Local 3, Electrical Workers

LOCAL 3, ELECTRICAL WORKERS Local 3, International Brotherhood of Electrical Work- ers, AFL-CIO and Mansfield Contracting Corpora- tion. Case 2-CC-1244 August 14, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 29, 1973, Administrative Law Judge Stan- ley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief and both the General Counsel and the Charging Party filed reply 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, New York, New York, its officers, agents, and representa- tives, shall take the action set forth in said recom- mended Order. DECISION PRELIMINARY STATEMENT STANLEY OHLBAUM, Administrative Law Judge: This pro- ceeding' under the National Labor Relations Act as amended, 28 U.S.C. Sec. 151, et seq. (Act), was tried before me in New York City on January 24-30, 1973, with all parties participating throughout by counsel, who were af- forded full opportunity to present evidence and conten- tions, and thereafter to file briefs, which were received on April 12, 1973, pursuant to time extended therefor on appli- cation of counsel. The entire record and briefs have been carefully considered. The basic issues are whether Respondent Union (IBEW Local 3; Local 3) violated Section 8(b)(4)(i) and (ii)(B) of the Act by (1) threatening, coercing, or restraining the City of New York ("City"), its contractors, subcontractors, or others engaged in commerce, and (2) inducing or encourag- ing employees of the foregoing to engage in a strike or i Upon complaint of the National Labor Relations Board's Acting Re- gional Director for Region 2, issued December 13, growing out of charge filed November 3, 1972, by the above Charging Party 559 refusal to perform work for their employers-in either case with an object of forcing or requiring said City or others to cease doing business with one another so as to force or require the City to cease doing business with the Charging Party (Mansfield). Upon the entire record 2 and my observations of the testi- monial demeanor of the witnesses , I make the following: FINDINGS AND CONCLUSIONS I PARTIES, JURISDICTION At all material times, Respondent IBEW Local 3 has been and is a labor organization within the meaning of Section 2(5) of the Act. At all those times, Mansfield, a New York corporation with office and place of business in the borough and county of Queens, city and State of New York, has been and is in the business of electrical contracting in the build- ing and construction industry performing services on con- struction projects in New York State. In the course and conduct of those operations in the representative year im- mediately preceding issuance of the complaint, Mansfield purchased and caused to be transported and delivered to its jobsites in New York State, in interstate commerce directly from other States, electrical supplies and related materials valued in excess of $50,000.3 I find that at all material times Mansfield has been and is a person and employer engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act 4 At all material times, the city of New York has been and is a political subdivision of the State of New York. In the course and conduct of its business in the representa- tive year immediately preceding issuance of the complaint, said city purchased and caused to be transported and deliv- ered to various construction sites and other places of busi- ness within the city of New York, goods and materials valued in excess of $1 million, in interstate commerce to said places directly from States other than the State of New York. I find 5 that at all material times the city of New York has been and is a person engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(1), (6), and (7), and 8(b)(4) of the Act. It is accordingly found that jurisdiction is properly assert- ed here.6 II ALLEGED UNFAIR LABOR PRACTICES A. Facts as Found In the course and conduct of its municipal affairs, includ- ing construction and maintenance of properties and facili- 2 Trial transcript has been corrected in respect to certain obvious and typographical errors See, in part, Joint Exh ]A, consisting of stipulated Transcript in compan- ion 10(1) temporary injunction proceeding in the United States District Court, Southern District of New York, Case 72 Civ 4788, which, heard on November 17, 1972, remained unresolved at the time of the trial herein 4 Respondent conceded at the trial herein that there is no requirement that a Charging Party in a secondary boycott case, such as this, be engaged in commerce under the Act 5 Taking official notice that the city of New York is a municipal corpora- tion For a discussion of the status of the city as a "person" under the Act, see "III ,B,2 Resolution and Rationale," infra 6 In secondary boycott cases, such as this, jurisdiction is established where the primary employer (Mansfield) meets the Board'sjurisdictional standards, or where the combined business operations of the primary employer and a (Continued) 205 NLRB No. 89 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties which it owns, operates, or oversees, the city of New York enters into contractual relationships with numerous persons. In 1972, the city announced, accepted, and opened sealed bids for construction work, aggregating over $2 mil- lion (part of a $40-45 million major construction), of which approximately $4 million was for electrical work here in- volved, on penal or correctional facilities on Rikers Island, a small land mass in the East River, joined to Manhattan Island by a bridge from the borough of Queens, as shown by drawing plan and aerial photograph (Joint Exh. I C and GC Exhs. 9A & 10) in evidence. The low, successful bidder on an electrical contract awarded on September 27, 1972, in connection with the Rikers Island project,7 was Mansfield, whose employees were unionized as members of Teamsters Union Local 363 (originally Local 8 19).8 Employees of New York electrical contractors or subcontractors other than Mansfield are unionized as members of Respondent Electn- cians (IBEW Local 3) Union, which had and has a multiem- ployer contractual recognition and bargaining collective agreement with electrical contractors' associations (e.g., [National] Electrical Contractors Association and/or Asso- ciation of Electrical Contractors-membership in which, secondary person (city of New York-admittedly in commerce here, and in contractual relationships with Rikers Island contractors and subcontractors and others (having employees) whose operations affect that commerce) sought to be threatened, coerced, or restrained, at the location in question, meet those standards General Drivers, Chauffeurs and Helpers, Local Union No 886 Teamsters (Ada Transit Mix), 130 NLRB 788 These requirements are clearly met here It is also noted that, as recognized by Respondent's counsel in closing argument , Respondent conceded in an earlier Board case (2- CD-428, described in In 8, infra) that Mansfield is engaged in commerce, and that (fn 8, infra) official notice has been here taken of that case r The September 27, 1972, contract award in question, calling for electrical work aggregating over $1,500,000 in prison cells and heating plant on Rikers island, awarded to Mansfield, is designated as C-84, part III Subsequently, on January 2, 1973, a second and separate contract award, designated as C-95, for electrical renovation and new construction aggregating over $2,500,000, likewise on the Rikers island construction project, was also awarded to Mansfield as low bidder of September 22, 1972 Although a detailed formal contract was executed on December 28, 1972, by the city with Mansfield on the award of C-84, part III, as of the date of the instant trial no detailed formal contract had been executed with Mansfield as successful bidder on award C-95 At the time of the picketing by IBEW Local 3 about to be described, October 26-November 16, 1972, there were also other projects, known ad C-74 and C-75, in a state of incompletion on Rikers Island As established by credited testimony of New York City Department of Public Works divi- sional engineer and Rikers Island Project Engineer Ted Raderman, during the period of the picketing work was in progress on Rikers Island on at least project 74 (Adolescent Remand Shelter) of the latter two projects indeed, on November 6, 1972, one of the Rikers Island contractors (Kalisch) wrote a certified letter to city of New York Public Works Commissioner Maevis complaining that it was unable to complete the hookup of the automatic temperature control system because of the absence of necessary preliminary electrical work, creating a situation of "urgency" since the electrical "wiring must be completed before a change in weather creates a dangerous freezing condition which can affect our work as well as that of other contractors " Kalisch accordingly "request[ed] your full cooperation in requiring your electrical contractor to provide the necessary personnel required so that this work can be completed forthwith Your prompt attention is necessary by reason of the urgency of the situation " And on November 13, 1972, still another Rikers Island contractor (Smith) also wrote the Department of Pub- lic Works that it could not proceed with its required work because "our men individually and personally will not pass an informal picket line Please advise us when the aforementioned matter is cleared up so that we may proceed to do our work " At these times the only picketing was that described herein, by Respondent IBEW Local 3 9 On February 8, 1973 the Board determined, in a "CD" jurisdictional dispute 10(k) proceeding between IBEW Local 3 and Teamsters Local 819 (now Teamsters Local 363), that the electrical workers of Mansfield repre- according to Respondent's witnesses Hellman and Waxman may involve recognition of IBEW Local 3 as bargaining agent on behalf of the electrical contractor's employees), of which Mansfield is not a member. Whether or not the city's acceptance of a low bid and announcement of an award require execution of a separate or additional formal contract, work may not be commenced by the successful bidder before he is notified by the city to proceed with his work. Uncontroverted testimony of New York City Deputy Commissioner of Public Works Jonathan Daniels in the companion 10(1) proceeding in the U.S. dis- trict court established that usually such a notification to proceed follows "three to four weeks" following the award. As of the date of the trial herein-some 4 months after the award of September 27, 1972 (C-84, part III)-Mansfield had not received any notification to proceed and has there- fore been unable to commence any of the work which had been awarded to it as successful low bidder. Upon learning that Mansfield (with its Teamsters, non- IBEW Local 3, employees) was the successful bidder on the Rikers Island project electrical contract (C-84, part III), IBEW Local 3, through its Business Manager Thomas Van Arsdale and perhaps others, embarked upon a course of action to prevent the implementation by the city of New York of the award, so as to keep the work from being done by Mansfield through preventing the city from doing busi- ness with Mansfield, which was unaffiliated with IBEW Local 3. To this end, IBEW Local 3 established pickets 9 at four locations; namely, at entrances to the New York City municipal building, the New York city hall, Gracie Man- sented by Teamsters were entitled to perform electrical work at a jobsite in lower Manhattan, New York City, and, in a related Section 8(b)(4)(D) aspect of the same proceeding, that IBEW Local 3 was not entitled by unlawful means to force Mansfield to assign that work to employees represented by IBEW Local 3 IBEW, Local 3 (Mansfield Contracting Corp, Case 2- CD-428), 201 NLRB No 114 In so doing, the Board rejected the contention of IBEW Local 3 that its picketing had an area-standards, or informational, purpose as attested by the wording of its picket signs On February 25, 1972, in the absence of exceptions and in accordance with its Rules and Regulations, the Board had adopted all of the findings of fact and conclusions of law, as well as the recommended Order, of my colleague, Judge Schlezinger, in Local Union No 3, IBEW (Mansfield Contracting Cor- poration), Case 2-CC-1205, TXD-747-71, involving secondary boycott ac- tivity by IBEW Local 3 picket signs stating "Notice to the public We protest Mansfield contractors doing the electrical work on thisjob Pays substandard wages to electrical workers We are not picketing to require the company to recognize our union or to require membership in our union. We want all electrical workers to be paid decent wages Local Union No 3 IBEW, AFL- CIO 158-11 Jewel Avenue, Flushing, New York" The foregoing Board proceedings are officially noticed, and Respondent's objection (upon which decision was reserved at the trial) to receipt of the latter into consideration in connection with the instant proceeding is hereby overruled Additionally, Respondent's consequent application, upon which decision was likewise re- served at the trial, that Board Case No 2-CD-428 (supra) also be officially noticed, is hereby granted and General Counsel's objection thereto is hereby overruled 9 The picket signs, carried by ambulatory pickets, stated NOTICE TO THE PUBLIC OF NEW YORK CITY MAYOR LIND- SAY and his Commissioners ARE AWARDING CONTRACTS at Riker's Island to Employers who exploit their workers and violate pre- vailing wage rate laws Local Union No 3, I B E W AFL-CIO As shown below, a special municipal board of review after a hearing de- termined the requirements of law concerning wage rates to be fully met by Mansfield, and that the awards of the contracts in question to Mansfield were accordingly lawful, regular, and proper in that as well as other respects LOCAL 3, ELECTRICAL WORKERS sion, and the bridge access point to Rikers Island.1° The New York municipal building, a massive twin structure cov- ering about two square blocks in lower Manhattan on Cen- tre Street, sits astride Chambers Street with a lofty street archway through which vehicular as well as foot traffic flows. It houses perhaps most, or at least a substantial part, of the City's central administrative elements (including its Department of Public Works) and their employees, who transact official business there with business invitees and their employees. The city hall, on a mall across the street, houses principally the excecutive offices of the mayor and his staff (city employees), who likewise there receive official and other business invitees and their employees. Gracie Mansion, near the East River some miles north of city hall, is the mayor's official resident-supplied by the city- where he and his family and guests reside or stay and his household staff work and perhaps also reside or board, and where he undoubtedly receives official and distinguished visitors in the conduct of municipal and other important social functions as well as in the course of his official duties and responsibilities as chief executive of America's foremost city; and tradesmen and their employees undoubtedly make deliveries there. The entrance or access point to the Rikers Island bridge (providing the only "land" route to that is- land, which is technically a part of the New York City Borough of the Bronx), where the pickets were also estab- lished, is at and from Hazen Street, in the Borough of Queens. Rikers Island is a correctional institutional com- plex; access to and from the island is by correctional in- mates-incoming or outgoing-and their business invitees and guests, by city officials and employees employed on that island and elsewhere, and by other persons including tradesmen and their employees. As noted above, Rikers Island is the location of the worksite here. At no time has Mansfield or any of its employees or suppliers entered upon or commenced any work there. It is conceded that at no time has Respondent picketed Mansfield's place of business. At any rate in the case of the picketing at the entrance to the Rikers Island bridge leading to the jobsite, it is estab- lished by substantial credible evidence that work ceased or was interrupted at the jobsite by and during the period of the picketing there. I credit testimony of General Counsel witness Stanley Smith, president of city of New York Rikers 10IBEW Local 3 also was a principal in , if not the only active outside participant and protagonist of, a session of the New York City board of estimate held on January 11, 1973, at which the matter of the two successful low bids and awards to Mansfield was aired It is not here alleged that Local 3 participation in that session was unlawful The outcome of the session of the Board of Estimate was that the Board by resolution "rejected" or purport- ed to reject the previously approved awards to Mansfield Apparently that action of the Board of Estimate (and an implementing notification purport- ing to rescind both awards) was promptly countered by a lawsuit by Mans- field to annul the Board action upon the ground that the contracts had been lawfully and regularly awarded to Mansfield in accordance with established requirements and procedures As of the date of the instant hearing the lawsuit was unresolved It may also be added that-as has already been observed in another connection-a municipal board of review, after a hearing held on October 27, 1972, determined in a comprehensive report of November 8, 1972, that the awards to Mansfield were in accordance with all applicable requirements and were lawful, regular , and proper The assistant administra- tor and general counsel to the New York City municipal service administra- tion (including Department of Public Works), Sidney Burstein , testified credibly and without contradiction at the trial herein that that determination has remained final and unreversed 561 Island project electrical contractor A. I. Smith Electrical Contractors, Inc., that his company was unable to proceed with required contract completion work on the Rikers Is- land project in question (i.e., C-84, part I) in November, 1972, because "our men individually and personally will not pass an informal picket line. Please advise us when the aforementioned matter is cleared up so that we may proceed to do our work," as he spelled out in his November 13, 1972, letter to the city (G.C. Exh. 8); and that his company's subcontractor, Service Sign Corporation, likewise did not during the period of the picketing proceed with work at the jobsite. There is no evidence or claim that at the time in question and here material there was any picketing at, near, or in connection with the jobsite other than by IBEW Local 3 in relation to Mansfield as herein administrator and gen- eral counsel to its municipal service administration (includ- ing Department of Public Works), Sidney Burstein (testifying as a General Counsel witness), that the Rikers Island project was "one of the prime projects of the mayor ... he wanted the work completed on that Island as soon as possible," and that both New York City commissioner of public works, Maevis, and first deputy commissioner of public works, Daniels, had expressed to him their concern as well as the concern of the City of New York over the picketing in question and its potential effect on other con- tractors working for the city of New York. I also credit the testimony of New York City Department of Public Works division engineer and Rikers Island project engineer, Ted Raderman (likewise called by General Counsel), to the ef- fect that during the period of IBEW Local 3 picketing at the Hazen Street bridge access point to Rikers Island, there were in a state of incompletion not only the Rikers Island projects here in question, but also projects C-74 (Adoles- cent Remand Shelter) and C-75 (auditorium and chapel modernization); that during said period there were numer- ous (identified by Raderman by name) prime contractors and subcontractors-between 1 and 2 dozen-including a number of electrical contractors and subcontractors, at work or supposed to be at work or who could have been at work there but for the picketing; that during said picketing period hepersonally observed employees employed by Rikers Island project contractors actually picketing there or refus- ing to cross the picket line there, one identified picket (Co- lucci, a supervisory employee of electrical contractor A. I. Smith Electrical Contractors, Inc.) telling Raderman, "Well, I am picketing with the rest of the men of Local 3," and another identified electrician employee liof another contractor expressly telling him that he would not cross the picket line; and that, although these numerous contractors on the Rikers Island projects did not show up for or go to work during the picketing period, they did resume work in December after it ended. Although Raderman identified these employees by name, Respondent-without offering any expla- nation-failed to produce any of them at the trial to controvert Raderman's identification of them or testimony concerning them in any way. It is further to be noted that during cross- examination Respondent's witness, Theodore A. Hellman, 11 I e, Mullaney (Mullane) Comparing testimonial demeanor as observed, I reject the equivocal overtones suggestive of the contrary in the testimony of Respondent's witness Al Stucki-an official of an electrical contractor in competition with Mansfield-whose testimonial demeanor as observed left much to be desired As stated above, Respondent unexplainedly failed to call 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president of a Rikers Island electrical contractor in competi- tion with Mansfield, conceded reiteratedly that his company's employees-who "have always been members of Local 3 as far as I [Hellman] know"-did not work at that jobsite be- cause of the picketing there (although they had other work which they did elsewhere).12 Moreover, uncontradicted tes- timony of New York City deputy commissioner of public works, Jonathan Daniels, in the U.S. district court compan- ion 10(1) proceeding indicates that on October 13, 1972, he received a telephone call from IBEW Local 3 General Busi- ness Manager Thomas Van Arsdale, expressing his concern over the City's Rikers Island electrical contract award to Mansfield; and that thereafter further similar calls and let- ters were received from other electrical contractors and their trade association (linked to IBEW Local 3 by con- tract), all aimed at trying to get the city to cancel its Rikers Island electrical contract award to Mansfield. Deputy Com- missioner Daniels' uncontradicted district court testimony further indicates that incipiently serious problems on the Rikers Island project (i.e., heating system completion, de- pendent upon electrical work-housing of over 1,000 in- mates contingent thereon) arose during the period of the subsequent Local 3 picketing and could not be solved be- cause-in Commissioner Daniels' words-"There were no electricians on the job . . . I know this to be a fact, that there were no electricians working, and that this condition was coincident during a period of time when picketing was going on." And Deputy Commissioner Daniels also there testified that the IBEW Local 3 picket signs could only be taken to refer to Mansfield. I accordingly find that employ- ees of Rikers Island projects contractors and subcontrac- tors-some of which employers employed employees unionized under IBEW Local 3-at the Rikers Island con- struction worksite, because of Respondent's picketing there, in fact did not work for or withheld services from their employers, who in turn stopped or did not work there dur- ing the picketing; and that employees of other employers 13 were encouraged so to do. Mullaney himself to testify here I likewise reject in substantial part the equivocating and in any event inconclusive testimony of Respondent's vo- luntary witness David Waxman, another directly interested and biased com- petitor of Mansfield, who tried transparently hard to convey the impression that he was ignorant of the picketing and that it was for other reasons that his company-whose employees are also unionized by IBEW Local 3- refrained from working on the project during the picketing Waxman's story and credibility were utterly demolished by the testimony of General Counsel's subpoenaed rebuttal witness Theodore A Maffei (Maffie), Rikers Island projects assistant Civil Engineer of the City of New York Department of Public Works, who testified with impressive credibility, supported by writ- ten diary log entries, that he was present at the Rikers Island jobsite during the IBEW Local 3 picketing period (October 26-November 16, 1972), that on November 10, 1972 he personally spoke to Waxman-thus giving the lie to Waxman's contrary testimony here-when Waxman inquired of him (Maffei) "whether his men [i e, employees] would cross the picket line or not" and Waxmen explained "That I [Maffei] have to realize his [Waxman's] position, that he [Waxman] makes a living by employing these men", and- again giving the lie to Waxman-that he (Maffei) once more spoke to Wax- man on November 16 (i e., Thursday, the last day of the picketing, with the U S District Court temporary injunction application scheduled to be heard the following morning) and that Waxman promised to have his employees at the Rikers Islandjobsite the next day or the following Monday (November 20, i e , right after the picketing ended) 12 From trial tr p 383 Q Do you know for certain whether or not your employees refused to go back there [i e , Rikers Island] because there were pickets" A [by Hellman]That is the fact as I know it " 13 E g, tradesmen servicing the island with supplies I find that in picketing the foregoing locations, the natu- ral, intended and actual targets of the picketing activity by IBEW Local 3 were the persons and their employees in the described categories, in and seeking access to those loca- tions, and with regard to those categories of persons with an object of forcing or requiring the city of New York, its contractors, subcontractors and other persons to cease doing business with each other so as to force and require the city to cease doing business with Mansfield-in the case of the city and its contractors, subcontractors and others en- gaged in commerce, by coercing and restraining them, and in the case of employees of the foregoing by inducing and encouraging them to engage in a strike or refusal to perform work for their respective employers.14 I further find that the picketing in question was not solely "designed to elicit a public response to the actions of a government agency" (cf. N.L.R.B. v. Local 254, Building Service Employees Union, 376 F.2d 131, 135 (C A. 1, 1951), cert. denied 389 U.S. 856), viz., the city of New York, but at least in part to prevent the City of New York to perfect, implement, or proceed with an award of a contract or contracts to Mansfield as successful low bidder determined to be entitled thereto. Inasmuch as IBEW Local 3's purpose was to prevent or force Mansfield out of the described electrical contracting with the city and to keep it out of and off the Rikers Island project, Local 3 "must have included among its objects that of forcing [the City of New York] to terminate that [sub]contract" and it is accordingly "not necessary to find that the sole object of the [picketing] was that of forcing the [City] to terminate the [sub]contractor's contract." N.L.R.B. v. Denver Building & Construction Trades Council [Gould & Preisner], 341 U.S. 675, 688-89. The picketing, which was at all times orderly, was com- menced on October 26, before Mansfield performed work on either bid, and was discontinued on November 16, 197 2-1 day before the United States district court hearing on a 10(1) temporary injunction application by General Coun- sel of the Board-without indication that it would not be resumed. At no time, at least up to the trial herein, has Mansfield been notified, nor therefore able, to proceed with any of the Rikers Island electrical work awarded to it as successful bidder. B. Resolution and Rationale 1. General While it is lawful for a labor organization to picket prima- ry employer "A" peacefully for the purpose of informing the public that "A" does not pay wage scales prevailing in the area (cf. Centralia Building and Construction Trades Council [Pacific Sign & Steel Bldg.] v. N. L. R. B., 363 F.2d 699, 701 14 As is apparent from the wording of Section 8(b)(4)(i)(B), the Act does not require that employees actually go on strike or refuse to perform work for their employers, it merely requires that they be induced or encouraged to do so It is settled that "The fact that picketing may not be successful in mduemg a work stoppage " is not determinative of its legality and "does not in any way detract from the fact that the picketing activity had as its necessary effect the inducing or encouraging of employees to engage in a work stoppage " United Wholesale and Warehouse Employees, Local 261 (Perfection Mattress), 125 NLRB 520, 524, enfd denied 282 F.2d 824 (C A D C, 1960) See also, N L R B v Associated Musicians, Local 802 [Got- ham Broadcasting Corp ], 226 F 2d 900, 904-905 (C A 2), cert denied 351 U S 962 LOCAL 3, ELECTRICAL WORKERS (C.A.D.C., 1966) ), it is unlawful for it to picket "B" (a neutral to the labor organization's dispute with or dissatis- faction toward "A") with an object of causing "B" to sever or not enter into business relations with "A" (Sec. 8(b)(4); cf. Allen-Bradley Co. v. Local 3, IBEW, 325 U.S. 797). With- out need to go further, it is clear, as found that an object of Respondent Union's picketing at the remote Hazen Street, Queens, access point to the Rikers Island project bridge was to bring pressure on Rikers Island project contractors and subcontractors ("B") to in turn bring pressure on the city of New York ("B" or "C") not to do business with Mansfield ("A"), and also pressure upon employees of the contractors and subcontractors (and others) to withhold their services from their employers. These were direct violations of Sec- tion 8(b)(4)(i) and (ii)(B). As noted, admittedly at no time did Respondent picket Mansfield, the primary employer ("A") here." In view of the foregoing, it is unnecessary to determine whether it would have been lawful for Respon- dent to confine its picketing to the Mayor's home (Gracie Mansion), since it did not in fact do so. The consistent combination of Respondent's picketing there and at the other locations with its concurrent picketing of secondary employers, as well as the city, at the jobsite betrays Respondent's true secondary objective. Upon the facts found, a typical situation of secondary boycott would be presented were it not that-as Respon- dent emphasizes-a municipality is involved. Respondent strongly urges that this circumstance sets the case apart, mandating dismissal rather than a cease-and-desist order. We proceed to consider Respondent's contentions in this regard. 2. The city of New York as secondary target of the pick- eting activity Since the city of New York was picketed at the three principal seats of its government-its Municipal Building, city hall, and Gracie Mansion-in addition to the only land entrance or access point (Hazen Street bridgeway) to the Rikers Island worksite-it cannot realistically be disputed that the city was the secondary target of Respondent's pick- eting activities. But Respondent preliminarily urges that the fact that the city, as a governmental instrumentality, was being picketed, removes the case from the proscriptions of the secondary boycott prohibitions of the Act. I do not agree. Although the city, as a municipality, is exempt from the proscriptions of those provisions of the Act, notable Section 8(a), applicable to employers, since "political subdi- vision[s]" like the city are by Section 2(2) explicitly excepted from the definition of "employer" to which Section 8(a) is limited, no such exception is to be found in the current version of Section 8(b)(4), which now-since the 1959 am- endments to the Act-refers merely to "any person," as distinguished from "any employer" (the pre-1959 wording) engaged in commerce, as a proscribed target of secondary 15 IBEW Local 3's business representative, Willian P Darcy, testifying as Respondent's witness, swore that he was in charge of the picketing of Rikers Island, and that "what Mansfield [was] doing that [IBEW Local 31 didn't like" was that "He [Mansfield] was cheating and exploiting his men and not paying them the prevailing rate that the law requires and we vigorously tried to prosecute it in every way we know how " 563 activity coming within the ban of Section 8(b)(4).16 The Board has expressly stated , in regard to the city of New York, in New York Typographical Union No. 6, ITU (Gavrin Press Corp.), 141 NLRB 1209, 1212, In . 2, that: Although the City of New York is not an "employer" within the definition contained in Section 2(2) of the Act, it is nevertheless a "person" engaged in commerce within the meaning of Section 8(b)(4) and is entitled to the protection of the Act. Plumbers, etc. Union v. Coun- ty of Door, 359 U.S. 357. See also, to the same effect, District Council No. 9, Painters (Strip Clean)), 185 NLRB 293, enfd. 79 LRRM 2703 (C. A.2), cert . denied 405 U.S. 988; District Lodge 123, Machin- ists, 167 NLRB 977, 978 , fn. 3; Sheet Metal Workers Interna- tional Association, Local 299 (S. M. Kisner and Sons), 131 NLRB 1196, 1198-99, fn. 5; Local No. 16, Longshoremen (City of Juneau), 176 NLRB 889. It is accordingly apparent that, under the current wording of the Act, the city of New York qualifies as being within the class of category protected from secondary boycott ac- tivity by Section 8(b)(4). 3. The picket signs Respondent contends that its picket signs were purely "informational," for the edification of the populace at large. Without dwelling on the unlikelihood that any significant segment of the general population would select the remote Hazen Street, Queens, bridge access point to the Rikers Island worksite for perambulation purposes, it must be owned that substantial numbers of officials as well as em- ployees of the city, and also persons and employees of per- sons doing business with the city, had to encounter those pickets and "cross" their "lines" in order to enter upon or leave there as well as any of the other three important city loci picketed. It may also be doubted whether all, most, or perhaps even many, people-particularly the smaller class comprising the members of IBEW Local 3 17 who, however, may have been in greater proportional abundance at the access point to the worksite-trouble to read picket signs with the degree of analytic care of savants of labor law, attorneys, or even persons of "average" literacy, sign-read- 16 "One purpose of the 1959 amendments to section 8(b)(4), which substi- tuted the language `any person engaged in commerce' for `any employer,' was to bring within the coverage of the section activities against entities such as railroads and governmental units, which are specifically excluded from the act's definition of `employer' See, e g, S Rep No 187, 86th Cong, 1st Sess (1959) at 80, in I Leg. Hist 397, at 476, U.S Code Cong & Admin News 1959, p 2318 " N L R B v Local 254, Building Service Employees Union (University Cleaning Co), 376 F 2d 131, 135 (C A 1, 1967), cert denied 389 U S 856 (1967) Thus, in the cited case a State department of education was held to be a "person engaged in commerce," within the amended (and cur- rent) wording of the Act, particularly since it used substantial quantities of goods purchased in other states 17 While "picketing of a secondary employer's premises does not per se constitute inducement or encouragement of employees of neutrals" Fruit & Vegetable Packers, Local 760 (Tree Fruits), 132 NLRB 1172, 1176, reversed 308 F 2d 311 (C A D.C., 1962), reversed 377 U S 58), under the circumstan- ces here shown " the natural or probable result of picketing at an en- trance used in part by employees is to induce a strike" or withholding of services, (United Wholesale & Warehouse Employees, Local 261 (Perfection Mattress), 125 NLRB 520, 524, enforcement denied 282 F 2d 824 (C A.D C , 1960) ) 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mg proclivity, and spare time It is for this reason, as well as the practical difficulty of establishing with acceptable certainty whether access seekers or passersby carefully read or understood picket signs, and also the undesirability of placing within the hands of possible lawoffenders a ready means of mechanically establishing their "innocence" through wooden application of a rule sanctioning all man- ner of picketing merely because of self-serving words on a sign, that it has become settled that the mere language of the picket sign does not of itself establish the legality of the picketing nor even its real object or objects. Thus, even though a picket sign expressly states that it is informational for "customers and the public only," with no oral supple- mentation by pickets, it has been held that the picketing may nevertheless be violative of the Act. See, e.g., N.L R B. v. Local 254, Building Service Employees (University Cleaning Co.), 376 F.2d 131 (C.A. 1, 1967), cert. denied 389 U.S. 856, where the picket sign went so far as to state: "This statement is directed to customers and the public only" and that "It is not a request to employees to refuse to pick up deliver, or transport or refuse to perform any services." 1 Further- more, even assuming that one of the purposes of Respondent's pickets and their signs was to educate and provide information to the public at large, this would still not insulate its activities from the reach of Section 8(b)(4), which requires only that an, i.e., not the only, object of the picket or boycott activity be that proscribed by the Act.t9 Accordingly, having found that Respondent's activities did have such an object, I reject Respondent's contention that the proceeding must be dismissed because the wording of its picket signs establishes that its motivation was to educate or inform the public at large. i9 Judicial atten tion has frequently been focused on the nature of picketing as a "signal" to the knowledgeable , regardless of the wording on the signs carved by the pickets " the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated " Bakery & Pastry Drivers & Helpers Local 802 v Wahl, 315 U S 769, 776-777 "The objectives of any picketing include a desire to influence others from withholding from the employer their services or trade " Local 761, International Union of Electrical, Radio and Machine Workers (General Electric) v N L R B, 366 U S 667, 673 (1961) "The loyal- ties and responses evoked and exacted by picket lines are unlike those flow- ing from appeals by written word " Hughes v Superior Court of California, 339 U S 460, 465 A central purpose of picketing is "to conscript neutrals having no relation to the dispute " Carpenters & Joiners Union of Ameri- ca, Local No 213 v Ritter's Cafe, 315 U S 722, 728 "The normal purpose of a picket line is to persuade employees not to cross it " N L R B v Dallas General Drivers, Warehousemen & Helpers Local No 745 [Associated Whole- sale Grocery of Dallas], 264 F 2d 642, 648 (C A 5, 1959), cert denied 361 U S 814 "The reluctance of workers to cross a picket line is notorious " Printing Specialties and Paper Converters Union, Local 388 [Sealright Pacific Ltd] v Le Baron, 171 F 2d 331, 334 (C A 9, 1948) See also, N L R B v Denver Bldg and Construction Trades Council [Gould & Preisner], 341 U S 675, 690 And, further, effective inducement or encouragement of employees to withhold their services from their employers in turn necessarily restrains and coerces their employers N L R B v Local 3, International Brotherhood of Electrical Workers [New York Telephone Co ], 325 F 2d 561 (C A 2, 1963) And see in fn 8, supra, concerning similar picket signs utilized by IBEW Local 3 in picketing another Mansfield jobsite 19 That it is sufficient to constitute violation of Section 8(b)(4) that an, and not the only, object of picketing is unlawful, see N L R B v Denver Bldg and Construction Trades Council, 341 U S 675, 688-689, N L R B v Milk Drivers and Dairy Employees Local Union No 584, IBTCWHA [Old Dutch Farms, Inc J, 341 F 2d 29, 32 (C A 2, 1965), cert denied 382 U S 816, New York Mailers' Union No 6 (N Y Herald Tribune, Inc) v N L R B, 316 F 2d 371, 372 (C A D C, 1963) 4. Respondent's picketing activities as "political" in exercise of First Amendment rights Respondent further contends that in any event its picket- ing was a valid exercise of its constitutional rights, said to be within First Amendment guarantees, to engage in "as- sembly" and "political" activity. In short, Respondent in- sists that it had and has the constitutional right to picket peacefully to express its disagreement with action taken or proposed to be taken by the city of New York through its mayor and other authorized officials to awarding contracts to Mansfield; and that if the provisions of the Act conflict with that right they must yield to the Constitution's superior command. To begin with, I cannot agree that the city's routine award of construction or maintenance contracts under its estab- lished sealed competitive bidding procedures is "political"; nor, therefore, that a chagrined Union's action, through picketing, to unhinge such an award to a contractor whose employees it has not succeeded in enlisting into its member- ship, is "political" action (even if its mechanism is peaceful assembly) and therefore wholly exempt from prohibitions of the Act which would apply if the contract awarder were a private rather than a municipal corporation. Would Re- spondent consider the city's action in having a street pot- hole filled to be "political"? It seems appropriate to distinguish action by the city in governance of the popula- tion from action in maintenance of its properties. Cf., e.g., Cooke v. U.S., 91 U.S. 389, 398. It also seems appropriate to distinguish between picketing designed to keep people off a jobsite and away from work, and, on the other hand, action through the ballot boxes and in the legislative halls. There is no reason to assume that Congress, in enacting Section 8(b)(4), intended that governmental entities as em- ployers be less free from secondary economic pressures than other employers. Cf Plumbers Union v. County of Door, 359 U.S. 354, 359. Furthermore, as has already been observed, violation of Section 8(b)(4) requires only that an object of the challenged activity be within that section's proscriptions; not that every object be. It is a matter of common knowledge that any great municipality, such as the city of New York, as a part of its ongoing operations, enters into numerous contracts for the maintenance and improvement of its properties and facilities. Secondary activity of the nature here involved, having as its target the person (municipality or other) who has awarded a contract to, or is about to enter into a con- tractual relationship with, another person who employs nonunion help or employees who belong to a union other than the one engaging in the secondary activity, is, as has here been found, conduct having as at least one of its objects the cancellation or revocation of that contract, and the coercing or restraining of the person picketed to cease doing business with the other person who is the primary target of the picketing union's activities; and it also induces and encourages employees of the secondary target, as well as persons doing business with him and also employees of those persons, to stay off the job, strike, or withhold their services.20 Such activity is within the explicit denunciation 20 As to the latter, i e , employees, it is, again, unnecessary to establish that any actually did strike or withhold their services, it being sufficient to consti- tute violation of the Act that they have been, as here found, induced or encouraged to that end That picketing constitutes "inducement or encour- LOCAL 3, ELECTRICAL WORKERS of the Act, and, at any rate since the Act's amendment of 1959, as shown above, this is equally true when the activity is directed at a municipality. It is, to be sure, arguable that the expression "an object" in Section 8(b)(4) should be read to mean the principal or at least an important or controlling, rather than an insignifi- cant or incidental, object; and, of course, as Respondent urges, that since the provision is legislatively imposed it must yield to Constitutional stricture, in this case the First Amendment, perhaps signally because the thrust of the pro- vision in question could be said to be to limit free speech only where its exercise is potentially effective, cf. Thornhill v. State of Alabama, 310 U.S. 88. It has, however, been held that the proscription of picketing, such as where it comprises secondary activity under Section 8(b)(4), is not of itself con- trary to the constitutional guarantee of free speech. N.L.R. B. v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58, 71-72; Local 501, Electrical Workers v. N.L.R.B., 341 U.S. 694; Bedding, Curtain and Drapery Workers Union, Local 140 [U.S. Mattress Corp.] v. N.L R B., 390 F.2d 495, 499 (C.A. 2, 1968), cert. denied 392 U.S. 905. Be all this as it may, it would in any event not be within my power to accept Respondent's invitation to invalidate the statutory provi- sion it calls into question on constitutional grounds, as I would assume it would likewise be outside of the power of the Board to amputate its own charter or to diminish its Congressionally mandated obligatfons.21 I also reject Respondent's ingenious contention that its picketing was not subject to the prohibitions of the Act on the theory that it was picketing Mayor Lindsay (and his commissioners) personally or "as city officials" who had transgressed against the Union's standards because, in Respondent's alleged opinion, the awards were ill-advised, improvident, or "ultra vires " The contention that Respon- dent was engaged in a personal vendetta-type picketing of Mayor Lindsay at thejobsite and elsewhere in the described situation stretches my credulity beyond its tolerance, and since there is no factual predicate for it I reject it. To the contrary, the facts bespeak that the Mansfield awards were, as shown, made to Mansfield as successful lowest bidder under the city's established sealed bidding procedures; that those awards were awards of the city of New York in its corporate capacity; that it is those awards of the city of New York that Respondent at all times sought to upset; and that it was Respondent's object to prevent the city of New York- not Mayor Lindsay personally or his commissioners person- ally-from doing business with Mansfield. Were Respondent's ingenious line of defense to be adopted, unions engaged in unlawful secondary boycott activity un- der the Act could achieve easy exemption from the Act's prohibitions by asserting that they were merely picketing agement" of individuals within the meaning of Section 8 (b)(4)(i)(B), as well as "coercion or restraint" of persons within the meaning of Section 8(b)(4)(u)(B), see N L R B v International Hod Carriers, Building and Com- mon Laborers' Union Local 1140, 285 F 2d 397 (C A 8, 1960), cert denied 366 U.S 903, N L R B v Plumbers Union of Nassau County, Local 457 [Bomar Plumbing & Heating], 299 F 2d 497 (C A 2, 1962) It has further been held that effective inducement or encouragement of employees to withhold serv- ices necessarily restrains or coerces their employers N L R B v Local 3, IBEW [New York Telephone Co ], 325 F 2d 561 (C A 2, 1963) 21 Cf Public Utilities Commission v United States, 355 U.S 534, 539, Cen- tral Nebraska Public Power & Irr Dist v FPC, 160 F 2d 782 (C A 8), cert denied 332 U S 765, Engineers Public Service Co v SEC, 138 F 2d 936, 952-953 (C A D C ), dismissing as moot 332 U S 788; Pamtz v District of Columbia, 112 F 2d 39 (C A.D C ) 565 offending officials of a targeted secondarily boycotted cor- porate victim in the officials' "personally" secondarily boy- cotted corporate victim in the officials' "personal" capacity, and not the corporation at all. But the object of picketing such as here is to nullify, abort, or overcome corporate ac- tions by bringing secondary pressures upon those officials acting in their corporate capacity on behalf of their corpora- tions-whether they be private or public corporate officials. And determination of whether or not secondary pressure by a union upon a corporation is such as comes within the ambit of the prohibitions of Section 8(b)(4) cannot be made to turn on the outcome of a peregrinating ancillary inquiry into whether the corporate actions taken by the secondary victim of the union's boycott were technically ultra vires the corporate officials. Respondent also makes much of the action of the New York City board of estimate in cancelling the previous con- tract awards to Mansfield. However, it is clearly no answer to violation of Section 8(b)(4) that the person who is the object of a union's secondary pressure succumbed thereto. 5. Discontinuance or interruption of picketing Finally, the fact that the picketing has ceased or been held in abeyance, is neither a defense to the violation nor a reason to withhold a cease-and-desist order, since discontin- uance of illegal activity does not erase the violation of law involved in its commission nor is it (or its interruption) any assurance that it may not be resumed. (In the U.S. district court here, Respondent expressly declined to assure it would not be resumed.) Cf. N.L.R.B. v. Plumbers Union of Nassau County, Local 457 [Bomat Plumbing & Heating], 299 F.2d 497, 501 (C.A.2). For all of these reasons, Respondent's motions to dismiss the complaint are denied, and it is found and determined that Respondent has violated the Act as detailed above, in the respects set forth in the complaint. Cf. e.g., N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 688-689. The result here reached is designed to carry out what we have been reminded are the "dual congression- al objectives of preserving the right of labor organizations22 to bring pressure to bear on offending employers23 in prima- ry labor disputes and of shielding unoffending employers and others24 from pressures in controversies not their own." Local 761, International Union of Electrical, Radio & Ma- chine Workers (General Electric) v. N.L.R.B., 366 U.S. 667, 679. CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted here. 2. By its described actions as found, Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act as amended. 3. Respondent's said violations have had and, unless Re- spondent is ordered to cease and desist therefrom or a re- sumption or repetition thereof, will continue to have a substantial effect on commerce. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 22 e , IBEW Local 3 23 e , Mansfield 24 1 e., city of New York, contractors, subcontractors, and their employees. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 25 It is hereby ordered that Respondent, Local 3, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, and its officers, representatives, and agents shall: 1. Cease and desist from: (a) Inducing or encouraging, in violation of Section 8(b)(4)(i)(B) of the National Labor Relations Act as amend- ed, any individuals employed by the city of New York or by any other person engaged in commerce or in an industry affecting commerce with whom said Local 3 is not engaged in a labor dispute, to engage in a strike or refusal in the course of their employment to use, process, transport, or otherwise handle or work on goods, articles, materials or commodities, or to perform services for their respective em- ployers. (b) Threatening, coercing, or restraining, in violation of Section 8(b)(4)(ii)(B) of said Act, the city of New York, any contractor or subcontractor of said city, or any other per- son 26 engaged in commerce or in an industry affecting com- merce with whom said Local 3 is not engaged in a labor dispute, where in either such case (a) or (b) an object is to force or require the city of New York to cease doing busi- ness with Mansfield Contracting Corporation, or to force or require said city, any contractor or subcontractor of said City, or any other person engaged in commerce or in an industry affecting commerce to cease doing business with one another to force and require said city to cease doing business with Mansfield Contracting Corporation. 2. Take the following affirmative actions, necessary to effectuate the policies of the Act: (a) Post at Respondent's business offices, union halls, and meeting places, copies of the attached notice marked "Appendix B." 27 Copies thereof, on forms provided by the Board's Regional Director for Region 2, shall be duly signed and posted immediately upon receipt thereof, and be main- tained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to in- sure that said notices are not altered, defaced, or covered by any other material. (b) Return copies of said notice, signed as foresaid, to the Regional Director for Region 2, for posting by the city of New York and Mansfield Contracting Corporation if desir- ous or willing. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 25 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order which follow 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 26 Cf , e g , N L R B v Local 3, IBEW (New York Telephone Co ), 477 F 2d 260, (C A 2, 1973) 27 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." APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before an Administrative Law Judge of the National Labor Relations Board, at which all sides had the opportunity to present evidence and arguments, it has been decided that the undersigned Union has violated the Na- tional Labor Relations Act, as amended, by this Union's actions in picketing city hall, the municipal building, Gracie Mansion, and the Hazen Street (Borough of Queens) en- trance to the Rikers Island bridge, with an object of forcing or requiring the city of New York to cease doing business with Mansfield Contracting Corporation and with an object of inducing or encouraging employees of the city of New York, its contractors and others, to strike or refuse to work. We have been ordered to post this notice and live up to its terms: WE WILL NOT, in violation of Section 8(b)(4)(i)(B) of the National Labor Relations Act as amended, induce or encourage any employee of the city of New York or of any contractor or subcontractor of the city, or of any other person engaged in commerce with whom we have no labor dispute, to engage in a strike or refusal in the course of their employment to use, process, trans- port, or otherwise handle or work on goods, articles, materials or commodities, or to perform services for their respective employers; and WE WILL NOT, in viola- tion of Section 8(b)(4)(ii)(B) of said Act, threaten, coerce, or restrain the city of New York, any of its contractors or subcontractors, or any other person en- gaged in commerce with whom we have no labor dis- pute; where in either such case an object is to force or require the city of New York to cease doing business with Mansfield Contracting Corporation, or to force or require the city or any of its contractors or subcontrac- tors or any other person engaged in commerce to cease doing business with one another to force and require the city to cease doing business with Mansfield Con- tracting Corporation. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO (Labor Organization) 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 direct- ed to the Board's Office, 36th Floor Federal Building, 26 Federal Plaza, New York, New York, Telephone 212-264- 0306.