Local 3, Intl. Brotherhood of Electrical Wkrs.

LOCAL 3, INTL. BROTHERHOOD OF ELECTRICAL WKRS. Local 3, International Brotherhood of Electrical Workers, AFL-CIO and Wickham Contracting Co., and Ralph Perone Joint Ventures and Eugene Iov- ine, Inc. and Board of Education of the City of New York. Cases 29-CC-410, 29-CC-408, and 29-CC-414 September 26, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On March 7, 1975, Administrative Law Judge Her- zel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a -supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings,2 and conclusions 3 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, Flushing, New York, its officers, agents, and repre- i Respondent argued that it was deprived of due process because the Administrative Law Judge: (a) quashed four subpenas served on members of the Board of Education ; (b) barred testimony designed to establish that Respondent intended to become the collective -bargaining representative of Wickham's employees and thus would not try to replace them with Local 3 members; and (c) considered testimony concerning Respondent's report at a public hearing called by the Board of Education without permitting the introduction into evidence of a tape recording of that meeting. We have carefully examined the entire record and find that, in view of the additional, uncontradicted evidence relied on by the Administrative Law Judge in find- inq a secondary object , Respondent was not prejudiced by these rulings. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wail Products, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 Since we have found that the strike called by Respondent had a second- ary objective, we find it unnecessary to reach the issue of whether or not Respondent's demand for a "layoff plan" was valid under the 8(e) construc- tion site proviso. 785 sentatives, shall take the action set forth in the said recommended Order. DECISION HERZEL H.E. PLAINE, Administrative Law Judge: The question presented in this consolidated proceeding is whether the Respondent Union (Local 3 , IBEW, or Local 3) violated the secondary boycott provisions, Section 8(b)(4)(i) and (ii)(B), of the National Labor Relations Act (the Act), in the period July-September 1974. The consolidated complaint, filed September 6, 1974,1 alleges that Local 3 , IBEW, whose members comprise the bulk of the electricians working for the New York electri- cal contractors doing work for the Board- of Education (and for others) in New York City, caused the Local 3 electricians to walk off and stay away from the jobs of their employers at over 100 Board of Education school sites, commencing in early July 1974, causing other contractor- employers and their employees in other trades to cease work at the school sites ; and that an object of the work stoppage or strike was to force or require the electrical contractors employing the Local 3 members to cease doing business with the Board of Education , to force or require the Board of Education to cease doing business with elec- trical contractors Wickham and Perone, lovine, and cer- tain other employers of electricians not represented by Lo- cal 3. Prior to the strike Wickham and Perone and lovine had successfully bid for, and were performing, electrical work at several schools . The electricians employed by Wickham and Perone and by Iovine were represented by the Intervenor Union (Local 363, Teamsters), and there were some smaller electrical contractors whose employees were nonunion. While the Board of Education is the central governing body of the New York City schools, it is not an agency of the city but of the State of New York with autonomy sepa- rate from the city government though receiving certain services from the city government, such as the legal serv- ices of the city corporation counsel . Shortly after the strike began, McLaren, executive director of the school board's division of school buildings, and Van Arsdale, Local 3's business manager, discussed on July 19 what it would take to get the Local 3 electricians back on the school jobs so that the jobs could proceed for school openings in the fall term. Immediately following the discussion , Director Mc- Laren issued orders to electrical contractors Wickham and Perone and Iovine to stop work on their several school projects, because the labor they were using was "causing work stoppages on various other buildings and projects of the Board of Education," and not to resume work until .,you furnish labor that will not cause a stoppage ." Shortly thereafter, on July 30, Wickham and Perone obtained a temporary restraining order from the U.S. District Court, Southern District of New York, enjoining the Board of On a charge by Wickham Constracting Co. and Ralph Perone Joint Ventures (Wickham and Perone) in Case 29-CC-4l0, filed July 23, 1974; on a charge by Eugene lovine, Inc. (Iovine), in Case 29-CC-408, filed July 29, 1974; and on a charge by the Board of Education of the City of New York (Board of Education in Case 29-CC-414, filed August 29, 1974. 220 NLRB No. 117 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Education from enforcing the stop-work orders against them. A week later, on August 6, on advice of the corpora- tion counsel that the stop-work orders against Wickham and Perone and Iovine were improper, Director McLaren rescinded the orders. Local 3 electricians did not resume work for their con- tractor-employers on school board work, and the major school building and renovation projects did not recom- mence, until after September 13, 1974, when the National Labor Relations Board (the Board) obtained from the U.S. District Court, Eastern District of New York, a temporary injunction against the work stoppage, under Section 10(1) of the Act, pending disposition of the unfair labor practice charges in the case at bar. The Respondent, Local 3, denies that the strike of school board projects had as an object pressuring the Board of Education to cease doing business with those of its electri- cal contractors whose employees were not members of Lo- cal 3. Respondent Local 3 contends, first, that its collective- bargaining agreement with the electrical contractors had expired on June 30, 1974 (extended by mutual consent to July 11), while negotiations for a renewed agreement were in progress, hence, argues Local 3, the walkout or strike after the labor contract expired (though it was a strike only of school work and not of other work of the same electrical contractors) was a legal walkout or strike. Second, Local 3 contends that it had a "primary" dispute with the Board of Education, namely, that Local 3 was seeking from the Board of Education establishment of a "layoff plan," in effect a guarantee that electricians working for electrical contractors on school contracts would constitute, as electri- cal contracts were completed, the work force from which contractors for new work would be required to draw their electricians before hiring any other electricians. Says Local 3, this was a legal demand under the construction industry proviso to Section 8(e) of the Act and a strike to obtain it was not an illegal action under Section 8(b)(4) of the Act. The several Charging Parties (as well as the General Counsel) contend that Local 3's defenses are sham and are designed to cover up Local 3's primary dispute with electri- cal contractors Wickham and Perone and Iovine, whose employees are not affiliated with Local 3, and to cover up the illegal object of forcing the Board of Education to cease doing business with Wickham and Perone and Iov- ine. The case was tried in Brooklyn, New York, on October 24-25, 1974. Counsel for all of the parties have filed briefs. Upon the entire record, including my observation of the witnesses and consideration of the briefs, I make the fol- lowing: FINDINGS OF FACT 1. JURISDICTION The Respondent Union, Local 3, IBEW, which has its principal office in Queens, New York, is, as the parties admit, a labor organization within the meaning of Section 2(5) of the Act. Likewise, the Intervenor Union, Local 363, Teamsters is a labor organization within the meaning of Section 2(5) of the Act. See exhibit GC-6b, decision of the Board, United Construction Contractors Assn., 212 NLRB 767 (1974). Charging Party Wickham and Perone is a joint venture of Wickham Contracting Co. (Wickham), a New York cor- poration, and Ralph Perone, an individual, with the princi- pal office and place of business in Pelham, New York. Wickham and Perone is an electrical contractor that has engaged in electrical installation at various jobsites in and about New York City. In the year prior to the filing of the complaint, Wickham and Perone purchased supplies in ex- cess of $50,000, of which in excess of $50,000 were deliv- ered to its jobsites in New York from points outside the State of New York. Wickham and Perone is an employer within the meaning of Section 2(2) of the Act, and is a person 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. Charging Party Iovine is a New York corporation with its principal office in Rosedale, New York. Iovine is an electrical contractor that has engaged in electrical installa- tion at various jobsites in New York. In the year prior to the filing of the complaint, Iovine purchased supplies val- ued in excess of $50,000, of which in excess of $50,000 were delivered directly to Rosedale from points outside the State of New York. Iovine is an employer within the meaning of Section 2(2) of the Act, and is a person engaged in com- merce and in an industry affecting commerce within the meaning of Sections 2(1), (6), and (7) and 8(b)(4) of the Act. Charging Party Board of Education is an agency of the State of New York, with its principal office in Brooklyn, New York. The Board of Education is responsible for the education of the public school children of the City of New York, including responsibility, performed almost entirely by contracting, for construction and repair of school build- ings on sites owned by the Board of Education in New York City. In the year prior to filing of the complaint, the Board of Education purchased goods in excess of $50,000, of which in excess of $50,000 were delivered directly to it from points outside the State of New York. Although, as an agency of the State, the Board of Education is not a statutory employer within the meaning of Section 2(2) of the Act, it is nevertheless a person engaged in commerce, whose operations affect commerce, within the meaning of Sections 2(1), (6), and (7) and 8(b)(4) of the Act, and a person entitled to the protection of Section 8(b)(4). Plumb- ers, Steamfitters, Refrigeration, Petroleum Fitters, and Ap- prentices of Local 298 v. County of Door, 359 U.S. 354, 358 (1959); Local 16, International Longshoremen and Warehousemen's Union (City of Juneau), 176 NLRB 889 (1969). Each of the electrical contractors, Pettinelli, Smith, Pe- trocelli, Herrick, Crescent, London, Salzstein, Sheldon, Kaish, Litemore, Heckler, Hirsch, Boro, and Mulvihill (each more fully identified as to name and place of busi- ness in pars. 4 through 17, respectively, of the consolidated complaint), is, as the parties admit, an employer within the meaning of Section 2(2) of the Act, and each is under con- tract with the Board of Education to perform electrical work at one or more of its jobsites. As the parties further LOCAL 3, INTL. BROTHERHOOD OF ELECTRICAL WKRS. admit, each of said electrical contractors is a person en- gaged in commerce and in an industry affecting commerce within the meaning of Sections 2(1), (6), and (7) and 8(b)(4) of the Act. 11. THE UNFAIR LABOR PRACTICES A. The School Board's Construction Operations and its Contractors' Union Organization The Board of Education has a division of school build- ings, which is responsible for design, construction, mainte- nance, and operation of the school facilities. Practically all of the construction and repair is done by contracting out the work, and for this purpose the division of school buildings, headed by Executive Director Hugh McLaren, writes the specifications, advertises and takes bids, and prepares the recommendations for contract awards on the bids taken. The recommendations go to the chancellor of the board, who is its chief administrative offi- cer. If he approves, the recommendations for award are transmitted to the Board of Education which passes upon and makes its awards in a public meeting . Thereafter, the division of school buildings follows up on performance of the contracts. By law, when such construction work in excess of $50,000 is procured by bid (rather than performed by the regular employees of the governmental agency), three sub- divisions of the work, namely (1) plumbing, (2) heating and air conditioning, and (3) electric wiring, must be written up, bid for, and awarded separately. There can be a general contract for all else of the construction job. Director McLaren testified that in the summer of 1974 he had 120 major jobs under construction at many school sites, completion of which was needed for the fall school term. For each there was a separate electrical wiring con- tract (as well as appropriate contracts for the other types of work). Additionally, for minor jobs and maintenance, there were additional contracts including many with electrical contractors. The major electrical contracts were largely being per- formed by the 14 electrical contractors-Pettinelli, Smith, Petrocelli, etc.-identified in paragraphs 4-17 of the com- plaint. These contractors and others had a collective-bar- gaining agreement with Local 3 , IBEW, which represented the employees of the contractors. According to Director McLaren, 98 percent of the major electrical contracts (dol- larwise) were being performed by the contractors whose labor agreement was with Local 3. However, in early 1974, electrical contractors Wickham and Perone and Iovine each were successful bidders on certain school jobs for which contracts were awarded to them. Both contractors were working on their respective jobs in early July 1974 when action to force them to stop took place. Wickham and Perone, in their separate capaci- ties, and lovine are members of a contractors' associa- tion-United Construction Contractors Association- through whom the three were parties to collective-bargain- ing agreements with Local 363, Teamsters which represented their electricians? 787 In connection with some of the small maintenance con- tracts (under $5,000) between the Board of Education and contractors, including electrical contractors, according to Director McLaren, a number of one and two man shops do this work and some of these electricians are nonunion. Additionally, the Board of Education has on its payroll, by direct hiring, about 70 electricians, who perform miscel- laneous functions. According to Director McLaren, these electricians are members of Local 3, IBEW, but there is no contract for them between the Board of Education and Local 3. McLaren testified that they are paid the prevailing wage rate fixed by the city controller's office, which has the function of establishing prevailing wage rates, where these apply to direct or to contract employees. Further, said Mc- Laren, Local 3 represents the 70 electricians before the controller's office in determining the prevailing wage rate applicable to them, but that the Board of Education is not a party to any of this proceeding or negotiation, and simply accepts the rates fixed by the controller. In addition to Director McLaren's testimony, there was also the testimony of the chairman of the Board of Educa- tion, James F. Regan, that the Board of Education has no direct relationships or dealings with any of the construc- tion trades unions, and that in the construction field the school board dealings are with contractors and through bidding by contractors. B. The Walkout and Related Events In mid-1974, Local 3's labor agreement with its New York City contractors (which covered all of the contrac- tors' work, public and private, in the five boroughs of the city) was due to terminate on June 30, 1974. Negotiations for renewal were in progress and the contract was extended to July 11, 1974, but expired without agreement being reached. (Testimony of Bernard Rosenberg, a business rep- resentative of Local 3.) Commencing in the week of July 8, 1974, and extending into the following week, the Local 3 electricians on the Board of Education jobs of their several contractors began walking off those jobs and ultimately stayed away for over 2 months, until after a temporary injunction under Section 10(1) of the Act was granted against Local 3 on September 13, at the request of the (Labor) Board, exhibit GC-10. As Union Representative Rosenberg testified, this walkout or strike involved between 200 and 300 Local 3 electricians, but none of the other Local 3 electricians walked out or struck the work of the employers on their other public or their commercial jobs. The bulk of the Local 3 membership continued to work, despite the absence of a labor contract, and a new contract was signed in late September 1974 by the employers' associations and Local 3. While there was no picketing of the Board of Education jobsites by Local 3, the strike of the Local 3 electricians 2 At the time of trial, there had been an election on September 19, 1974, that involved, among others, the employees of the Wickham Contracting Company (one of the coventurers of Wickham and Perone ) but not the employees of Ralph Perone (the other coventurer) Also involved were the employees of lovine. The competing unions in the election were Local 363, Teamsters, and Local 3, IBEW . See exh. GC-6b. Apparently the outcome of the election had not been resolved at the time of trial 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought all work on these jobsites to a halt, according to Director McLaren. Because the electrical contractors had not done and were unable to do their preliminary work, such as laying pipe for wiring, the concrete men, carpen- ters, and other trades workers ran out of work and had to stop, said McLaren. The result, he said, was a shutdown of most of the Board of Education's major jobs. Director McLaren, who had been out of New York City when the strike began, came back and asked Local 3's business manager, Thomas Van Arsdale, for a meeting. They met on Friday, July 19, at McLaren's office. Local 3's Business Manager Van Arsdale told McLaren that the work stoppage of the Board of Education jobs had been authorized on July 8 at a union membership meeting, but that some of the men "jumped the gun" and the strike had had a spasmodic start. Van Arsdale did not testify, but Union Representative Rosenberg supplied some details concerning the union meeting of July 8. Rosenberg testi- fied that between 1,500 and 2,000 members attended, that Van Arsdale told the members that the men who worked on Board of Education jobs were not assured of job securi- ty because the Board of Education was not awarding enough jobs to contractors with Local 3 men, that other contractors who did not have agreements with Local 3 were being awarded contracts with more frequency, and that he, Van Arsdale, approved a work stoppage because there was no work contract and because he and they felt that job security was being threatened since the Board of Education was more frequently awarding electrical con- tracts to non-Local 3 contractors and the Local 3 men would not be working on Board of Education jobs as in the past 3 According to Rosenberg, Van Arsdale also outlined for the union members a "tentative proposal" he was mak- ing to the City and the Board of Education for some job security, under which the men working on school jobs, as their work finished, would constitute a layoff list from which the contractors would draw men first on new jobs awarded them. Coming back to the July 19 meeting of Director Mc- Laren and Union Business Manager Van Arsdale, McLar- en asked why the Local 3 electricians were off the job, and Van Arsdale said he was concerned about the security of work of his Local 3 members, that the work available to them was dropping off, and that inasmuch as they had done practically all of the work for the Board of Education for many years, they should continue to do that work. Mc- Laren replied that the Board of Education could not pro- vide for that legally; that under the state and municipal law the lowest responsible bidder was entitled to the work no matter which union his employees belonged to. Van Ars- dale referred to the schools in which Wickham and Perone and Iovine were doing the electrical contracting, along with an allegation that Wickham and Perone were not pay- ing the prevailing wage rate. McLaren said his people 3 In his prior testimony before the U.S. District Court (exh. GC-11), Union Representative Rosenberg testified that there was no discussion of a work stoppage at the union meeting and the Local 3 members working on the Board of Education jobs decided spontaneously they would not report to work, that he, Rosenberg, told them he approved it, and that Van Arsdale told Rosenberg he approved Rosenberg's action. In the case at bar, Rosen- berg changed this testimony to what was recited above would do all they could to see that Local 3 contractors were not unfairly bid against, but on qualifications of con- tractors such as lovine, whom he knew was not aligned with Local 3, he said he saw no way to recommend against the award of a contract. Van Arsdale said that his people had been to talk to the mayor and deputy mayor and corporation counsel, Mc- Laren replied that the Board of Education was not a city agency. McLaren said he was concerned, he had 120 major jobs under construction now stopped because the electricians were out, and he asked Van Arsdale what it would take to get his men back to work. Van Arsdale replied he needed full assurance from the Board of Education that would give job security to the Local 3 members. The meeting ended by McLaren saying he would talk to the deputy chancellor (McLaren's immediate superior) and they would get back to Van Arsdale. Immediately following his meeting with Union Business Manager Van Arsdale, Director McLaren discussed the matter with associates, he said, and, concluding that with the need for school openings in September it would be better to stop a few jobs rather than keep most of the 120 jobs stopped, he forthwith sent letters to Wickham and Perone (exh. GC-2, dated July 19, 1974), to lovine, and to several small electrical maintenance contractors, also not aligned with Local 3, ordering them off their jobs. The letters told each of the contractors addressed that the labor he was using was causing work stoppages on various other Board of Education projects, and that he must stop work until such time as he furnished labor that would not cause a stoppage.4 Anthony Biele, president of Wickham, and in charge of the joint venture Wickham and Perone, was telephoned the same day, July 19, by one of McLaren's subordinates, Burns, telling him that the Board of Education was sending him the described letter and that he was to leave his jobs immediately and until he acquired other labor that would not cause work stoppages. Biele asked how he was doing that, and Bums replied, by not employing Local 3 men. Biele said he would not pull his men off the job until he got something in writing. Biele received the McLaren letter ordering him off the job the following Monday, July 22. He telephoned School Board Director of Construction Turecamo who said he took his orders from Executive Director McLaren, and passed him to McLaren. McLaren told Biele he wanted his men off the job at once, accusing him of not paying the prevailing wages and having too many apprentices on the jobs. When Biele protested that he had been investigated on this score by the controller, who had found he paid the right wages and had the proper amount of apprentices, and that McLaren should consult the controller, McLaren then told Biele he was causing work stoppages by not employing Local 3 members, and to get his men off the job immedi- The letters purported to invoke Art 5 of the Board of Education con- tract, which provided that a contractor shall not have work performed or labor or means employed in carrying out his contract that would cause or result in a suspension, delay, or strike of the work under the contract of any of the trades working in or about the premises or in any other building of the Board of Education LOCAL 3, INTL. BROTHERHOOD OF ELECTRICAL WKRS. 789 ately. Biele asked if there was any way he could resolve the matter, and McLaren answered that he could work only by joining or being a member of Local 3. They argued, and McLaren concluded the discussion by saying he was issu- ing field directives to have Biele's men thrown off the jobs. (McLaren in his testimony did not contradict Biele's testi- mony.) A half hour later Biele was told by his foremen that they had received school board field directives (exh. GC-4) to leave the jobsites, and Biele told them he had no choice and they should comply. The Wickham and Perone electri- cians left the jobsites and did not return until 3 or 4 weeks later, after Wickham and Perone obtained a temporary re- straining order against the Board of Education from pre- venting Wickham and Perone performing its contracts (U.S. District Court, Southern District of New York, dated July 30, 1974, exh. GC-3), and after the Board of Educa- tion rescinded the stop-work orders against Wickham and Perone, and others, by letters dated August 6, 1974 (exh. GC-5a and b). Eugene Iovine, president of electrical contractor Iovine, also received a telephone notice to stop work (as in the case of Biele of Wickham and Perone), followed by a Board of Education written stop-work order, on July 23, 1974. The call to him came from School Board Director of Construc- tion Turecamo, who told lovine his men would have to leave the 2 school jobs they were on because Local 3 was stopping work on over 100 school jobs unless Teamsters affiliated contractors and nonaffiliates of Local 3 were re- moved from Board of Education jobsites. Iovine called the school board action ridiculous and said he intended to fin- ish his contract jobs. Turecamo replied that Iovine would be receiving a letter from Director McLaren telling lovine that it did not have the men of the labor type that Local 3 wants on the jobs. Further, said Turecamo, if the Iovine electricians didn't stay away from the two jobs, he would lock the gates of the jobsites. lovine asked if the stop-work orders included other trades, and Turecamo answered they applied only to the electrical trade. After receiving the written stop-work or- der, lovine and his men continued to work in defiance of the instructions to stop .5 Director McLaren testified that on July 19, in his meet- ing with Local 3's Business Manager Van Arsdale, he did not tell Van Arsdale he was going to have calls made or letters sent to Biele and Iovine to leave their jobs on the school sites ; but, on July 25, he telephoned Van Arsdale and said he had removed the contractors who were not Local 3 contractors from the school jobs and expressed the hope that on the basis of this, Van Arsdale's men would go back to the jobs because the schools were badly needed for September . Van Arsdale replied he would look into it, but he wanted a meeting with McLaren's superior, Vice Chan- cellor Gifford. The meeting was arranged for that af- s In connnection with the later August 6 recision of the stop-work orders, following the temporary restraining order against the school board, supra, Director McLaren explained that he was informed by Deputy Corporation Counsel Buxbaum that it was erroneous to use Art. 5 of the electrical con- tracts (see In . 4, supra) for the purpose his division was using it, and the stop-work orders should be rescinded . McLaren complied. ternoon, July 25. At the meeting, said McLaren, Van Ars- dale went over the ground he had previously covered with McLaren (at the July 19 meeting), essentially the need for job security for Local 3 electricians and assurances from the Board of Education that Local 3 men would not be put out of work. According to McLaren, Van Arsdale men- tioned.a layoff list, and this, said McLaren, was the first time he had heard of a layoff list or layoff plan, which was later discussed at a larger meeting in the Deputy Mayor's office in the third week of August. Van Arsdale reiterated, said McLaren, that since Local 3 electricians did most of the Board of Education electrical work they should contin- ue to do it. Dr. Bernard Gifford, the deputy chancellor, testified (at the call of Respondent Local 3) that at the July 25 meeting were Director McLaren and himself of the school board, and Van Arsdale and a Mr. O'Hara for Local 3. Dr. Gif- ford had been previously informed, he said, of the strike action by Local 3 and of McLaren's action to remove con- tractor Wickham and Perone and other contractors not af- filiated with Local 3. Van Arsdale talked about Local 3's role in doing work for the City of New York and the Board of Education, and spoke repeatedly, said Dr. Gifford, of the need to provide job security for Local 3 members. When Dr. Gifford pressed Van Arsdale on what the school board could do, it became obvious, said Dr. Gifford, that there were problems between Local 3, IBEW, and Local 363, Teamsters, Van Arsdale alluding to a jurisdictional dispute between Local 3 and Local 363 and noting that the school board had let contracts to contractors who were not Local 3 contractors but employed Local 363 members, spe- cifically naming Wickham and Perone. Van Arsdale also made accusations against Local 363, said Dr. Gifford, re- garding the apprenticeship program and kickbacks. Dr. Gifford told Van Arsdale that he was not a hearing officer and could not sit in judgment, and asked Van Ars- dale for a concrete proposal to recommend to the Board of Education. According to Dr. Gifford, Van Arsdale gave him none nor did he give any sense of what he wanted. Van Arsdale said he had made certain suggestions to De- puty Corporation Counsel Buxbaum on job security with the city for members of Local 3, referring to these in gener- al terms and indicating he was not prepared to describe them in writing or with any definiteness. Dr. Gifford final- ly asked Van Arsdale to put in writing what he wanted Gifford or the Board of Education to do, and, said Dr. Gifford, he would set up a meeting for Van Arsdale with the school board. Van Arsdale said he would comply, but never sent anything to Dr. Gifford. Dr. Gifford's testimony was devoid of any reference to a layoff list or plan or dis- cussion of such a list or plan by Van Arsdale at this meet- ing. Continuing his testimony, Vice Chancellor Dr. Gifford told of a next meeting on August 20, 1974, in the office of Deputy Mayor Cavanaugh. In addition to himself, Direc- tor McLaren, and Local 3's Business Representative Van Arsdale, among those participating were the deputy mayor, Deputy Corporation Counsel Buxbaum, School Board Chancellor Anker, School Board President James Regan, and several school board members, including Joseph Mon- serrat and Amelia Ashe. (Those of the school board mem- 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers and staff-other than McLaren-who testified con- cerning the meeting were called by Respondent Local 3, and again, as already noted, its principal, Van Arsdale, did not testify.) According to school board member, Monserrat, the dis- cussion was on the issue of getting the Local 3 workers off strike and back to work. According to School Board Presi- dent Regan there was an unanswered question of why Lo- cal 3 was picking on the Board of Education projects and not other projects, and reference to the great inconvenience in delaying new schools for 23,000 children and the loss of time and safety dangers to other children in schools where modernizing was going on. Van Arsdale stated, said Re- gan, that he had to be concerned about his Local 3 work- ers, and the others were not his problems. According to Dr. Gifford, President Regan, Member Monserrat, and Director McLaren, Van Arsdale spoke of job security for members of Local 3, and talked of a layoff plan or list; and, while he had not reduced any of it to writing, addressed himself to city work as well as Board of Education work .6 Under the plan the electricians working for contractors on public projects would constitute a work force to be listed as their jobs were completed and they were laid off, and contractors acquiring new public work would be required to hire electricians from the layoff list in order of seniority of layoff before hiring elsewhere. Under the proposal, said Member Monserrat, it would be required that members of Local 3, IBEW, on the list be hired by contractors who did not have collective -bargaining con- tracts with Local 3, and it was also stated that members of Local 363, Teamsters, on the list would be hired by con- tractors who did not have collective-bargaining contracts with Local 363. In the case of the Board of Education work, Van Arsdale said, the proposal was made to assure employment for a group of electrical workers who in a sense had been working for the Board of Education for many years. Monserrat and his colleagues testified that they understood Van Arsdale' s main purpose was to pro- vide work for his Local 3 members , and that, while the plan on its face did not purport to exclude Local 363 members or nonunion electricians or others not affiliated with Local 3, the fact was that the great bulk of the electricians were members of Local 3. At the meeting, President Regan, and his colleagues, ex- pressed grave doubts as to the legal and practical efficacy of the plan. Regan said the Board of Education did not deal with the unions of its construction contractors, but only with the contractors and with them through competi- tive bidding.? Member Monserrat raised the question of 6 On the day following the meeting, viz August 21, 1974, Local 3 Business Manager Van Arsdale sent a letter to School Board President Regan enclos- ing a five-sentence outline of his layoff plan, exh. R-l. In this connection, according to Director McLaren , poor to the August 20, 1974, meeting, the Board of Education, at a meeting of its own, attended by its administrative officers and lawyer (the deputy corporation counsel), adopted the opinion that the labor dispute in which Local 3 was engaged was not a dispute between Local 3 and the Board of Education but between Local 3 and Board of Education electrical contractors-Pettinelli, Smith, Petrocelli, et al-and directed McLaren to advise each such contractor that the Board of Education would hold each to performance of his contract on time without an extension of time, see form letter, exh. GC-8, dated August 15, 1974. Exhs. GC 9a-d were typical replies to the school board from some meeting minority quotas and apprenticeship quotas and other hiring requirements established by law, when such type job applicants were not on the layoff list; and also pointed out that, under the relatively new decentralized school system requiring consultation by the central school board with local school boards on matters affecting them, the central board could not unilaterally impose what Van Arsdale wanted. According to President Regan, Deputy Corporation Counsel Buxbaum expressed doubt as to the legality of Van Arsdale's plan. Regan, Monserrat, and Gifford pointed out that even if the city came up with some such union-type employment plan as advocated by Van Arsdale, the Board of Educa- tion, as a separate state agency, could not necessarily go along, but would have to make its own determination in the light of the requirements on it. Following the August 20 meeting, the Local 3 strike and the stoppage of work on the principal school board jobs continued for almost another month until after the is- suance by the U.S. District Court, Eastern District of New York, on September 13, 1974, of a temporary injunction against Local 3, under Section 10(1) of the Act (exh. GC-10). C. Local 3 Conduct Directed to Teamsters Affiliated Contractors President Anthony Biele of Wickham, and in charge of the joint venture Wickham and Perone , testfied that, after he was ordered to stop work on the school board jobs by Director McLaren, he was called by and met with Local 3's business representative, Rosenberg, on July 25, 1974. President Biele testified that, after a sales pitch on the advantages of being affiliated with Local 3, Union Repre- sentative Rosenberg told Biele that if he joined Local 3, Local 3 would give him good men to complete the Wick- ham and Perone contracts on the school jobs, then idled by the Board of Education stop-work order. According to Biele, Rosenberg did not claim that he represented any of the Wickham and Perone electricians,8 and Biele told Ro- senberg that he, Biele , could not make a decision for his men, or vote for them, or tell them to vote for Local 3. President Eugene lovine of electrical contractor lovine, whose school board contracts were also the subject of Di- rector McLaren's stop-work notices, testified, without con- tradiction, that, while he had not been approached by Lo- cal 3's Representative Rosenberg, he had been asked at an earlier time by Local 3's agent, D'Arty, to drop Local 363, Teamsters, with whom lovine had a labor contract (through its association of contractors-United Construc- of the electrical contractors disclaiming responsibility for the work stoppage or power to resolve any of the issues involved , and claiming entitlement to an extension of time. 8 Union Representative Rosenberg conceded that he did not show any authorization or membership cards to President Biele or name any Wick- ham and Perone employees who were interested in Local 3, and admitted that he asked Biele to sign a consent agreement with Local 3. Rosenberg also testified that after the September 19, 1974, election that pitted Local 3, IBEW, against Local 363, Teamsters (in which election Wickham employees were involved, see In . 2, supra, Local 3 called a strike against Wickham on September 23, and Rosenberg claimed that a number of Wickham employ- ees coined in the strike. LOCAL 3, INTL. BROTHERHOOD OF 'ELECTRICAL WKRS. tion Contractors Association ), and go with Local 3, IBEW. Notwithstanding Local 3's strike of school board jobs, contractor Wickham and Perone continued to bid on new contracts with the school board, and, as Director McLaren testified, was the low bidder on the Martin High School renovation that required over a million dollars of electrical work. McLaren further testified that in the light of U.S. District Court Judge Stewart's restraining order of July 30, 1974 (exh. GC-3, supra) enjoining the Board of Education from, among other things, holding up awards of contracts to Wickham and Perone, he forwarded the Wickham and Perone bid to the school board with a recommendation for award of the contract. When the matter reached the school board for award at its public meeting of October 16, 1974, Local 3's Representative Rosenberg appeared and urged denial or postponement of the award , seeking to present witnesses that Wickham and Perone paid kickbacks, and arguing that the successful bidder was not abiding by the apprentice program or the prevailing wage determinations, or both. School Board Member Monserrat, who presided at the public meeting, testified that the school board took the po- sition that it was not the proper forum to hear and de- termine such complaints, that there were hearing and re- view board procedures under the controller's jurisdiction to deal with such matters, and that, since there had been com- pliance with the procedures leading to the signing of the contract, the Board of Education was not in a position to refuse or postpone the award, and the contract was award- ed to Wickham and Perone . In passing the approving reso- lution, said Monserrat, it was noted that if the complaints alleged were proven correct the Board of Education would take appropriate action to rescind the contract. D. 8(b)(4) Findings The evidence establishes that an object-if not the prin- cipal object-of the strike of the school board jobs by Re- spondent Local 3 IBEW electricians was to pressure the Board of Education , through pressure on its contractors, to cease doing business with electrical contractors whose em- ployees were not Local 3 members, in particular contrac- tors Wickham and Perone and Iovine whose electricians were Local 363, Teamsters, members. The principal staff of the Board of Education clearly got that message directly from Local 3's Business Manager Van Arsdale after the strike began. Van Arsdale com- plained on July 19, 1974, to Executive Director of School Buildings McLaren, and again to School Board Vice Chan- cellor Dr. Gifford, on July 25, that Wickham and Perone and other electrical contractors not affiliated with Local 3 had been awarded school board work which Local 3 elec- tricians had been doing almost exclusively, and took the position that the members of his union should continue to do that work and be assured of it before ending their strike and coming back. Reacting immediately and cooperatively on July 19 to Van Arsdale's complaint and message, Direc- tor McLaren sought to induce the return to work of the more numerous Local 3 electricians, by ordering contrac- tors Wickham and Perone and Iovine and their Local 363, Teamsters, electricians off the few school jobs they were 791 performing. This attempt to eliminate the contractors not affiliated by labor contracts with Local 3 was aborted shortly thereafter by the restraining order of the United States District Court against the school board, and by the school board repudiation and recision of Director Mc- Laren's stop-work orders aimed at the contractors not aligned with Local 3. Further supporting evidence of the objective to remove from and keep off school board work the non-Local 3 con- tractor and its Teamsters affiliated employees was the con- comitant action of Local 3's Representative Rosenberg, on July 25, attempting to induce President Biele of Wickham and Perone to sign up with Local 3 and complete with Local 3 electricians his current school board jobs, then halted by Director McLaren's stop-work orders.9 When this failed, Local 3 gave further evidence of pursuing its objective by attempting to prevent the award of new Board of Education work to Wickham and Perone at the school board meeting of October 16. It is a fair inference that had contractors Wickham and Perone and lovine agreed to sign with Local 3 and use Local 3 electricians in July the work stoppage by Local 3 would have ended. It is also apparent that Respondent, having initially struck to obtain all school board work for its members and having observed from the events of the first month of the strike that the school board could not or would not agree to award work only to Local 3 contractors, then suggested the layoff list plan in the second month of the strike at the meeting of city and school board officials, August 20, 1974.10 The layoff list proposal was another way of insuring continued Local 3 presence on school board jobs (and city public works jobs), almost exclusively in the case of the school board, since Local 3 contractors and their electricians were performing 98 percent of the school board work. While the layoff list might include a token number of Local 363, Teamsters, electricians and non- union electricians, the bulk of the list would be Local 3 electricians. Local 3 contends that because its labor contracts with the major electrical contractors had expired on July 11, 1974, Local 3 members were not thereafter obliged to work for any contractor and Local 3 was not required to ask any members to work for any contractor. However, the proof was that, on July 8, Local 3 and its Business Manager Van Arsdale authorized and directed a walkout of those mem- bers who were working on Board of Education jobsites, because, among other things, their job security was being threatened by the Board of Education more frequently awarding electrical contracts to non-Local 3 contractors; while the much larger portion of the membership contin- ued without interruption to work on other public and com- mercial work of their contractors in the City of New York notwithstanding the absence of a renewed labor contract until late September (testimony, Director McLaren and 9 Before the Local 3 strike of the school board,lobsites, a similar overture had been made to contractor lovine, whose electricians were also affiliated with Local 363, Teamsters, by another Local 3 representative, D'Arcy, that lovine sign up with Local 3. 10 The testimony of the school board members and principal staff (Dr. Gifford and Director McLaren) made clear that this was the first time the Board of Education was apprised of the layoff list proposal. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Representative Rosenberg)." Thus, Respondent Local 3 was actively and directly re- sponsible for the strike and induced and encouraged em- ployees to refuse to perform services for their employers. The absence of a labor contract had no effect on the large majority of Local 3 members who continued working on non-school board work, and the determinant factor in pre- cipitating the work stoppage of Local 3 members on school board work was not the absence of a labor contract but rather the deliberate calling of a strike to put pressure on the school board to cease doing business with non-Local 3 contractors. For purposes of further argument, Local 3 prefers to ig- nore its primary labor dispute with the Teamsters affiliated electrical contractors, Wickham and Perone and lovine. Instead, Local 3 contends that its primary labor dispute was with the Board of Education from whom, says Local 3, it was demanding the inclusion of a layoff plan in future school board contracts for electrical work. The plan would bind the electrical contractors to employ the electricians now doing school board jobs, who would comprise the "layoff" list as their jobs were completed, and thereby "preserve" school board work almost exclusively for Local 3 electricians who now do almost all of that work. There are two obvious difficulties with this contention. First, it was an afterthought, proposed by Local 3's Busi- ness Manager Van Arsdale to the Board of Education on August 20, 1974, more than a month after the strike began. As already indicated, the motivation for the strike, at its inception, was to put pressure on the school board to cease doing business with non-Local 3 electrical contractors and, when it became apparent by the second month of the strike that the Board of Education would not deal only with Lo- cal 3 contractors, Respondent switched to the so-called "primary" demand. Second, the "primary" demand rests on an alleged pri- mary relationship between the Board of Education and the Local 3 electricians, who are employed by the major elec- trical contractors, said to be akin to direct school board employment of such electricians , on assertions that several hundred of these electricians work year-in, year-out only on school board work, and are directly supervised by the school board,12 as are school board employees. The asser- tions were not established, and what was claimed to be school board supervision of the electrical work performed by contractors turned out to be the presence of school board inspectors on jobsites, from time to time, checking compliance with job specifications. On its part, the Board of Education, from the testimony of its members and prin- cipal staff, rejected the existence of any such direct rela- tionship between the school board and the employees of its contractors, and there are no facts that contradict this posi- i i The failure of Respondent Local 3 to call as a witness Business Manag- er Van Arsdale, its principal officer and actor in these events , gives rise to the inference, adverse to Respondent, that he would not contradict the testi- mony of the others concerning his conduct and statements including admis- sions to them, see International Union, UA W [Gyrodyne Co. of America] v. N.L R. B, 459 F.2d 1329, 1336 (C.A D.C., 1972). 12 These electricians are not the 70 electricians (taken note of under sec- tion iI,A, supra) who are Local 3 members , directly employed in the school system for maintenance and other tasks by the school board. tion, or that constitute the school board's relationship to the construction work a surrender of neutrality. As the Board said in Local 14055, United Steelworkers of America, AFL-CIO (Dow Chemical Co.), 211 NLRB 649 (1974); The short answer to this line of argument is that the Board does not normally predicate loss of neutral sta- tus on economic interdependency alone, absent such factors as common ownership or managerial control (citations omitted). Moreover, even if it were to be found that one of the objects of the Local 3 strike was the obtaining from the Board of Education, as "an employer in the construction industry," a limiting agreement affecting contracting or subcontracting at construction jobsites under the first or construction proviso to Section 8(e) of the Act,13 such ob- jective would not excuse the 8(b)(4) violation arising from the concurrent objective of the strike to force the Board of Education to cease doing business with the Teamsters affi- liated contractors, N.L.R.B. v. Denver Building and Con- struction Trades Council [Gould & Preisner], 341 U.S. 675, 688-690 (1951); Northeastern Indiana Building and Con- struction Trades Council (Centlivre Village Apartments), 148 NLRB 854, 857-858 (1964), enforcement denied on other grounds, 352 F.2d 696 (C.A.D.C., 1965); Retail Clerks Union, Local 770 (Food Employers Council), 145 NLRB 307, 308-311 (1963). Respondent Local 3's strike of the Board of Education jobsites, with an object of requiring the electrical contrac- tors employing Local 3 members to cease doing business with the Board of Education to force the Board of Educa- tion to cease doing business with electrical contractors Wickham and Perone, lovine, and other employers of elec- tricians not represented by Local 3, had a secondary objec- tive that was proscribed by and in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. CONCLUSIONS OF LAW 1. In the period July-September 1974, Respondent Local 3 induced and encouraged its members, employees of the major electrical contractors for the Board of Education, to walk off and strike the jobsites where such employers were performing work for the Board of Education, and struck such jobsites, causing a complete cessation of work, with an object of forcing the major electrical contractors to cease doing business with the Board of Education to force the Board of Education to cease doing business with elec- 13 While the Board has not directly held that a governmental agency, such as the Board of Education , can be an "employer in the construction indus- try", within the meaning of the proviso to Sec 8(e) of the Act, collateral decisions-such as international Assn Machinists & Aerospace Wkrs., AFL- CIO (Marriott In-Flue Services), 197 NLRB 232, 237-238 (1972), enfd. 491 F.2d 367 (C.A. 9, 1974), holding that "employer" under Sec. 8(e) is used in the broader generic sense than the statutory definition of Sec. 2(2) and is the equivalent of "Person"; and Los Angeles Bldg. and Construction Trades Council, AFL-CIO (Church's Fried Chicken), 183 NLRB 1032 (1970), hold- ing that a company, primarily in the business of selling chicken at its stores, that acted as its own general contractor for building the stores was notwith- standing its primary business an "employer in the construction industry" as used in Sec. 8(e)-suggest that in an appropriate case the obtaining of an agreement from the Board of Education under the construction proviso of Sec. 8(e) would be sanctioned by the Act. LOCAL 3, INTL. BROTHERHOOD OF ELECTRICAL WKRS. 793 trical contractors Wickham and Perone, Iovine, and cer- tain other employers of electricians who were not members of or represented by Local 3. Such conduct by Local 3 constituted unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. 2. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It will be recommended that Local 3 cease and desist from engaging in the unfair labor practices and take the affirmative action of posting appropriate notices. Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER 14 him) of the signed copies of the notice for posting by the electrical contractors, including those affiliated with Local 3 and those that are not, and by the Board of Education, if they are willing, at locations where notices to employees and contractors are customarily posted.. (c) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps Local 3 has taken to comply herewith. 14 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, recommendations, 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 15 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 " Respondent, Local 3, International Brotherhood of Elec- trical Workers, AFL-CIO, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Inducing or encouraging any of its members or other individual employed by the electrical contractors doing business with the Board of Education, or by any other per- son engaged in commerce or in an industry affecting com- merce, to engage in a strike or a refusal , in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is to force said electrical contractors to cease doing business with the Board of Education to force the Board of Education to cease doing business with electrical contrac- tors Wickham and Perone, Iovine, and others whose em- ployees are not members of or represented by Local 3. (b) Threatening, coercing, or restraining the electrical contractors of the Board of Education, or the Board of Education, or other persons engaged in commerce or in an industry affecting commerce, where an object thereof is to force the electrical contractors to cease doing business with the Board of Education to force the Board of Education to cease doing business with electrical contractors Wickham and Perone, Iovine, and others, whose employees are not members of or represented by Local 3. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post in its business offices and meeting halls, copies of the attached notice marked "Appendix."' Immediately upon receipt of copies of said notice, on forms to be pro- vided by the Regional Director for Region 29, Local 3 shall cause the copies to be signed by one of its authorized rep- resentatives and posted, the posted copies to be maintained for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 3 to insure that said notices are not altered, defaced, or covered by any other material. (b) Return to the Regional Director for Region 29, by mail or otherwise , a sufficient number (as determined by APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found , after a hearing, that we violated the National Labor Relations Act, we hereby notify you that: WE WILL NOT induce or encourage any of our mem- bers or other individual employed by the electrical contractors doing business with the Board of Educa- tion of the City of New York, or by any other person engaged in commerce or in an industry affecting 'com- merce, to engage in a strike or a refusal, in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or perform any services, where an object thereof is to force said elec- trical contractors to cease doing business with the Board of Education to force the Board of Education to cease doing business with electrical contractors Wickham and Perone, lovine, and others, whose em- ployees are not members of or represented by Local 3, International Brotherhood of Electrical Workers, AFL-CIO. WE WILL NOT threaten, coerce, or restrain the electri- cal contractors of the Board of Education, or the Board of Education, or other persons engaged in com- merce or in an industry affecting commerce, where an object thereof is to force the electrical contractors to cease doing business with the Board of Education to force the Board of Education to cease doing business with electrical contractors Wickham and Perone, lovine, and others, whose employees are not members of or represented by Local 3, International Brother- hood of Electrical Workers, AFL-CIO. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO