IBEW, Local 640

National Labor Relations Board - Board Decisions

May 23, 1969

176 N.L.R.B. 150 (N.L.R.B. 1969)

150 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD
International Brotherhood of Electrical Workers,
J..ocal 640, AFI.SCIO and Timber Buildings, Inc.
Case 28-CC-268
May 23, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On November 6, 1968 , Trial Examiner Herman
Tocker issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner ' s Decision.
Thereafter , Respondent filed exceptions and a
supporting brief. The Charging Party filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
entire record in this case , including the Trial
Examiner ' s Decision , the exceptions, and the briefs,
and finds merit in the exceptions . Accordingly, the
Board adopts the findings , conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
We do not agree with the Trial Examiner's
finding that Respondent Local 640 , International
Brotherhood of Electrical Workers, AFL-CIO, by
picketing , in furtherance of its primary dispute with
Copper King Electric Co., at locations other than
the purported entrance established for Copper King
Electric and other unorganized employers on the
Hobo Joes restaurant building project, failed to
conform with the Moore Dry Dock standards.'
The facts , as more fully set forth in the Trial
Examiner ' s Decision , show that Respondent Local
640, at all times material , was engaged in a primary
dispute with Copper King Electric Co., the electrical
subcontractor on the Hobo Joes Restaurant
construction job, for which the Charging Party,
Timber Buildings, Inc., was the general contractor.'
' In Sailors' Union of the Poe fk. AFL (Moore Dry Dock Company), 92
NLRB 547, 549, the Board set forth the following criteria to serve as a
guide as to whether the picketing of a primary employer at a common
situs is violative of Section 8(bx4)(B ) of the Act: (1) At the time of the
picketing the primary employer is engaged in its normal business at the
situs; (2) the picketing discloses clearly that the dispute is with the primary
employer; (3) the picketing is limited to places reasonably close to the
location of the situs ; and (4) the picketing is strictly limited to times when
the situs of dispute is located on the secondary Employer 's premises.
rrimber Buildings , Inc. subcontracted all of the work covered by its
contract to subcontractors.
The Hobo Joes project, located in Glendale,
Arizona, was rectangular in shape, its northerly
portion abutted about 160 feet along Glendale
Avenue running west from 43rd Avenue, and the
easterly portion of the site ran about 150 feet along
43rd Avenue from the intersection of Glendale
Avenue. Vacant land abutted the construction site
on the south and west. Construction at the site
started in late December 1967; however, Copper
King did not commence its work until the end of
January 1968.' Respondent Union commenced
picketing on or about March 4, after having
established that Copper King was performing work
at the jobsite. On March 7, Timber Buildings, in
order to end the picketing, informed Local 640 by
telegram that all employees, supervisors and
equipment of Copper King were off the Hobo Joes
jobsite.... "and [were] not on the job yesterday, is
[sic] not on the job today and will not be on the job
for the next two weeks." Local 640 thereupon
withdrew its pickets.' However, Local 640, having
learned of work being performed at the jobsite by
Copper King, reinstated the picketing on March 11.
On March 20, Timber Buildings erected two gates
at the project, one gate on 43rd Avenue at some
distance from the Glendale Avenue Intersection and
another gate on Glendale Avenue about 150 feet
from the 43rd Avenue intersection. Timber
Buildings informed Local 640 by telegram, dated
March 20, that the gate on 43rd Avenue was
reserved for employees and suppliers of Copper
King at the project site.' Respondent Union, upon
receipt of Timber Buildings' telegram of March 20,
ordered the pickets to leave the Glendale gate and
picket only the 43rd Avenue gate. Timber Buildings
then erected two clearly marked signs at each gate;
however, the sign erected at the 43rd Avenue gate
indicated it was not reserved exclusively for the use
of Copper King employees and suppliers, as its
telegram to Local 640 would appear to state, but
listed the names of seven other subcontractors.6
Prior to the erection of the gate, Local 640 had
picketed with signs that clearly indicated that
Copper King Electric Co. was the primary
employer. Further, Local 640 by telegram dated
March 21 to Robert Joe Oakley, president of
Timber Buildings, informed Oakley that Local 640's
dispute was only with Copper King Electric, and
that Local 640 neither requested nor demanded that
Timber Buildings or any of its subcontractors stop
'All dates hereinafter are 1968 unless stated otherwise.
'The telegram misstated the actual facts , in that evidence in the record
discloses that Copper King performed work on the jobsite , on March 6, 7,
8, 9. 11, 12, and 15.
'The record discloses that on or about March 18 , prior to the erection of
the gates, Timber Buildings notified some of its subcontractors, which it
designated as nonunion contractors , that they were to use the 43rd Avenue
gate, and other subcontractors which it designated as its union -contractors
were to use the Glendale Avenue gate.
'It is also clear from the record that Timber Buildings entered into an
agreement with Copper King that the latter's employees would enter and
work at the jobsite only at such times as Timber Buildings ' project
superintendent notified Copper King when to put men on the job.
176 NLRB No. 17
IBEW, LOCAL 640 151
doing business with Copper King.
It appears from testimony in the record that
understandable confusion resulted after the placing
of the signs which designated that the gate on 43rd
Avenue was not only to be used by Copper King but
by seven other contractors' employees and suppliers.
A Local 640 picket at the 43rd Avenue gate
informed the business agent for Local 640 on the
morning of March 21 that all was confusion at the
jobsite and the contractors were not using the
proper gates. Thereupon, the pickets were told to
picket the whole job, including the neutral gate. The
record indicates that there were no employees of
Copper King on the jobsite on March 21 or 22. It is
also clear from the record that Local 640 did picket
at the alleged neutral gate on March 21 and 22.'
The Trial Examiner, in finding that Local 640's
picketing at the neutral gate was secondary and
violative of Section 8(b)(4)(i)(ii)(B), based his
conclusion on two established facts: (1) the picketing
was all carried on at times when Copper King
Electric Co. was not engaged in its normal business
at the situs, and (2) the picketing was not confined
to the gate allegedly reserved for employees and
suppliers of Copper King. He regarded the picketing
as a departure from the Moore Dry Dock
requirements and illegal under the Board's decision
in H.L. Robertson and Associates Inc." Contrary to
the Trial Examiner, we are of the opinion that in
the circumstances of this case the method and the
manner in which the primary entrance was
designated was not such as to warrant
circumscribing the area of permissible common situs
picketing.
The Board has long held that in applying the
Moore Dry Dock standards they are not to be
applied on an indiscriminate "per se" basis or with
"mechanical precision" but are to be applied with
"common sense ."' While the Board has held that
picketing at locations other than at a properly
marked gate may indicate noncompliance with
Moore Dry Dock standards,1° the mere posting of
signs does not limit the situs of the dispute." We
have also held that absence of primary employees is
only one factor to be evaluated in determining
whether at the time of the picketing the primary
employer is engaged in its normal business at the
situs." The purpose of the separate gate is to permit
lawful picketing" that will be conducted so "as to
'The complaint , as amended at the hearing, also alleged illegal picketing
by Respondent Union on March 25 . The Trial Examiner concluded, and
we agree, that there is no evidence in the record that would support a
finding that Local 640 picketed at the neutral gate on March 25
'171 NLRB No. 37. We are of the opinion that the Trial Examiner's
reliance on this decision is misplaced. In that case , the facts established
that the union was fully informed as to the scheduled hours of work of the
employees of the primary employer before the picketing , and the picketing
was carried on when none of the primary contractors ' employees was
scheduled to work ; this was not the case here, where the Respondent
Union had no knowledge when Copper King's employees were scheduled to
work and , indeed , was misled on the matter . See Meyers Plumbing, 146
NLRB 888, 892. 1
minimize its impact on neutral employees insofar as
this can be done without substantial impairment of
the effectiveness of the picketing in reaching the
primary employees.""
In the light of these principles, we are not
satisfied that Local 640's picketing of the neutral
gate (Glendale) on March 21 and 22 breached the
Moore Dry Dock standards. The project was not
enclosed by a fence or other barricade, had
substantial street frontage on two streets, and was
surrounded on the other two sides by open areas.
Further, on March 20, contrary to the telegram
advising Local 640 that a separate gate was to be
erected on 43rd Avenue for the use of Copper King
employees and suppliers, Timber Buildings erected a
make-shift gate on 43rd Avenue and placed a sign
which stated the gate was designated not only for
the use of Copper King but seven additional
subcontractors on the project.
Another gate was similarily erected on Glendale,
with a sign which designated that it was for the use
of 16 other subcontractors. The outside area of the
project between the two gates was marked by a
single strand of wire. The confusion experienced by
Local 640's pickets occasioned by these postings on
March 20 is readily understandable when other
subcontractors failed to observe the posted
entrances. In the circumstances, we are satisfied that
the designation of the gates and the posting of the
signs by Timber Buildings fell short of the clarity
necessary to provide reasonable assurance to Local
640 that by confining its picketing to the 43rd
Avenue gate, its message would be carried to all
within the legitimate, direct appeal of its picket
signs .15 And this is so whether or not the confusion
in Timber Buildings ' designation of the gates was
deliberate." Accordingly, we find that the 43rd
Avenue entrance did not restrict situs of the dispute
as to Copper King and as the picketing otherwise
conformed to Moore Dry Dock standards, it was
not conducted in a manner from which a proscribed
secondary object is inferable.
Timber Buildings furnished Local 640 untrue
information as to the presence of Copper King on
the project, and made an undercover agreement with
Copper King as to when Copper King's employees
'Local 761, IUE (General Electric) v. N.L.R.B.. 366 U.S. 667, 677;
Plauche Electric Co.. 135 NLRB 250, 255.
"Local Union 519 , United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry , etc (Center Plumbing and
Heating Corp.). 145 NLRB 215, 223.
"Suburban Development Co., 158 NLRB 549.
"Brownfield Electric Inc., 145 NLRB 1163; New Power Wire and
Electric Corp., et at, 144 NLRB 1089, 1093, enfd. in pertinent part 340
F 2d 71 (C.A. 2).
"In the instant case, there was no question as to the contents of the
picket sign . Nor did any question arise as to the legality of Respondent
Union's picketing prior to the designation of the separate gates by Timber
Buildings at the Hobo Joes project.
"Crystal Palace Market, 116 NLRB 856, 859.
"Suburban Development Co., supra, Crystal Palace Market, supra.
"See footnote 4, supra, indicating that Timber Buildings misled Local
640 on an immediately prior occasion.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be called to the project. This pattern of
deception warrants the conclusion that such conduct
was designed, not to limit Local 640's picketing to
Moore Dry Dock standards, but to mislead Local
640 as to when Copper King was engaged "in
normal business at the situs" so as to undercut those
standards. Thus, in the instant case, there is no
question that Local 640 was engaged in a labor
dispute with Copper King, and as heretofore found,
its picketing conformed, in the circumstances, with
the Board's requirements for such lawful action at a
common situs.
Accordingly, since in all the circumstances we are
persuaded that the picketing did not violate Section
8(b)(4)(i)(ii)(B) of the Act, we shall dismiss the
complaint herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examiner: This cause came on
to be heard before me in Phoenix, Arizona, on July 9 and
10, 1968, upon a charge filed March 21, by Timber
Buildings, Inc., sometimes referred to herein as the
Charging Party or Timber. The General Counsel, by a
complaint issued May 8, alleged that International
Brotherhood of Electrical Workers, Local 640, AFL-CIO,
sometimes referred to herein as the Union or Respondent,
had violated Section 8(b)(4Xi) and (ii)(B) and Section 2(6)
and (7) of the Labor Management Relations Act of 1947,
as amended, by wrongfully picketing a Timber
construction site, on or about March 21, 22, and 26. By
answer dated May 16, filed May 17, the Union admitted
various formal allegations related to jurisdiction, denied
numerous relatively minor allegations, admitted that on or
about March 21 and 22 it had picketed the construction
site but justified that picketing on the ground that it was
"lawful, primary picketing directed against Copper King
(a subcontractor admittedly paying wages lower than
union standard area wages) and that Timber Buildings,
Inc., and others engaged in contracting for work on said
jobsite, allied themselves in the dispute with Copper
King." It denied also all conclusory allegations to the
effect that it had engaged in any violation of law.
Counsel for the General Counsel, the Union, and the
Charging Party participated actively in the hearing. All
filed briefs subsequent to the hearing and these have been
given careful consideration. After notice and opportunity
to object to proposed corrections and to propose
additional corrections, to which no response has been
made, I have entered an order correcting the transcript in
numerous minor respects.
The Issue
Timber was a general contractor engaged in the
construction of a restaurant building and subcontracted all
the trades involved. Some of these trades were conducted
by union contractors and others by nonunion. In
accordance with conventional procedures, which will be set
forth in greater detail below, Timber set up one gate for
utilization by the union or organized subcontractors and
their suppliers and another by the nonunion or
unorganized subcontractors and their suppliers. Copper
King Electric Company was the nonunion subcontractor
or "primary" employer with which the Union had its
dispute.
The construction site was a rectangular piece of land
located on the southwest corner of Glendale Avenue and
43rd Avenue in Glendale, a suburb of Phoenix, Arizona.
Its northerly portion was about 160 feet along Glendale
Avenue running west from 43rd Avenue. The gate for the
union subcontractors was established near the westerly end
of this side. The easterly portion of the site ran about 150
feet on 43rd Avenue from the Glendale side and the gate
for nonunion subcontractors was placed near the southerly
end of that side. A single strand of wire about 30 inches
more or less high was stretched all along Glendale Avenue
and 43rd Avenue on the site to make a sort of but rather
ineffective barrier or fence separating the gates and
enclosing those two sides of the property. While the wire
was ineffective to prevent persons from entering or leaving
by scaling or creeping under it, trucks and other vehicles
had to use either gate because of the high curb along the
street. Vacant land abutted the construction site both on
the south and the west. There were no signs or gates or
wire on these two sides.
The sole issue is whether the Union wrongfully picketed
and carried the picket sign in front of or at the Glendale
Avenue gate on the dates mentioned in the complaint,
March 21, 22, and 26, or, to be more precise because of
an amendment during the course of the hearing, on March
21, 22, and 25.
The answer suggests a collateral issue whether the
general contractor, Timber, so allied itself with Copper
King as to justify picketing the entire site. However, I find
no credible evidence of probative value to support any
conclusion and finding that the picketing was directed to
such a contention. The nature of the admitted picketing is
to the contrary.
We are not concerned with the contents of the picket
sign nor is there any claim that any picket engaged in any
improper or unlawful conduct apart from the picketing of
the Glendale gate.
Preliminary
In December 1967, Timber entered into a general
contract for the construction of a Hobo Joe Restaurant at
the site described above. It had the entire contract with
the exception of the work in connection with and the
supplying of two electrical signs and the installation of
refrigeration equipment. It subcontracted all the trades to
subcontractors. All the electrical work (with the exception
of that involved in the installation of the electric signs)
was subcontracted to Copper King. Although construction
started late in December 1967, and Copper King
commenced its work at the end of January 1968, the
violations alleged herein and the issue with which we are
concerned involve only the admitted picketing on March
21 and 22, 1968, and the alleged, but denied, picketing on
the 25th.
Timber was anxious to do whatever was legally possible
to stop or minimize any picketing at the construction site.
There was nothing illegal about such a motive nor about
the devices (short of deceptions) to which it might resort
to lessen or' circumscribe the extent of such picketing.
Plumbers Local Union No. 519 (H. L. Robertson &
Associates, Inc., 171 NLRB No. 37). It sought and
obtained competent legal advice as to how this could be
done and what were its rights. Similarly; the Union' was
well advised, informed, and conscious of its rights with
IBEW, LOCAL 640
respect to picketing and of all limitations to which it was
subject by reason of the legal principles or standards to
which reference will be made below.
On March 7, Timber sent the Union a telegram (filed
11:23 a.m., m.s.t. and received in the Western Union
office at Phoenix at 10:34 a.m., p.s.t.) in which it stated:
CONFIRMING TELEPHONE CONVERSATION OF THIS
MORNING BETWEEN TIMBER BUILDINGS SUPERINTENDENT
RICHARD MORGENSON AND GLYNN ROSS, ALL
EMPLOYEES, SUPERVISORS , AND EQUIPMENT OF COPPER
KING ELECTRIC ARE OFF HOBO JOSS JOB SITE AT 43RD
AVENUE AND GLENDALE. COPPER KING WAS NOT ON JOB
YESTERDAY, IS NOT ON THE JOB TODAY, AND WILL NOT
BE ON JOB AT ANY TIME WITHIN NEXT TWO WEEKS.
INSIST PICKETING BY YOUR UNION CEASE BY 300 PM THIS
DATE, THURSDAY, MARCH 7, OTHERWISE WE WILL
PROCEED WITH ALL POSSIBLE LEGAL REMEDIES.
The statements made in this telegram were not true
because Copper King employees actually were on the job
on the day the wire was sent and its records showed that
four employees worked there March 6, two on the 7th,
one on the 8th, three on the 9th, three on the I1th, two on
the 12th, and two on the 15th. This deception is a factor
upon which the Union may have relied for its contention
that its picketing on the crucial dates involved herein was
done in good faith and justifiably, I use the word
"deception" because, on the basis of testimony given by
Timber witnesses, Timber should have been and must
have been aware that Copper King did engage and would
have engaged in electrical work on the dates mentioned
contrary to the representations made in the telegram. (As
I have stated above, the evidence does not support a
conclusion that Timber allied itself with Copper King in a
manner to justify the picketing which is the alleged
unlawful conduct herein. If the Union had relied on this
deception it would not have limited its picketing both as
to times and places in the manner in which it did. It
would have proceeded to picket the entire site at all
times.)
Still concerned with its effort to minimize or avert the
effects of picketing at the jobsite, Timber obtained
additional legal advice and, by telegram, filed 12:55 p.m.,
m.s.t. March 20 and received in the Phoenix office of
Western Union at 12:06 p.m., p.s.t., it advised the Union:
THIS DATE A GATE ON 43RD AVE HAS BEEN RESERVED
FOR EMPLOYEES AND SUPPLIERS OF COPPER KING
ELECTRIC AT HOBO JOES CONSTRUCTION SIGHT [SIC], 43
AVE AND GLENDALE. INSIST YOU LIMIT ANY FURTHER
PICKETING OF COPPER KING ELECTRIC TO THEIR GATE
ON 43 AVE.
It is not too clear (but neither is it too important)
whether the gates were erected and assigned on March 20
or on March 18 because, in a communication dated
March 18 addressed to all subcontractors, Timber opened
by saying, "Starting today, we have erected two separate
entrances to the job." (Emphasis supplied.) In this
communication union subcontractors , employees, and
their suppliers were assigned the Glendale Avenue gate;
nonunion subcontractors , employees , and their suppliers
were assigned the 43rd Avenue gate ; and instructions were
given that entry upon and exit from the job were to be
"through the entrance reserved for them."
By telegram dated March 21, presumably in reply to
Timber's of March 20, the Union notified Timber:
TO REVIEW OUR POSITION AS TO THE PICKETING OF
COPPER KING ELECTRIC AT YOUR HOBO JOE
153
CONSTRUCTION SITE 43RD AVE AND GLENDALE LOCAL
UNION 640 IBEW NEITHER REQUESTS NOR DEMANDS THAT
YOU OR ANY OF YOUR SUBCONTRACTORS STOP DOING
BUSINESS WITH COPPER KING ELECTRIC. LOCAL UNION
640 DISPUTE IS ONLY WITH COPPER KING ELECTRIC.
The Basic Law
This case is concerned with the picketing of a
designated neutral gate after the establishment of separate
gates for neutral persons and persons who may be
embroiled in a labor controversy. The leading cases are
Sailors' Union of the Pacific, AFL (Moore Dry Dock
Company), 92 NLRB 547, and Local 761, International
Union of Electrical Workers, AFL-CIO [General Electric
Company] v. N.L.R.B., 366 U.S. 667, which sought to
trace the evolution and later development of the Moore
Dry Dock standards. This case involving, as it does, a
controversy in the construction industry, the Local 761
(General Electric) special guidelines are not applicable.
We are governed here by the Moore Dry Dock standards.
Nashville Building and Construction Trades Council
(Markwell & Hartz, Inc.), 164 NLRB No. 50; Building
and Construction Trades Council of New Orleans,
AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319.
The Moore Dry Dock standards are (92 NLRB 547 at
549):
. [P]icketing of the premises of a secondary employer
is primary 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 primary employer is
engaged in its normal business at the situs, (c) the
picketing is limited to places reasonably close to the
location of the situs; and (d) the picketing discloses
clearly that the dispute is with the primary employer.
Since there is no claim by the General Counsel that the
Union wrongfully picketed either 43rd Avenue or
Glendale Avenue, along which were stretched the wire
barriers , it is immaterial that some persons might have
scaled or crept under those wires. In any event, the Board
recently, in Nashville Building & Construction Trades
Council , International Brotherhood of Electrical Workers
Union, Local 429, etc., 172 NLRB No. 105, (p. 5) said:
Moreover, even assuming, arguendo, that
Respondents were correct in believing that employees of
the primary employers were entering the jobsite at
unauthorized points along the highway between October
24 and 31, this would still not justify the picketing at
the neutral South gate.
Additionally, the presence or absence of employees of
the primary employer is of no consequence in building and
construction cases. Plumbers Local Union No. 519 (H. L.
Robertson & Associates, Inc.), 171 NLRB No. 37. This
rule is not affected by the statement of the Court of
Appeals for the District of Columbia in Seafarers
International Union v. N.R.L.B., 265 F.2d 585
(C.A.D.C.), "We think the presence or absence of
employees of the primary employer on the premises is not
a critical factor in the legality of a picket line." That case
is distinguishable from this and other building and
construction cases because there the "premises" or "situs"
was a ship belonging to Salt Dome, the primary employer,
which had been moved into a shipyard for overhaul and
repairs. The Court of Appeals recognized it as an unusual
situation and, prior to making the statement about
presence or absence of employees, above quoted, said,
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"We do not intend here to make a ruling broader than the
case before us. This boat, a piece of equipment owned by
the primary employer, was actually the situs of the
primary dispute."
Now, upon the entire record, and my observation of the
witnesses, and after careful consideration of the briefs
submitted, the following are my
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS AND JURISDICTION
At all times involved herein , Timber Buildings , Inc., the
Charging Party, was and is an Arizona corporation with
its principal place of business in Tempe , Arizona. It is a
general contractor in the building and construction
industry . At all times material herein , it was engaged in
the construction of a restaurant building , to be known as
Hobo Joe Restaurant, at the intersection of 43rd Avenue
and Glendale Avenue , in Glendale , Arizona. It
subcontracted to various subcontractors all the work
required under its contract . Among such subcontractors
was Copper King Electric , Inc., which did all the electrical
work involved except that concerned with the installation
of two electric signs . Both Timber Buildings , Inc., and
Copper King Electric , Inc., are engaged in commerce
within the meaning of Section 2(6) and (7) of the Labor
Management Act of 1947, as amended . The Board has
jurisdiction over them in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
640, AFL-CIO, the Respondent Union, is, and at all
times involved herein was , a labor organization as defined
in Section 2(5) of the Act. The Board has jurisdiction over
it and of this proceeding.
III. THE UNFAIR LABOR PRACTICES
The Union, by its authorized pickets, Clay Ross and
Michael Burnham , on numerous dates after the erection
and designation of separate gates for union and nonunion
subcontractors, picketed the neutral gate - that on the
westerly end of Glendale Avenue. Those gates had been
assigned so that the situs of the Union ' s dispute with
Copper King would be the entrance to be used by Copper
King , its employees and its suppliers for ingress and egress
and so that Timber and other employers who were not
involved in that controversy would not be affected
thereby.
It is admitted that the Glendale or north gate (the
neutral gate ) had been picketed on March 21 and 22.
Picketing of that gate on March 25 was denied. This fact
was sought to be proven by the testimony of Timber
Buildings ' job superintendent based upon or supported by
an entry in a logbook maintained by him. The entry for
March 25 is "Started picketing until 9:00 AM." This
entry is at the bottom of the portion of the page on which
provision is made for entries on March 25. Near the top
of the page is an entry, "Kelly tile wouldn't cross picket
line. Tapers 2 took off." The superintendent testified that
only the drywall tapers were on the job that day and that
the Kelly Tile people , installers of ceramic tile, refused to
cross the picket line. This would appear to be fairly
substantial evidence that there was picketing of the
Glendale gate on March 25 opposed to the Respondent's
denial.
While, as will appear below, I regard most of their
testimony as not worthy of credibility, both pickets, Clay
Ross and Michael Burnham , denied picketing on that day.
They supported their denials by reference to the fact that
that day was taken up with meetings at the office of the
Union's lawyer and at the National Labor Relations
Board. Documentary evidence (offered and relied upon by
counsel supporting the complaint ) supports the assertion
that there were such meetings. This is an affidavit, sworn
to March 25, which, according to the uncontradicted
testimony, had been brought by Clay Ross from the union
attorney's office to the Board's offices on March 25. On
the other hand, Timber's superintendent testified, in
connection with the qualification as evidence of the entries
in the logbook, "As close as my memory goes, it is
supposed to be entered in there the date that it occurs.
Sometimes it goes two days before I enter ." He answered
that he could not testify as to which "entries would have
been delayed as much as two days in being entered." This
creates the possibility that if the entry for March 25 was a
true statement as to events which occurred at the jobsite,
it might have been a delayed entry which recorded events
which did not happen on that day but on an earlier or
later day. As a matter of fact, this may account for the
fact that the complaint initially alleged March 26. The
Respondent, however, cannot be held accountable for that
day because the allegation has been amended from the
26th to the 25th and counsel for the General Counsel
concedes "[t]he allegation that unlawful picketing
occurred on March 26, cannot be supported by the record.
Faced with these conflicts in the record, bearing in
mind that the counsel for the General Counsel must carry
the burden of proof, and weighing the probabilities as to
what might have or might not have happened on the 25th,
a day on which the pickets were involved in attendance
both at the office of the Union's attorney and that of the
Board, I am gravely in doubt that there was any picketing
on that day. For that reason, I am unable to make a
finding that there was such picketing.
There being no issue that there was picketing at the
Glendale gate on the 21st and 22nd, it was the duty or
responsibility of the Respondent, the Union, to go forward
with evidence to support a conclusion, within the
standards of the Moore Dry Dock case (92 NLRB 547,
549), that such picketing was justified. This, it is my
conclusion, the Union has failed to do.
In the first place, apart from my observation of the
union witnesses , Clay Ross, John Mounts, and Michael
Burnham, there are numerous additional factors on the
basis of which I am unable to credit their testimony in
support of their claim that the picketing of the Glendale
gate was justified on March 21 and 22.
Almost at the very beginning of Ross' testimony, I
received the definite impression that he sought to have me
believe that he was an unpaid picket on behalf of the
Union but it was developed finally that he received a
compensation of $400 a month , plus expenses . His entire
testimony is generously sprinkled with vagueness , guesses,
presumptions, inferences and assumptions that, on March
21 and 22, Copper King employees were working on the
jobsite. Even this testimony is vacillating throughout and
based on a "memory (that) isn't that good." He testified
that he kept records of his picketing and observations but
not one of these was offered in evidence. He admitted that
he saw no electrical work on the site on the -21st and
22nd. These are just a few, but not all, of the reasons why
I do not credit his testimony. If I were to characterize it
IBEW, LOCAL 640 155
most charitably and favorably, I might say it was a
telescoping or merging of what he thought he saw after
the 20th into and with what he thought he remembered of
what happened prior to that day.
Michael Burnham , the other picket, testified to having
kept records of truck license numbers and other evidence
but none of these (except that concerned with a noncrucial
day, March 30) was produced. Contrary to the testimony
of both Ross and Assistant Union Business Manager
Mounts to the effect that Copper King used unmarked
trucks or trucks from which its name had been
obliterated, he testified that he saw a truck on the
property with Copper King's name on it. He had no
independent or personal knowledge on the basis of which
he could say that Copper King employees or vehicles
entered or left by the Glendale gate on March 21 and 22.
His testimony that Copper King employees were doing
electrical work on the job is based only on an assertion
that Ross had told him that they were. He testified that
he had been instructed by Mounts to picket only the 43rd
Avenue gate on March 20 (which day on the basis of the
evidence I fix as. the day when the telegram was sent) at
"mid-morning , around ten or ten -thirty, I believe." He
testified as to the instruction, "A fellow by the name of
Johnny Mounts [the Union 's assistant business manager]
came out and told us we were only to picket the east gate,
and I learned later it was because of a telegram, or some
type of correspondence that was delivered." (Mounts
testified he had been on the site and was informed by
telephone of the telegram.) Regardless of whether the time
utilized was Mountain Standard Time, which probably
was the time utilized, or Pacific Standard Time, Mounts
could not have known of the telegram as early as 10:30
Wednesday morning because it was first received at the
Western Union office in Phoenix at 12:06 p.m., p.s.t.
Except for his reliance on remarks made to him by Ross,
he was in no position to testify with any degree of
certainty that electrical work actually was being done on
the jobsite on March 21 and 22. He never had worked as
an electrician. His observations were made of happenings
in a building in which it was "plenty dark" from a place
quite a distance away from where he was standing. To
quote from his testimony as to March 25, which is typical
and would apply to the other days as well, "I couldn't see
any electrical work being done . There was in the area
during this particular week, there was what I felt - I
mean, I've never been an electrician or anything before -
but by the way the construction was going on the building,
I would say that electrical work was being done because
of the advancement of the building."
John Mounts was the Union's assistant business
manager since September 19, 1967. Prior to that time he
had been employed for many years as a journeyman
electrician and apprentice. The strongest bit of testimony
from him was that concerning a truck with a homemade
camper, of which a snapshot is in evidence. He testified
that soon after having been informed of the telegram
advising of the erection of the separate gates , he saw this
camper leave the property from the Glendale gate. He
believed this truck was a Copper King truck or was
utilized by Copper King for the transportation of
materials to the site in connection with the electrical work
being done. This belief was based upon the fact that he
had seen electrical materials in it following an alleged
conversation with some electricians who had admitted to
him that they worked for Copper King . He testified that
they told him they did not come to the job in trucks
because that was the way Copper King operated and,
from this, he inferred that it was to avoid picketing. This
alleged conversation was held some time prior to the
erection of the gates. If it actually transpired and he had
concluded that Copper King engaged in the implied
deceptive practice for the purpose of misleading the Union
and preventing the picketing, it is strange to me that
neither he nor the Union took any remedial measures and
that they did not write even a letter complaining either to
Copper King or Timber. This is a step which surely would
have been taken if such a conversation had been had
considering, first, the fact that it is apparent that the
Union was receiving constant and good legal advice; next,
that it had written a rather long letter in January 1968 to
Copper King Electric containing numerous self-servicing
declarations as to its position with respect to picketing;
and, finally, it had sent a somewhat similar telegram to
Timber following receipt of the telegram from Timber
advising it of the erection of the separate gates. In
addition to my doubts of the probative value and
credibility of the alleged conversation with the two
electricians, on the basis of which Mounts says she
concluded that the camper truck was a Copper Kmg
vehicle, the uncontradicted, plausible testimony is that the
camper was a truck owned and utilized by Tally & Page,
the refrigeration contractor. To repeat what already has
been said above, Mounts' testified that trucks he saw on
the job and related to Copper King did not bear any
Copper King identification whereas Burnham testified that
he saw the name Copper King on one. Assuming both
Mounts and Ross actually saw unmarked trucks which
they believed belonged to Copper King and from which
the name had been blocked out, the truth of ownership
easily could have been established by the license plates.
No explanation was offered for the failure to offer such
proof. Additionally, although he testified that he had seen
electrical work being done on the site March 21, he
admitted he had no knowledge whether the people he
thought were electricians had entered or left the job by the
43rd Avenue gate or the other.
Moreover, much of the testimony given by all three,
Ross, Mounts, and Burnham, is mutually contradictory or
inconsistent.
Finally, there is no clear-cut, substantial evidence of
probative value to the effect that the electricians, if indeed
electricians were working on the construction site on
March 21 and 22, did not enter and leave by the "primary
gate" at the southerly end of the 43rd Avenue side of the
site.
On the other hand, th ere is documentary evidence to
the contrary which cannot be disregarded. Its correctness
has been attested under oath by Mrs. Alice Martin, a part
owner of Copper King and the mother of Dell Martin,
another owner. She does the bookkeeping, maintains the
payroll, and prepares the checks. To me she appeared to
be a credible witness . The records show that no employee
of Copper King did any work on the job on either March
21 or 22. Some slight question is raised as to whether
Donald Martin, one of Copper King's electricians, worked
there on March 21, a Thursday, because there were four
entries of hours worked on that day, which entries were
not related to any paid job. This creates a suspicion but a
finding of fact may not be made on the basis of a
suspicion , particularly when Mrs. Martin testified that the
hours indicated involved work done in Copper King's
office or store. Inasmuch as no Copper King employee
worked at the site on the 21st or 22nd, under the rule of
Plumbers Local Union No. 519 (H. L. Robertson &
Associates, Inc.), 171 NLRB No. 37, any picketing of the
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
site, to say nothing of the Glendale (neutral) gate, would
have been illegal on that day.
Considering and comparing, therefore, the evidence and
testimony offered by the Union in support of its defense
that the picketing of the Glendale or neutral gate was
justified either alone or along with that given in rebuttal, I
am unable to find or conclude that any Copper King
employee entered or left the premises by the Glendale gate
on March 21 or 22 regardless of whether electrical work
was being performed on the premises on those days.
Moreover, I do find and conclude that Copper King did
not engage in or perform any electrical work on the
premises on those days. And finally, were I to disregard
the evidence in rebuttal presented by counsel supporting
the complaint, I would conclude nevertheless that the
nature of the testimony and its contents offered in support
of the defense does not have that degree of substantial
probative value as to justify a conclusion that the
picketing of the Glendale (neutral) gate on March 21 and
22 was justified.
-'On the basis of the foregoing findings of fact, and upon
the entire record in this case , I make the following
CONCLUSIONS OF LAW
1. Timber Buildings , Inc., and Copper King Electric,
Inc., are employers engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Respondent , International Brotherhood of Electrical
Workers, Local 640, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The picketing by Respondent , International
Brotherhood of Electrical Workers , Local 640, AFL-CIO,
of the north or Glendale Avenue gate to the Hobo Joe
construction site at the southwest corner of Glendale
Avenue and 43rd Avenue , in Glendale, Arizona , on March
21 and 22, 1968, was aimed at inducing strike action or
absentation from work by employees of subcontractors
and others with whom Respondent had no dispute and, as
a consequence , was a violation by the Respondent of
Section 8 (b)(4)(i) and ( ii)(B) of the Act.
4. The aforesaid violations are unfair labor practices
within the meaning of Section 2 (6) and (7) of the Act.
5. The activities and operations of the Respondent as
set forth above , have a close , intimate , and substantial
relation to trade, traffic , and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent, International
Brotherhood of Electrical Workers , Local 640 , AFL-CIO,
has violated Section 8 (b)(4)(i) and (ii)(B) of the Act, I
shall recommend that an order be entered that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The following is my recommended
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Relations
Board hereby orders that the Respondent, International
Brotherhood of Electrical Workers, Local 640 , AFL-CIO,
its officers , agents , and representatives , shall:
1. Cease and desist from engaging in, or inducing or
encouraging any individual employed by Timber
Buildings, Inc., or any other person engaged in commerce
or in an industry affecting commerce , 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 , and Respondent , International
Brotherhood of Electrical Workers , Local 640, AFL-CIO,
shall cease and desist from threatening , coercing, or
restraining the above-named employer or any other person
engaged in commerce or an industry affecting commerce
where, in either case , an object thereof is to force or
require Timber Buildings , Inc., to cease doing business
with Copper King Electric, Inc.
2. Take the following affirmative action which the
Board finds will effectuate the purposes of the Act:
(a) Post at its business office and meeting hall in
Phoenix , Arizona , copies of the attached notice marked
"Appendix ."' Copies of said notice , on forms provided by
the Regional Director for Region 28 , after being duly
signed by Respondent 's representative , shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter , in conspicuous
places , including all places where notices to members are
customarily posted . Reasonable steps shall be taken by
Respondent to assure that said notices are not altered,
defaced , or covered by any other material.
(b) Sign and mail a copy of said notice to the Regional
Director for Region 28 for posting by Timber Buildings,
Inc., if willing, at all locations where notices to its
employees and subcontractors customarily are posted.
(c) Notify the Regional Director for Region 28, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director for
Region 28 , in writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Decision of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our members
that:
WE WILL NOT engage in or induce or encourage any
individual employed by Timber Buildings, Inc., or any
other person engaged in commerce or in an industry
affecting commerce to engage in a strike or 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 and we will not threaten, coerce, or
restrain the above-named employer or any other person
engaged in commerce or an industry affecting
commerce where, in either case an object thereof is to
force or require the above-named employer or any
IBEW, LOCAL 640
other person to cease doing business with Copper King
Electric, Inc., or any other person.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed by Section 7 of the National Labor
Relations Act.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL 640, AFL-CIO
(Labor Organization)
Dated By
157
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Resident Office for Region 28,
Room 207, Camelback Building, 110 West Camelback
Road, Phoenix, Arizona 85013, Telephone 602-261-3717.