Local No. 441, IBEW

LOCAL NO. 441, IBEW 99 Local-No. 441, International Brotherhood of Electrical Workers, AFL-CIO and Rollins Communications, Inc. Case 21-CC-1459 January 9, 1976 SUPPLEMENTAL DECISION BY CHAIRMAN- MURPHY AND- MEMBERS FANNING AND JENKINS On February 5, 1974, the National Labor Rela- tions Board issued its Decision and Order in this pro- ceeding I in which it reversed the findings of-the Ad- ministrative Law Judge, and found that the Union violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing for the proscribed object of forcing a neu- tral general contractor (Carter) to cease doing busi- ness with the subcontractor (Rollins) with whom the Union-had a dispute? Thereafter, a petition for review and cross-applica- tion for enforcement of an Order of- the National Labor Relations Board was filed with `the United States Circuit Court of Appeals for the District of Columbia. The court, in ruling on Respondent's peti- tion for review and the Board's cross-petition for en- forcement, remanded the case to the Board to clarify whether the Board was overturning the Administra- tive Law Judge's credibility findings. In the court's view, it was "incumbent upon the Board first to iden- tify expressly an awareness that it was disagreeing with the Administrative Law Judge, especially on a point where he had credited one witness over anoth- er, and second, to set forth the basis of disagreement with the Administrative Law Judge." The court also directed the Board to "clarify the basis of its ruling", in the event the- Administrative Law Judge's version of the facts is adopted on remand and a violation is found: The - court needs to know whether it is the Board's position ` that, if a union has a dispute with a primary employer, the union (a) may not have=any conversation with a neutral' employer, or (b) may have a conversation witha- neutral employer but-must not refer to the possibility of termination of- the primary employer even when that subject is initiated by the neutral employer; or (c) may answer the question raised by the neutral employer by indicating the :picketing '208 NLRB 943. - 2 Member Fanning, for the reasons set forth in his dissent in International Brotherhood of Electrical Workers, Local Union No. 11, AFL-.CID (L. G Electric Contractors Inc.), 154 NLRB 766 (1965), dissented in the instant case. He would affirm the findings, conclusions, and recommendations of the Administrative Law Judge and dismiss the complaint in its entirety. would stop if either the primary employer-is ter- minated or pays the prevailing wage, but may .not go further and inform-the neutral, employer that the picketing will cease if he takes the affir- mative action of providing written assurance that the primary employer would not be,allowed to return to the jobsite unless it pays prevailing wages and benefits:' . On June 19, 1975, the Board notified the parties involved in these proceedings that it was accepting the remand from the court and all parties were invit- ed to submit statements of positions with respect to the issues raised by the court's remand. On July 4, 1975, the Board received a telegram"from the Re- spondent wherein it was stated that the telegram will constitute the statement of position ,of Respondent Union and the Board was referred to the positions taken by the Respondent in its briefs to the court and asked that the complaint be dismissed in its entirety. On July 7, -1975, the General Counsel submitted a Statement of Position on Remand. - 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 reexamined the entire record, in- cluding the court's opinion, and the positions of the parties on remand, and hereby-reaffirms its Decision and Order for the reasons indicated hereafter. In our original decision we found that the Union violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing for the proscribed object of forcing a neu- tral general contractor (Carter) to cease doing busi- ness with the subcontractor (Rollins) with whom the Union had a dispute. Our finding of a violation was based on a conversation between Union Business Representative Addington and General Contractor Carter which occurred after picketing began. The picketing itself 'conformed in all respects to the Moore Dry Dock standards, Sailors' Union of the Pa- cific AFL (Moore Dry Dock Company), 92 NLRB 547, 549 (1950). We note that compliance with the Moore Dry Dock standards, however, is not conclusive evi- dence that the picketing constitutes ' lawful primary activity, for the "totality of a, union's conduct in a given situation may well disclose a real purpose to enmesh neutrals in a dispute, despite literal compli- ance with the Moore Dry Dock standards." Mill- wrights Local Union No. 1102 (Dobson Heary Haul), 155 NLRB 1305,1307-10 (1965). Specifically, picket- ing for a lawful object may be unlawful if there is other evidence establishing that the picketing also has an unlawful secondary object. In such circum- 3 Local No 441, International Brotherhood of Electrical Workers, AFL- CIO (Rollins Communications) v N.L R B, 510 F.2d 1274, 1277 (1975). 222 NLRB No. 24 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances, Section 8(b)(4)(B) is violated .4 The instant case presents precisely such a situation. Carter and Addington•gave conflicting versions of the conversa- tion which is the crucial incident in this case. Ac- cording to Addington, Carter initiated the conversa- tion by asking if Addington would remove the picket line if Carter removed the primary employer (Rol- lins) from the jobsite; Addington responded in the affirmative and asked for a letter from Carter con- firming the removal of the primary. The Administra- tive Law Judge credited this account. However, in our recitation of the facts in our origi- nal decision we related only Carter's version of his conversation with Addington. According to Carter, he asked Addington what he could do to get the job going; Addington replied that he would remove the picket line if Carter would give him a letter stating that Rollins' men would not go back to work until they were paid prevailing wages and benefits. We concluded that this conversation enmeshed Carter in the Union's dispute with Rollins, and showed that the picketing was for an object of causing Carter to cease doing business with Rollins. We noted that the Union agreed to remove its picket line if the neutral, Carter, would give a written commitment that Rol- lins' employees would not be put back to work until Rollins paid prevailing wages and benefits. Adding- ton was not predicting the occurrence of primary picketing at a neutral location, but rather was seek- ing a commitment from the neutral which would re- sult in either cessation of business with Rollins, or else a significant disruption of their relationship. In our original decision we did differ with the Ad- ministrative Law Judge's credibility findings regard- ing the critical conversation, as in our opinion, Carter's version was more in accord with the proba- bilities of the situation. In this regard we note that the Administrative Law Judge at no time discredited Carter based, on his demeanor. In fact, the Adminis- trative Law Judge specifically found that Addington's testimony "was not detailed" and that the conversation between Addington and Carter as a whole "apparently occurred as Carter testified." Fur- ther, the Administrative Law Judge conceded that there is "some slight variation between the testimony of Carter and that of Addington." In these circum- stances, we consider that the detailed description of 4lnternational Brotherhood of Electrical Workers, Local 480, AFL-CIO [Gulf Coast Bldg & Supply Co] v. N.L.R B, 413 F 2d 1085, 1088-90 (134 App.D.C. 178, 181-183) (1969); Gulf Coast Building & Supply Company v. International Brotherhood of Electrical Workers, Local No 480, AFL-CIO, 428 F 2d 121, 125 (C A. 5, 1970), cert denied 400 U S. 942 (1970); N LR B v. International Brotherhood of Electrical Workers, Local 453 [Delp Refrigera- tin], 432 F.2d 965, 969 (C.A 8, 1970); N.LR.B v. Northern California Dis- trict Council of Hod Carriers [Joseph's Landscaping Service], 389 F 2d 721, 725 (C.A 9, 1968) the conversation testified to by Carter at the hearing was more reliable than an admittedly "not detailed" description testified to by Addington. The Administrative Law Judge, while conceding that Addington's testimony was not detailed with re- spect to his conversation with Carter, and, specifical- ly, finding that the rest of the conversation, not de- tailed by Addington, occurred as Carter testified, proceeded, without specifically discrediting Carter, to accept Addington's version because he was "in- clined" to do so in view of a statement Carter made on cross-examination as follows: Q. You said that just before that Addington told you that he wanted the people off the job and that he wanted his people on the job, that is what you said. Now, I want to know when he said that? A. I do not recall at any time that he told me that he wanted them specifically off the job, but at all times that he wanted them to be paid the prevailing wages and benefits and until that was done, he wasn't satisfied. The statement by Carter meant no more than that Addington never specifically and overtly requested that Carter replace Rollins' employees with Respondent's electricians. The Administrative Law Judge's reference to that portion of Carter's testimo- ny, on the face of the record, appears to us to be unduly emphasized. We find that the testimony of Carter and Addington are easily reconcilable under Carter's version of the sequence of events. In view of the fact that the Administrative Law Judge did not discredit Carter and obviously concluded that Carter's testimony was more precise and detailed than Addington's and that as a whole it better re- flected the events which occurred, we are inclined to adopt the more complete picture of the relevant events found in Carter's testimony, rather than the somewhat incomplete and conclusionary statement of facts presented by the Administrative Law Judge in his Decision. Moreover, even if Addington's version of the con- versation is credited, Respondent nevertheless violat- ed Section 8(b)(4)(B) of the Act. Even under Addington's version it is clear that Respondent was attempting to enmesh Carter in its dispute between Respondent and,Rollins, inasmuch as Addington de- manded, as a condition of removing the pickets, that Carter give Respondent a letter stating that Rollins' men would be removed from the jobsite and not be allowed to return to work until Rollins paid prevail- ing wages and benefits. It is, then, clear that what Respondent wanted was a commitment from Carter that the primary, Rollins, would be removed from LOCAL NO. 441, IBEW 101 the jobsite as a quid pro quo for removing the pickets. The enmeshing effect upon Carter was no less real, and the inference is clearly warranted, based on Addington's testimony alone, that an object of the Union's picketing was to force Carter to remove Rol- lins from the jobsite. Such conduct, which in effect requires a neutral to alter or, modify its existing busi- ness relationship with the primary employer, al- though arguably requiring less than a total cancella- tion of the business relationship, is enough disruption of an existing business relationship to constitute a "cease doing business" object within the meaning of Section 8(b)(4)(B) of the Act. In sum, as we observed in our original Decision, "[P]icketing for a lawful objective, such as to pre- serve area standards, may be unlawful if there is ad- ditionally an unlawful objective as revealed by con- temporaneous statements of union agents or other pertinent evidence." In the instant case, "[as] in L G. Electric [supra], the secondary employer, as a condition for getting rid of the pickets, was required by the union to take specific affirmative action-the choice of action was not left to the secondary em- ployer." We found "Addington's insistence on a let- ter of commitment from Carter was clear and con- vincing evidence that an object of [the Union's] picketing was to cause a disruption in Carter's busi- ness relationship with Rollins or a cessation of busi- ness between Carter and Rollins." We found, and we now reaffirm our finding, that in these circumstances the presumption of validity which attached to the Union's picketing because of its compliance with the Moore Dry Dock standards was overcome in the instant case. We again "con- clude from an examination of the entire `course of conduct engaged in by the [Union] that it would not have been satisfied with 'anything less than the re- moval of Rollins from the, jobsite, and that this un- lawful object, as well as the lawful object of main- taining area standards,, was reflected in the picketing. Unlike our colleague, who is dissenting for the rea- sons set forth in his dissent in L. G. Electric, supra, we are unable to separate the picketing from the ac- companying statement explaining when picketing would cease." 5 We find that the Union did not seek to limit its appeals to the primary employer and its employees and that at least an object of its picketing was prohibited. The court requested clarification from the Board as to the Board's position on what, if anything, a union representative may say to a neutral general contractor concerning a union's dispute with another s 208 NLRB 943, 944. person. The Board has held that it is not unlawful to give notice of prospective strike action against a sub- contractor to a prime or general contractor 6 Further, it would not appear to be unlawful for a union repre- sentative, upon being informed that the prime con- tractor intended to remove the offending employer from the jobsite, to inform the prime contractor that the union would cease ,its picketing activities., Since the Board's rules for "common-situs" picketing do not permit picketing in the absence of the primary employer, such a statement would`constitute no more than notice of intent to comply with the Board's rules. However, where, as here, the removal of the picket line by the union is conditioned upon some action to be taken by the neutral general or, prime contractor, such conduct constitutes a deliberate en- tanglement of a neutral person in a dispute not his own and is violative of the secondary boycott provi- sion of the Act. In the first circumstance, the prime contractor elects to remove the offending employer either because of the incidental effects of the union's picketing or out of sympathy with the union's labor dispute. But, in the second, unlawful circumstance, the union is in effect telling the neutral employer that he, alone, has the power to resolve the underlying dispute by removing the offending employer or by forcing him to make some agreement with the union. International Brotherhood of Electrical Workers, Local Union No. 11, AFL-CIO (L. G. Electric Contractors, Inc.), 154 NLRB 766 (1965). On the basis of the discussion above and our re- view of the entire record, we credit Carter' s testimo- ny and find the Union violated Section 8(b)(4)(i) and (ii)(B) of the Act. Moreover, even if we were to adopt the Administrative Law Judge's credibility resolu- tions, we nonetheless would find that the Union vio- lated Section _8(b)(4)(i) and (ii)(B) of the Act, inas- much as Addington's version of the disputed conversation shows that an object of the Union's conduct was to force a change in the business rela- tionship between Carter and Rollins. Accordingly, we reaffirm our findings; conclusions, and remedy provided in our original Decision,and Order. MEMBER FANNING, dissenting: For the reasons set forth in my dissent in L. G. Electric Contractors, Inc., supra, I dissented in the in- stant case. I adhere to the views expressed in that dissent and would affirm the findings, conclusions, and recommendations of the Administrative Law Judge and dismiss the complaint in its entirety. 6 Construction, Building Material and Miscellaneous Drivers Local Union No 83, International Brotherhood-of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind (Marshall & Haas), 133 NLRB 1144, 1146 (1961).