IBEW, Local 501

IBEW, LOCAL 501 417 International Brotherhood of Electrical Workers, Local Union No. 501, AFL-CIO (Atlas Construc- tion Company) and Associated General Contrac- tors of Connecticut, Inc. Cases 2-CC-1316 and 2- CC-1317 January 31, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 27, 1974, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and a supporting brief, Respondent filed an answering brief, and the Air Conditioning and Refrigeration Institute, et al.,1 filed an amici curiae brief in support of the General Counsel's and 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 only to the extent consistent herewith. The issue in the instant proceeding involves our right-of-control doctrine which presumes an employ- er to be "neutral" if that employer, when faced with a coercive demand from its union, is powerless to accede to such a demand except by bringing some form of pressure on an independent third party. As we stated in George Koch Sons, Inc., "in [such] a situation . . . where the pressured employer cannot himself accede to the union's wishes, the [union's] pressure is secondary because it is undertaken for its effect elsewhere." 2 The secondary nature of such activity thereby falls within the ambit of Section 8(b)(4)(B). As we explained in Koch: [O]ur analysis has not nor will it ever be a mechanical one, and, in addition . . . [w]e have studied and shall continue to study not only the situation the pressured employer finds himself in but also how he came to be in that situation. And if we find that the employer is not truly an Air Conditioning and Refrigeration Institute, Air Moving and Conditioning Association , Inc., American Boiler Manufacturers Associa- tion, Architectural Woodwork Institute, Associated Builders & Contractors Inc. American Consulting Engineers Council , National Electrical Manufac- turers Association, National Society of Professional Engineers, and National Woodwork Manufacturers Association. 2 Local Union No 438, UnitedAssociation of Journeymen and Apprentices 216 NLRB No. 73 "unoffending employer" who merits the Act's protections, we shall find no violation in a union's pressures ... even though a purely mechanical or surface look at the case might present an appearance of a parallel situation.3 In dismissing the instant complaint, the Adminis- trative Law Judge found that Respondent did not commit a violation of Section 8(b)(4)(B) because Employers Santella and Rice had voluntarily forfeit- ed a potential for control of the work sought by Respondent and, by virtue of that fact could not, in effect, be deemed an "unoffending employer." Thus, the Administrative Law Judge concluded that the coerced Employers herein came within the qualifying language of Koch quoted above, inasmuch as they voluntarily "came to be" in the situation in which they found themselves. We disagree and, for the reasons stated below, believe a violation has been established. In the past, we have indicated that an employer could not be considered "unoffending," and there- fore neutral, if it actively and knowingly contracted away its control by initiating the very restrictions which ultimately gave rise to the union's demands, Painters District Council No. 20, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Uni-Coat Spray Painting, Inc.), 185 NLRB 930, 932 (1970), or if the coerced employer was, in fact, given control of the work at issue but, of its own volition, withheld the work from the union, Pipe Fitters Local No. 120, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Mechanical Contractors' Association of Cleveland, Inc.), 168 NLRB 991, 992 (1967). In both cases, the coerced employer's forfeiture of neutral status was based on some affirmative conduct which the employer could reasonably conclude would conflict with his collective-bargaining obligations, coupled with the absence of any demand for such conduct by an independent third party such as a general contractor or project owner. In the instant situation, Santella and Rice did not actively seek to have the general contractor, Atlas Construction, withhold the operation of the tempo- rary power supply from their employees. Such work was never offered them by Atlas, whose decision was completely unrelated to their own desires 4 or obligations. of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (George Koch Sons, Inc), 201 NLRB 59, 63 (1973), enfd. sub nom. George Koch Sons, Inc. v. N.LR.B., 490 F.2d 323 (C.A. 4,1973). 3 Id at 64. 4 Cf. Uni-Coat Spray Painting, supra, where the Board observed that the asserted neutral actively sought a license for a product to be applied only by spraying and thereby knowingly set the stage for potential conflict. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In essence, the Administrative Law Judge's dis- missal was based on the fact that Santella and Rice, in his view, simply did not try hard enough to secure the operation of the temporary power supply from Atlas at the negotiation stage of the subcontracts involved. But to attempt to define the parameters of "unoffending employer" based solely on an expendi- ture of effort on the part of the employer seeking the Act's protection seems realistically futile, as well as administratively unmanageable.5 What a subcontrac- tor does at this stage is a circumstance to be considered, but is not alone decisive. In our view the instant case is indistinguishable from the problem in Koch in that both present a situation in which the respondent union coercively demanded the assignment of certain work which, at the time of demand, its employer was powerless to assign . The distinction drawn by the Administrative Law Judge, namely, that in Koch the general contractor was itself contractually bound to withhold the work from the subcontractor while, in the instant case, the general contractor, Atlas, was not similarly bound by the project owner, is not a helpful distinction. In either case, the focus of our inquiry is on the authority of the party upon whom the union places its demand, for it is that party seeking the neutral designation.6 It is also a distinction we have not drawn. Thus, in The Austin Company, Inc.,7 Austin, the general contractor, although capable of awarding the cutting and threading of internal piping on climate control units, nevertheless, on its own decision, withheld the award of such work from the subcontractor. Re- spondents' coercive demand for the work from the subcontractor, Hudik-Ross Company, was found to be secondary because: Hudik was incapable of assigning its employees this work; such work was never Hudik' s to assign in the first place . . . these facts clearly indicate that the Respondent was exerting prohibited pressure on Hudik with an object of either forcing a change in Austin's manner of doing business or forcing Hudik to terminate its subcontract with Austin.8 We conclude that Respondent's pressure herein was similarly undertaken for its effect elsewhere S Suppose, for example, that a subcontractor at the early stages of negotiation realizes that the general contractor will adamantly adhere to its own decision to withhold from the subcontractor certain work that the latter's employees are entitled to by contract. Should the subcontractor nevertheless insist on the incorporation of such work merely to preserve a possible future claim to "neutral" status? Could not the Union then argue that the "insistence" was a sham? 6 The thrust of such a distinction may, presumably, reveal evidence of the "neutral" status of the general contractor as well, but we need not reach that question nor is it germane to our inquiry here. 7 Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, inasmuch as Santella and Rice were incapable of awarding to Respondent's members work that had been retained by the general contractor, work never theirs to assign in the first instance. Thus, the pressure was secondary in its reach, directed at employers powerless to accede and therefore neutral. Accordingly we find that by its conduct the Respondent violated Section 8(b)(4)(ii)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the International Brotherhood of Electrical Workers, Local Union No. 501, AFL-CIO, White Plains, New York, its officers, agents, and representatives, shall: 1. Cease and desist from threatening, coercing, or restraining Peter M. Santella, Inc., or Rice Electrical Contracting Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Peter M. Santella, Inc., or Rice Electrical Contracting Company, or any other person to cease doing business with Atlas Construction Company because it retains for its own employees the operation of temporary electrical power at construction sites. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Post at its office in White Plains, New York, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily 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 the Regional Director for Region 2 with signed copies of said notice for posting by Peter M. Santella, Inc., Rice Electrical Contracting Com- pany, and Atlas Construction Company, if they so desire, in places where notices to employees are customarily posted. Pneumatic Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local Union No. 638 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (The Austin Company, Inc.), 204 NLRB 760 (1973). 8 Id. 9 In the event that this 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 tl•e National Labor Relations Board." IBEW, LOCAL 501 419 (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Upon the entire record in this proceeding - virtually all the critical evidence is undisputed - and upon considera- tion of the arguments advanced and the authorities adduced by the parties, I make the following: APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain Peter M. Santella, Inc., or Rice Electrical Contracting Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Peter M. Santella, Inc., or Rice Electrical Contracting Company or any other person to cease doing business with Atlas Construction Company be- cause it retains for its own employees the operation of temporary electrical power at con- struction sites. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 501, AFL-CIO DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Administrative Law Judge : Pursuant to separate timely unfair labor practice charges filed by Associated General Contractors of Connecticut , Inc., the Charging Party herein, against the International Brother- hood of Electrical Workers, Local Union No. 501, AFL- CIO, Respondent herein, a consolidated complaint issued, dated April 30, 1974. The consolidated complaint alleges in substance that Respondent engaged, at two separate construction sites in Stamford, Connecticut, in secondary boycott activity violative of Section 8(bx4XiiXB) of the National Labor Relations Act, as amended.' At the hearing conducted before me in New York City on May 21, 1974, the parties stipulated that the evidence in this matter would consist of the record compiled before Judge Jon O. Newman of the United States District Court for the District of Connecticut in an injunction proceeding under Section 10(1) of the Act dealing with the instant controversy . That record was supplemented by brief oral tdstimony at the instant hearing by one witness . Memoran- da on the evidence and the law submitted to Judge Newman were resubmitted as briefs in this case and Respondent, pursuant to permission granted at the instant hearing, submitted a short supplemental brief. I By letter dated May 30, 1974, a copy of which was served on all the parties, General Counsel informed me that the evidence did not substantiate an additional allegation of the complaint that Respondent's conduct also FINDINGS AND CONCLUSIONS 1. JURISDICTION Atlas Construction Company, a Connecticut corporation with an office and place of business in Stamford, Connecticut, provides general contracting services in the building and construction industry and during the past year, a representative period, furnished services valued in excess of $50,000 in States other than Connecticut. During the period here under consideration Atlas was furnishing general contracting services for Stamford Realty and Construction Company which was erecting a plant in Stamford, Connecticut, for the Stamford Dressed Beef Company. This project will be referred to herein as the Stamford job. During the same period Atlas was furnishing similar services to Herloy, Inc., which was erecting an office building in Stamford, Connecticut, for an enterprise known as Hilti, Inc. This project will be referred to herein as the Hilti job. Atlas subcontracted certain of the electrical work on the Stamford job to Peter M. Santella, Inc., herein Santella. Santella in the course of its performance of electrical work furnished services during the past year valued in excess of $500,000; more than $50,000 worth of these services was performed for Atlas. Atlas subcontracted certain of the electrical work on the Hilti job to Rice Electrical Contracting Company, herein Rice. Rice, like Santella, furnished electrical services during the past year valued in excess of $500,000 of which more than $50,000 worth was performed for Atlas. On the foregoing undisputed facts I find that Atlas, Santella, and Rice are employers and persons engaged in commerce within the meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act. Respondent represents the electrical employees of Santella and Rice and has collective-bargaining relation- ships with both enterprises covering those employees. It is undisputed and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. Jurisdiction is properly asserted in this proceeding. II. THE ALLEGED UNFAIR LABOR PRACTICES As the evidence establishes and as the parties acknowl- edge, the resolution of this case turns on the applicability and scope of the Board's so-called "right to control" the work doctrine. In essence, that doctrine is that a union- coerced employer who is powerless to satisfy the union's demands except by bringing pressure on another independ- ent contractor to chgnge a business or labor policy, or alternatively by ceasing to do business with such other contractor, is presumed to be a neutral secondary employ- er, absent proof to the contrary. The Board elucidated the violated Section 8(bx4XIXB) of the Act and, accordingly, moved to withdraw that allegation. That motion is granted. The letter will be marked Its ALI Exh. I and is hereby admitted into the record of this proceeding. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicability and scope of this doctrine in Local Union No. 438 an4 United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (George Koch Sons, Inc.), 201 NLRB 59 (1973), enfd. sub nom. 490 F.2d 323 (C.A. 4, 1973). Significant in both the Board and court decisions is the proposition that the "right to control" doctrine is not a rigid per se principle, but rather a significant criterion which must be appraised in the light of all the surrounding circumstances. The relevant evidence is set forth hereunder. A. The Contractual Relationship between Respondent and Santella and between Respondent and Rice It is undisputed that both Santella and Rice , during the period relevant here, operated under a collective-bargain- ing relationship with Respondent for their electrical workers. A critical clause in the collective-bargaining agreement covering Santella and Rice , respectively, provid- ed that: Where wiring systems and equipment are required for lighting, power, heat, etc., during the periods of construction of a building, these systems and equip- ment shall be installed, maintained and operated by electrical workers. The legality of this clause, commonly known as a work protection clause, is plain and is not challenged here. Another contractual provision in the collective-bargain- ing agreement covering Santella and Rice and relevant here provided that: Members of the Union [Respondent] shall not work for any employers except those who comply with the working rules later stated in this agreement. The clause first quoted is one of the "working rules." B. The Stamford Job As noted, Atlas performed the general contracting .Services for the construction of a plant for the Stamford Dressed Beef Company. In the discharge of this function Atlas, as agent for Stamford Realty, subcontracted the performance of the electrical work for this job to Santella. In negotiating for this subcontract, Atlas sought and obtained a provision that Santella was not to be responsi- ble for or assigned any work in relation to maintaining temporary electrical power at the construction site. Temporary power is utilized on construction sites and involves the use of a switch box through which electricity can be turned on and off during the various stages of construction. Atlas, which does not employ electricians, retained this work for itself. Santella, notwithstanding its contractual commitment to Respondent previously quoted herein, accepted the electrical subcontract with this exclusion. Construction at the site began in 1973. Santella com- menced performance under its subcontract in early March 1974 and continued to work until March 27, 1974. On or about that date Respondent notified Santella that the latter was in violation of their collective-bargaining agreement because it had no electricians to operate the temporary power. As a result Santella ordered its employees to cease work at the jobsite. Atlas protested Santella's failure to complete its work under the subcontract and negotiations ensued between Atlas, Santella, and Respondent to compromise their differences . Respondent reiterated to Santella that the employees it represented would not work on the jobsite so long as Santella, in breach of their collective-bargaining agreement, did not perform the temporary power work. Atlas, on the other hand, rejected suggestions by Santella that that function be assigned to Santella's employees. Eventually, however, a compromise was reached after Santella agreed to employ an electrician represented by Respondent to remain on the site as long as the temporary power was on. Santella 's employees then returned to work at the jobsite. C. The Hilti Job The situation at the Hilti job was largely parallel to that at the Stamford job. Rice, the electrical subcontractor, was bound to the same collective-bargaining provisions, previ- ously quoted, as Santella. And like Santella, Rice, in disregard of these provisions, accepted an electrical subcontract which did not include the maintenance or operation of temporary power , a function retained by Atlas. The Hilti job also began in 1973 and Rice commenced its electrical work on that job in mid-March 1974. Rice continued to work until April 5, 1974. On the latter date Respondent told Rice that Rice was in breach of its collective-bargaining agreement because it had not assigned electricians for the temporary power operation. Respondent told Rice, further, that unless Rice remedied this situation, Respondent would pull the employees it represented off the job. As a result, Rice discontinued its work on the Hilti job. Rice later returned to continue its work under a purely tentative arrangement but the basic dispute was not and has not been adjusted. D. Analysis and Concluding Findings There is no question in view of the foregoing evidence that Respondent, by invoking its contract with Santella and Rice respectively and by informing both entities that the employees Respondent represented would not work at the respective sites so long as all of the electrical work was not being performed by them, exerted coercive pressure upon Santella and Rice and caused a cessation of business relationships at the Stamford and Hilti jobs. General Counsel contends that this action constituted a secondary boycott in that Santella and Rice, although the direct employers of the employees involved, were in fact secondary employers or neutrals in the dispute. General Counsel predicates this contention on its view of the "right to control" the work doctrine. Specifically, General Counsel argues that, inasmuch as Santella and Rice were not assigned the maintenance and operation of temporary power in the first instance under their respective subcon- tracts, the right to assign that work to their electricians was beyond their control. The real target of Respondent's IBEW, LOCAL 501 421 action, according to General Counsel, had to be Atlas which withheld the disputed work from Santella and Rice in the first instance. Accordingly, Atlas was the primary employer and Santella and Rice were neutrals . It follows, General Counsel contends, that Respondent by exerting coercive pressure against Santella and Rice engaged in a secondary boycott within the meaning of Section 8(bx4XiiXB) of the Act. Respondent, on the other hand, contends that it has a primary dispute with Santella and Rice, respectively; that both enterprises violated their collective-bargaining agree- ment with Respondent ; and that Respondent invoked its right, explicitly set forth in the agreement, not to work for an employer who failed to comply with the established working rules. As General Counsel conceded in his memorandum to the District Court, "[i]f Santella and Rice are primary employers with whom the union has a primary dispute then the union would not have violated Section 8(bX4XB) of the Act." As noted, a critical touchstone for resolving this primary- secondary conflict is the "right to control" doctrine. Extended discussion of the validity of this doctrine here would be superfluous because it has been abundantly- perhaps overabundantly - analyzed and dissected in a long series of decisions by the Board and the courts, quite frequently with contrary results on the same set of facts. Many of the decisions, including the decision in National Woodwork Manufacturers Association v. N.LR.B., 386 U.S. 612 (1967), are cited in the Board and court decisions in the Koch case cited at the outset of this section of this Decision. Reference to those decisions will demonstrate the litigational history of the "right to control" doctrine and obviate the need for tedious recapitulation here. For present purposes it would appear to suffice to make reference to the Board's decision in the Koch case, affirmed by the Court of Appeals in the Fourth Circuit, where the Board made a detailed exposition of its "right to control" doctrine and the limitations to that doctrine . There, the Board repudiated the notion that it "looked solely at the pressured employer's 'contract right to control' the work at issue at the time of the pressure to determine whether the pressure was primary or secondary." Rather, the Board said, it has always proceeded with an analysis of (1) whether under all the surrounding circumstances the union's objective was work preservation and then (2) whether the pressures were directed at the right person, i.e., at the primary in the dispute. Explicating its position further, the Board said: in addition to determining, under all the surrounding circumstances, whether the union's objective is truly work preservation, we have studied and shall continue to study not only the situation the pressured employer finds himself in but also how he came to be in that situation. And if we find that the employer is not truly an "unoffending employer" who merits the Act's protections, we shall fmd no violation in a union's pressures such as occurred here, even though a purely mechanical or surface look at the case might present an appearance of a parallel situation . [Footnotes omitted.] The Fourth Circuit adopted and affirmed the Board's view that "the Board has not exalted right-to-control as per se the conclusive indicium of a secondary boycott " The court explained further: Admittedly, an employer should not have an unfettered license to contract out work and, as a result, acquire a shield from union collective bargaining agreements. Certainly where the employer was initially in a position to accede to potential union demands through the negotiating stages of the contract , then he should not later be deemed a neutral if he intentionally forfeited his potential for control. Applying the foregoing principles in the Koch case, the Board found, and the court agreed, that the pressured employer there, Phillips, although the direct employer of the employees involved, was nonetheless a neutral and concluded that a proscribed secondary boycott had taken place. However, the Board's decision was based on the "surrounding circumstances," labelled "extraordinary" by the court. Thus, it appeared in Koch that the prime contractor, Koch, who subcontracted the work to Phillips, the pressured employer, had no authority in the first instance to award the disputed work (pipe fabrication) to Phillips. Because Koch had no such authority in the first instance, Phillips had no bargaining power with respect to that work. Accordingly, the Board held (201 NLRB 59): Thus, although the [union's] claim of work preservation was indeed valid, Phillips by its contract with Koch had no power to give the [union] the work [it] sought, since such work was never Phillips' to award in the first place. And as Phillips had no past, present, or future authority to award this work to the [union], [its] actions here must have been undertaken in order to produce their effects elsewhere. Therefore, since the pressure directed at Phillips was undertaken for its effects elsewhere, such activity was secondary even though Phillips was the immediate employer here. The court made a like analysis (490 F.2d 323): But the' circumstances now presented show that G.E. required Koch to pretest the pipe at the latter's location in Indiana - thus away from the jobsite - and for this purpose the pipe had first to be fabricated. Since Koch was inextricably tied to this schedule, Phillips had no bargaining power with respect to this work. Conse- quently, Phillips did not surrender its right-to-control, for it never had any. The situation in the instant case is wholly and sharply distinguishable. Unlike Koch, Atlas was not bound in any way to withhold any of the electrical work from Santella or Rice. The record here demonstrates that Atlas had full authority to grant all or part of the electrical work at both sites and Santella and Rice had full bargaining power with respect to that work. Under the circumstances it is plain that Santella and Rice, in effect, voluntarily surrendered 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their right to control when they negotiated away the work which they had earlier agreed in their collective -bargaining agreement to preserve for their employees. Respondent's statement that it would withhold the services of the employees of Santella and Rice, because of their voluntary abandonment of their contractual commitment to Re- spondent, was a further exercise of a contractual commit- ment not to work where there was a violation by the employer party to the agreement of an established working rule. Here, Santella and Rice cannot be regarded as "unof- fending employers" who merit the Act's protections and, as the Board noted in Koch, it will "find no violations in a union's pressures such as occurred here" based on "a purely mechanical or surface look at the case." And as the Fourth Circuit said in like vein, "where the employer was initially in a position to accede to potential union demands through the negotiating stages of the contract , then he should not later be deemed a neutral if he intentionally forfeited his potential for control." Here Santella and Rice had the potential for control. By their voluntary action they forfeited that potential. Signifi- cant here, as the Board holds, is not only the situation Santella and Rice as pressured employers found themselves in but how they came to be in that situation. The surrounding circumstances here, unlike those in Koch, would justify a finding of a proscribed secondary boycott only by a naked and mechanical application of the "right to control" the work doctrine. Accordingly, I find that in the instant case Santella and Rice were primary employers and that the pressures directed against them by Respondent were directed against them as primary employers . In such a frame of reference the familiar circumstance that Respondent 's primary action also had secondary effects does not convert legal conduct into proscribed activity. CONCLUSION OF LAW International Brotherhood of Electrical Workers, Local Union No. 501, AFL-CIO, the Respondent herein, has not violated Section 8(b)(4XB) of the Act, as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.]