Local 3, Electrical Workers

LOCAL 3, ELECTRICAL WORKERS 1101 Local 3, International Brotherhood of Electrical Workers, AFL-CIO and Surf Hunter Electric Company, Inc. Case 29-CC-80 July 9, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 30, 1968, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the General Counsel, the Charging Par- ty, and the Respondent filed exceptions to the Trial Examiner's Decision with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modification hereinafter set forth. 1. We find merit in Respondent's exceptions to the Trial Examiner's findings that the picketing was violative of Section 8(b)(4)(ii)(B) of the Act. As more fully set forth by the Trial Examiner, in September 1966, Stuart Berger, Inc. (hereinafter called Berger ), a general contractor, was awarded a contract for the construction of a Shell Oil Com- pany gasoline service station. Berger orally con- tracted with various subcontractors, including Surf Hunter Electric Company, Inc., whose five em- ployees were members of Local 199, Industrial Workers of Allied Trades (hereinafter called Local 199). Surf Hunter, an electrical contracting concern, was a member of the United Construction Contrac- tors Association (hereinafter called the Associa- tion ), which had about 100 employer-members, of which at least 80 were electrical contractors. The Association , on behalf of its members , negotiated, executed , and administered collective -bargaining agreements with Local 199 , which in turn represented employees working for the employer- members of the Association , including those of Surf Hunter . Prior to 1962 , Surf Hunter , then known as Hunter Electric , had a contract with Respondent. The General Counsel conceded that Surf Hunter's wage rates were below those being paid to Respon- dent's members . We also note that the Respondent, Local 199, and the Association and several of its employer-members have been involved in disputes which allegedly concerned "area standards." On Friday , January 6 , 1967, Surf Hunter em- ployees began work at the jobsite in the presence of Respondent 's pickets carrying signs objecting to substandard working conditions and wages ("area standards " picketing ). The picket signs improperly identified the primary employer as "Ampak," which had no connection with the job although it was a member of the Association . However , several hours later the signs were corrected to read "Hunter Electric" when a city inspector advised the pickets that Ampak was not doing the electrical work, and one of the pickets who formerly worked for Hunter Electric (the former name of Surf Hunter ) recognized its owner , Herschkorn, on the job. And the following day the signs were changed to "Surf Hunter " when one of its trucks bearing this legend was seen on the job. Thereafter, Surf Hunter employees continued to perform some work at the jobsite during the following week The picketing continued until Friday , January 13, Surf Hunter 's last day on the job. While the picketing was in progress , Surf Hunter employees , as well as the other trades, continued to work without in- cident or interruption . At all times the picketing was peaceful , unaccompanied by any incident of coercion or threat . The pickets and officials of Respondent spoke to no one, and there was no in- terference with deliveries. The Trial Examiner concluded that even though the Respondent substantially complied with the Moore Dry Dock standards,' its failure to commu- nicate with Surf Hunter or Berger to ascertain whether Surf Hunter 's employment conditions and benefits did, or did not , meet the area standards established that the Respondent's true objective was to threaten and coerce Berger to cease doing business with Surf Hunter . However , the record clearly shows that Respondent was aware of Surf Hunter's wages and working conditions in light of Respondent 's longstanding dispute with the As- sociation and its members and the fact that Surf Hunter formerly had a contract with Respondent. Therefore , it would have been pointless for Respon- dent to inquire concerning the conditions main- tained by Surf Hunter . As there is thus no support for the only ground upon which the Trial Examiner 'Sailers' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 172 NLRB No. 115 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD based his conclusion that the Respondent's object was illegal, we find that General Counsel has not established by a preponderance of the evidence that Respondent had an unlawful objective within the prohibition of Section 8(b)(4)(ii)(B) of the Act. The Trial Examiner found a separate violation of the Act solely because of Respondent's picketing for a short time on January 6 with signs bearing the name "Ampak." In view of our conclusion above, and as the signs were changed to reflect the true primary employer immediately after the error was discovered, we find this incident insufficient to require an unfair labor practice finding. The Moore Dry Dock standards are not to be applied on a in- discriminate per se basis but are merely aids in determining whether a violation has occurred 2 In the absence of evidence showing an illegal motive, we find it inappropriate to rely on what appears to be an inadvertent error which continued for only a short time. 2. We find, for the reasons set forth by the Trial Examiner, that Respondent did not violate Section 8(b)(4)(i)(B) 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 complaint herein be, and it hereby is, dismissed in its entirety. 2 International Brotherhood of Electrical Workers, Local Union 861 (Plauche Electric, Inc ), 135 NLRB 250 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: Upon a charge filed on January It, 1967, by Surf Hunter Electric Company, Inc., hereinafter referred to as Surf Hunter, the General Counsel of the National Labor Relations Board issued a complaint on May 31, 1967, against Local 3, International Brother- hood of Electrical Workers, AFL-CIO, hereinafter referred to as the Respondent or Local 3, alleging that the Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended, 29 U.S.C., Sec. 15 1, et seq., hereinafter referred to as the Act. Thereafter, the Respondent filed a timely answer to the complaint denying the commission of any unfair labor practices. Pursuant to notice, this case was heard by me at Brooklyn, New York, at which hearing all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, to introduce evidence pertinent to the issues, and to engage in argument. Subsequent to the close of the hearing, timely briefs were filed by counsel for the General Counsel and the Respondent. Upon the entire record in this case,' and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), 1 make the following: FINDINGS AND CONCLUSIONS 1. COMMERCE Surf Hunter, a New York corporation maintain- ing its principal office and place of business at Far Rockaway, New York City, New York, is engaged in performing electrical contracting and related ser- vices. Surf Hunter is a member of the United Con- struction Contractors Association, hereinafter referred to as the Association, which has as mem- bers employers engaged as electrical contractors in the building, construction, and repair industry. The Association, on behalf of its employer-members, negotiates, executes, and administers collective- bargaining agreements with Local 199, Industrial Workers of Allied Trades, hereinafter referred to as Local 199, which, in turn, represents employees employed by the employer-members of the As- sociation, including those employed by Surf Hunter. During the past calendar year, employer- members of the Association caused to be trans- ported to their places of business in the State of New York, construction materials valued in excess of $50,000, of which amount, goods and materials valued in excess of $50,000, were delivered to their place of business in interstate commerce directly from States other than the State of New York. Stuart Berger, Inc., a New York corporation hereinafter called Berger, maintaining its principal office and place of business at South Hempstead, New York, is owned and operated by Stuart Sol Berger, a general contractor in the building and construction industry, engaged primarily in the con- struction of gasoline service stations. During the past calendar year, Berger performed services out- side the State of New York in excess of $50,000, and purchased building supplies and materials valued in excess of $50,000, from points located outside the State of New York. Surf Hunter and Berger are persons and em- ployers engaged in commerce and in an industry af- fecting commerce within the meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act. ' I hereby note and correct the following error contained in the trans- cript p 51 , 1 15, "back service" should read "Gasservice " LOCAL 3, ELECTRICAL WORKERS 1103 II. THE LABOR ORGANIZATIONS INVOLVED It is undisputed , and I find, that Local 3, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, and Local 199, Industrial Workers of Allied Trades, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Whether, in picketing the Shell Oil Company Construction jobsite from time to time between January 6 and 16, 1967,2 the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. B. The Facts Toward the end of September 1966, based upon its having submitted the low bid, Berger was awarded the contract for the construction of a gasoline service station by Shell Oil Company, to be erected at the intersection of North Conduit Avenue and Rockaway Boulevard in Queens. Under its contract with Shell, for whom it had per- formed similar construction work over a period of years, Berger was permitted to, and during October and November did, subcontract the work to con- tractors employing only union labor. Thus, in scheduling the construction of the station, Berger orally contracted with various union subcontrac- tors, including Surf Hunter, whose five employees are members of Local 199 and, as such, covered under an existing collective-bargaining contract. On November 21, 1966, when the job was getting under way, Milton Herschkorn, president of Surf Hunter, sent a crew out to the Shell site, at which time underground electrical conduits were put in place. This preliminary work was completed in 1 day, at the close of which Surf Hunter's employees left the jobsite and did not reappear at the location until early January 1967. Between January 6 and 13 members of Local 3 engaged in the intermittent picketing of the con- struction site, and remained in the area until Janua- ry 16. The Shell Oil site is located on the northwest corner of North Conduit Avenue, running north and south, and Rockaway Boulevard, a major four- lane traffic intersection controlled by traffic lights. The station itself, approximately 30 by 60 feet, is located some 40 feet back from the property line, which, in turn, is back approximately 20 feet from the street gutter, within which area a partially completed sidewalk and curbing ran around the corner parallel to the intersecting streets. Directly north of the Shell Oil site is located a motel, and across Rockaway Boulevard on the northeast corner of the intersection is Teddy's Diner, which adjoins a motel to the north. Other than motel oc- cupants who occasionally crossed over to Teddy's Diner, very few pedestrians were present at any time in the area. On the other hand, with Rockaway Boulevard a major artery, auto traffic was heavy at times and often backed up while waiting for a change in lights. Daily, throughout this period of in- termittent picketing, Dan Hull, a Local 3 member and picket captain assigned to the Shell Oil site, and his volunteer pickets made Teddy's Diner their picket headquarters at times during each 8-hour day when they were not engaged in picketing. Mainly in dispute in this proceeding is the factual question concerning the presence, or lack thereof, of Surf Hunter electricians during the times when men were on the picket line. In this regard, Dan Hull and William Darcy, a Local 3 business representative, testified to one set of facts, whereas, General Contractor Berger and Surf Hunter's pre- sident, Herschkorn, testified to another. According to the testimony of Hull, at a district meeting, attended by Local 3 members on Thursday, January 5, Darcy informed Hull that there had been reports of electricians working on a gas station job at Rockaway Boulevard and Conduit Avenue who were receiving wages and conditions less than those received by Local 3 members, and asked Hull to try to get out there with volunteer pickets the following morning. Accordingly, the as- sembled union membership was then apprised of the impending picketing and Hull asked for volun- teers to assist in the picketing. A number of men, mostly unemployed, retirees, and those working in the immediate area, agreed to help. The following day, Friday, January 6, armed with instructions from Darcy as to proper conduct on the picket line, Hull arrived on the site about 9 a.m. Upon arriving, and seeing two or three men doing electrical work, Hull, along with 10 pickets, picketed until 2 or 3 p.m., during which time there were electricians working on the job. The picket signs read, "To the public-the electricians work- ing for Ampak Electric do not have the same work- ing conditions or wages received by Local 3, IBEW, AFL-CIO." That afternoon a city inspector arrived on the job and told one of the pickets that Ampak Electric was not doing the electrical work. Thereafter, about 3 p.m., when one of the pickets who formerly had worked for Hunter Electric Com- pany recognized Herschkorn on the job, the name of the subcontractor on the signs was changed to Hunter Electric.3 The following day, Saturday, January 7, Hull and his pickets were across the street in Teddy's Diner when a truck bearing the name of Surf Hunter drove up about 11 a.m., with four or five electri- cians. Hull then, once again, changed the name on the picket signs , this time to properly reflect Surf Hunter as the electrical subcontractor on the job. Thereafter, for about 1 hour while the Surf Hunter ' Unless otherwise specified , all dates refer to the year 1967 ' Prior to December 1962, Surf Hunter was known as Hunter Electric Company 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were working, some 20 to 25 Local 3 men engaged in picketing. On Monday, January 9, Hunter was stationed in Teddy's Diner when Herschkorn and two or three electricians arrived on the job about 8 a.m., and proceeded to perform electrical work. Hull im- mediately established` a picket line comprised of 8 to 10 pickets. The picketing continued until about 3' p.m., during which time Surf Hunter employees were on the job. On Tuesday, January 10, Hull again awaited the arrival of Surf Hunter employees from his vantage point across the street in Teddy's Diner. When two Surf Hunter electricians arrived at 9:30 a.m., and after receiving instructions from Herschkorn proceeded to perform work, Hull again set up an 8- to 10-man picket line. The picketing continued until lunchtime, at which time it stopped when the electricians ceased working and left. The following day, Wednesday, January 11, two electricians ar- rived on the jobsite about 10:30 or 11 a.m., received instructions from Herschkorn, and went to work. The work continued until 1:30 p.m., as did the picketing, at which time the men left and the picket line ceased. Although Hull was again present' on Thursday, January 12, no electricians showed up, no picketing occurred. and Hull left around 1 p.m. On Friday, January 13, Hull met again with his pickets at the diner at 8 a.m. Two Surf Hunter em- ployees showed up about 11 a.m., spoke with Herschkorn, and then worked until 2 or 3 p.m., during which time Hull's Local 3 members, 4 to 6 initially and 10 to 12 at lunchtime, engaged in picketing. Although this was the last day of any picket activity, Hull and his pickets remained in the area observing and prepared to picket through Monday, January 16, and until the following Tuesday or Wednesday, January 17 or 18, when, after having been notified by Darcy that a Local 3 contractor would take over shortly, Local 3 mem- bers, employed by Gasservice Maintenance Co., ar- rived on the job and took over the electrical work. Upon the arrival of the Gasservice employees, one of whom knew Hull and showed him his Local 3 union card, Hull called Darcy, telling him that a Local 3 contractor was on the jobsite. Darcy checked, and subsequently called Hull back, authorizing him to officially call off the picketing. Berger's version of the crucial events is that fol- lowing the appearance of Surf Hunter employees on Friday, January 6, Berger was called on Satur- day by a Shell oil official and apprised of picketing on the site . Berger then went out to the job where he observed 30 to 40 Local 3 pickets. On the even- ing of Monday, January 9, after further picketing during the day, and prodded by telephone calls from Shell Oil officials with whom Berger was ' Specifically, Berger testified that " I had received telephone calls from the oil company engineers complaining about the picket lines and I was told to remove them There was no possible way for me to remove the picket lines and I felt the only way that I could stay in the grace of the oil company and continue doing their work was to somehow or other get these bidding other jobs and who "were very unhappy about their image," Berger removed Surf Hunter as the electrical subcontractor and sent a night letter to the Union, apprising it of the fact that Surf Hunter would no longer be working on the job." The telegram read as follows: JANUARY 9 10:30 P.M. LOCAL UNION # 3, I.B.E.W. 130 E. 25 ST. N.Y. SURF HUNTER ELECTRIC CO. INC. WILL NOT BE WORKING AT SHELL GAS STATION 154-10 ROCKAWAY BLVD. QUEENS UNTIL FURTHER NOTICE. STUART BERGER, PRES . STUART BERGER, INC. 1073 LONGBEACH RD. SOUTH HEMPSTEAD, N.Y. Notwithstanding the telegram, Berger testified that picketing of the Shell Oil site continued every day throughout the rest of the week, and, in fact, until Monday, January 16, when Berger finally hired Gasservice Company, a Local 3 contractor, to finish the electrical work. Once Gasservice arrived on the job, the picketing ceased. During this period, according to Berger, the picketing would start in the morning with perhaps 2 men, later build up to 6 men, with some 30 to 40 during lunchtime, and thereafter, dwindle down again to just a few pickets. Further, according to Berger, who testified that he was present at the site for about 2 hours every day, Surf Hunter employees worked only on Friday and Saturday, January 6 and 7, and did not to his knowledge work on Monday, January 9, or at any time thereafter. Oddly enough, according to Berger, the picketing never occurred at any time that Surf Hunter employees were in fact working on the job. Herschkorn's version of the matter varies greatly with that of Hull, and slightly with the testimony of Berger. Thus, Herschkorn testified that, apart from the November date, his employees first worked at the Shell Oil site on Saturday, January 7, but that on Friday afternoon the day before, having received a telephone call apprising him of picketing action at one of his jobs, he observed Local 3 picketing at the site . On Saturday the pickets were already present in the morning when he and his men (Surf Hunter employees) arrived. According to Herschkorn, when his men started to work the pickets dispersed, and his men continued to work a half a day without further picketing. On the next workday, Monday, January 9, while two Surf Hunter employees were working on the job, picketing again took place, the pickets carrying signs which read "The electricians working for Surf Hunter do not have the same working conditions or wages received by Local 3, IBEW, AFL-CIO."5 On people off of the job So we sent a telegram to Local 3 telling them that Surf Hunter was no longer working there " S Herschkorn took snapshots on Saturday and again on Monday showing the pickets as they walked on the sidewalk in front of the job LOCAL 3, ELECTRICAL WORKERS 1105 the evening of Monday, January 9, while in his of- fice, Stuart Berger told Herschkorn that he had been removed from the job, that pressure was being put on him by Shell Oil whose "public image was being distorted," and that Shell wanted Surf Hunter off the job. When Herschkorn protested, Berger asked him how he was going to get the pickets out of there. Berger continued with, "they will picket there forever." Herschkorn testified that from January 9 on, no Surf Hunter employees ever returned to the jobsite.6 Notwithstanding that Surf Hunter had been removed from the job and the Union so notified, Herschkorn testified that he continued to visit the Shell Oil site in his unmarked auto "at least three times a day" for the rest of the week, spending from 20 minutes to 1-1/2 hours each time. With respect to the picketing that continued during this period, Herschkorn testified that early in the morn- ing, from 7:30 to 8:30, at noon, and again between 3:30 and 4:30 in the afternoon, the number of pickets was large, as many as 37, tapering off in between to as few as 2, 4, and 6. Business Representative Darcy, who was respon- sible for some 60 to 100 jobs, testified that he kept in touch with Hull by telephone two or three times a day, but that, with one exception, he was not present at the construction site during this period. Accordingly, Darcy was not in a position to cor- roborate firsthand Hull's testimony as to the picket- ing hours or the presence of electricians on the job. Throughout his testimony, however, Darcy, from whom all authority emanated concerning the picketing, maintained that his instructions to Hull were not to picket "if the electricians were not working there . . ." and ". . . if there is no one there, cease the line immediately." Based upon his alleged reports from Hull these instructions were complied with. With respect to the telegram, Darcy testified that he was out of his office all day on January 10 and 11, and until noon on Thursday, January 12. At that time he first became aware of Berger's tele- gram, and, when he could not contact Hull by telephone, he went out to the site around 2 or 3 p.m., where he found no one, including Berger, Herschkorn, Hull, or pickets. That night around 6 p.m., Darcy met with Hull and discussed the tele- gram, Darcy instructing Hull to continue to picket if Surf Hunter employees appeared. Finally, accord- ing to Darcy, on Monday, January 16, he received a telephone call from a Mr. Gellis, an official of Gas- service Company, who told him that he was now doing the job for Berger. Satisfied that Surf Hunter was no longer in fact performing the electrical work, the picketing of the Shell Oil job was called off on January 16. Summarizing with respect to the presence of pickets and the appearance of Surf Hunter em- ployees at the jobsite, while it is obvious from the above accounts as well as the record generally that no two of the four principals agree entirely as to the events, Hull and Darcy generally assert that Local 3 members engaged in picketing the jobsite anywhere from 1 to 7 hours on January 6, 7, 9, 10, 11, and 13, that on these dates during the hours of picket- ing, and only during such hours, Surf Hunter elec- tricians were on the job performing work. On the other hand, Berger and Herschkorn generally agree that Local 3 picketing continued throughout the week in question, but assert that no Surf Hunter employees worked on the job after Monday, Janua- ry 9. While, for varying reasons, I have strong reser- vations concerning the complete veracity of all four of the principals in this proceeding, in resolving this fact issue I find that Surf Hunter employees did in fact continue to perform some work at the site dur- ing the week in question. I do so, not necessarily because I credit Hull or Darcy over Herschkorn or Berger, but primarily because I fail to perceive any possible reason why, if Surf Hunter were in fact removed from the job as electrical subcontractor and there were no electrical work being performed, Herschkorn, who had several other jobs going, each requiring his personal attention daily for but 15 minutes, found it necessary to visit the Shell Oil site "at least three times a day" for periods up to 1-1 /2 hours. In the absence of any testimonial explana- tion for his presence during this period or any com- pany records supporting a contrary finding, I am compelled to conclude that he was there for the purpose of supervising the work of Surf Hunter em- ployees. Nor do I credit Herschkorn's testimony to the effect that on Saturday, January 7, the pickets dispersed when Surf Hunter employees appeared and started to work or Berger's testimony that the picketing never occurred at times Surf Hunter em- ployees were on the job.7 On the other hand, based in part upon several in- consistencies and contradictions in the testimony of Hull (as well as Darcy, and the voluntary and in- determinate manner in which the pickets gathered at various intervals during each day, I am per- suaded, contrary to the testimony of Hull, and the alleged instructions of Darcy, that the picketing was not necessarily confined to such times as Surf Hunter employees were working at the jobsite. Ac- cordingly, while finding that Surf Hunter employees were at times engaged in performing electrical work during the week of January 9, 1 also find, as testified to by Herschkorn and Berger, that Local 3 picketing occurred on occasion during this week at times when Surf Hunter employees were not present. In addition to the above findings, the record demonstrates that during the period in question, Herschkorn testified that around the middle of the following week , r In this regard , 1 am inclined to feel that the testimony of Herschkorn, as which would place it about January 18, and after all picketing had ceased, well as that of Berger , was perhaps predicated upon a misconception as to one of his men went back to the job briefly to advise his successor as to what was necessary to prove their case what had been done up to that point 354-126 O-LT - 73 - pt. 1 - 71 1 106 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD while picketing was in progress, other trades, in- cluding carpenters, bricklayers, plumbers, cement finishers, and laborers, all of whom were union members, continued to work without incident or in- terruption. It is further undenied that the picket legend , addressed to the public and strictly infor- mational in nature, was, in itself, lawful. The picket line varied from as few as 2 or 3 pickets to as many as 40 pickets, such variance explained by the fact that the pickets were volunteer Local 3 members, many of whom picketed during their lunch hour on nearby jobs. At all times the picketing was peace- ful, unaccompanied by any incident of coercion or threat, by or to anyone. The record, in fact, dis- closes that there was no interference with deliveries at the jobsite and that the pickets spoke to no one while on the picket line.8 ANALYSIS AND CONCLUSIONS The General Counsel, in short, contends that, in picketing the Shell Oil construction site, one of the Respondent's objectives was to force Berger to cease doing business with Surf Hunter because Surf Hunter was a non-Local 3 contractor, thereby preserving the work on the job for Local 3 mem- bers, and thus that such picketing violated Section 8(b)(4)(i) and (ii)(B) of the Act.9 In support of its position as to an unlawful objective, the General Counsel relies in part on its assertion that the picketing continued at times when no Surf Hunter employees were working, on the fact that at times as many as 40 pickets were picketing, and on the failure of the Respondent at any time to discuss "area standards" with either Surf Hunter or Berger. The Respondent, in denying the complaint allega- tions, contends that the sole purpose in picketing here was to inform the public that it was protesting Surf Hunter's payment of substandard wages, a law- ful objective, and that, even if the purpose of the picketing were other than informational to any ex- tent, the picketing was primary rather than secon- dary. In support of its position, the Respondent re- lies upon the truthful nature of the informational signs addressed to the public, and points to the lack of any evidence of inducement, threat, or coercion -of anyone. Long ago, and since adhered to, the Board established certain standards for picketing on a common jobsite such as here, criteria which, if met, would presumptively indicate that the Union was attempting to limit its dispute to the primary em- ployer and not to enmesh other secondary em- ployers.10 In applying these standards, the Board has indicated that they are not to be applied on an indiscriminate per se basis, but are to be used mere- ly as aids in determining the basic question as to a statutory violation." The Board has also made it clear that nominal compliance with Moore Dry Dock standards does not conclusively attest the legality of common situs picketing, and that "atten- dant circumstances may establish that the Union's conduct did, in fact, have an object proscribed by the Act, mainly, to embroil the operations of the neutral common-situs employer."" Thus, as applied to the facts of this case, it would appear, on the surface at least, that the picketing here after the first day was, for the most part, con- ducted in accordance with the Moore Dry Dock standards. The fact that some picketing occurred on occasion when employees of Surf Hunter, the primary employer, were not working does not, standing by itself under the circumstances of this case, constitute noncompliance with such stan- dards.13 Notwithstanding such apparent conformity with Moore Dry Dock after January 7, and fully 'recognizing the fact that the picketing resulted in no work cessation or delivery stoppages on the part of employees of other secondary employers, the record discloses attendant circumstances connected s Concerning one alleged isolated exception, Herschkorn testified that on the first day he asked the pickets what was going on and received no reply except for one who told him to see Darcy across the street Unable to find Darcy , Herschkorn asked another, identified at the hearing as Hull, whether this was a strike , and allegedly was told, " No, there is an organiza- tional drive " I credit Hull 's denial that he made this statement or that he ever talked with Herschkorn at all ° Section 8 (b)(4)(i) and ( ii)(B) of the Act provides 8(b) It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage any individual em- ployed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his em- ployment to use, manufacture , process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to per- form any services , or (u) to threaten , coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is (B) forcing or requiring any person to cease using, selling, handling, transporting , or otherwise dealing in the products of any other producer , processor, or manufacturer , or to cease doing business with any other person , or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary stnke or primary picketing 10 Sailers' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 The conditions therein set forth require that ( a) the picketing be strictly limited to times when the situs of the dispute is located on the secondary employer's premises, (b) at the time of the picketing the primary employer be engaged in its normal business at the situs , (c) the picketing be limited to places reasonably close to the location of the situs ; and (d) the picketing disclose clearly that the dispute is with the primary employer " International Brotherhood of Electrical Workers, Local Union 861 (Plauche Electric, Inc ), 135 NLRB 250, International Brotherhood of Elec- trical Workers, Local Union No 11 , AFL-CIO (L G Electric Contractors, Inc ), 154 NLRB 766 it Local 895 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (Eastern New York Construc- tion Employers, Inc ), 153 NLRB 993 " See Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New Power Wire and Electric Corp ), 144 NLRB 1089 LOCAL 3, ELECTRICAL WORKERS 1107 with the picketing which , because " in any of these secondary boycott situations the ultimate deter- mination depends upon the Union 's objective, 1114 warrant close scrutiny. In looking at these "attendant circumstances," full recognition must be accorded the Board 's hold- ing that picketing by a union to protest the payment of substandard wages , referred to generally as area standards picketing, is legitimate conduct where it had been determined that such is the purpose.15 At the same time , it must also be recognized that where a picketing union has in fact an unlawful concurrent objective at the time of the picketing, the lawful objective does not relieve the Union of the consequences of the unlawful conduct. 16 Thus, with respect to Local 3's initial interest in this construction job, Darcy, the one man responsi- ble for the Union 's decision to picket , testified that he received two reports on January 4 or 5 from Local 3 men who were working in the area and had been following the job's progress . According to these reports , the men had talked with electricians and were informed that Ampak Electric Company was on the job and performing the electrical work. Assertedly , based upon this information , Darcy met with Local 3 members in the area on January 5, and decided to picket the site . He told the men that this would be informational picketing and in- structed them precisely as to how to picket. The following morning, Friday, January 6 , the picketing commenced with signs reflecting Ampak Electric as the contractor whose employees "do not have the same working conditions or wages received by Local 3, IBEW , AFL-CIO." Darcy testified that these signs were changed later that day about 3 p.m., when a city inspector happened on the job and informed the pickets of their mistake, that Hunter was doing the job.17 Apart from having a very poor opinion of Darcy's veracity while testifying on the witness stand, based in part upon his propensity for avoiding questions, there is no evidence reflecting that any electricians were employed on the job on January 4 or 5, or, with the exception of the 1 day the prior November, at any time before January 6 . Secondly, there is no showing that a company by the name of Ampak Electric at any time had anything to do with the Shell Oil construction job. I am convinced, on the record as a whole , that at some point on Friday, January 6 , Darcy, with no knowledge as to who the electrical subcontractor was, was made aware by his Local 3 members in the area that non-Local 3 electricians were starting the job. Thus, without knowledge as to who was doing the job, and, ac- cordingly, what the wages and conditions of work were with respect to such subcontractor, and based solely upon the fact that Local 3 members were not performing the work, Darcy decided to picket the jobsite. Darcy's own testimony, on cross-examina- tion, lends itself to this conclusion. At one point, after admitting that on such occasions when ap- prised by his members that non-Local 3 members were doing a particular job he became very much concerned, Darcy testified as follows: Q. Your people from Local 3 were not doing the work on this particular job, right? A. That's right. Q. Now, you determined that because your people told you this, correct? A. That's right. Q. And as a matter of procedure you deter- mined to picket this job, is that correct? A. That's right. We decided to protest, yes.18 Apart from the fact that the picketing com- menced with signs protesting the "working condi- tions and wages" of the wrong electrical subcon- tractor, in itself a deviation from the Moore Dry Dock conditions, Darcy in fact did not know who the Respondent was picketing or whose substan- dard wages and working conditions the Respondent was protesting to the public. In fact, under these circumstances, Darcy could not have known what the working conditions and wages were of those electricians working on the job. Nor did Darcy or any official of the Union at any time , before or after the advent of the picket line, attempt to find out what the electricians on the job were being paid, for the Respondent at no time attempted to communicate with either Herschkorn concerning this matter, or with Berger. And this is not a case where the principals knew each other and the Respondent, perhaps, could have reasoned that such a communication would have been pointless.19 Thus, even assuming , which I do, that one of the Union's objectives here was, as it asserts, an infor- mational one addressed to the public, picketing which starts in this manner and continues until such time as the picketing union is assured that a Local 3 subcontractor has taken over the construction job " Local 761, International Union of Electrical, Radio and Machine Wor- kers, AFL-CIO [General Electric Company] v N L R. B, 278 F 2d 282, 285 (C.A D.C.) " See International Hod Carriers , Building and Common Laborers' Union of America, Local No. 41, AFL-CIO (CalumetContractors Association and George DeJong ), 133 NLRB 512, Houston Building and Construction Trades Council ( Claude Everett Construction Company), 136 NLRB 321, Local 107, International Had Carriers , AFL-CIO ( Texarkana Construction Com- pany ), 138 NLRB 102 , cf Local 25, International Brotherhood of Electrical Workers, AFL-CIO ( Sarrow-Suburban Electric Co, Inc ), 152 NLRB 531. " Local 3, IBEW (Atlas Reid, Inc ), 170 NLRB 584, International Brotherhood of Electrical Workers, Local Union No 11, AFL-CIO (L. G Electric Contractors, Inc ), supra, see also N L R.B v Denver Building and Construction Trades Council, 341 U S 675, 689 (1951), Northeastern Indi- ana Building and Construction Trades Council (Centhvre Village Apart ments), 148 NLRB 854 ' As testified to by Hull, the signs were changed again the following morning, Saturday, January 7, to show Surf Hunter as the electrical con- tractor with whom Local 3 had a dispute. 18 The Trial Examiner ascertained at the hearing that whenever the word "protest" was used , the witnesses were using it synonymously with "picket- ing " 18 Cf. Hoban v. Local No. 4, Hoisting and Portable Engineers, Operating Engineers (0 DiMascio Construction Corp ), 65 LRRM 3009, 3012. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raises a presumption that a second union objective was that of seeking to cause the neutral general contractor, Berger, to cease doing business with Surf Hunter . I so find . I am convinced , as asserted by the General Counsel , on the record as a whole, that the Respondent would not have been satisfied with anything less than the removal of Surf Hunter from the jobsite in favor of the Local 3 contractor, a resultwhich in fact was achieved. This objective, as distinguished from the lawful objective of protest- ing to the public "substandard wages and working conditions," is unlawful and one proscribed by the Act.20 I further conclude that, although the Respondent was interested in protesting substandard wages (once it had determined who the primary employer was), the more immediate objective of Respon- dent's picketing was the removal of Surf Hunter and its non-Local 3 electricians from the jobsite. Accordingly, contrary to the Respondent's assertion that its picketing was primary in nature, a position which must fall in view of the finding of an unlawful objective, I find that the Respondent, in picketing the Shell Oil site between January 6 and 13, 1967, engaged in restraint and coercion of a neutral secondary employer within the prohibition of Section 8(b)(4)(ii)(B) of the Act.21 I further find as a separate violation of this section, the Respon- dent's conduct in picketing the construction site on Friday, January 6, 1967, with untruthful signs, legends reflecting the name of an employer with whom it had no dispute and one, who in fact was in no way involved with the general contractor on the construction project.22 General Counsel asserts, and the complaint al- leges, that in picketing the Shell Oil site, the Respondent violated Section 8(b)(4)(i )(B) of the Act in that such conduct induced and encouraged employees of Berger and other subcontractors on the job to refuse to perform services. In this regard, the record reveals that no one, Respondent's offi- cials or picketing Local 3 members, spoke to any of the employees on the job. Nor was there any at- tempt to enlist the support of working employees notwithstanding that all such employees employed by other subcontractors were union members.23 The picket signs, after the first day, were lawful area standard signs, directed to the public. Although, based upon my finding herein, there were occasions when picketing occurred in the absence of Surf Hunter's employees, no work stop- pages resulted . Thus, in the absence of other fac- tors supporting the General Counsel's position in this regard , and mindful that picketing which may be found to coerce and restrain an employer does not automatically give rise to a finding that such also induces or encourages employees to make common cause with the Union for an unlawful ob- ject,24 I find that the General Counsel has failed to prove a violation of Section 8(b)(4)(i)( B) of the Act.25 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III , above, occurring in connection with the Companies' operations described in section 1, above, have a close, intimate , and substantial rela- tionship 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 It having been found that the Respondent en - gaged in certain unfair labor practices in the form of unlawful secondary conduct, I shall recommend that it cease and desist therefrom and that it take' certain affirmative action which is necessary to ef- fectuate the policies of the Act, While the General Counsel, in his brief, requests a broad order to eliminate "the widespread use of secondary activi- ties" by Local 3, the result of its alleged dispute with Local 199, the General Counsel fails to cite cases sufficient to support its assertion in this re- gard. Accordingly, as the facts found herein do not, in my opinion , warrant such an order, I must deny the request. Upon the basis of the foregoing findings and con- clusions,28 and upon the entire record in this case', I make the following: CONCLUSIONS OF LAW 1. Local 3, International Brotherhood of Electri- cal Workers, AFL-CIO, and Local 199, Industrial Workers of Allied Trades, are labor organizations within the meaning of Section 2(5) of the Act. 20 In reaching this conclusion , I do not rely on the fact, one stressed by the General Counsel, that at times there were as many as 40 pickets on the line with but few pedestrians in the vicinity This, in itself, is not necessarily inconsistent with the mere area standards objective. Retail Clerks Interna- tional Association , Local Union No. 899, AFL-CIO ( State-Mart, Inc., d/b/a Giant Food), 166 NLRB 818. _' International Brotherhood of Electrical Workers, Local Union No II, AFL-CIO (L G Electric Contractors , Inc ), supra; Local 254, Building Ser- vice Employees International Union , AFL-CIO ( Herbert Kletjian, d/b/a University Cleaning C o ), 1 5 1 NLRB 341, Building Service Employees Inter- national Union , Local No 105 ( Industrial Janitorial Services, Inc ) , I S I NLRB 1424. " Apart from the crucial importance of the objective of picketing con- duct under Section 8 (b)(4) of the Act, it seems to me that coextensive with the right of a union to picket, particularly at a common situs , is the obliga- tion of that union to ascertain in advance the name of the employer it in- tends to picket. " Oddly enough, it does not appear that Berger , the general contractor, even had any of his employees working at the iobsite 24 Upholsterers Frame & Bedding Workers, Twin City Local No. 61 (Min- neapolis House Furnishings Company), 132 NLRB 40 " Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Atlas Reid, Inc ), supra "The Respondent 's proposed findings of fact contained in its brief are adopted only to the extent that they are consistent with my express findings set forth herein LOCAL 3, ELECTRICAL WORKERS 2. Surf Hunter Electric Company, Inc., and Stuart Berger, Inc., are persons and employers en- gaged in commerce and in an industry affecting commerce within the meaning of the Act. 3. By picketing at the Shell Oil Company con- struction site at North Conduit Avenue and Rockaway Boulevard in Queens , New York , at par- ticular times between January 6 and 16, 1967, the Respondent Union threatened , coerced, and restrained Stuart Berger , Inc., with an object of forcing or requiring that employer to cease doing business with Surf Hunter Electric Company, Inc., in violation of Section 8(b)(4)(ii )(B) of the Act. 4. The Respondent Union has not engaged in conduct violative of Section 8(b)(4)(i)(B) of the Act. 5. The above unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent Union , Local 3, International Brotherhood of Elec- trical Workers , AFL-CIO, its officers, representa- tives, and agents, shall: 1. Cease and desist from threatening , coercing, or restraining Stuart Berger, Inc., or any other per- son engaged in commerce or in an industry affect- ing commerce where an object thereof is to force or require Stuart Berger , Inc., to cease doing busi- ness with Surf Hunter Electric Company, Inc. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its business office and meeting halls copies of the attached notice marked "Appen- dix."27 Copies of said notice , on forms provided by the Regional Director for Region 29, after being duly signed by Respondent Union's authorized representative , shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places , including all places where notices to mem- bers are customarily posted . Reasonable steps shall be taken by it to insure that said notices are not al- tered , defaced, or covered by any other material. (b) Furnish the Regional Director for Region 29 signed copies of said notice for posting by Stuart Berger, Inc., if willing , in places where notices to employees are customarily posted. 1109 (c) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.'" '"_In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words " a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words "a Decision and Order " _" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT threaten, restrain, or coerce Stuart Berger, Inc., or any other employer or person engaged in commerce or in industry af- fecting commerce where an object thereof is to force or require them to cease doing business with Surf Hunter Electric Company, Inc. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO Labor Organization Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-3535.