IBEW Local Union 11

IBEW LOCAL UNION II International Brotherhood of Electrical Workers, Local Union 11, AFL-CIO (Lumley and Estes, Inc.; Kess Construction Company ) and Jones and Jones, Inc. Case 21-CC-1 130 October 15, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On August 5, 1969, Trial Examiner Maurice Alexandre, 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 in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent also filed a brief in opposition to the General Counsel's exceptions. 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. 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner This case was heard in Los Angeles, California, on May 19, 1969, upon a complaint issued on April 1, 1969,' and amended on April 2, 1969, alleging that Respondent had violated Section 8(b)(4)(i) and (H)(B) of the National Labor Relations Act, as amended, by picketing a construction site with an object of (1) forcing or requiring the general contractor (with whom Respondent had no dispute) to cease doing business with the electrical subcontractor (the primary employer), and (2) forcing or requiring certain other subcontractors to cease doing business with the general contractor in order to compel the latter to cease doing business with the said electrical subcontractor. Respondent admits the picketing but denies the commission of the alleged unfair labor practices The issue 145 presented is whether an object of the picketing was unlawful Upon the entire record, my observation of the witnesses, and the briefs filed by the parties, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESSES OF THE EMPLOYERS INVOLVED Kess Construction Company (hereafter called Kess) of Long Beach, California , is a sole proprietorship owned and operated by one Derric C Kessinger During 1969, Kess was engaged , as builder and general contractor, in the erection of a four-unit apartment building in Long Beach Kess utilized no employees of its own at the construction site The electrical subcontractor on the project, the primary employer herein, was Lumley and Estes, Inc , a California corporation with its principal place of business at Los Alamitos , California The plumbing subcontractor was Specialty Plumbing, and the roofing subcontractor was West Roofing Company The parties stipulated that in the course and conduct of its operations during the year ending March 31, 1969, Lumley and Estes purchased goods, materials and supplies valued in excess of $48,000 from suppliers who had purchased such goods , materials and supplies directly from suppliers located outside the State of California. The parties further stipulated that in connection with and for use at the aforesaid construction project, Kess and its subcontractors other than Lumley and Estes purchased and received goods, materials and supplies originating outside the State of California valued in excess of $4,000. When the above direct inflow and indirect inflow of the said enterprises are added together, the total exceeds the $50,000 minimum jurisdictional amount established by the Board for such nonretail enterprises Accordingly, I find that such inflow is sufficient to warrant the assertion of jurisdiction over the Respondent' s alleged unlawful activity. Local 2669, affiliated with Suffolk County District Council of Carpenters etc (T & D Roofing Co , Inc ), 173 NLRB No 188 II THE LABOR ORGANIZATION INVOLVED Respondent is, and at all times material herein has been, a labor organization within the meaning of the Act III. THE UNFAIR LABOR PRACTICES A. The Evidence 1 February 4 through 9 On Tuesday, February 4, 1969,2 Respondent began picketing the Kess apartment construction site and continued the picketing through Friday, February 7' The signs carried by the pickets throughout the picketing read as follows 'Based upon an original and an amended charge filed on February 26 and March 18, 1969, respectively 'All dates referred hereafter relate to 1969 unless otherwise stated 'The record does not disclose the exact hours of the picketing Crepeac, a member of Respondent, testified that he picketed from an unspecified hour until I 100 a in. on each day from February 4 through 7 Dial, Respondent's business representative, testified that the picketing on February 7 ceased for the day between 2 30 and 3 00 p in 179 NLRB No. 22 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LUMLEY AND ESTES, INC. DOES NOT PAY PREVAILING WAGE NOR MAINTAIN WORKING CONDITIONS OF LOCAL 11, IBEW AFL-CIO, Following commencement of the picketing, the employees of the roofing and plumbing subcontractors discontinued working and did not work during the period of the picketing. The record does not disclose whether the employees of Lumley and Estes discontinued working on February 4, but it is clear that they did not work on February 5.5 Lumley testified that his employees did not work on February 6, and that his prehearing affidavit to the contrary was erroneous. Business Representative Dial testified that he visited the jobsite on the afternoon of Friday, February 7, and that no one was working when he removed the picket and left between 2 30 and 3:00 p.m Lumley testified that he and a helper arrived at the site at "about" 2.00 p m. on February 7 and worked until about 6 00 p m.; that they completed the rough electrical work, which was then ready for inspection, that at that time, he did not know of any further work required of him prior to commencement of the finish work,, and that although he went to the site on Saturday and Sunday, February 8 and 9, neither he nor his employees performed any work during that weekend. Kessinger testified that Lumley and Estes worked during the afternoon on February 7, that on that day, he was told by Lumley that the rough electrical work had been completed; that Lumley and Estes "pulled off" the jobsite on that day, and that he did not recall whether Lumley and Estes worked during the ensuing weekend Apparently, no picketing occurred during the weekend. 2. February 10 Picketing was resumed sometime prior to 11.00 a.m on Monday, February 10' Dial testified that he returned to the construction site at 11 30 a m. that day, saw that a little additional electrical work had been performed sometime since his last visit,' but was unable to determine through a visual inspection from the sidewalk whether or not all the rough electrical work had been completed. Crepeac testified that from his position on the sidewalk while picketing, he could not observe what stage had been reached in the electrical work in all of the four apartment units. Dial further testified that when he arrived no one was working at the jobsite, and that Lumley and Estes performed no work that day up to the time he removed the picket at about 2 30 p m. At about that time, Dial received a telegram, signed "Kess Construction Co " The telegram indicated that it had been sent at 1:49 p m., and contained the following words in the lower right corner 'Respondent has never been certified as the collective -bargaining representative of the employees of Lumley and Estes and has no collective-bargaining agreement with that company 'Sometime during the course of the picketing, Kessinger asked Business Representative Dial why he was picketing him Dial replied that he was picketing the electricians , not Kessinger 'According to Lumley, 4 to 6 weeks normally elaspe between the rough and finish work 'According to the testimony of Crepeac, a picket 'Dial testified that he and one good electrician could have performed such work in 10 to 15 minutes Bd Jones and Jones 664 Monterey Pass' The text of the telegram was as follows: PICKETING AT 436 ALMOND LONG BEACH IS UNLAWFUL AS LUMLEY AND ESTES ELECTRICAL CONTRACTOR ARE NO LONGER PERFORMING WORK AT SUCH JOB SITE, PLEASE REMOVE THE PICKETING Dial testified that he was suspicious of the telegram for two reasons. One was that it bore a Monterey Park address and he knew that Kess had a Long Beach office about two doors north of the jobsite. The second reason was that he had previously fallen into a similar "trap" created by another union which, almost immediately after he removed a picket line, informed him that it had not said that "they were off for good"; and that he felt there was no assurance that Lumley and Estes' employees would not return 5 minutes after the picket line was removed. Dial thereupon telephoned Respondent's attorney and was instructed by the latter to ask Kess, in the presence of a witness, the intent behind the statement in the telegram that Lumley and Estes were no longer on the job, i e , whether it meant "temporarily off, off for the hour, off for the day, or permanently off the job." Dial then telephoned Kessinger and spoke to him while Shannon, another representative of Respondent, listened to the conversation on an extension. Dial identified himself, stated that he had received a telegram, and asked what it meant When Kessinger replied that he had not sent the telegram and knew nothing about it,'' Dial stated that it bore his signature and read the telegram to Kessinger. According to Dial, he then asked Kessinger Does this mean when you said Lumley and Estes is off the job, you mean I am to take this to mean that they will not be back, or that they will be back tomorrow? According to Shannon, Dial asked "if this telegram would mean that Lumley and Estes would perform no more work on the job" Dial and Shannon both testified that Kessinger's reply was that he had a contract with Lumley and Estes and that he assumed that they would finish the job. In addition, both testified that Kessinger did not state that Lumley and Estes had completed the rough electrical work. Dial further testified that he did not know, after the conversation, whether or not Lumley and Estes would return to the job. Kessinger testified that Dial asked whether Lumley and Estes was permanently off the project, that he told Dial that that company was not working at the time but that no agreement had been made respecting the future, and that he did not say to Dial that Lumley and Estes had a contract to finish the job. Following completion of the call, Dial telephoned Respondent's attorney and reported the substance of his conversation 'I note that the Charging Party is Jones and Jones , Inc , labor relations consultant When he introduced the telegram in evidence , the General Counsel expressed the opinion that the quoted language meant that the telegram was billed to Jones and Jones "Kessmger testified that he had not authorized the sending of the telegram On cross-examination , he first testified that Lumley had told him about the telegram prior to his telephone conversation with Dial, and then stated that he did not remember whether Lumley did so before the conversation On redirect examination , Kessinger testified that he was told by Gafney , his bookkeeper, that the latter had had a conversation with Jones about the telegram during the afternoon of February 10 Kessinger further testified that he did not know about the telegram before Gafney told him about it IBEW LOCAL UNION 11 147 3 February 11 Picketing was resumed sometime before 11 00 a.m on Tuesday, February 11 and ended sometime during the morning " Kessinger testified that at an unspecified time on Monday, February 10, he had talked to Lumley on the telephone and they had agreed to release each other from their electrical contract; and that at about 8'30 a.m. on February 11, a written agreement to that effect was prepared and executed." Sometime during the morning, Kessinger gave the release agreement to a picket, the picketing ended about two hours later, and it has not been resumed since that time. At an unspecified time after the picketing ended, Lumley and Estes finished the Kess project. B Concluding Findings There is no dispute, and I find, that an employee of Lumley and Estes performed work at the construction site on Friday, February 7, and that no employees worked at the site on Monday and Tuesday, February 10 and 11 In his brief, the General Counsel contends that Respondent's picketing was unlawful because an objective thereof was directly and indirectly to force Kess, a neutral, to cease doing business with Lumley and Estes, the primary employer. That objective, he asserts, is shown by two factors. One is that Respondent knew that Lumley and Estes' employees did not work and were not scheduled to work on February 10 and 11 and hence that the picketing failed to meet the Moore Dry Dock" criterion which, according to the General Counsel, requires that the picketing must be limited to times when the primary employees "are present" at the common situs. The second factor is Business Representative Dial's inquiry of Kessinger as to whether Lumley and Estes had been permanently removed from the job. It is not entirely clear whether it is the General Counsel's position that any of the picketing before February 10 was unlawful The complaint seems to allege the illegality of the picketing from its inception on February 4. At the hearing, the General Counsel appears to have contended that the picketing was unlawful from and after February 7 In his brief, the General Counsel seems to assert only that the picketing on February 10 and 11 was unlawful because Respondent learned on February 10 that Lumley and Estes would perform no more work at the construction site. I find that none of the picketing by Respondent was unlawful 1. There is no dispute, and I find, that the picketing by Respondent satisfied three of the Moore Dry Dock criteria. The controversy in this case involves only the criterion which requires that the primary employer be engaged in its "normal business" at the situs of the dispute at the time of the picketing." The uncontradicted evidence shows that Lumley and Estes' employees worked at the Kess project on Friday, February 7 Accordingly, I find that Lumley and Estes was still engaged in its normal business at the situs on February 7, and that the picketing on that date thus satisfied the Moore Dry Dock criteria 15 "According to Dial, he did not know whether or not Lumley and Estes had worked the preceding night "The agreement was dated February 10 "Sailors' Union of the Pacific (Moore Dry Dock Co ). 92 NLRB 547 "The General Counsel describes the criterion too narrowly when he states that the picketing must be limited to times when the primary employees "are present " at the common srtus It is true that absent other evidence , the "normal business" criterion is not satisfied where the The situation on Monday, February 10, differed in that no Lumley and Estes employee worked that day. But this does not necessarily require a finding that the picketing on that date was unlawful. If the rough electrical work had in fact been completed on February 7, it would have been a simple matter for either Kessinger or Lumley and Estes to have informed Respondent that no further work was scheduled for 4 to 6 weeks. Their failure to do so suggests that the absence of Lumley and Estes' employees from the jobsite on February 10 was not due to completion of the rough electrical work and that it was still engaged in normal operations on that date. But even assuming that the employees did not work that day because the rough electrical work had been completed, there is nothing to show that Respondent knew this at any time prior to cessation of the picketing at about 2.30 p m. On the contrary, the credited testimony of Dial and Crepeac shows that they were not able to ascertain, through a visual inspection of the project from the street, whether or not such work had been completed. And since Dial observed on February 10 that Lumley and Estes had performed some work on the project after the cessation of the picketing on the preceding Friday, February 7, there was no reason why Respondent should have concluded that they would not resume work on February 10 Finally, it was not until approximately the time that the picketing ceased on that day that Respondent received the telegram stating that Lumley and Estes was no longer performing work at the jobsite.' 6 I therefore conclude and find that despite the absence of Lumley and Estes' employees from the jobsite on February 10, the picketing on that date satisfied the "normal business" criterion IBEW Local 640 (Timber Buildings, Inc ), supra There remains for consideration the picketing on Tuesday, February 11, beginning sometime before 11.00 a.m. and ending two hours after Kessinger gave to one of the pickets the agreement executed by Kess and by Lumley and Estes, in which they released each other from their electrical contract The General Counsel contends that Respondent was on notice, following Dial's telephone conversation with Kessinger on the afternoon of February 10, that Lumley and Estes' employees were not scheduled to work on February 11 and, therefore, that the picketing did not satisfy the "normal business" criterion. I find the evidence insufficient to establish such notice. picketing occurs at a time when the primary employees are not present at the situs of the dispute But where , for example, the record shows that the union was unaware that the primary employees were not scheduled to work, the criterion is met International Brotherhood of Electrical Workers. Local 640, AFL-CIO ( Timber Buildings, Inc ), 176 NLRB No 17 "In view of this finding , it is unnecessary to determine specifically whether or not any Lumley and Estes employees worked on February 6 "The General Counsel states , in the portion of his brief entitled "Statement of the Case," that Lumley testified that he removed his trailer from the jobsite on Thursday , February 6 In the argument portion of his brief, however, the General Counsel does not rely on this testimony to support his assertion of Respondent knowledge that Lumley and Estes would not return to the project This is not surprising since the record would not support such an assertion On cross-examination, when shown his prehearing affidavit of February 7 stating that the trailer "is" parked in the rear, Lumley testified that he could not recall whether the trailer was still on the jobsite on February 7 On redirect examination , he testified that the trailer was removed prior to February 8 1 find that Lumley was not a reliable witness and reject his testimony relating to the removal date of the trailer In this connection, I also note that a prehearing affidavit by Lumley impeached his testimony that his company performed no work at the jobsite on February 6 1 further note his testimony that he normally removes the trailer from a project when the materials stored therein are used up, even though work on the project has not been completed 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record contains conflicting evidence as to what Kessinger told Dial during their telephone conversation According to Dial and Shannon, Kessinger said that he had a contract with Lumley and Estes and assumed that the latter would complete it. According to Kessinger, he said that Lumley and Estes was not working at that time and that they had reached no agreement as to the completion of the job I reject Kessinger's testimony and credit the version testified to by Dial and Shannon. Kessinger gave conflicting testimony as to when the Lumley and Estes trailer was removed from the project, and as to whether he knew about the telegram before Dial telephoned him. In addition, although it is clear that he already knew about the telegram when Dial telephoned," he pretended at the time that he knew nothing about it Moreover, the fact that Lumley and Estes ultimately finished the job raises some question as to the bona fides of Kessinger's agreement releasing Lumley and Estes from the subcontract, and suggests that it was a device to mislead Respondent. Such conduct by Kessinger has created doubt in my mind as to the probity of his testimony, a doubt heightened by my observation of his demeanor while testifying. On the other hand, I find that Dial and Shannon testified in a straightforward and honest manner. In view of Kessinger's disavowal of the telegram and the conflict between the telegram and Kessinger's stated assumption that Lumley and Estes would complete their subcontract, I credit Dial's testimony that he had a legitimate doubt, after talking to Kessinger, as to whether or not Lumley and Estes would return to complete the job. The General Counsel argues that if Respondent felt there was any ambiguity about the work schedule, it could have sought clarification by further inquiry " Whatever may be the obligation of a union under other circumstances, I am not persuaded that in this case, Respondent was required to pursue the matter further. The only other source of information regarding its intention to resume work was Lumley and Estes itself. But even if, upon inquiry, Lumley and Estes had informed Dial that it did not intend to resume work at the jobsite, this information would not have resolved Respondent's dilemma in view of Kessinger's stated assumption The General Counsel has not suggested from what other person or persons Respondent could have obtained information resolving the dilemma I find that the record does not establish that before it began picketing on February 11, Respondent either knew or should have known that Lumley and Estes' employees were not scheduled to work on that day 18 I accordingly find that the General Counsel has failed to establish that Respondent's continued picketing on that day did not satisfy the "normal business" criterion. IBEW Local 640 (Timber Buildings, Inc ), supra, fn. 14. 2. That Respondent satisfied the Moore Dry Dock criteria does not end inquiry. Adherence to such criteria indicates only presumptively that Respondent was attempting to limit its dispute to the primary employer and not to enmesh neutrals to the dispute. Plumbers Local Union No 519 (H L Robertson), fn. 18, supra, International Brotherhood of Electrical Workers, Local "Kessmger testified that he first learned about the telegram from his Union No 11 (L G Electric Contractors, Inc ), 154 NLRB 766 Other evidence can, and according to the General Counsel does, establish the contrary I find, in agreement with the General Counsel, that Dial in effect asked Kessinger whether the telegram meant that Lumley and Estes was permanently off the job " However, I reject the General Counsel's contention that by such inquiry, Dial revealed that an underlying, unlawful objective of the picketing was the removal of Lumley and Estes The evidence shows that Respondent's attorney instructed Dial to obtain clarification of the telegram by ascertaining whether it meant that Lumley and Estes was temporarily off the job, i.e. for an hour or for a day, or would not return at all. Such an inquiry would not have demonstrated that Respondent had as an objective the removal of Lumley and Estes It would have constituted no more than an attempt to ascertain the work schedule of Lumley and Estes' employees Although Dial did not carefully follow the instructions given him, I am persuaded that he made an honest attempt to do so I am therefore unable to find that the words he used in his inquiry were indicative of a hidden secondary motive 20 Based on the entire record, I find that there is insufficient evidence to establish that Respondent's picketing was aimed at achieving an unlawful secondary objective. I therefore find that the picketing was not violative of Section 8(b)(4)(1) and (n)(B) of the Act CONCLUSIONS OF LAW 1. The combined operations of Kess Construction Company, Lumley and Estes, Inc., Specialty Plumbing, and West Roofing Company are sufficient to warrant the assertion of jurisdiction over Respondent' s alleged unlawful activity. 2 Respondent International Brotherhood of Electrical Workers, Local Union 11, AFL-CIO, is a labor organization within the meaning of the Act 3. The allegations of the complaint , that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (n)( B) of the Act, have not been sustained RECOMMENDED ORDER It is recommended that the complaint herein be dismissed in its entirety. bookkeeper Obviously, this must have occurred before Dial referred to the telegram during the telephone conversation ""For this reason, the instant case is not governed by Local Union No 519 Plumbers (H L Robertson & Associates. Inc ). 171 NLRB No 37, enfd as modified, 416 F 2d 1120 (C A D C ), relied on by the General Counsel "Kessmger's testimony that Dial made that inquiry was substantially corroborated by Shannon, a witness for the Respondent "The cases cited by the General Counsel are inapposite United Association of Journeymen and Apprentices etc , Local No 32 (A & B Plumbing, Inc ), 171 NLRB No 66, International Brotherhood of Electrical Workers. Local Union No 11 (L G Electric Contractors, inc ), supra In each of those cases, the union's unlawful objective was demonstrated by the fact that it informed the neutral employer that picketing would continue until the primary employer was removed from the job