Local 683, Electrical Workers

LOCAL 683, ELECTRICAL WORKERS Local Union No. 683, International Brotherhood of Electrical Workers, AFL-CIO and Hillsmith Con- struction Company. Case 9-CC-740 March 13, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 18, 1974, Administrative Law Judge Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her 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 Local Union No. 683, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, Columbus, Ohio. its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Administrative Law Judge: This case, initiated by a charge filed on September 24, 1973, and a complaint issued on October 15, 1973, was tried before me in Columbus, Ohio, on October 30, 1973. The issues posed by the pleadings and the evidence are whether Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by certain picketing and other conduct engaged in by Respondent with an object of forcing or requiring a general contractor, Hillsmith Construction Company, and other persons to cease doing business with Roehrenbeck Electric, Inc., a nonunion subcontractor, or forcing or requiring Roehren- beck to sign a collective-bargaining agreement with Respondent. After the conclusion of the hearing counsel for the General Counsel and for Respondent filed briefs. Upon the entire record in this case, from my observation of the witnesses and their demeanor, and after due consideration of the briefs, I make the following: 1 Sheet Metal Workers International Association, Local Union No 299, AFL-CIO (S M Kisner & Sons), 131 NLRB 1196, 1199 FINDINGS OF FACT 1. THE BUSINESSES OF THE EMPLOYERS 697 Hillsmith Construction Company is engaged in the building and construction industry as a general contractor in an area including the States of Ohio, Indiana, Kentucky, and West Virginia. During the calendar year 1972 its gross volume of business for customers outside the State of Ohio was in excess of $1,000,000. It is currently engaged in Hilliard, Ohio, in the construction of an office and warehouse for U.S. Plywood Division of Champion International (herein called the Champion project) at a total cost of approximately $900,000. The value of its contract with Champion is approximately $471,000. In the construction of the office and warehouse, Hillsmith has more than a dozen subcontractors. One of those subcon- tractors is Roehrenbeck Electric, Inc., which has been engaged to do the electrical work at a contract price of approximately $36,000. Respondent concedes in its brief, and I find, that Hlllsmith is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I also find on the basis of the evidence adduced at the hearing that Hillsmith and its subcontractors, including Roehrenbeck, are engaged in the building and construction industry, an "industry affecting commerce" within the meaning of Section 8(b)(4) of the Act, and are persons within the meaning of Sections 2(1) and 8(b)(4) of the Act.' II. THE LABOR ORGANIZATION INVOLVED Respondent, Local Union No. 683, International Broth- erhood 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 Subsidiary Facts The general contractor, Hillsmith Construction Compa- ny, commenced the construction of an office and ware- house for Champion International on a 7- or 8-acre building site in Hilliard, Ohio, on June 15, 1973, using various subcontractors who employed members of appro- priate craft unions . At that time Hillsmith had not decided upon what electrical subcontractor it would use. After submitting bids for the electrical work , it chose Roehren- beck Electric Inc., in late July or early August to do this work and signed a contract with Roehrenbeck about August 17. Roehrenbeck did not employ any union members. Larry Brenner, the business representative of Respon- dent Union, came to the jobsite on a number of occasions in August as well as in September to inquire of Project Superintendent Floyd Lawson as to what contractor would be doing the electrical work. On the first few occasions Lawson stated that he did not know who would get the contract. On one occasion Lawson told Brenner that he thought Roehrenbeck would do the electrical work. 209 NLRB No. 114 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brenner replied, "well, there could be trouble with Roehrenbeck doing the electrical work." Both men concededly knew that Roehrenbeck was nonunion. On another occasion when Brenner was on the jobsite, Lawson asked him whether Respondent Union would "shut the job down or have a strike if Roehrenbeck was on the job" and Brenner replied that he did not know? On or about August 27, Brenner telephoned Hillsmith's vice president, John W. Peck, and asked who was going to do the electrical work at the jobsite. Peck informed Brenner that Roehrenbeck would be doing the work. Brenner stated that Roehrenbeck was nonunion. Peck replied that he realized that now but had not checked Roehrenbeck's union status when accepting his bid and, besides, that the nonunion bids had been so much lower than union bids that, because of Hillsmith's budget, it had no choice but to chose a nonunion electrical contractor. Peck added that he had talked to Roehrenbeck about going union and Brenner stated that he also had been pursuing that subject with Roehrenbeck and would like to have Roehrenbeck in the Union.3 The two men agreed to pursue their efforts to persuade Roehrenbeck to sign a union contract. According to Peck, the conversation between himself and Brenner on August 27 was friendly and no strike or work stoppage was expressly mentioned but "the emphasis was there . . . that there would be trouble, strike, that is the usual thing that happens and that has happened." Even prior to this conversation between Brenner and Peck, Roehrenbeck men had done some work on the jobsite. They returned on Saturday, September 15, and again on Monday, September 17. They never completed their work, however, and there is still electrical work to be done. When Brenner went to the jobsite on September 20, and asked Project Superintendent Lawson who had done the electrical slab work, Lawson replied that he did not know. Brenner thereupon replied, "I'll see you tomorrow morning," and left the premises. Brenner returned early the next morning, Friday, September 21, as one of eight pickets carrying signs which read: "Unfair to Local 683, IBEW." With the exception of one operating engineer who had entered the jobsite before the pickets arrived and performed about 2 hours of work on the first day of the picketing, all the employees (about 22) and subcontractors, as well as delivery men, refused to cross the picket line and perform services. The pickets walked along the entire access frontage to the jobsite, which was about 500 feet. Over the weekend of September 22 and 23, Hillsmith had two gates erected on the access frontage. These consisted of wooden frames in the shape of 16-foot squares. On one gate, near the south edge of the access area, was tacked a 2 The latter statement is based upon Brenner's credited testimony Lawson's account was to the effect that when Lawson told Brenner he thought Roehrenbeck was going to do the electrical work , Brenner "said we will strike or, you know we will have to shut you down " Lawson did not testify to this effect until being questioned by the General Counsel on redirect examination as to whether Brenner had ever indicated that there was a possibility of a work stoppage . If the union representative had clearly and directly threatened a work stoppage as Lawson testified belatedly, I believe he would have considered it important enough to mention during his direct examination when being questioned regarding conversations had with Brenner Moreover, in line with other conduct and statements made by sign reading: "Enter-Carpenters, Labors [sic], Iron Workers, Plumbers, Brick Masons, only!"4 On the other gate near the north edge of the access area was tacked a sign reading: "Enter-Roehrenbeck Electric, Inc. only." Union Business Representative Brenner and other pickets, however, ignored these gates and continued to picket the entire access area. When by October 1, no employees had sought to work at the project, the picketing ceased temporarily. Project Superintendent Lawson, upon being informed on October 5, by his project manager that no pickets were then at the project, went to the jobsite with a carpenter on October 8, but when they arrived, they were met by Brenner and another picket and did not attempt to perform any work. While Lawson was there a brick mason foreman arrived to check on the situation and, upon observing the two pickets, left. In the meantime, on September 28, Union Representa- tive Brenner telephoned Hillsmith Vice President Peck to discuss what could be done to get the problem settled. Peck reiterated that he had to use Roehrenbeck's services and asked what Brenner wanted. Brenner replied that he wanted union people to do the electrical work; that he would like to see Superior Electric, a union contractor, do it and that maybe Superior could work on the project under a subcontract with Roehrenbeck. This, Brenner stated, would eliminate the problem of having nonunion electricians on the job. He stated that about 60 percent of the industrial commercial work in the Columbus area in the past few years had been nonunion and that, unfortu- nately for Hillsmith, it had come into the area at a time when Respondent Union was "out to change" that situation and "get the nonunion contractors to go union." Following an informal hearing before U.S. District Judge Kinneary on or about October 17, on a petition filed by the Board under Section 10(1) of the Act for injunctive relief against Respondent's picketing, Hillsmith has resumed its construction work, except for the electrical work, without being picketed by Respondent. Respondent's counsel, at the outset of the hearing in this proceeding stated, however, that in the conference with Judge Kinneary: "We made it very clear that we left that option open [about a resumption of picketing] and I can state quite frankly for the record that at this time, that when Roehrenbeck returns to the job, the Union will have pickets at the jobsite." B. Respondent's Defenses Respondent's principal defense is a rather technical one-based upon the assertion that there is a variance between the pleadings and the proof. It contends that since the complaint did not mention anything about separate Brenner, I believe Brenner sought to accomplish the Union's purpose through more ambiguous statements or innuendo rather than by explicit threats. 3 According to Peck, he asked Roehrenbeck whether he would be interested in "going union" because he had heard that Brenner had been at the jobsite inquiring as to who would do the electrical work. 4 This south gate was knocked down by someone whose identity was undisclosed in the record about a week after it was erected and was not put up again until October 17 Brenner conceded, however, that though they were down, he could see the gate and sign and knew they were there. LOCAL 683, ELECTRICAL WORKERS gates for the electrical workers and for the other craftsmen, no evidence regarding that situation should have been received and that no finding should be based on such evidence. Respondent also contends that since the com- plaint alleged that Respondent's pickets, on or about September 21, 1973, "orally instructed, directed, requested an appeal to individuals employed by the Charging Party and other employers to cease work and/or refuse to perform services for their respective employers at the said Champion project" and the evidence does not show that these things were done "orally," the allegations of 10(b) of the complaint should be dismissed. I reject Respondent's defenses based on these technical objections. The General Counsel, in his opening statement at the hearing, explained that he expected to prove that Respondent had violated the statute as alleged in the complaint by showing, among other things, that although "no words were exchanged" after the picketing com- menced on September 21, Union Business Representative Brenner and the other pickets carried their picket signs along the entire 500-foot length of the access road when no Roehrenbeck employees or equipment were on thejobsite and continued to picket the entire access area even after, on the second or third day of the strike, Hillsmith constructed separate gates for the electrical workers and the other craftsmen. Following this opening statement, Respondent moved for judgment on the pleadings on the ground that the complaint had not alleged "any unlawful picketing in violation of common situs rules" and that the General Counsel's statements went beyond the scope of the complaint. In denying the Respondent's motion for judgment on the pleadings because of a failure of the complaint to mention separate gates at the construction project, I pointed out that a complaint normally states a cause of action in conclusionary terms and does not usually plead evidence. The circumstance that Hillsmith established a second gate for Roehrenbeck, with whom Respondent had a labor dispute, and that Respondent nevertheless continued to picket the entire access area, is evidence tending to establish that Respondent's object in picketing was to bring unlawful pressure upon the secondary employers and their employees and it need not be specifically pleaded. In any event, Respondent was put on notice at the commencement of the hearing not only that the General Counsel intended to prove that there were separate gates which Respondent's pickets ignored but also that Respon- dent, by means other than oral instructions, induced and encouraged individuals employed by Hillsmith and other employers "to cease work and/or refuse to perform services for their respective employers at the Champion project," for an object proscribed under Section 8(b)(4)(i) and (ii)(B) of the Act. The issues were fully litigated and Respondent was not prejudiced by any sloppiness or ineptness in the wording of Section 10(b) of the complaint to which it refers. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 349; N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 431-432. It is manifest from the record that Respondent's dispute was with Roehrenbeck, a nonunion electrical contractor, and not with the general contractor, Hillsmith, or any of 699 Hillsmith's other subcontractors on the Champion project, all of whom employed union men. The statements and actions of Respondent's business representative make clear that Respondent wanted to insure that the electrical work on the project would be performed by union electricians and that it would attempt to prevent Roehrenbeck's men from performing the work unless Roehrenbeck signed a contract with Respondent or assigned the electrical work to employees of another electrical contractor employing union electricians. There can be no question but that Respondent's picketing of the Champion project after Brenner discovered that some electrical work had already been done, had as an object the forcing or requiring of Hillsmith and its subcontractors other than Roehrenbeck to cease doing business with Roehrenbeck. In furtherance of its unlawful object, Respondent, prior to the picketing and through its business representative, Brenner, had threatened Project Superintendent Lawson that "there could be trouble with Roehrenbeck doing the electric work" and warned him, "I'll see you tomorrow morning," after learning that some of the electric work had already been performed. The picketing, which commenced on the following morning and caused a complete shutdown of the Champion construction project, failed to meet the standards established by the Board in Moore Drydock Company, 92 NLRB 547, for lawful common situs picketing. The picket signs carried by Brenner and his fellow pickets failed clearly to disclose that Respondent's dispute was with the primary employer, Roehrenbeck. The legend on the signs merely stated, "Unfair to Local 683, IBEW." Moreover, throughout the course of the picketing no employees from Roehrenbeck were at the jobsite and none had been there for several days before the picketing commenced. Accordingly, the picketing was an induce- ment to employees of neutral employers to cease work and constituted unlawful coercion of the neutral employers. Furthermore, even after Hillsmith erected a separate gate for Roehrenbeck workmen, Respondent continued to picket the entire 500-foot access area, including the gate reserved solely for craftsmen other than the electricians, thus making it very clear that Respondent's picketing was directed at Hillsmith and other neutral employers and persons to induce and encourage persons employed by them to engage in a strike or refusal in the course of their employment to perform services, all for the unlawful object described above. Respondent's conduct described above was clearly in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. Local 761, Electrical Workers v. N.L.R.B., 366 U.S. 667 (1961); Local Union No. 282, a/w International Brotherhood of Teamsters, etc. (D. Fortunato, Inc.), 197 NLRB 673; Local 10, Asbestos Workers, (Pickens-Bond Construction Co.), 197 NLRB 946; Southeast Idaho Building and Construction Trades Council etc. (Westinghouse Electric Corporation), 164 NLRB 773, 778. CONCLUSIONS OF LAW 1. Respondent has induced and encouraged individuals employed by Hillsmith Construction Company and other persons engaged in commerce or in industries affecting commerce to engage in a strike or a refusal in the course of 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their employment to perform services and has threatened, (c) Notify the Regional Director for Region 9, in writing, coerced, and restrained said employer and other persons within 20 days from the date of this Order, what steps the engaged in commerce or in industries affecting commerce, Respondent has taken to comply herewith. an object being to force or require Hillsmith to cease doing business with Roehrenbeck Electric, Inc., and by such acts and conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, my recommended Order will require that Respondent cease and desist therefrom and take affirmative action of the nature normally required to remedy the unfair labor practices found. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER 5 Respondent, Local Union No. 683, International Broth- erhood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from (a) engaging in or inducing or encouraging any individual employed by Hillsmith Con- struction Company or any other person engaged in commerce or in an industry affecting commerce, other than a person with whom Respondent has a primary dispute, to engage in a strike or a refusal in the course of his employment to perform services, and (b) from threatening, coercing, or restraining any of the aforesaid persons, where, in either case, an object thereof is to force or require any of the aforesaid persons to cease doing business with Roehrenbeck. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places in Respondent's business offices, meeting halls, and all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized 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. 6 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in or induce or encourage any individual employed by Hillsmith Construction Com- pany or any other person engaged in commerce or in an industry affecting commerce, other than a person with whom we have a primary labor dispute, to engage in a strike or a refusal in the course of his employment to perform services, and will not threaten, coerce or restrain any of the aforesaid persons , where, in either case, an object thereof is to force or require any of the aforesaid persons to cease doing business with Roeh- renbeck Electric, Inc. Our dispute at the Champion construction project at Hilliard, Ohio, is solely with Roehrenbeck Electric, Inc., and not with the general contractor, Hillsmith Construc- tion Company, or any of its subcontractors, except Roehrenbeck. To make this clear, any picketing which we may hereafter conduct at the jobsite will be confined to the area of the special gate erected for Roehrenbeck personnel. LOCAL UNION No. 683, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO (Labor Organization) representative, shall be posted by Respondent immediately Dated By upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director with signed copies of the aforesaid notice for posting, if desired, by Hillsmith Construction Company and its subcontractors at all locations where notices to their respective employees are customarily posted. (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, Federal Office Building, Suite 3003, 500 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3663.