Electrical Workers Ibew Local 211 (Atlantic County Authority)

ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC COUNTY AUTHORITY) International Brotherhood of Electrical Workers, Local Union No. 211 and Atlantic County Im- provement Authority, and Atlantic City Conven- tion Center Authority. Case 4-CC-1603 10 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 12 August 1985 Administrative Law Judge James J. O'Meara Jr. issued the attached decision. The Charging Party filed exceptions and a support- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusion and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Margaret M. McGovern, Esq., for the General Counsel. Robert F. O'Brien, Esq., for the Respondent. Robert Wachs, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE JAMES J. O'MEARA JR., Administrative Law Judge. The complaint in this case was issued 21 February 1985 and is based on a charge filed on 26 December 1984 by and on behalf of the Atlantic County Improvement Au- thority and the Atlantic City Convention Authority (the Authority), against the International Brotherhood 'of Electrical Workers, Local Union No. 211 (the Union). The complaint charges that the Authority is engaged in renovating Atlantic City Convention Hall and has en- gaged several firms to provide services and/or equip- ment. Among such firms so engaged was the Jaden Elec- tric, A Division of The Fairfield Company, (Jaden), which company was the successful bidder on the electri- cal work of the renovation contract at the Convention Hall. On 21 December the Union, in furtherance of its labor dispute with Jaden, picketed the Convention Hall site and in so doing induced an individual employed by a neutral third party to refuse to deliver a "standby elec- tric generator" to the Authority pursuant to a contract between the Authority and a neutral third party, Frank- lin Electric Company, the manufacturer of the electric generator. The complaint alleges that an object of the act and conduct of the Union was, and is, to force or require the Authority and other persons to cease using, selling, handling, transporting, or otherwise dealing in the prod- 1041 ucts of Jaden and each other to cease doing business with Jaden and each other and that such action and con- duct constitutes an unfair labor practice within the mean- ing of Section 8(b)(i) and (ii)(B) of the Act. The Union in its answer to the complaint denies that it has violated the Act and contends that it was engaged in lawful primary picketing. The case was heard in Ventnor, New Jersey, on 8 April 1985. The parties were given an opportunity to present evidence and to argue their respective positions. At the termination of the hearing the parties waived oral arguments and have filed briefs which have been re- ceived and considered. On the evidence of record, including the testimony and demeanor of the witnesses, and in consideration of briefs filed by the parties hereto, I find the following I. FINDINGS AND CONCLUSIONS A. Jurisdiction Jaden Electric, A Division of the Fairfield Company, is, and has been at all times material, a Pennsylvania cor- poration with its principal office located in Lititz, Penn- sylvania. Jaden is engaged in the construction business as an electrical contractor and has been engaged in the per- formance of a certain contract between itself and the Charging Party. During the past year in the course and conduct of its business, Jaden has received more than $50,000 from the performance of services at construction projects located in the State of New Jersey. I find, and the Respondent Union admits, that Jaden is and has been at times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union The International Brotherhood of Electrical Workers, Local Union No. 211, the Respondent herein, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. I find that the Union and Jaden are subject to the ju- risdiction of the Board and that it will effectuate the policies of the Act to assert jurisdiction in this case. C. The Unfair Labor Practice Charged The General Counsel has charged the Union with a violation of Section 8(b)(4)(i).and (ii)(B) of the Act. That section provides as follows: (b)-It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in com- merce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacturer, process, trans- port, or otherwise handle or work on any goods, ar- ticles, materials or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry af- 277 NLRB No. 111 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fecting commerce, where in either case an object thereof is: '(B) forcing or requiring any person to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or re- quiring any other employer to recognize or bar- gain with a labor organization as the representa- tive of his employees unless such labor orgamza- tion has been certified as the representative of such employees under the provisions of section 9; Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not oth- erwise unlawful, any primary strike or primary pick- eting. [Emphasis added.] The General Counsel specifically alleges that the Union picketed the site where Jaden and other contrac- tors were performing their contracts with the Authority and in connection therewith induced an employee of a hauling company to refuse to deliver a certain "standby electric generator" to the Authority. D. The Renovation Contracts Atlantic County Improvement Authority has engaged in the renovation of Atlantic City Convention Hall (Con- vention Hall) which is managed by the Convention Center Authority. In furtherance of this renovation of Convention Hall, the Authority has engaged Jaden to perform the electrical work incidental to the renovation project. It has also contracted with Franklin Electric Company for that company to provide an electric stand- by generator to be included in the electrical system of Convention Hall. The Authority has also engaged with Perini Corporation to provide construction consultation and oversee the renovation project on its behalf. The existing electrical system in the convention center provided a source of electrical current to the convention center from two public utility substations. Although in the past continuous service has been anticipated from one or the other of these sources, the potential for multi- ple failure existed. The renovation contract provided for a single source of electrical power to be acquired from the public utility and another "convention hall con- tained" standby electric generator for auxiliary emergen- cy power. Because of the time required to manufacture the standby electric generator, it was pre-ordered from the Franklin Electric Company by the Authority for de- livery to the convention center when it was completed. Among the specifications of Jaden's contract for the electrical work was the task of "tying in" the standby electric generator. The contract provisions of both the electrical contract and the generator contract provided that the contractor and the manufacturer each be obligated to deliver the unit to the convention center and place it in the proper mode for hookup. The construction supervisor chose to call on Franklin to deliver the unit since it was going to require a later more exact positioning due to the fact that some electrical transformers from the old system were blocking the planned location for the electric generator. A change order was not provided to the Jaden contract because it was anticipated to be necessary that Jaden would re-rig the generator in order to place it in the final planned position after the removal of the transform- ers. E. The Convention Hall The construction situs, Atlantic City Convention Hall, is a rectangular building extending from Pacific Avenue on the north to the Boardwalk on the south, it is bound- ed on the east by Mississippi Avenue and on the west by Georgia Avenue. Mississippi Avenue is a two-way street, while Georgia Avenue is a one-way northbound thor- oughfare. Mississippi Avenue divides into two levels of thoroughfare. The lower level, reached by a down ramp, enters the basement of the convention center and pro- ceeds across the width of the building and exits on Geor- gia Avenue, northbound. Mississippi Avenue also has an up ramp at its southern extremity which crosses under the Boardwalk and returns north on Georgia Avenue. F. The Gate Assignment The Authority was aware that Jaden Electric had an ongoing controversy with the Union. Accordingly, it was determined by the owner and its agents that gates for entry to the convention center would be assigned for the exclusive use of Jaden and other gates to remain for the use of all other contractors or be designated as neu- tral gates. Gates 4 and 11 were labeled and designated as gates for the exclusive use of Jaden. All other gates were designated and labeled neutral gates or gates for the use of other contractors and do not enter into this issue. Gate 5 was located on the lower level of Mississippi Avenue at the bottom of the grade of Mississippi Avenue which permitted access to the basement of the Conven- tion Hall from the east. Gate 11 is located on Georgia Avenue at the west side of the convention center and allows entry and exit to and from the basement level of the convention center. Gate 5 is a neutral gate and gate 11 has been designated as a gate for the exclusive use of Jaden. G. The Aborted Attempt to Deliver the Standby Electric Generator The standby electric generator is a large cumbersome piece of equipment measuring approximately 13 feet long, 5 to 6 feet in width, and 5 feet in height and weighing in excess of 20,000 pounds. Because of this factor, the delivery of the generator was accomplished by rigging and removing the generator from the truck and placing it at the site. The size of this generator re- quired that it be delivered through gate 5 or 11, which gates would accommodate the swing of a tractor-trailer and also since both gates give access to the basement level of the site where the generator was eventually to be situated. This need for special treatment in the deliv- ery of the generator required that those involved with the delivery and receipt of the generator would require prior notice so that necessary arrangements could be made for this piece of equipment. The manufacturer of ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC COUNTY AUTHORITY) the generator, Franklin Electric, engaged a trucking company to deliver the generator on a flatbed trailer. The rigging contractor on the job was notified of the need for its service to remove the generator from the truck and place it at a point about 60 feet from the loca- tion where it would eventually rest permanently and be "tied into" the electrical system. It was necessary to tem- porarily place the generator` because two large trans- formers which were later to be removed interfered with placing the generator in its permanent location. On 21 December the superintendent for Perini, Simp- kins, was informed by a rigging foreman that there was a "problem" with the generator at gate 11. Simpkins went to investigate and observed the truck parked opposite the center on the northeast corner of Pacific and Georgia Avenues. Simpkins observed picket signs leaning against the wall with the legend turned toward the wall. Several men were gathered at the corner and on inquiry of these men, Simpkins was directed to Bishop, the union business agent, who was then inside the center. Bishop told Simp- kins that, notwithstanding that the contract was between Franklin and the Authority, Jaden would ultimately "tie in" the generator and that gave Bishop and the Union "a problem." The delivery was not attempted that morning. In the afternoon of the same day at approximately 2 p.m., the truckdriver attempted delivery by driving south on Mississippi Avenue approaching gate 5. The vehicle was stopped about halfway between Pacific Avenue and the gate for the purpose of receiving delivery instruc- tions. Simpkins told the driver to proceed down the down ramp to gate 5 and to enter the lower floor of the center. The driver was instructed by Simpkins to abort the attempt to deliver if pickets appeared and not to drive through the picket line. As the driver resumed driving toward the ramp to gate 5, 8 to 12 men, includ- ing 2 union business agents, ran to the ramp entrance and picketed with signs which read, "Jaden Unfair IBW 211." The pickets formed a circle across the ramp en- trance effectively blocking the rampway and requiring the truck to stop. The driver waited a few minutes while the pickets continued their patrol and then backed the truck up allowing blocked traffic behind it to pass. The truck left the premises with the generator on the trailer and no effort to redeliver the generator has been made as of this date. The only time and location of picketing by the Union against Jaden occurred at this time and place. II. DISCUSSION AND CONCLUSIONS The provisions of Section 8(b)(4) reflect the dual con- gressional objective of preserving the right of labor orga- nizations to bring pressure to bear on offending employ- ers in primary labor disputes in shielding unoffending employers and others from pressures and controversies not their own. NLRB v. Denver Building Council, 341 U.S. 675, 692 (1951). Thus, a union is permitted to picket a primary employer with whom it has a labor dispute, but it runs afoul of Section 8(b)(4) if it pickets a neutral employer with a prescribed objective of enmeshing the neutral employer in the controversy. In resolving issues relating to union picketing at a common situs the prob- lem to be addressed is that unrestricted union activity would be inconsistent with the neutral employer's intend- 1043 ed immunity. Conversely depriving a union of the right to picket at a common site might render nugatory its right to bring pressure on a primary employer. In order to accommodate these conflicting interests and in an at- tempt to strike a reasonable balance in such situation, certain rules have evolved and were adopted by the Board and approved by the courts. In Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950), the Board set forth several criteria, which, if met, raise a presumption that common situs picketing is directed against the pri- mary employer and not the secondary employer. These criteria comprising the Moore Dry Dock rule are as fol- lows: When a secondary employer is harboring the situs of a dispute between a union and a primary employer, the right of neither the union to picket nor of the secondary employer to be free from pick- eting can be absolute. The enmeshing of premises and situs qualifies both rights. In the kind of situa- tion that exists in this case, we believe that picket- ing of the premises of a secondary employer is pri- mary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the pri- mary employer is engaged in its normal business at the situs; (c) the picketing is limited to places rea- sonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. [Electrical Workers IBEW Local 323 (J. F Hoff Electric), 241 NLRB 694, 697 (1979).] The Board has also held and the courts have approved that in order to isolate a labor dispute and to minimize disruption of the entire work force in common situs situ- ations, special gates may be reserved for the subcontrac- tor which is the object of picketing. So long as the em- ployees and suppliers of that subcontractor are limited to that gate, the union may not picket the other or neutral gates used by others not involved in the dispute. Electri- cal Workers IBEW Local 761 v. NLRB, 366 U.S. 667 (1961). Where such cases are properly established, a union may picket only at the gate of the employer with whom it has a dispute. Such gates were established here by the owner's agent. Since the successful bidder for the electrical work in the renovation of the convention center was Jaden who had an ongoing labor dispute with the Union, gates 4 and 11 were assigned for the exclusive use of Jaden (gate 4 does not enter into the facts relating to this controversy). All other gates, including gate 5, are neutral gates. The General Counsel contends that the picketing by the Union of the approach to gate 5 is a violation of Section 8(b)(4)(i) and (ii)(B) of the Act. The Union contends that the integrity of the gate was violat- ed by the attempt to deliver the standby electrical gener- ator to be eventually tied into. the electrical system by Jaden Electric through the neutral gate, thus, permitting the Union to lawfully picket at that gate. I find that the neutrality of gate 5 was compromised by the attempt to deliver the generator through that gate. I further find 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the picketing by the Union met the limitations set forth in Moore Dry Dock, supra, and that such picketing 'did,not have the objective of instituting coercive pres- sure against neutral parties in order to force them or it to refuse to deal with Jaden. The stage for events of 21 December 1984 was first re- vealed when Simpkins, the project superintendent for the owner, was informed that there was a "problem with the generator at gate 11." Simpkins' investigation of the problem disclosed that the truck with the generator was parked not at gate 11 but across Pacific Avenue from the center and on the northeast corner of Pacific and Geor- gia Avenues. Several men were gathered on the corner and picket signs were observed by Simpkins leaning against the wall next to the men at that corner. The men told Simpkins to speak to their business agent, Bishop, inside the center. Bishop told Simpkins that the Union had a problem with the delivery of the generator. Thus, the owner's agent became aware that delivery of the standby generator was, or would be, the subject of union action if delivery was attempted through Jaden's exclu- sive gate 11. After learning that the Union would, or had, picketed delivery of the generator through gate 11, an attempt to deliver the unit to the convention center through gate 5 was designed. The driver of the trailer truck drove down Mississippi Avenue stopping midway between Pacific and the Boardwalk for instructions from Simpkins as to delivery. The truck being in the vicinity of the Convention Hall site for several hours was un- doubtedly constantly observed by the union pickets. The attempt to deliver the generator through neutral gate 5 was deemed by the Union to have compromised the neu- trality of that gate. As long as the Moore Dry Dock limitations are met, a union may legitimately picket at a common situs in such a way that all employees, suppliers, and customers of the primary employer are reached by the pickets; neutral employers may insulate themselves from the picketing only if the reserved gate practice is faithfully observed. J. F. Hoff, supra. An analysis of the relationship of Jaden to the standby generator must be made to determine whether or not the provider of the generator is a "sup- plier" to whom union pickets may legitimately appeal. Legal title to the generator at this juncture is not deter- minative of this issue. Operating Engineers Local 450 (Lendbeck - Construction), 219 NLRB 997 (1975). The issue is resolved by inquiring whether the generator was essential to the primary employer's normal operations. If that is resolved in the affirmative, the delivery of such an item through a neutral gate is a violation of the neutrali- ty of that gate and makes the locale subject to lawful picketing by the Union. In this case, the generator was in a similar status as were the items in the J. F. Hoff, supra. In that case a number of electrical fixtures were deliv- ered to the site through a neutral gate. The electrical fix- tures were to be installed by the contractor who was the subject of the primary picketing. I discern no significant difference between the role of the fixtures in that case and the standby generator in this case . Here Jaden was required to perform a significant part of its contract by placing the electric generator and "tying it in" to the electrical system with which it was to function. Al- though only a relatively few number of hours were re- quired to be expended by Jaden in performing its con- tract relating to the generator, that generator is an indis- pensable integral part of the convention center's electri- cal system which Jaden had the obligation to install. Jaden was unable to complete his contract until he had "tied in" the emergency generator. The entire system was designed to power a locale where the general public would congregate and an emergency electrical system is deemed indispensable to the function of the convention site itself and without a proper functioning backup system for emergency use, the entire electrical system for a public gathering place is insufficient. Therefore, I deem that the integration of the standby generator into the electrical system was a substantial part of Jaden's con- tract. Having made that determination, it follows that since Jaden was obligated by his contract to place and integrate the standby generator into the electrical com- plex of the center, the generator was supplied in order that Jaden could pursue what was at that time and place its normal course of business. Having determined that the generator was an integral part of Jaden's contract undertaken in the normal con- duct of Jaden's business it follows that the attempt to de- liver such a unit through a neutral gate comprised a vio- lation of the neutrality of that gate. Once having deter- mined that the neutrality of that gate was compromised it follows that picketing by the Union at that gate or the approach of that gate was primary picketing and lawful. There had been no prior picketing by the Union before the attempt to deliver the standby generator. The picketing was conducted while Jaden and company was in the process of performing its normal business under the contract at the convention center. The pickets dis- played signs clearly establishing that their dispute was only with Jaden and the picketing function was limited to the subject matter of Jaden's contract and an attempt to further Jaden's business by delivery of an integral part of its contract through a neutral gateway.' In view of the foregoing, I am compelled to interpret the Union's picketing at the approach to gate 5 to be lawful picketing of a primary employer and not a sec- ondary boycott or a violation of the Act. CONCLUSIONS OF LAW 1. Jaden Electric, A Division of the Fairfield Compa- ny is an employer engaged in commerce or in an indus- try affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local Union No. 211 is a labor organization within the meaning of Section 2(5) of the Act. 3. International Brotherhood of Electrical Workers, Local Union No. 211 did not commit the unfair labor practices as alleged in the complaint. i On instructions of the superintendent of the renovation project, the driver of the truck did not attempt to make delivery by driving through the picket line and no personal confrontation took place between the pickets and third parties. ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC COUNTY AUTHORITY) 1045 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The complaint in the instant matter is dismissed in its entirety. 2 If no exceptions are filed as provided by Sec. 102 .46 of the Board's Rules and Regulations , the findings, conclusions , and recommended Board and all objections to them shall be deemed waived for all pur- Order shall , as provided in Sec 102 48 of the Rules, be adopted by the poses.