Local 25, Electrical Workers

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 25, International Brotherhood of Electrical Workers, AFL-CIO and Charlane Electric Co., Inc., d/b/a Unity Electric Co. Case 29-CC-390 June 10, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On February 21, 1974, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceeding. Thereafter, the Charging Party and Respondent filed exceptions and supporting briefs. Respondent also filed an answering brief to the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 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 dismissed in its entirety. DECISION STATEMENT OF THE CASE SIDNEY SHERMAN, Administrative Law Judge: The instant charge was served on November 12, 1973,i and the case was heard on January 3, 1974. After the heanng briefs were filed by Respondent and the General Counsel. The issues litigated involved alleged violations of Section 8(b)(4)(i) and (ii)(B) of the Act. Upon the entire record, the following findings and recommendations are made: 1. JURISDICTION Charlane Electnc Co., Inc., d/b/a Unity Electnc Co.,2 hereinafter called "Unity," is a corporation with a principal place of business in East Meadow, New York. It is engaged in the business of electrical contracting in the construction industry. Highland Construction Corpora- tion, hereinafter called Highland, is a corporation with a principal office in Plainview, New York, and is a general 1 All dates below are in 1973, unless otherwise indicated 2 The Charging Party's name appears as amended at the heanng contractor in the construction industry. It annually receives more than $50,000 worth of goods and materials from out-of-state suppliers. Since June 1, Unity and various other subcontractors have been employed by Highland to perform services in connection with the construction of a restaurant at the Lake Grove Shopping Center in Smithtown, New York. The alleged violations of Section 8(b)(4) occurred at that site. It is found that the Board has jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Local 25, International Brotherhood of Electrical Work- ers, AFL-CIO, herein called Respondent, and Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called Teamsters, are labor organizations under the Act. III. THE MERITS The pleadings raise the following issue: Whether Respondent violated Section 8(b)(4)(i) and (n)(B) of the Act by threatening to picket, and picketing, the jobsite involved herein? A. Sequence of Events Respondent and Teamsters have for many years compet- ed with each other for representation of electricians in the same area. Unity's electricians are covered by a contract with Teamsters, which prescribes a lower rate than that negotiated by Respondent with other area employers. Since June, Respondent has picketed Unity at three jobsites, including the one here involved-the Lake Grove Shopping Center in Smithtown, New York. The picketing at the other twojobsites-in June and August-resulted in a complete work stoppage by all the other building trades employees on the job and the cancellation of subcontracts held by Unity. At all jobsites, including the instant one, the picket signs bore the following legend: TO THE PUBLIC ELECTRICIANS WORKING ON THIS JOB FOR UNITY ELEC . CO. DO NOT RECEIVE WAGES AND WORKING CONDITIONS AS GOOD AS THOSE ESTABLISHED IN CONTRACTS OF LOCAL UNION 25 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS. This Sign Is Not Directed To Any Other Employer Or Employee On This Job AFL-CIO The general contractor at the instant jobsite was Highland Construction Co. On June 1, it retained Unity to perform the electrical work on the job. About July 31, Highland's job superintendent, John Melkum, Jr., here- inafter called"Melkum," observed Kerbs, a business agent of Respondent, taking pictures of thejob and proceeded to question him. After identifying himself as a representative of Respondent, Kerbs entered into a conversation with Melkum, in the course of which reference was made to 211 NLRB No. 1 LOCAL 25, ELECTRICAL WORKERS 239 Unity and to picketing. Conflicting versions by the participants of the exact nature and context of these references will be considered below. About August 6, there was another encounter between the two at the jobsite, in the course of which some disputed remarks were passed. On September 14, Respondent filed with the Board a petition for an election among Unity's employees. The petition was dismissed on October 29, and an appeal was taken by Respondent on November 9. On November 12, Respondent picketed the instant jobsite with signs bearing the legend described above. The picketing continued for 2 weeks during which only Unity's employees reported for work at the jobsite, and the picketing ceased only after Unity was removed from the job by Highland. Early in December a hearing was held in a Federal district court in a proceeding under Section 10(1) of the Act to enjoin further picketing by Respondent. Testimony given at that hearing has been incorporated in the present record by stipulation. that the witness answered that Unity was supposed to contact Kerbs; and that the latter declared that he did not want to put a picket line up at "your job," but, if he had to, he would. Thereafter, the following colloquy ensued between the witness and the General Counsel: Q. Do you recall him saying anything about who might be hurt by this picketing? A. He said that he didn't want to hurt Highland Construction by setting up a picket line, but if he had to, he will. Q. Do you recall him saying that? A. Yes. He didn't exactly say Highland Construc- tion. He said, ". . . you guys .... " He said, "I don't want to hurt you guys, but if I have to, I will." Under cross-examination, Melkum repeated that it was at this meeting that Kerbs uttered his threat to picket, and Melkum reverted to his initial version of that threat, as follows: B. Discussion 1. The threat to picket In all, there were four conversations between Highland's job superintendent, Melkum, and Respondent's agent, Kerbs, the first occurring in mid-June and the last on August 6. The parties were agreed that only the second of these conversations-on July 31-and the last one have any significance here. Although considerable testimony about those incidents was adduced at the injunction hearing, it was agreed that, in view of the credibility problems raised by the conflicting versions presented at that proceeding, Kerbs and Melkum would testify again in person at the instant hearing about the same matters, so as to give this court an opportunity to observe their demeanor, and that their testimony in the injunction case be considered only insofar as it reflected on the credibility of their testimony herein. All the other testimony in the district court was by stipulation made part of the instant record for all purposes. As to the July 31 incident, Melkum testified at the district court hearing that, after identifying himself as an agent of Respondent, Kerbs asserted that he was having trouble with Unity on other jobs because it did not recognize Respondent, that something would have to be done about it, that he had picket signs in the trunk of his car, that, "if anything ever came of this conversation, he would deny everything," that he would return in a week to find out the outcome of their discussion, and that Melkum promised to contact the interested parties and "straighten this matter out." Melkum added that Kerbs returned about a week later; that he asked if anything had been resolved; 3 He did acknowledge at the injunction heanng that at their second encounter (on July 31) reference was made by Melkum to Respondent's picketing of Unity at another job and that, in response to a query by Melkum as to whether the instant job would be picketed, Kerbs answered that he had picket signs in the trunk of his car. However, the record shows that at the other job Respondent picketed with signs aimed only at Unity and that those were the signs Kerbs was carrying in his car . Thus, Kerbs' remark was in effect, at most, an indication of intent to picket Unity at the instant jobsite with signs designating it as the target of the picketing There was nothing unlawful in such a remark; for, it is well settled that a union Well, he said . . . I believe this time he said I had . . . I don't want, you know, to put a picket line up on the job, but if I have to, I will. In his subsequent appearance before this court Melkum gave a materially different version of the above incidents. He testified that it was in the course of their encounter on July 31, and not on August 6, that Kerbs threatened to picket, and again vacillated as to the exact wording of the threat. Moreover, for the first time, Melkum asserted that at this meeting Kerbs declared that Respondent was trying to get rid of Unity because it was not a "Local 25 contractor." As for the August 6 incident, Melkum testified that all that happened was that he asked Kerbs whether he had heard anything yet and that the latter answered that he had not and something would have to be done "about this." Kerbs denied uttering any of the above threats or making any remark about getting rid of Unity., While Kerbs himself was not a model of consistency, the discrepancies and conflicts in Melkum's testimony were so obvious and serious that his testimony must be deemed to bear its own death wound. There being no other evidence of an unlawful threat by Respondent, no violation of Section 8(b)(4)(ii)(B) may be found here. 2. The picketing As already related, on November 12, more than 3 months after the last conversation between Kerbs and Melkum, Respondent began to picket the instant job with signs charging Unity with paying lower wage rates than those provided in Respondent's contracts and disclaiming may lawfully disclose to a general contractor on a construction job an intention to picket a subcontractor, with whom the union has a primary dispute Howard Morris, Inc., 191 NLRB 840, and cases there cited (in fn. 3 of the Trial Examiner's Decision). Kerbs acknowledged, also, in the district court heanng that he told Melkum on July 31, that, if he reported their conversation, Kerbs would deny that it had taken place. He explained that he said this because he was violating the instructions of his superior , Cavanagh, by talking to Melkum at all. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any appeal to any "other employer or employee on the jobs." The General Counsel does not dispute that there was "literal compliance" here with the standards prescribed by the Board in the Moore Dry Dock case4 for picketing, which, as here, occurs at a situs shared by the primary employer (in this case, Unity) with other employers. The General Counsel contends only that such compliance raises only a rebuttable presumption that the picketing was not designed to bring pressure to bear on the neutral employers at the common situs to cease dealing with the primary employer. The Board has, in fact, held that such presumption may be rebutted by evidence that the pickets made oral appeals to neutral employees not to perform services for their employer or physically interfered with such services, or that agents of the picketing union made statements avowing that the true purpose of the picketing 4 92 NLRB 547. S E.g., Gulf Construction Company, 159 NLRB 563; Lechmere Sales, 173 NLRB 280; Catalano Brothers, Inc., 175 NLRB 459. 6 Even if it be thought that Kerbs' reference to the picket signs in his trunk could be construed by Melkum as an avowal of an intention to picket in such a fashion as to exert impermissible pressure on the employees of Highland and other neutrals at the jobsite , that would fall short of proving that such was in fact Respondent's intention. A more reliable guide to such intention is afforded by the fact that the signs in Kerbs' car, and those ultimately used by Respondent, met in all respects the Board's requirements for common situs picketing. r Respondent's business manager, Cavanagh, testified that he selected the date for the picketing because of the approaching expiration of Unity's contract with Teamsters (on November 15) and in the hope of inducing Unity to grant Teamsters more favorable terms in their upcoming negotiations. However, elsewhere Cavanagh acknowledged that he had no accurate information as to the wage rates in Unity 's expiring contract and that they might have been even higher than those in Respondent's own contracts. In view of this admission, it is inferred that Respondent was not really concerned about pressuring Unity to raise the wage rates in a contract was to force neutral employers to sever their relations with the primary employer.5 Here, however, the General Counsel seeks to rebut the foregoing presumption only through the evidence adduced with respect to the Kerbs-Melkum conversations. It has been found that such evidence does not suffice to prove any intent by Respondent to picket Highland or any other neutral employer .6 It follows that there was no violation of 8(b)(4)(i)(B) and dismissal of the complaint will be recommended.? Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, there is issued the following: ORDER8 The complaint herein is dismissed in its entirety. with another union . The General Counsel contends that it should be deduced from this that Respondent 's real purpose in picketing was to force Unity off the job. However, upon the present record it is at least equally valid to infer that Respondent's true reason for picketing was to compel Unity to cease recognizing Teamsters and to deal with Respondent, instead. This purpose is indicated by the fact that on September 14, Respondent filed with the Board a petition for an election among Unity 's employees. Although the petition was dismissed on October 29, on the ground of the inappropriateness of the single-employer unit sought , an appeal from such dismissal was pending during the period of the picketing . It is not clear why Respondent eschewed an open avowal of the recognitional object of its picketing. The most likely explanation would seem to be that Respondent was fearful of being caught in the toils of Section 8(bX7), with its restrictions on picketing for recognition. s 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.