Int'l Brotherhood, Electrical Workers, Local 953

INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 953 1301 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Tool, Die and Mold Makers Guild, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Carmen Pastore and Donald Wilson to discourage membership in a labor organization, Respondent violated Section 8(a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] International Brotherhood of Electrical Workers, Local 953, AFL-CIO and Erickson Electric Company. Case No. 18-CP- 44. September 17, 1965 DECISION AND ORDER Unfair labor practice charges were filed on October 26, 1964, by Erickson Electric Company against Respondent, International Broth- erhood of Electrical Workers, Local 953, AFL-CIO. Thereafter, on November 5,1964, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 18, issued a complaint and notice of hearing, alleging that Respondent, hereinafter called the Union, had violated Section 8(b) (7) (B) of the National Labor Rela- tions Act, as amended, by picketing Erickson at the construction site of the Memorial Hospital in Menomonie, Wisconsin, for recognitional and organizational purposes within 12 months after a valid election had been held pursuant to Section 9(c). On November 12, 1964, Respondent filed an answer denying the commission of any unfair labor practices, and alleging afl'irinatively that its picketing was for the pur- pose of advertising to the public that Erickson's employees were employed under substandard working conditions. On January 18, 1965, the parties entered into a stipulation by which they waived a. hearing before a Trial Examiner and the issuance by hiin of a Trial Examiner's Decision and Recommended Order and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order, based upon a record consisting of the charge, the complaint, the answer, certain correspondence between Respondent and Erickson dated December 18, 22, 28, and 29, 1964, and the stipulation, including the record made at an injunction proceeding in the United States Dis- trict Court, Western District of Wisconsin, brought pursuant to Sec- tion 10 (1) of the Act. 154 NLRB No. 103. 1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 12, 1965, the Board granted the motion of the parties and transferred the case to itself. Thereafter, the General Counsel and the Respondent filed briefs. Pursuant to 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 Brown and Jenkins]. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF ERICKSON Erickson Electric Company is an individual proprietorship owned and operated by Melvin Erickson, who maintains his principal office at Prairie Farm, Wisconsin, where he is engaged in business in the con- struction industry as an electrical contractor performing services on commercial and residential buildings. During the period from Sep- tember 1, 1963, through August 31, 1964, Erickson Electric Company made purchases of goods and materials from outside the State of Wis- consin valued in excess of $50,000. We find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 953, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts In the fall of 1962, the Union asked Erickson to sign a collective- bargaining agreement, and Erickson refused. Within a short time, Erickson was picketed at the construction site of the Dunn County Jail by the Respondent with signs bearing the legend that Erickson did not employ members of the Union. After 4 days of such picket- ing, Respondent changed the legend on the picket signs to indicate a dispute over alleged substandard wages and conditions. The Union's contracts with electrical contractors in the area provide for the payment of $2.121/2 per hour for apprentices and $4.25 per hour for journeymen. Both receive double time for work on new construc- tion that is not performed between the hours of 8 a.m. and 4:30 p.m., and a 1-percent contribution for pension benefits. Erickson paid his apprentices $2 per hour and his journeymen $4 per hour. Both receive time and a half for time over 8 hours a day and over 40 hours a week. INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 953 1303 No other fringe benefits are paid by Erickson. The Union was aware that the wages and benefits paid by Erickson were not as high as those paid its members under its contracts with area firms, but apparently did not know the exact differences which existed between the two scales. In December 1963, prior to the time that Erickson was awarded the contract for the electrical work on the Memorial Hospital in Menom- onie, Wisconsin, Harold Gunter, the hospital's administrator, received a visit from Respondent's business agents, Thomas Haley and Howard Brenholt. Apparently aware that the hospital was in the process of awarding a contract for electrical work, Haley informed Gunter that Erickson did not have a contract with the Union and then asked if Erickson would be awarded the contract if he were the low bidder. Gunter replied that he assumed the low bidder on public works -would be given the contract. Haley also commented on the fact that there had been some "trouble on the Dunn County Jail project" on which Erick- son had worked. Erickson was subsequently awarded the contract for the hospital electrical work, and on or about May 1, 1964, he commenced work on the project site. Erickson himself works at the trade and has from time to time employed up to a total of three employees, either as journeymen or apprentice electricians on the hospital project. During the summer of 1964, Glenn Peterson, an agent of the Re- spondent, and Brenholt, approached Erickson at the Memorial Hos- pital project on three separate occasions to urge him to sign a contract with the Union.1 On each occasion Erickson was noncommittal, stating that he had not given the idea much thought. On one such occasion Peterson told Erickson, "Well, if you don't [sign a contract], we'll have to do something about it." Late in August Brenholt again went to the project site and asked Erickson if he had decided to agree to the Union's demand. Erickson replied that he had decided not to sign a contract at that time because the job was half finished, and he would prefer to wait until it was completed and consider it at a later date. The first week in September Brenholt again went to the construction site to see if Erickson had changed his mind. Erickson reaffirmed his earlier statement. Approximately 2 weeks later, on September 21, the Union began to picket the Memorial Hospital construction site. The picket carried a, sign bearing the legends : EMPLOYEES OF ERICKSON ELECTRIC RECEIVE SUBSTANDARD BENEFITS LOCAL 953 IBEW OUR ONLY DISPUTE IS WITH THE SUBSTANDARD BENEFITS PAID BY ERICKSON LOCAL 953 IBEW On one occasion Erickson was asked if he cared to join the Union. 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The signs carried the same legends during all picketing pertinent herein. The picketing resulted in work stoppages by employees of other contractors on the jobsite. On the morning the picket first appeared, Erickson's attorney tele- phoned Peterson and asked him what the picket was doing on the job and what Erickson would have to do to have the picket removed. Peter- son said that it was not a picket, it was advertising. He further stated, "Mr. Erickson knows what he had to do, and if you have any questions you can call our lawyers in Milwaukee." Peterson refused to discuss the matter further, continually referring the attorney to the Union's attorneys. On September 23, 1964, Erickson filed a petition for an election pur- suant to Section 9(c) (1) of the Act.2 On October 6, 1964, the Union received a notice of election from the Regional Director informing it that the election would be held on October 13, 1964. On the same date, the Union, by its attorneys, advised the Regional Director that it made no claim to represent the employees of Erickson, and that it had not picketed for recognition or to obtain a contract. It further claimed that it had picketed to advertise the substandard working conditions of Erickson's employees, that no question of representation existed, and that nothing had occurred warranting the conduct of an election under Section 8(b) (7). Apparently rejecting the Union's disclaimer, the Regional Director, on October 13, 1964, conducted an election among the employees of Erickson, in which all three employees voted against representation by the Union. On or about October 26, 1964, the Regional Director certi- fied the results of the election. On October 15, 22, 26, 27, and 29, 1964, the Union picketed Erickson at the construction site of the Memorial Hospital at Menomonie, WWris- consin. The Regional Director filed a petition for a temporary injunc tion in the U.S. district court 3 and, at the hearing on the petition, the Union agreed to discontinue further picketing until the court had rendered its decision. On December 16. 1964, the district court denied the petition for an injunction. Subsequent to the court's ruling, the Union advised Erickson that the picket would be removed as soon as Erickson paid his employees the equivalent wage and fringe benefits as established by the Union's contracts with area electrical contracting firms. B. Contentions of the parties The General Counsel contends that the Respondent's objective of rec- ognition, which was evidenced by its earlier requests for a contract, never changed, and therefore the picketing complained of was in fact 2 Case No. 18-RAI-489. 30. Edward Knapp, Reg. Dir V. I B E W., Local 953, AFL-CIO, 237 F. Supp. 813 (D.C.W. Wis.). INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 953 1305 recognitional in purpose and within the scope of Section 8 (b) (7). It is further contended that since the recognitional picketing occurred within 12 months subsequent to a valid Board-conducted election, the picketing was in violation of Section 8(b) (7) (B). The Respondent contends that although it initially sought to orga- nize and bargain for Erickson's employees, when it failed, it abandoned that objective and sought to notify the public that Erickson was paying substandard wages and fringe benefits. It argues that it was not pick- eting for recognition subsequent to the election, and that picketing in protest of substandard benefits is not to be equated with recognitional picketing within the proscription of 8 (b) (7). It further contends that it did not engage in any activity which was inconsistent with its pur- pose of protecting area wage standards. C. Discussion Section 8(b) (7) (B) of the Act prohibits recognitional or organiza- tional picketing within 12 months of a valid election. The critical issue presented to us for determination is whether the Respondent's picket- ing subsequent to October 13, 1964, was for the proscribed objective of recognition or bargaining, for absent such a finding, the provisions of Section 8(b) (7) (B) are not applicable.4 An unlawful objective in picketing is rarely proved by admission, but, rather, must be ascer- tained from Respondent's overall conduct, which would include the past relations between the parties as well as the context in which the picketing occurred. In 1962 the Respondent asked Erickson to sign a collective- bargaining agreement and was unsuccessful in securing one. In De- cember 1963 the Respondent's business agents visited the hospital administrator, commented on the fact that Erickson was not a union contractor, and noted that there had been some trouble at the Dunn County Jail project, obviously inferring that Erickson's noncontrac- tual status with the Union had been the cause of the trouble. The Respondent admittedly made repeated demands on Erickson for recognition and bargaining throughout the summer of 1964. However, it contends that it abandoned this objective before it commenced picket- ing on September 21, 1964, and supports this contention by pointing to the legends of the picket signs, the purported disclaimer of any interest in representing the employees, and the alleged absence of actions incon- sistent with area standards informational picketing. We do not regard self-serving legends on picket signs as conclusive evidence of the real objective of the picketing. And, while it is true that the Respondent notified the Board's Regional Director that it dis- claimed any interest in representing Erickson's employees, this pur- *International Hod Carriers Building and Common Laborers' Union of America, Local 840, AFL-CIO ( Charles A. Blinne, d/b/a C. A. Blinne Construction Company), 135 NLRB 1153. 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ported disclaimer was made only after the Respondent received notifi- cation of the expedited election to be held as a result of the Employer's petition . Moreover, the Respondent never notified Erickson that it had abandoned its requests for a contract , but rather commenced picketing without notice some 2 weeks after Erickson 's last refusal to sign a con- tract with the Union . When Erickson's attorney asked Peterson what must be done to obtain the removal of the picket , the union agent simply replied, "Mr. Erickson knows what he has to do ...." This remark, following 2 years of requests for a contract , can only be interpreted as another, although thinly disguised , demand for recognition. In view of all the circumstances herein, we reject the Respondent's contention that it ever abandoned its objectives of recognition and bar- gaining. The Respondent consistently has sought recognition and a contract from Erickson intermittently since 1962 . When it picketed Erickson at the site of the Dunn County Jail in the fall of 1962, it ini- tially picketed with signs stating that Erickson did not employ mem- hers of their Union, but , after 4 days , changed the picket signs to indi- cate a dispute over alleged substandard wages and conditions . That its purported change in the ojective of its picketing did not really indicate any change in objective is clearly evidenced by its objections to Erick- son's noncontractual status with the Union in late 1963 and by its "reversion " to its demands for recognition and a contract which contin- ued for an extended period of time in 1964 . Subsequent to its last demand for a contract , the Respondent followed its prior pattern of conduct by again purporting to revert to an "area standards " picketing objective . In view of the factors noted previously , we find that the Respondent at no time before or after the election abandoned its orig- inal object of recognition and a contract ; that its disclaimer to the Regional Director of the existence of such an object was sham ; that the election conducted by the Regional Director on October 13, 1964, was a valid one under Section 9(c) of the Act ; and that its postelection picketing within 12 months of said election was in furtherance of its aforesaid original ( and continuing ) objective , and, as such, violative of Section 8(b) (7) (B ) of the Act. IV. TIIE EFFECTS OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of Erickson, 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 engaged in certain unfair labor prac- tices, we shall order that it cease and desist therefrom and take certain INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 953 1307 affirmative action as provided for in the Order hereafter, to remedy and remove the effects of the unfair labor practices and to effectuate the purposes of the Act. CONCLUSIONS OF LAW 1. Erickson Electric Company is an employer engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Erickson Electric Company on various dates subse- quent to October 13 , 1964, with an object of forcing and requiring Erickson to recognize and bargain with the Respondent as the collec- tive-bargaining representative of Erickson employees , or forcing or requiring Erickson's employees to accept and select the Respondent as their collective-bargaining representative , although the Respondent was not currently certified as such representative , and a valid election under Section 9 (c) of the Act having been held within the preceding 12 months, the Respondent engaged in unfair labor practices within the meaning of Section 8 (b) (7) (B ) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the International Brotherhood of Electrical Workers, Local 953, AFL- CIO, its officers, agents, and representatives, shall : 1. Cease and desist from : (a) Picketing, or causing to be picketed, or threatening to picket, fora period of 1 year from December 29,1964, Erickson Electric Com- pany, Prairie Farm, Wisconsin, an object thereof being to force or require Erickson Electric Company to recognize or bargain collectively with the Respondent, International Brotherhood of Electrical Work- ers, Local 953, AFL-CIO, or to force or require the employees of Erick- son Electric Company to accept or select the Respondent as their col- lective-bargaining representative. (b) Picketing, or causing to be picketed, or threatening to picket, Erickson Electric Company, for any of the above-mentioned objects, 5 Section 8(b) (7) (B ) of the Act proscribes picketing for a period of 12 months follow- ing a valid election . The record indicates the Respondent was picketing Erickson on December 29, 1964 , 21/ months after a valid election was conducted To effectuate the policies of the Act, the 1-year ban against picketing shall run from December 29, 1964, the last date on which the record indicates the unlawful picketing occurred . If such picketing, in fact, continued subsequently, the Board will entertain a motion, properly supported , to amend this Order to require the Respondent to cease and desist from picketing for recognition or bargaining for a period of 1 year from the date of the actual cessation of such picketing. 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where within the preceding 12 months a valid election under Section 9 (c) of the Act has been conducted which the Respondent did not win. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post at the Respondent's business offices and meeting halls, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for Region 18, shall, after being duly signed by the Union's representative, be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 18 signed copies of the aforementioned notice for posting by Erickson Electric Company, if it is willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the aforesaid Regional Direc- tor, shall, after being signed by the Union as indicated, be returned forthwith to the Regional Director for disposition by him. (c) Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 6 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 "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing an Order". APPENDIX NOTICE: TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, LOCAL 953, AFL-CIO, AND TO ALL EMPLOYEES OF ERICKSON ELECTRIC COMPANY 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 for a period of 1 year from December 29, 1964, picket or cause to be picketed, or threaten to picket, Erickson Electric Company, Prairie Farm, Wisconsin, wherein an object therof is to force or require Erickson Electric Company to recog- nize or bargain collectively with us, or its employees to accept or select us as their collective-bargaining representative. AVE WILL NOT picket, or cause to be picketed, or threaten to picket, Erickson Electric Company, Prairie Farm, Wisconsin, Wherein an object thereof is to force or require Erickson Electric Company to recognize or bargain collectively with us, or to force or require its employees to accept or select us as their collective-bargaining representative, where a valid election, which we did not win, has STAFFORD TRUCKING, INC. 1309 been conducted by the National Labor Relations Board among the employees of Erickson Electric Company within the preceding 12 months. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 953, 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. Members and employees may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minne- apolis, Minnesota, Telephone No. 334-2618, if they have any questions concerning this notice or compliance with its provisions. Stafford Trucking, Inc. and Drivers, Salesmen, Warehousemen,. Milk Processors, Cannery Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case No. 30-CA-103. September 17,1965 DECISION AND ORDER On April 21, 1965, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Decision and briefs in support thereof, and the Respondent filed exceptions to the Decision and a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and finds merit in certain of the General Counsel's and Charging Party's exceptions. Accordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent with our Decision and Order. 154 NLRB No. 99.