Electrical Workers Ibew Local 211 (U.S. Capital Telecommunications)

874 ELECTRICAL WORKERS IBEW LOCAL 211 (U.S. CAPITAL TELECOMMUNICATIONS) International Brotherhood of Electrical Workers, Local Union No. 211 (U.S. Capital Telecom- munications Corp.) and Local 13000, Communi- cations Workers of America, AFL-CIO. Case 4-CC-1618 7 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 31 December 1985 Administrative Law Judge Walter J. Alprin issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed an an- swering 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Brotherhood of Electrical Workers, Local Union No. 211, Pleasantville, New Jersey, its officers, agents, and representatives, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Joseph C. Kelly, Esq., for the General Counsel. Robert F. O'Brien, Esq. (Tomar, Parks, Seliger, Simonoff & Adourian), of Haddonfield, New Jersey, for the Re- spondent. William T. Josem, Esq. (Markowitz & Richman), of Phila- delphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. On a charge filed 22 April 1985, Local 13000, Communica- tions Workers of America, AFL-CIO (CWA), the com- plaint herein was issued 22 May, alleging that the Inter- national Brotherhood of Electrical Workers, Local Union No 211 (IBEW), the Respondent, threatened, co- erced, or restrained persons engaged in commerce, or in an industry affecting commerce, by forcing or requiring a person to cease doing business with another person, in violation of Section 8(b)(4)(ii)(B) of the National Labor Relations Act. Hearing was held before me at Ventnor, New Jersey, on 1 and 10 July, and all parties thereafter filed briefs. I. BACKGROUND AND JURISDICTION At all material times, U.S. Capital Telecommunications Corp. (U.S. Capital) was constructing a luxury condo- minium known as the Enclave, at Atlantic City, New Jersey. The Perini Corporation (Perini) was the general contractor. U.S. Capital also engaged United Technol- ogies Communications Company (Technolgies) to install communications in the building, and Technologies in turn engaged United Technicians (Technicians) to install telephone riser cables, terminator blocks, and telephones. At all material times Technicians was an employer en- gaged in commerce within the meaning of Section (2), (6), and (7) of the Act, and the IBEW was a labor orga- nization within the meaning of Section 2(5) of the Act. On 13 April Technicians employees Robert Bodine and Thomas Rice, members of CWA and not of IBEW, were sent to the Enclave site to install telephone riser cables. After some time they were observed by Ernest Kinsell, the IBEW shop steward at the site. The IBEW is a member of the Atlantic, Cape May, and parts of Bur- lington, Ocean and Cumberland Counties Building Trades Council (the Trades Council), while the CWA is not. The IBEW believes that it is therefore party to a "letter of understanding" between Perini and the Trades Council, by which Perini agrees to use only employees who are members, or contractors whose employees are members, of Unions participating in the Trades Council.2 Kinsell sought out Rocco Carbone, a Perini superinten- dant, who ordered Bodine and Rice off the premises be- cause, as Rice reported, "The CWA and the IBEW cannot be on the same job at the same time."3 In the fol- lowing days several phone calls were made between in- terested parties, including a request from Technologies for a list of qualified subcontractors employing IBEW members. When that information was not forthcoming, Technologies sent its CWA member employees back to the jobsite. II THE ALLEGED UNFAIR LABOR PRACTICE Bodine and Rice returned to the jobsite on 19 April. They first sought out Perini Superintendent Carbone and told him they understood that they could complete their work. Carbone replied that he would have to verify this by a phone call, and Bodine and Rice waited outside the construction office trailer. They were approached by IBEW Steward Kinsell, who asked to see Rice's union card. On being shown the CWA card, Kinsell said that 2 The existance or terms of such contractual relationship are of no im- portance, as a threat to strike to enforce such contractual commitments would still be prohibited Centln're Village Apartments, 148 NLRB 854 (1964) 2 A similar situation, involving installation of television reception mate- rial, had occurred in February 279 NLRB No. 119 ELECTRICAL WORKERS IBEW LOCAL 211 (U.S. CAPITAL TELECOMMUNICATIONS) he would have to make some phone calls, and left. Then Bodine decided to phone Technologies and left to do so. As Rice was waiting alone outside the Perini trailer, Kinsell returned. He told Rice that the IBEW did not recognize the CWA and that whoever told Bodine and Rice that they could be on the jobsite was lying. At this point, Perini Superintendents Carbone and Pel- letier, together with a third, unidentified individual, came out of the Perini trailer-office. Kinsell went to them and engaged them in a 2- to 3-minute conversation, portions of which were overheard by Rice. Rice testified4 that Kinsell told Carbone, Pelletier, and the third individual that "his union didn't recognize our Union and if they are in, we are out and they would walk off." One of the three men addressed Rice and asked what type of work he was doing, to which Rice responded, "Just phone work." The same individual then asked Kinsell who was doing the risers, and Kinsell responded that "his" people were. Pelletier commented that he did not want to be served with another subpoena, and the conversations ended as the three men, in Rice's words, "just eased away." Rice's recollection is that Kinsell also left at this point, but Bodine testified that on his return he found Kinsell conversing with Rice and saying "as per Jim Bishop, who was an assistant BA [business agent], at the IBEW Local 211, that we weren't to start working." Bodine went to Carbone to complain that he did not take orders from electricians and wanted to remain on the jobsite, working. Carbone replied that he "didn't need any more job disruptions" and refused to allow Bodine and Rice to remain on the site. III. ADDITIONAL FACTS The IBEW bylaws define the duties and obligations of stewards. They are "to report any encroachment upon the jurisdiction of the Local Union" and "report to the Business Manager any violation of our laws, agreements or rules."5 However, "Stewards shall in no case cause a stoppage of work,"e a requirement which IBEW busi- ness agent George Fenwick had occasion to tell Kinsell "more than once." Fenwick also testified regarding a dis- pute which, on cross-examination, was identified as being at another time and not relevant to this proceeding. IV. DISCUSSION The uncontroverted evidence proves that a statement was made on 19 April by Kinsell to the Perini superin- tendents that the IBEW would walk off the job if mem- bers of CWA were permitted to work. Section 8(b)(4)(ii)(B) of the Act makes it an unfair labor practice "for a labor organization or its agents .. . to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is . . . forcing or requiring any other * Neither Kinsell, who was available not far from the place of hearing, nor Carbone, Pelletier, or the unidentified individual was called to testify to contradict Rice or to report on the portions of the conversation not overheard Rice's testimony stands uncontradicted b Art IX, sec 2(b) and (c) 8 Art IX, sec 3 875 employer to cease doing business with any other person." There are two basic requirements for finding an unfair labor practice in such cases. That the union con- duct must have had as an object forcing or requiring a neutral business to cease doing business with another business, and that the union pursue its object by threaten- ing, coercing, or restraining the neutral business.7 The dispute here was between Respondent IBEW and Tech- nicians, the employer of the CWA members. Perini, as well as Technologies and U.S. Capital, was a neutral party The statement of Kinsell had as its object requir- ing Perini, the neutral employer, to cease doing business with technicians. The statement constituted a threat against, a coercion of, and a restraint on the neutral busi- ness. It is clear that the statement violated Section 8(b)(4)(ii)(B) if by a labor organization or its agents. Kinsell's statement is attributable to the Union. He was the Union's agent at the jobsite, and there is no evidence that Carbone, or any other Perini superintendent or em- ployee, had knowledge of any restriction on Kinsell's au- thority to cause a work stoppage. Kinsell made clear in his conversation with Bodine that he had made his state- ment "as per" an IBEW business agent.8 V ADDITIONAL MATTER At the conclusion of the hearing I raised the issue of whether a violation of Section 8(b)(4)(ii)(B) could be found prior to a Board determination of a proceeding under Section 10(k) of the Act, as was pending at the time of the hearing, and a violation of the Order issued in such proceeding. With the assistance of the briefs of counsel for the General Counsel and of counsel for the Charging Party, I rule that the violation here found is not dependent on a prior decision of the 10(k) proceed- ing as would be required in an allegation of violation of Section 8(b)(4)(ii)(D). See NLRB v. Operating Engineers Local, 825 400 U.S. 297 (1971); Plumbers Local 5 (Arthur Bener Co.), 137 NLRB 828, enfd. 231 F.2d 366 (D.C. Cir. 1963), cert. denied 375 U.S. 921 (1963). CONCLUSIONS OF LAW 1. United Technicians is, and was at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local Union No. 211 is, and was at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By threatening, coercing, and restraining Perini Corporation, when the object thereof was to force or re- quire a person engaged in commerce to refuse to permit the employees of another person to work, the Interna- tional Brotherhood of Electrical Workers, Local Union No. 211 violated Section 8(b)(4)(ii)(B) of the Act. 7 Teamsters Local 12 v. NLRB, 657 F 2d 1252 (D C Cir 1980) 9 The fact that Kinsell had to be told "more than once" that he did not have authority to call a work stoppage reinforces the finding that he did make such threat, although not contravening the "reasonable belief' by Perini superintendents that he could do so, which is the accepted basis for a finding of apparent authority Penn Yan Express, 274 NLRB 449 (1985) 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(b)(4)(ii)(B) of the Act, I shall recommend that it be or- dered to cease and desist therefrom and that it take cer- tain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- s ORDER The Respondent , International Brotherhood of Electri- cal Workers, Local Union No. 211, its officers, agents, and representatives, shall 1. Cease and desist from in any manner threatening, coercing, or restraining Perini Corporation, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Perini Corporation, or any other person, to cease doing business with United Technicians, or any other person. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business office, and any meeting halls which it may have, copies of the attached notice marked "Appendix."t o Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to mem- bers are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director with signed copies of the notice for posting by United Technologies and by Local 13000, Communications Workers of America, AFL-CIO, if willing, at all places where notices to em- ployees are customarily kept. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " 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 has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT in any manner threaten, coerce, or re- strain Perini Corporation, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Perini Cor- poration, or any other person, to cease doing business with United Technicians, or any other person. INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, LOCAL UNION No. 211 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses