Local 25, Electrical Workers

LOCAL 25, ELECTRICAL WORKERS Local 25, International Brotherhood of Electrical Workers, AFL-CIO and Eugene lovine, Inc. Case 29-CC-368 January 10, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 15, 1973, Administrative Law Judge Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions I 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. In affirming the Administrative Law Judge 's conclusion that Respon- dent's picketing was not violative of the Act, we do not rely on his additional conclusion that the General Counsel failed to sustain his burden of proof because the picketing was ineffective as to various secondary employers and their employees DECISION STATEMENT OF THE CASE EUGENE F. FREY, Administrative Law Judge: This case was tried before me on due notice, on August 27, 1973, at Brooklyn, New York, with General Counsel and Respon- dent, Local 25, International Brotherhood of Electrical Workers, AFL-CIO, participating through counsel, and Charging Party, Eugene lovine, Inc. (herein called Iovine), appearing by its president, Eugene Iovine, after pretrial proceedings in compliance with the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (herein called the Act). The issue is whether or not Respondent, which has a labor dispute with lovine, the primary employer, by picketing a construction job located on a facility of Long Island Lighting Company (herein called I The issue arises on a complaint issued June 18, 1973, by the Board's Regional Director for Region 29, after Board investigation of a charge filed by lovine on May 22, 1973, and answer of Respondent denying the commission of any unfair labor practices 337 LILCO), a secondary employer , at which Peter Peterson Construction Company (herein called Peterson), another secondary employer, was engaged as general contractor for LILCO, and lovine was engaged in electrical work as a subcontractor to Peterson , thereby inducing and encourag- ing employees of said employers to strike or refuse to do work for their employers, and coercing and restraining Peterson, LILCO and other persons in commerce , with an object of forcing and requiring the secondary employers to cease doing business with lovine and to force other persons doing business with LILCO to cease doing business with it, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act.' At close of the testimony , Respondent moved to dismiss the complaint on the merits. That motion is now granted on the basis of the findings and conclusions in this Decision . General Counsel and Respondent gave oral argument at the end of the case, and have filed written memoranda which have been carefully considered in preparation of this Decision which was signed and released by me on October 9, 1973, for distribution to the parties in the usual course. Upon the entire record in the case , including observation of witnesses on the stand , and consideration of arguments of the parties , I make the following: FINDINGS OF FACT 1. STATUS OF THE EMPLOYERS , AND RESPONDENT lovine is a New York corporation with its principal office and place of business in the Borough of Queens, New York, where it is and has been engaged as an electrical contractor in the building and construction industry, providing and performing electrical wiring and equipment installation and repair and related services at various building and construction sites in the State of New York. In course of its business in the past year lovine has had direct inflow of goods and materials to such jobsites valued in excess of $50,000. Peterson is a New York corporation with its principal office and place of business in East Rockaway, New York, where it is and has been engaged as a general contractor in the building and construction industry on various con- struction sites in the State of New York. LILCO is a New York corporation with its principal office and place of business in Mineola, Nassau County, New York, and has been continuously engaged as a public utility in the production and distribution of electricity and gas and related products at various plants, including a facility in Hicksville, New York, which is the only one involved in this case. I find that Iovine, Peterson, and LILCO are employers engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(l), (6), and (7) and 8(b)(4) of the Act.2 Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2 Respondent did not answer the jurisdictional allegations of the complaint, hence under Board Rule 102 20 those allegations "shall be deemed to be admitted to be true " 208 NLRB No. 55 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES3 During 1973 Peterson has been engaged as general contractor in constructing a transformer maintenance building (herein called TMB) for LILCO at the Hicksville facility. Since November 1972, lovine has held and operated under a subcontract for Peterson, for electrical wiring and equipment installation in said building, and since that date has actually performed such work there. Since 1970 and to the date of trial Respondent has been engaged in a labor dispute with Iovine, in course of which Iovine has filed at least five prior charges with the Board alleging that Respondent has in various ways violated Section 8(b)(4) of the Act on other jobsites where lovine was working.4 During this period and at the time of the events stated below, lovine had a collective-bargaining agreement with Local 263, International Brotherhood of Teamsters, Chauffeurs and Warehousemen of America, under which it has been employing electricians who are members of that union, and has afforded such employees wages and working conditions which were not equal to those received by employees who are members of Respon- dent. On or about May 2, 1973, Charles W. Fisher, business agent of Respondent, in course of his duties visited the Hicksville facility, which is located within the territorial jurisdiction of Respondent, to find out who was perform- ing the electrical work at the TMB jobsite, and whether that person was under contract with Respondent or was a nonunion contractor. Fisher could not observe the jobsite from either of the two public streets bordering the Hicksville facility, because it covers over 50 acres of ground, and the TMB jobsite was located toward the rear of the tract and hidden from view by other buildings. Hence, Fisher entered the main office of LILCO at the facility, identified himself to the receptionist, and asked if he could talk to someone familiar with the construction site. The woman dialed the phone extension of George Christiansen, assistant construction superintendent of LILCO, and connected him with Fisher, telling the latter it was Christiansen. Fisher asked Christiansen if he knew about the construction. Christiansen said he did. Fisher asked him who the electrical contractor was. After first inquiring and learning that Fisher was business agent of Respondent, Christiansen said he did not know about the contracts, but would find out and call him back. After 5 or 10 minutes, Christiansen called the receptionist, she put Fisher back on the phone, and Christiansen told Fisher the electrical contractor was lovine. Fisher asked him if he knew that Iovine was "not with" Respondent or "with" the Building and Construction Trades Council of Long Island (of which Respondent is a member). Christiansen said he did not know. Fisher asked him "what LILCO was going to do about it." Christiansen replied, "nothing," saying that LILCO did not let the contracts on the job, that Peterson did that as general contractor. Fisher indicated that he "wanted LILCO to remove lovine from the,lobsite as contractor." Christiansen replied that this was not the 3 All dates stated herein are in 1973, unless otherwise noted 4 Three of the charges were withdrawn or dismissed before trial (29-CC-250, 29-CC-151, and 29-CC-362) and two others resulted in issuance of a complaint which was dismissed by the Board , 201 NLRB 531 responsibility of LILCO, that if lovine or any other contractor was removed it would have to be done by Peterson. Fisher said that if Iovine was on the site, he still worked for LILCO, that he (Fisher) was not interested in Peterson, but only in having LILCO remove lovine. Christiansen said Fisher should talk to a Mr. Knab of Peterson, because Iovine worked for Peterson. Fisher still insisted he was not interested in Peterson, only in what LILCO would do. Christiansen then said he would look into the situation further and call Fisher at his office. Christiansen at once reported the discussion by phone to Knab of Peterson, and also to his immediate superiors at the plant. That afternoon, he telephoned Respondent's office and left a message for Fisher to call Knab if he had any questions about lovine. Fisher got the message that day, but did not call or otherwise contact Peterson, nor did he communicate again with Christiansen. Instead, he spent some time in the next 2 weeks trying to find a location outside the Hicksville facility from which he could personally observe the construction site . On May 17, he finally located a vantage point on a railroad trestle outside the tract from which he observed a tool locker and electricians actually working on the site. That afternoon he set up a picket line at the two entrances to the facility and TMB site used by employees of LILCO, Peterson and the subcontractors working on the job. The pickets carried signs stating To the public: Electricians working on this job for Eugene lovine, Inc. do not receive wages and working conditions as good as those established in contracts of Local 25, IBEW. This sign is not directed to any other employers or employees on this job. AFL-CIO The picketing with these signs continued until about June 8, 1973. During this period the operation of the Hicksville facility by LILCO and its employees and actual progress of the TMB construction by Peterson, its subcontractors and their respective employees was not stopped or even hindered in any way. In the same period the operating and clerical employees of LILCO at the Hicksville facility were represented by two locals of the IBEW, other than Respondent.5 Contentions of the Parties, and Final Findings and Conclusions General Counsel's argument is that (1) Fisher's remarks to Christiansen on May 2 clearly show that Respondent was unlawfully pressuring LILCO to remove lovine as the electrical subcontractor because that concern was nonun- ion in the eyes of Respondent, since it had no collective bargaining contract with Respondent and was not a member of the Long Island Building and Construction Trades Council, with which Respondent was affiliated, hence its "objective" was to have LILCO cease doing business with lovine for that reason, and (2) when these remarks are considered with the ensuing picketing at a S The above facts are found from stipulated facts, documentary proofs and a composite of credible testimony of Fisher and Christiansen Testimony of either of the witnesses in conflict therewith is not credited for reasons noted below LOCAL 25, ELECTRICAL WORKERS common situs on the L1LCO property, the violation of Section 8(b)(4) as alleged has been proven,6 even though the picket signs in terms proclaimed a lawful "area- standards" objective and the picketing itself may have complied with the standards set forth in the Moore Dry Dock Company case.? I have found from Christiansen's testimony that Fisher clearly told that official that he "wanted" LILCO to get lovine off the TMB fob, after reminding him that Iovine was in effect "non-union" and asking what LILCO would do about it. I do not credit Fisher's denial of this part of the talk, in light of his admission that he came to the TMB job specifically to find out whether a contractor affiliated with Respondent, or a "non-union" contractor, was on the job, pursuant to Respondent's policy of trying to have all electrical work on jobs in its jurisdiction done by contractors employing its members. Hence, Fisher's explanation that lovine was "non-union" is consistent with his ensuing inquiry about what action LILCO would take and his expressed desire that LILCO get lovine off thejob ; and since Fisher admits he did not explain to Christiansen that Iovine, as a nonunion contractor, was not paying the prevailing union rates for electricians, Fisher's remarks are just as probative, if not more so, of an objective to have LILCO cease doing business with lovine by getting him off the job, than of the "area-standards" objective stated by Fisher in testimony and noted on the picket signs. This conclusion is further strenghtened by Fisher's rather garbled admission that he explained lovine's nonunion status to Christiansen "to make him aware that he had someone on the job who might not be there under a situation that they would want them there." The main purpose of this evasive answer is clarified somewhE t by Fisher's admitted knowledge of the fact that the Hicksville facility was manned by operational and clerical workers who were members of two sister locals of the IBEW, from which I can only infer that Fisher was thus telling Christiansen obliquely but clearly that LILCO might not want nonunion electricians working in the same facility with plant employees who were members of the parent IBEW, a situation which traditionally has been denounced and resisted by unions in the construction trades and has often led to strikes or work stoppages by their members in order to compel the ejection of nonunion contractors and workers from jobs 8 Hence, I conclude that Fisher's remarks to Christiansen sufficiently show that Respondent's objective on May 2 was unlawful ; i.e., to have a neutral employer, LILCO, take steps to have the primary employer, lovine, removed from the TMB site because he was a nonunion contractor. 6 The Board has corsistently held in these cases that picketing is not to be considered in isolation but must be viewed as part of the entire course of conduct of the union International Brotherhood of Electrical Workers Local Union 11 (L.G E(ectr,c Contractors. Inc. ), 154 NLRB 766, 767, 768 7 Sailors Union of the Pacific, AFI_ (4foore Dry Dock Company ), 92 NLRB 547, 549 The Beard has held that if an unlawful objective is proven, a violation can be found, even though the union had a second, lawful objective IBEW Local II (LG ilectric Contractors, Inc ), supra. 8 Examples of this type of action in the past by Respondent and sister locals appear in Local ?5, International Brotherhood of Electrical Workers (Emmett Electric Company, Inc), 157 NLRB 44,51; Loca125, International Brotherhood of Electrtcai Workers (Sarrow-Suburban Electric Co., Inc), 457 NLRB 715, 722, and IBEW Local II (L G Electric Contractors, Inc.), supra 9 Christiansen admits that Fisher made no mention of picketing or 339 However, while Fisher had this illegal objective in mind when he spoke to Christiansen, in hopes that LILCO would feel lovine was undesirable and take action to get rid of that contractor, his expression of a desire for LILCO action in this direction, without contemporaneous or later remarks to any official of LILCO or any of the contractors on the TMB site, or to employees of any of them, which would directly or indirectly advise, promise, warn, or threaten that Respondent would strike or take other action to stop or delay operations at the Hicksville facility or the TMB job if lovine continued to work there and was not removed, as desired by Respondent,9 falls far short of a direct or indirect threat to picket or engage in other conduct tending to induce or encourage employees to strike or stop work, or to threaten, coerce, or restrain neutral employers to make them cease doing business with primary employers, such as has been found violative of Section 8(b)(4) of the Act. 10 Furthermore, picketing did not begin immediately after the refusal of Christiansen to do anything about lovine, but weeks later and only after Fisher satisfied himself by observation that lovine was in fact working on the TMB job. The picket signs in terms conformed to the standards of lawful informational or "area-standards" picketing under the Act. Although it has been held that a picket line is a potent instrument, that picket signs often speak louder than words (Local 25, International Brotherhood of Electri- cal Workers (A.C. Electric ), 148 NLRB 1560, 1577) and that picket lines necessarily invite employees to make common cause with the strikers and to refram from working behind the lines, irrespective of the literal appeal of legends on the picket signs (Local 25, International Brotherhood of Electrical Workers (Emmett Electric Compa- ny, Inc. ), 157 NLRB 44, 50 (fn. 10)), it is significant that the picket line here did not have such effect on workers in the main facility, where members of the IBEW continued to work, nor did it stop work on the TMB site. In the absence of prior words or conduct from Respondent denoting threats or coercion within the meaning of Section 8(b)(4), the total lack of success of the picketing in causing any stoppage cannot be ignored but looms important and tends to support the inference that its purpose and effects from start to finish was directed only at the primary employer, rather than toward enmeshing neutral employers or their employees in the primary dispute. Lacking any proof to show why other union employees at the facility did not take the picket line as a signal to make common cause with Respondent and refuse to cross it, it is a fair inference that they and workers on the TMB site took the stoppage of the TMB job or any other LILCO operation, nor did he ask LILCO to replace lovine with another contractor affiliated with or acceptable to Respondent. i'i See Carpenters District Council of Houston and Vicinity (Astrodomain Corporation), 202 NLRB 744, where a complaint was dismissed despite union language indicating a "problem" and possible damage to a jobsite Contrast other cases where violations were found on language directly or by clear implication indicating probable shutdown of or damage to ajobsite by picketing, Si: Local 445, International Brotherhood of Teamsters, Chauffeurs and Helpers of America (Edward L Nezelek, Inc), 194 NLRB 579, 581. 588, enfd 473 F.2d 249 (C A 2, 1973), Edwin A Wells, d/b/a Wells Electrical Construction Co v N LR B, 148 NLRB 757. reversed 361 F.2d 737 (C A 6, 1966), and see cases in fn 8 above. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket sign words at face value and concluded they were not being drawn into the dispute. The same inference is strengthened by the strange and significant total lack of overt direct or indirect approach to Peterson, any of his other subcontractors, or their respective employees or suppliers, on the job. This unusual lack of action, at variance with normal union practice, also suggests that Respondent may have abandoned its original unlawful objective in favor of the lawful one denoted by the picket signs. In these circumstances, the lack of such appeal, particularly to union members at the facility, and the failure of the picket line to stop or hinder LILCO's own operation or the TMB construction militates strongly against any finding of inducement or encouragement by the picketing of the secondary employers or their employ- ees in the statutory sense.ii After careful appraisal of all the pertinent facts and circumstances noted above, I am constrained to find and conclude that Fisher's remarks to Christiansen on May 2 did not reach the status of threats, coercion, or restraint of a neutral employer within the meaning of Section 8(b)(4)(ii). Although an object of those statements was probably to persuade LILCO to cease doing business with Iovine, attempts by proper means to seek to persuade that neutral employer to cooperate in achieving even a 11 Cf Local 1016, United Brotherhood of Carpenters & Joiners of America (Booher Lumber Co, Inc), 117 NLRB 1739, 1747, Local 825, International Union of Operating Engineers v N L R B, 400 U S 297, 304, 305 (1971), Glaziers Local No 558 v N L R B, 408 F 2d 197, 201 (C A D C, 1969), enfg 165 NLRB 182, 184. 11 1 have considered -other authorities and arguments thereon made by General Counsel, but do not find them inconsistent with the above findings proscribed objective is not unlawful. See N.L.R.B. v. Servelte, Inc., 377 U.S. 46, 53, 54; General Drivers, Chauffeurs, and Helpers Local Union No. 886 (The Stephens Company), 133 NLRB 1393, 1396. In light of the ineffectu- ality of the later picketing vis-a-vis the various secondary employers and their employees, I also find and conclude that General Counsel has failed to meet his ultimate burden of establishing that Respondent resorted to unlawful inducements of employees or restraint or coer- cion of secondary employers to achieve that objective. I therefore grant Respondent's motion to dismiss the complaint in its entirety.12 CONCLUSIONS OF LAW Respondent Union. has not violated Section 8(b)(4)(i) and (ii)(B) of the Act, as alleged in the complaint. RECOMMENDED ORDER i3 Upon the basis of the foregoing findings of fact and conclusions of law and on the entire record in the case, it is ordered that the complaint herein be dismissed in its entirety. and conclusions or controlling on the facts 1d in the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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