Local No. 3 IBEW

LOCAL NO. 3 IBEW 283 Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO and Bisantz Electric Co., Inc. Case 29-CC-261 July 28, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 23, 1971, Trial Examiner Arthur Leff issued his Decision in-the above-entitled proceeding, finding that -the Respondent had engaged in and was engaging in certain, unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and, take certain affirmative action, as set forth in the attached,- Trial Examiner's Decision. Thereafter; the Respondent filed exceptions to the- Decision and the General Counsel filed 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. The Board has reviewed the rulings of the Trial Examiner who conducted 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 brief, and the ° entire record in the 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 adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Local Union No. 3, International Brotherhood of-, Electrical, Workers, AFL-CIO, its officers, agents, and : representatives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR LEFF, Trial Examiner: Upon a charge filed on October 14, 1970, by Bisantz Electric Co,, Inc., herein called Bisantz, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 29, Prior to 1969, the Association's collective-bargaining relationship was with Local 199, Industrial Workers of Allied Trades. The Association had a contract with Local 199 for a 3-year term running from November 17, issued a complaint dated November 17, 1970, against Local Union No., 3, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Respondent, -alleging that the Respondent had engaged in unfair labor practices within -the meaning of Section 8(b)(4)(i)- and (ii) (B) and Section 2(6) and ((7) of the National Labor Relations Act, as amended. The Respondent filed an answer placing in issue all material allegations of the complaint. A hearing was held on January 14 and 15, 1971, before Trial Examiner James F. Foley. At the conclusion `of' the hearing the General Counsel and the Respondent argued the issues orally on the record. Thereafter, the General Counsel and the Respondent filed briefs. Following the conclusion of the hearing, Trial Examiner Foleybecame unavailable to the Board, within the meaning of Section 5(c) of the Administrative Procedure Act and Section 102.36 of the Board's Rules and Regulations, Series 81 as amended, to make " a-recommended or' initial decision" based on the record made before him in this proceeding. All parties consented to waive a hearing de novo and to,, the issuance of a Trial Examiner's Decision, based on the existing completed record, by another Trial Examiner to be designated by the 'Chief Trial Examiner. On March 15, 1971, the Chief Trial Examiner duly designated me as the Trial Examiner for the purpose stated above. Upon consideration of the entire record'in the case, and the briefs-filedby the parties, I make the following: FINDINGS OF FACT"- - I. COMMERCE Bisantz Electric Co., Inc., a New York corporation, with its principal office and place of business- in Jamaica, New York, is engaged in business as, an, electrical contractor in the building and construction industry. During 1970, Bisantz purchased electrical materials and supplies valued at approximately $70,000 from local supply houses located in the State of New York. Although some of such materials and supplies undoubtedly originated outside the State of New York, ,the record does not show the extent to which they did so. The record therefore does not establish that Bisantz's own indirect inflow is sufficient to meet the Board's standards for the assertion of jurisdiction. It appears, however, that Bisantz, at all times since November 14, 1967, has been, and now is, an employer-member of United Construction Contractors Association, Inc., an association of employers engaged in performing services in connection, with the installation of electrical wiring and fixtures and related services in the building and construc- tion industry. The Association, on behalf of its employer- members, including Bisantz, negotiates, executes, and administers collective-bargaining agreements with Local 819, International Brotherhood of Teamsters, which, in turn, represents employees employed by the employer members of the Association, including employees em- ployed by Bisantz 1 As will- more fully appear below, the Respondent's primary dispute-with Bisantz, which led to its alleged unlawful picketing herein involved, is related to a 1967. In 1969, Local 199 was merged into Teamsters Local 919 which, with the approval of the Association , took over Local 199s contract with the Association. 192 NLRB No. 63 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD broader dispute which the Respondent. has with Associa- tion members generally because the Association's contract with Local 819 stipulates wage rates and other terms and conditions of , employment that are regarded by the Respondent as.below that of prevailing area standards. "In these circumstances, the relevant criteria in determining the Board's jurisdiction is the effect on commerce of the combined operations of all the -employers in the Association," 2 - The record discloses that in 1970, employer-members of the Association, purchased from firms outside the State of New York, and caused to be transported in interstate commerce to their places of business or to the site of-their work operations within the State of New York, construction materials valued in excess of $50,000. The Board has heretofore asseed jurisdiction over one of the employer- members of -the-' Association on the basis of its operations alone3 and in at least three cases has assertedjurisdiction over controversies involving other individual employer- members of the Association on the basis of the Associa- tion's meeting the Board's jurisdictional standards.4 Accordingly, I find,that the Association is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that on the basis of Bisantz's membership in the Association, it would effectuate, the policies of the Act to assert jurisdiction in this - proceeding over Bisantz's operations. I further, find that Bisantz is engaged in an industry affecting commerce within the meaning of Section 8(b)(4)(B) of the Act. 5 Atlantic Construction Company, Inc., a New York corporation, with its office and principal place of business at Brooklyn, New York, is engaged in business as a general contractor in the building construction industry. I find, as alleged in the complaint, that Atlantic is a person engaged in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(bX4) of the Acts II. THE LABOR ORGANIZATION INVOLVED The Respondent, Local Union No. 3, International Brotherhood of ` Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue Between October 13 and October 27, 1970, the Respon- dent picketed a construction job site located at 6915 Austin Street, Forest Hills, New York, at which Bisantz was the electrical subcontractor. The question in this case is whether the Respondent, violated Section 8(b)(4)(1) -and (ii)(B) of the Act, by engaging in such picketing and in 2 Belleville Employing Printers, 122 NLRB 350, 352; Westside Market Owners Association, et aL, 126 NLRB 3'50,352; Local 3, IBEW, AFL-CIO, 153 NLRB 717, 719 Atias Electric Service Co., 176 NLRB No. 110. ' ' ,3 Local, 3, IBEW,, AFL-CIO (Jack Picoult and A,l Picoult, d/bia Jack Prcoult), 137 NLRB 1,401 4 Local 3, IBEW, AFL-CIO (Darby Electric Co.), 153 NLRB 717; Local 3, IBEW,, AFL-CIO (Surf Hunter Electric, Co.) 172 NLRB No. 115; Atlas Electric Service Co., 176 NLRB No. 110. 1 5 Sheet Metal Workers International Association, Local Union No. 299 (S. certain related conduct to be described below. 'No other violation of the Act is charged or involved. B. The Relevant Facts Bisantz at one time had conducted its electrical contracting business as a union contractor identified with the Respondent and had complied with the employment terms and conditions established by the Respondent's collective-bargaining agreements with area employers. In 1967, however, Bisantz became a member of the United Construction Contractors' Association, an employers' association composed primarily of electrical contractors which at' that time maintained a collective-bargaining relationship with Industrial Workers of Allied Trades,, affiliated with the National Federation of Independent ' Unions, and now maintains the same relationship with Local 819, International Brotherhood `of Teamsters, into which Local 199 was merged `in 1969: As "•an employer- member of the Association, Bisantz was bound to `'the agreements which the Association negotiated' on behalf of its members. The Respondent has had a continuing dispute with the employer-members of the Association because -of their failure to maintain wage standards and other terms and conditions of employment equal to those enjoyed by members of the'Respondent.7 At the time of the,e events here in controversy the wages and fringe benefits provided'for in the Association's contract with Teamsters Local 819 were substantially less than those called for by the Respondent's contracts with the employers with which it deals%`Although the wage, rates which Bisantz actually pays its employees are, markedly higher than those stipulated in the Associa- tion's contract with Local 819, it appears that, with fringe benefits, taken into account, they still fall,,short of those required by the Respondent's contracts. When the Respon- dent engaged in the picketing here involved, it did not know the actual wage- rates paid by Bisantz. It was familiar,, however, with the terms of the Association's contract with Local 819, and assumed on that basis that Bisantz's wage rates did not measure up to prevailing area standards as set by its own contracts. In 'September and October 1970, Atlantic Construction Company, Inc.,- was engaged as a general contractor in performing a major, alteration job on an office building owned by International Escort Tours, located at the Austin Street address mentioned above. The-building on'which the alterations were being performed occupies° a '50-foot frontage along Austin Street and also faces on"69th Place; 'a street running parallel to Austin Street. There is a rear entrance to the building on 69th Place. On the Austin Street side, there is a driveway, approximately 20 feet in length, running from the street to the building entrance. Atlantic subcontracted to Bisantz the job of installing electrical wiring 'and fixtures in the building being M. Kisner& Sons), 131, NLRB 1196, 1199. B Aid 7 The existence of that dispute is reflected in,other cases that have come, before' the Board. See, e.g., Local 3, IBEW, AFL-CIO, (Darby Electric Co.), supra; Local 3, IBEW, AFL-CIO (Surf Hunter Electric Co.) ° supra ` ' 8 The Respondent is the dominant union representing electricians in the New Yorke City area, and the wage rates fixed by, its contracts are followed by the controller of the City of New York in his prevailing 'wage rate determinations for electricians. - LOCAL NO. 3 IBEW 285 renovated. Bisantz began work at the building on September 20,_ using two employees and at times four, and did not fully complete work on the job until after October 27. The working hours of Bisantz's employees were from 8:30 a.m. -to 5 p.m., Monday through Friday. During the period that Bisantz worked at Austin Street, work was also being performed there by employees of other employers. Among them were laborers employed by Atlantic, who were members of an AFL-CIO Laborers Local, as well as by employees of various other subcontractors of Atlantic who were performing air-conditioning, plumbing, store- front, heating, duct, and sheet metal work. On October 13, the Respondent set up a picket line at the Austin Street job site, according to the Respondent solely for the purpose of, advertising -to the public Bisantz's "substandard" employment conditions. Picketing contin- ued through October 27. The pickets carried placards reading as follows: Notice to the public-Bisantz pays substandard wages to its electrical workers, We want all electrical workers to be paid a decent wage. Local 3, I.B.E.W., AFL-CIO Picketing took, place only in front of the Austin Street entrance to the building; there was never any picketing at the rear entrance on 69th Place. Three to six pickets were present at a time. The pickets usually arrived at the job site at about 8 :30 a.m. and remained until about the close of the work day. Picketing was conducted only while Bisantz's employees were present at the job site. William Darcy, the Respondent's business representative in charge of the picketing, and Frank Pepe who was designated by Darcy-as the picket captain, testified that the pickets were specifically instructed not to say anything to any of the employees on the job and not to interfere with any work operations or, with the delivery of materials and supplies to the job site. There is no evidence that the pickets ever orally appealed to employees of the general contractor or to any employees of the various subcontractors on the job to respect the picket line, and the record affirmatively shows that all such employees continued to work without interruption throughout the period,of picketing. It appears that there were but a few deliveries of supplies made to contractors on the job during the two weeks of picketing.lo To show, that the, pickets deviated from the instructions which the Respondent states it gave them, the General Counsel adduced evidence as to two specific occurrences. Both involved deliveries of materials to neutral employers on the job,•- one a'delivery of plumbing supplies for the plumbing subcontractor, and the other a delivery of lumber for the general contractor. With regard to the plumbing supply occurrence, Salva- tore Asaro, Atlantic's vice president who also worked as a 9 The exact completion date is in dispute. This will be dealt with later, 10 Frank Pepe as picket captain kept a record for the Respondent of trucks of neutral employers which came or made deliveries to the job site, Apart from the two to which detailed reference is made below, he listed in his testimony the following : (1') a pre-cast company truck which delivered a manhole for installation by - Bisantz; (2) a telephone company truck carrying , employees of that , company who worked on the job site; (3) a cartage company truck which left a container for- rubbish removal ; (4) the truck of an electric supplier which delivered material for Bisantz 's use; and (5) a fastening company which was seeking to sell job tools to men working on the job. - 11-Of the several pickets who appeared as witnesses for the Respondent, laborer on the job, testified: One morning during the period of the picketing a truck of the New York Plumbing Supply Co., arrived at the job site with-a delivery for Ben Hi%; the plumber-subcontractor. The driver backed his truck into the driveway at the Austin Street entrance. As the driver was waiting for the plumbing subcontractor's employees to come out to the truck to receive the delivery, an unidentified picket approached-the'driver, told him that he had "crossed the picket line," and remarked, "You can't cross the picket line," Thereupon, the driver returned to his truck, without leaving the supplies intended for delivery, and drove away from the job site. Salvatore Asaro's account of this incident, although disputed by the Respondent, is credited.11 The Respondent emphasizes in its brief that Salvatore Asaro "admitted" that the New York Plumbing Supply Co. made several other deliveries to the job site without incident. But a careful reading of Asaro's testimony shows that these other deliveries were made at times when there was no picketing. With regard to the lumber delivery occurrence, Salvatore Asaro and his brother Frank, a stonemason employed by Atlantic, testified substantially as follows: On October 16, a truck of Mensch Lumber and Mill Co. arrived at the job site with a delivery of lumber-for Atlantic. The driver told Frank Asaro that he was unwilling to'bring the truck into the private driveway to make the delivery because he did not want to cross the picket' line. At Frank Asaro's suggestion, he agreed, however, to give the key to the truck to Frank Asaro so that the latter might drive in the truck himself, and then walked away from the job site. Frank Asaro entered the truck and began backing it into the driveway, but was prevented from doing so by some four or five pickets, carrying signs, who stationed themselves in the driveway Frank Asaro was seeking -to enter. Frank Asaro left the truck- and requested the pickets to allow him to enter, at the same time stating to them that the delivery had nothing to do with the electricians on the job. Asaro's request of the pickets to move was met, however, only by silence. As a result, Asaro was able to move the truck only a few feet into the driveway, and Atlantic's employees were obliged to unload the truck by hand near the curb, temporarily blocking passageway along the sidewalk. From that point, Atlantic's laborers' crew carried,the lumber into thebuilding, without physical interference by the pickets. The Respondent's witnesses, pickets present at the time, did not question the Asaro brothers' account of the Mensch Lumber delivery incident as to most of its details. They denied, however, that they intended to, or did, obstruct entrance of the truck into the driveway, and asserted that Frank Asaro was unable to back the truck any further into the driveway than he did only because the driveway was only one-Frank Pepe, the picket captain-adverted to this incident while testifying. His testimony concerning it was as follows : "He-[the driver] came up to the job and seen the picket line there or a demonstration. He read the sign, got back in his truck and went away." Pepe did not specifically deny that a picket spoke to the driver before he drove off. Pepe's reference to the fact that the driver "got back in his truck" lends support to Salvatore's more detailed account of what occurred. The driver did not have to get out of the truck to read the picket sign . Moreover, a reading of Salvatore Asaro's overall testimony leaves one with the unpression that he was an objective -witness, not given to improvisation. As to the incident in question, the Respondent made no effort to shake Salvatore Asaro's testimony on cross-examination. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obstructed by piles of debris and other physical obstacles that impeded deeper , entrance. I do not credit their testimony in the latter respect which is at variance with what I regard as the more plausible testimony of Frank Asaro. Asaro, although conceding the presence of debris in the nearby area, insisted that,the driveway was kept clear, because, as he explained, it would have been "stupid" for Atlantic to have obstructed the driveway' whose use was necessary to reach the building. Moreover, the testimony of Respondent's witnesses concerning debris in the driveway is at apparent odds with the admission , of one of the Respondent's witnesses (Michael Feerick), at one point of his cross-examination, that he saw trucks go into the driveway "every day." A further conflict in testimony arises from the denial of the Respondent's, witnesses that they stationed themselves in a position to block the , Mensch truck while Asaro was attempting to back it into the driveway. According to the pickets' account of what occurred, they were -then simply engaged in picketing, circling the driveway area' near,the street curb. But as is further--reflected by,their testimony, they conducted their picketing in close formation,' at most 8 feet apart. Even accepting the Respondent's version, it is clear that the pickets must have been aware that their very presence at that particular-place would stop Asaro froui backing up the truck any further than he did because he would not want to risk;injury to them. Their failure to move out of the path of the truck, particularly after being specifically requested by Asaro to do so,,can thus only_beviewedas an affective and deliberate physical =blocking , of, the truck under ' either version of the facts . I so find. The Respondent ceased picketing the Austin Street job on October- 27. The pickets were withdrawn about 1:30 or 2 p.m., about-2 hours before the close of the work day. Joseph Asaro, Atlantic's president, testified that about an hour- or -so before the picketing stopped, he, telephoned the Manhattan ,office of the Respondent . He told the girl who answered the, phone that he wished to speak to someone about the Austin Street job which was being picketed. His call was referred to a ma n whom he was unable to identify while testifying,, either by name or ' job title. After identifying himself as ,president of Atlantic, Asaro-told the person, to-,whom he spoke that Bisantz was "just finishing up" its portion of,the work on the Austin Street job and had only a few-minor <things remaining to be done. Bisantz then went 'on to assure his auditor that he would give his -next electrical job to a contractor who was "legitimate" with the Union. According to Bisantz, the,person at the other end of the wire then said, "If you-promise me that next time you give a, job, to the right guy that is in -good faith with -the Union, I will take out-the picket line. I will get rid of the picket line." As noted abc,ve, William Darcy was the Respondent's business representative in charge of the picketing at the Austin Street job -'site. He is one of some 25 business representatives of the Respondent ,,all of whom work under the general supervision of ;Business Agent Harry, Van Arsdale. ,The Respondent's headquarters are at Flushing,, in the Borough of Queens . Darcy works out of the headquar- ters office along with some 17 'other business representa- 'tives who are concerned with the building 'and construction division of the Respondent's operations.,The Respondent's Manhattan office, to whhich , Joseph - Asaro made his telephone call, is concerned solely with the manufacturing -livision,of theRespondent's operations. , Darcy testified that, although he was the only business representative of the Respondent involved in the , Austin Street picketing, he never received - the telephone call to which Joseph Asaro referred, nor even'heard of any-such call until Asaro testified concerning it. ' As found above, - the Respondent discontinued' its picketing of the Austin Street job site 'on October 27 at about 2 p.m., some 2 hours earlier than was customary. The Respondent contends that it ceased -picketing-at that time because Bisantz had already completed work on the job. That contention, however, collides , with "the specific testimony of Bisantz that •the electrical work on the job was not actually finished until the following week. The Respondent adduced no direct evidence to refute Bisantz's testimony in'that ' respect.'To support its contention, the Respondent refers in its brief to the testimony of Michael Feerick, a picket, to the effect that thepickets were'told by Pepe, their picket captain, that picketing' was 'being discontinued because 'Bisantz was off the job.'But Feerick's testimony''is clearly hearsay on that point, and finds no support in the testimony of Pepe; the asserted source "of Feerick's,information. The Respondent alsd-refers in-its brief to 'a prehearing statement of Joseph Asaro''in'which he "admitted" that in his telephone call to the Respondent's office, adverted to above, he had stated that "Bisantz was just finishing up his work on the job." Joseph' Asaro's statement of what he told the Respondent is also not direct evidence, but, even if viewed as such, it does ii'ot 'establish that Bisantz was actually off the job when the picket line was lifted. On all the evidence, I find no sufficient basis for discrediting Bisantz's testimony as above set' out,,andfind in -accord therewith that his company's employees had not yet completed their,work at the Austin Streetjob site, at the time the Respondent withdrew its picket line. - The Respondent's failure to explain- on some different basis why it-believed Bisantz had finished work on the job early on the afternoon of October 27, or why lot some other reason it decided to discontinue picketing at that particular time, strongly' suggests-that the Respondent's action-'must have been related to the telephone call which Joseph Asaro testified, he made'to the Respondent's, office earlier that day. This lends credence to Joseph As'aro's testimony that such a call ' was made, and warrants an inference that Joseph Asaro's message to the Respondent's office was somehow communicated shortly thereafter, if not to Darcy, then , at least to someone else in the Respondent's organization Who had authority to,- and did;Tlift'ttie picket line as a result of the call. But such an inference can go no further because of Asaro's, inability- to , identify the individual ,in the{Respondent's office to whom he spoke. Absent identification ' of ,that' individual, it cannot be inferred solely _'from_ ' the `fact that Asaro's call was transferred to him that, he , had knowledge of,- the Respondent's picketing objectives at the Austin Street job site and was authorized to speak 'for the Respondent in conditioning the removal of the picket line on Asaro's assurance that he would no longer subcontract electrical LOCAL NO. 3 IBEW X87 work to contractors unacceptable to the, Respondent. Nor does an inference of such agency authority gain support from the additional circumstances that the Respondent's withdrawal of the picket line followed closely on the heels of Asaro's assurance to that effect. For, the Respondent's cessation of picketing at that particular time is as reasonably explainable on the' ground, without more, that, having been'put on notice that Bisantz was about to finish its work on the Austin Street job, the Respondent acted to avoid, involvement in what otherwise might turn out to be patently unlawful -picketing. In my analysis to follow, o probative-weight to the statements therefore, I , gives no' attributed by Jose h Asaro to the unidentified person at the Respondent's offie`to whom he spoke. C. , Analysis and Conclusions The Respondent defends against the complaint's allega- tions of Section 8(b)(4)(i)_ and (ii) b) violations upon the grounds that it had a primary dispute with Bisantz arising from the latter's maintenance of substandard wage conditions, which it had a legitimate interest in publicizing; that its picketing, in. furtherance, of that dispute had an informational aim; and that it-tailored its picketing to comply strictly with Moore Drydock12 standards for allowable primary picketing at a common situs. But though all of this may be true, it does not dispose of the specific issues of this case. Neither the legitimacy of the Respon- dent's interest in-publicly protesting what it believed to be Bisantz's substandard wages, nor the fact that its picketing had an informational purpose, can shield the Respondent from liability under, Section 8(b)(4)(B) if a concurrent objective of, the picketing was one the Act condemns, or if in conjunction with'the ,picketing the Respondent engaged in related or other conduct that was independently violative of that section.13 Nor does literal compliance with Moore Drydock standards necessarily preclude a finding that picketing was for an unlawful secondary objective.14 On the facts found, there can be no doubt that the Respondent exceeded permissible bounds of concerted activity by the conduct of its pickets in the two incidents specifically described above. The truckdriver of New York Plumbing Supply Company was the employer of a neutral employer seeking to make a delivery to another neutral employer (Atlantic) on the common situs jobsite. The admonition directed to him by one of the- Respondent's pickets for crossing the picket line clearly 'constituted unlawful- inducement for a proscribed object within the meaning of Section 8(b)(4)(i)(B),of the Act,15 and, since it succeeded in causing the, driver to refuse to perform services for his employer, it also operated as unlawful restraint of that employer in violation of Section 8(li)(4)(ii)(B)'94' 'the Act.16 The conduct of the Respondent's 12 Sailors Union of the Pacific, AFL, 92 NLRB 547. i ' Local 3, IBEW (Atlas 11e14 Inc.), 170 NLRB No. 73; IBEW, Local Union No. 11, AFL-CIO, (L. G. Electrical Contractors, Inc.), 154 NLRB 766." See also N.L.R.B. v.,-Denver Building and Construction Trades Council, 341 U.S. 675, 689; Northeastern Indiana Building and Construction Trades Council (Centhvre Village Apartment's), 148' NLRB 854. 14 See, e.g., Carpenters Local Union No. 944 (Gulf Construction Co.), 159 NLRB 563; Local 895, IBT (Eastern New York Construction Employees, Inc.), 153 NLRB 993; L. G. Electric Co., supra 15 The ` words `induce or encourage' are broad enough to include in pickets in, blocking access to the driveway of the Mensch Lumber truck driven by an employee of Atlantic, thereby interfering with that employee's performance of work for his neutral employer, similarly involved the enmeshment of a neutral into the dispute and constituted unlawful inducement and employer coercion for a proscribed object within the-meaning of Section 8(b)(4Xi) and (ii)(B).17 I so find. The more difficult issue presented is whether the picketing itself is to be found violative of the Act. As heretofore indicated, there is no question that the Respondent had a primary dispute with Bisantz and that its picketing publicizing that dispute met in form the Moore Drydock standards for lawful primary picketing at a common situs. The Board has held, however, that compliance with Moore Drydock requirements only creates a presumption of legality that may be rebutted by other relevant evidence disclosing that the picketing actually had as-an objective the enmeshment -of neutrals into the dispute.18 Although the matter is not entirely free from doubt, I am nevertheless persuaded that-there is sufficient probative evidence in this case to disclose' that the Respondent's picketing was designed, at least in part, to achieve such an unlawful objective. The two incidents found above to have been independently violative of Section 8(bx4)(B)- serve to belie the declared purpose of the picketing'as being addressed solely to the public. Both the appeal to the truckdriver of the New York Plumbing Supply Co. and the blocking of the Mensch truck involved conduct by the pickets that was closely interwoven with the picketing itself. They may not readily be dismissed as merely reflecting aberrant conduct by individual pickets. Pepe, the picket line captain who was charged with supervisory responsibility for the conduct of the picketing, appears to have been present on both occasions and was himself an active participant in the blocking of the Mensch truck. Nor may the two incidents be lightly brushed aside as isolated. It is true that two deviations in two weeks of picketing do not appear impressive, and in -another setting might well be -regarded as not carrying sufficient force to' rebut the presumption of legality inuring to Moore Drydock picketing. In this case, however, it appears that there were altogether but a few deliveries to the job site during the entire two weeks' period, and in such a setting the specific evidence of picket-line interference adduced by the General Counsel with respect to two of them may not, I believe, be regarded as insubstantial in determining the objective of the picketing. Accordingly, I find, though not without some hesitation,19 that the validity of the Respondent's picketing cannot be regarded as 'separable from, and assessed independently of, the two incidents found unlawful and, like them, must be found violative of Section 8(b)(4)(i) and (ii)(B) of the Act.' - them every form of influence and persuasion." International Brotherhood of Electrical Workers v. N.L.R.B., 341 U.S. 694, 701-702. 16 Local 370, United Association of Journeymen (Baughan Plumbing and Heating Co., Inc.), 157 NLRB 20, 21. 17 See Highway Truckdrivers & Helpers, Local 107 etc. (Kiss & Co, Inc.), 130 NLRB 943, 948-950. '- See, e.g., cases cited in fn . 14, supra. 19 Compare, IBEW, Local 441 (Suburban Development Co.), 158 NLRB 549-552. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , On the -basis of the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Bisantz Electric Co., Inc., by virtue-of its membership in United Construction Contractors, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. ^ 3, International Brotherhood,.of Electrical Workers, AFL-CIO, is a labor, organization within the meaning of Section 2(5) of the Act. 3. By picketing the construction job site at 6915 Austin Street, Forest Hills, New York, between October 13 and October, 27, 1970; by successfully inducing an employee of New York Plumbing Supply Co. not to effect a delivery across the picket line. to the plumbing subcontractor of Atlantic Construction Company at said job site; and- by blocking an employee of Atlantic from driving a truck across the picket,line at said job site, thereby interfering with his performance of services for his employer, the Respondent induced and encouraged employees of New York Plumbing Supply Co., and of Atlantic not to-perform services for their respective employers and restrained and coerced New York Plumbing Supply Co. and Atlantic, with an object of forcing Atlantic to cease doing business with Bisantz Electric. Co.,,Inc., and thereby engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Tim REMEDY 'Having, found that the Respondent has engaged in certain unfair labor practices, I shall recommend the issuance of an order directing it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. . Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the -Act, I hereby ` issue the following recommended: 20 ORDER Respondent, Local Union No. 3, International Brother- hood of Electrical Workers, AFL-CIO, and its officers, agents, and representatives, shall: I. Cease and desist from: (a) Threatening, coercing, or restraining Atlantic Con- struction Company, Inc., New York Plumbing Supply Co., or any other person engaged in commerce or in an industry affecting commerce, where an, object thereof is to force Atlantic Construction Co., Inc., or any other person, to cease doing business with Bisantz Electric Co., Inc. (b) Inducing or encouraging any individual employed by Atlantic Construction Co., Inc., New York Plumbing Supply Company, or any' other employer, other than Bisantz Electric Co., Inc., to engage in a 'strike or a refusal in the course of their employment to perform any services, where an object thereof is to force or require Atlantic Construction Co., Inc., or any other person, to cease doing business with Bisantz Electric Co., Inc. 2. Take the following affirmative action which is necessary to-effectuate the policies of the Act: - ' ' ' (a) Post in conspicuous places in its business offices, meeting halls, - and-in all places where notices to members are customarily posted, -copies of the attached notice marked "Appendix."21 Copies of the ' notice, on forms provided by-the Regional Director for Region 29, after being signed by Respondent's representatives, 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 members are customarily displayed. Reasonable steps shall be, taken by the `Respondent to insure that said notices are not altered, defaced, or covered by'any other material. (b) Sign and mail copies of said notices to the Regional Director for posting-by Atlantic Construction Co., Inc., and New York Plumbing Supply Co., if willing, at locations where notices to their employees are customarily posted. , (c) Notify the Regional Director for Region -29, in writing, within 20 days from receipt of this Decision, what steps the Respondent has taken to comply herewith.22 20 In the event no exceptions, are filed asprovided -by Section 102.46 of the Rules and Regulations of the National Labor 'Relations 'Board; the findings, conclusions, and recommended Order herein shall,'as _provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its-findings, conclusions, and order,`and'all objections thereto shall be deemed waived for all purposes. 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of`the National Labor Relations Board" shall be changed to read "Posted ' Pursuant to a Judgment of the -United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 22 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall bemodified to read: "Notify the Regional Director for Region 29, in writing,, within 20 days from the date of this Order, what steps the Respondent has taken to comply, herewith. APPENDIX NOTICE . - POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD, An Agency of the United States Government Notice to all members of Local , No. 3, International Brotherhood of Electrical Workers, AFL-CIO, and employees of Atlantic Construction Co., Inc., and New York Plumbing Supply Co.: Pursuant to the 'Recommended Order of a Trial Examiner 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 threaten, coerce, or `restrain Atlantic Construction Co., Inc., 'NewYork Plumbing Supply Co., Inc., or any other person engaged in commerce or an industry affecting commerce, with an object of forcing or requiring any such person to cease doing business,with Bisantz Electric Co., Inc. WE WILL NOT engage inn, or induce ' or encourage individuals employed by Atlantic Construction Co., Inc., New York Plumbing Supply-Co., Inc.,,or any other person engaged in commerce or an industry , affecting commerce; to refuse in the course of their employment LOCAL NO. 3 IBEW 289 to perform any services, where an object thereof is to force or require Atlantic Construction Co., Inc., or any other person, to cease doing business with Bisantz Electric Company, Inc. - LocAL UNION No. 3, INTERNATIONAL BROTIIERIIooD OF ELECTRICAL WoRY.ERs, AFL-CIO (Union) Dated . By (Representative) (Title) This is an official notice and must not be .defaced by anyone. 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. Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535.