coincides roughly with Kuhlsen's testimony that the Company resumed work early in May 37 See footnote 34, above LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1107 out that period, and that various employees of Cosmopolitan and other neutral em- ployers worked on the premises during such period at times when no primary em- ployees were present. I so find. 515 West End Avenue This apartment building is owned by Finmar Realty Corporation and managed by Henry Moskowitz. Pursuant to a contract with Finmar, work by the Company at this site began in December 1961, stopped sometime in March, and continued intermittently thereafter. Moskowitz has eight employees at this site. Errigo testi- fied that he drove by this site every day between March 5 and 26 and that on vir- tually every occasion he observed pickets but no employees, and that to his knowl- edge there were no company employees there during that period. Cicero testified that: he picketed this building intermittently for about a month throughout the period of the strike; Errigo, Levine, Annunziata, or Robert Unger visited the site every day; Errigo came most frequently and took men and materials into the building; and deliveries were made to the building through the picket line. However, under cross-examination, Cicero was vague as to how many days he picketed at this location between March 5 and 26, his best estimate being that he picketed there not more than 6 days during that period. Accordingly, it is undis- puted that was continuous picketing here, as elsewhere, from March 5 to 26, and, apart from Cicero's testimony as to what he observed during the 6 days that he picketed during that 3-week period, there is no denial of Errigo's testimony that no company employees appeared at this site during those 3 weeks, nor is there any evidence that representatives of the Company entered the building for any purpose other than those detailed above. (See discussion under "Picketing at 222d Street.") 117 Mulberry Street This apartment building is owned and managed by Hong. He testified that: work by the Company at this site, pursuant to its contract with him, began early in March, ceased a few days thereafter, and was not resumed until sometime in May; picketing was conducted throughout this period; he has one employee at the building; and on April 10 an employee of a hardware store refused to cross the picket line to install a door-closing device. Kozlowsky testified that: he picketed at this site from early in April to late in May; he picketed in front of the only two entrances to the building; deliveries were made to the building; a plasterer crossed the picket line; on about four or five oc- casions he saw Errigo at the building with some men, who stayed in the building all day; and twice he saw Annunziata, who stayed in the building for an hour or two, but the foregoing visits by Errigo and Annunziata may have occurred after May 15. On the basis of a synthesis of the foregoing testimony, I find that: from early in March to at least May 1 there were no employees of the Company at this site; picketing was in effect all that time; Hong had an employee at the site; and em- ployees of other neutral employers visited the premises during the picketing to per- form services for Hong. Summary 38 There emerges from the foregoing the following pattern: At the sites discussed above picketing was conducted generally between March 5 and the end of May, in the presence of employees of the building managers and of employees of other neutral employers who serviced the buildings. During the picketing, the sites were visited by representatives of the Company for brief periods and for the purpose of removing tools and materials, inspecting the buildings or the picketing, and, in the case of Errigo, during the first week of the strike for the purpose of restoring electrical service interrupted because of the strikers' abandon- ment of their work. There were also periods during the picketing when employees of the Company performed their regular work at the premises. However, for sub- stantial periods of time, in some cases as much as 2 months, there were no primary employees on the premises, nor were any other representatives of the Company present during part or all of such periods. As already noted, it is well settled that where, as here, picketing is conducted at secondary premises, in the presence of neutral employees, and while no primary "I do not deem it necessary to discuss the picketing at locations other than those mentioned above, as any violation findings based thereon would be cumulative and would not affect the remedy. 727-083-64-voL 141 71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees are present, such picketing violates Section 8(b) (4) (i) and (ii) (B) of the Act. However, the Respondent contends that this rule is not applicable here because (1) in view of the practice of the Company of shifting men from one job to another before the first job had been completed, the Respondent could not know in advance when work would be resumed on a particular job that was being picketed, and (2) the pickets outside a building had no way of determining whether work was being done by the Company inside a particular building. In connection with the latter point, the Respondent contends that, while it is true that in some (but not all) of the buildings the pickets had an unobstructed view of all entrances, employees of the Company could have entered the buildings before the pickets arrived and could have left after the pickets departed. Thus, Respondent's position is in effect that it could not have determined by the exercise of due diligence when and where the Company was performing work, and that under these circumstances it was privileged to picket all the secondary sites here involved, even at times when there were no primary employees and no representatives of the Company at these sites. However, I find no merit in this "due diligence" contention It is undisputed that Smith made no effort to ascertain from the Company what jobs were active during the period of the strike. Such neglect may be excused on the ground that the Company was not likely to be cooperative in furnishing such information. However, there is no showing that it was not feasible for the pickets to enter the buildings to determine whether electrical work was in progress. Petilli, who was a member of the strike committee, testified that immediately before the strike began he was super- visor over 10 jobs (all but 1 being jobs at the secondary sites here involved 39); that that he was familiar with the progress of the jobs, and that in the case of at least some of the jobs, if any work was being done there, employees of the Company would be found in the basement of the building involved. While protesting that he might have difficulty in finding electicians in a basement because of the size of some of the basements and because of other contingencies that might arise, Petilli admitted that he never made any effort to ascertain whether there were any company employees in the basement of a picketed building. When asked why not, Petilli's only answer was, " It wasn't my business." Thereafter the following ensued: Q. Weren't you on the strike committee? A. I was on the shop committee, yes sir. Q. Was there any instruction given to the pickets about making sure that they picketed only while there were people from P & L working there? A. Yes. Q. Were they told how they would carry out the instructions, how they would determine whether there were P & L people there? A. No. We told them they couldn't tell all the time, because they would come early in the morning before we got there. Q. Did anybody suggest you go in the basement to see if there were men working there? A. No. We were told to stay out of the basements. Q. Didn't you go in the basement on Washington Avenue? A. Yes. Q. Did you ask permission to go in there? A. No. Q. Why did you go in there? A. To speak to the fellows. Q. There was no problem getting in the basement then was there? A. No. Apart from the incident at Washington Avenue, referred to in this colloquy, the record contains other evidence indicating that the pickets had free access to the basements of the various buildings here involved and did not hesitate to avail themselves thereof. At 1316 Morris Avenue, they solicited employees of the Com- pany while at work in the basement of the building, and appealed to the super- intendent for cooperation. At 500 West 190th Street, they stored their picket signs in the basement with the knowledge of the building superintendent. In the Hansberger case, supra, in finding unlawful picketing at a common site while no primary employees were present, the Board cited the absence of any evidence that the respondent union "made any effort to ascertain whether [the pri- mary employer] or his employees were engaging in [the primary employer's] normal operations when it commenced and later continued its picketing." There was no so Polansky so testified, without contradiction , and I'so find'.-' LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1109 such effort here, and for reasons just stated, I do not believe that the circumstances cited by the Respondent justified its failure to make such effort. Oral Inducement Issue The General Counsel contends that the picketing was unlawful on the further ground that it was attended by oral inducement of neutral employees not to perform services for their employers. The only pickets who were identified as having any connection with such inducement were Petilli, Lampone, and Haber. As already stated, Haber and Petilh were members of the Respondent's strike committee. As to Haber, there was testimony, and I find, that unidentified pickets, in his presence, solicited the superintendent of an apartment building (at Morris Avenue) not to admit the Company's electricians to the building. As to Petilli and Lampone, Virok testified, and I find, that they requested him not to admit any of the Company's electricians to the buildings at 222d Street.40 The question remains whether the Respondent is responsible for the foregoing conduct. The Board has heretofore refused to impose liability on a union for oral inducement of neutral employees not to perform services, even though such induce- ment is by pickets posted by the Union, absent a showing that such inducement was authorized, encouraged, or acquiesced in by an agent of the Union. In this context, the Board has deemed business representatives, union stewards, or union officers to be union agents for this purpose 41 So far as I can ascertain, however, there has been no case dealing with the question whether members of an ad hoc strike committee, such as is here involved, are such agents.42 However, as I have found the picketing unlawful on other grounds, and a finding of unlawful oral inducement would not affect the scope of the remedy, there appears to be no need to resolve that issue here.43 Accordingly, I do not pass on the Respondent's liability for the oral inducement found above. Concluding Findings It is found, therefore, that, by picketing at the locations discussed above during periods when individuals employed by the aforenamed building managers, but no company employees, were present, with an object of forcing such managers or the building owners to cease doing business with the Company, and forcing the Com- pany to recognize and bargain with the Respondent, although not certified, the Respondent violated Section 8(b) (4) (i) (B) of the Act. It is further found that, by picketing in the presence of individuals employed by the above-named building managers and in the presence of employees of other neutral employers doing business with such managers, while no company employees were present, the Respondent coerced and restrained such managers and the building owners, with an object of forcing them to cease doing business with the Company and forcing the Company to recognize and bargain with the Respondent, although not certified, and that the Respondent thereby violated Section 8(b) (4) (ii) (B) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Company, as set forth in section II, above, have a close, intimate, and substantial relation to trade, traffic, and commerce, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 40 Although Petilli and Lampone contradicted this testimony, I deem Virok to be a more credible witness for reasons already noted. 41 See, e g , Genuine Parts Company, 119 NLRB 399. 42 The only admitted agent here was Smith and he denied authorizing any oral induce- ment of neutrals, asserting that lie in fact expressly forbade it. 43 The fact that, as I have found, Petilli and Haber were agents for purposes of Sec- tion 8(b) (1) (A) would not appear to be conclusive of the question of their agency under Section 8(b) (4) In finding them agents under the former provision, I relied solely on the fact that the Respondent had expressly authorized them to Induce the Company's electricians to sign authorization cards, and such authorization was deemed to render Respondent liable for such means as they used to accomplish that purpose. However, it does not follow that Respondent was thereby also rendered liable for the means used to accomplish quite a different purpose-namely, the inducement of neutral employees not to perform services for their employers 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Columbia Management Corporation, Kelmar Realty Corporation, Louis Wein- stock, d/b/a Village Realty, Cosmopolitan Associates, Henry Moskowitz, and Hong are engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b) (4) of the Act. 3. Local 3, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. By inducing and encouraging individuals employed by Columbia Manage- ment Corporation, Kelmar Realty Corporation, Louis Weinstock, d/b/a Village Realty, Cosmopolitan Associates, Henry Moskowitz, and Hong to engage in a strike or a refusal in the course of their employment to perform services, and by thereby coercing and restraining the foregoing employers, with the objects of forcing and requiring them, together with Al-Ri Corporation, and Finmar Realty Corporation, to cease doing business with the Company, and forcing and requiring the Company to recognize and bargain with the Respondent as the representative of its electricians, although not certified as such representative, the Respondent has violated Section 8(b)(4)(i) and (ii) (B) of the Act. 5. By threatening employees of the Company with loss of employment, and by threatening, and inflicting, physical harm, the Respondent has coerced such employees in the exercise of their right not to engage in concerted activities, thereby violating Section 8 (b) (1) (A) of the Act. [Recommended order omitted from publication.] The Boeing Company and Association of Electronic Technicians. Case No. 19-RC-3169. October 15, 1963 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Orville W. Turnbaugh. The Hearing Officer's rulings are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Sections 9 (c) (1) and 2 (6) and (7) of the Act for the following reasons : z 'International Association of Machinists , AFL=CIO, referred to here as IAM, inter- vened as the representative of a multiplant unit of Boeing employees , including those sought to be severed by the instant petition. 9 As we agree with the Employer and IAIM that the unit sought is not appropriate, we do not deem it necessary to decide whether the intervention of the Federal Government into IAM's contract dispute with the Employer, which began before the instant petition 144 NLRB No. 103.