Int'l Brotherhood of Electrical Workers, Local 861

National Labor Relations Board - Board Decisions

Jun 13, 1963

142 N.L.R.B. 1106 (N.L.R.B. 1963)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Local 861 and
Plauche Electric, Inc. Case No. 15-CC-168. June 13, 1963
DECISION AND ORDER
On March 26, 1963, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that
the 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 Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Trial Examiner 's Recommended
Order.
' Member Rodgers agrees that the picketing herein was violative of the Act because it
failed to conform to the Moore Dry Dock ( 92 NLRB 547) standards . Contrary to the
Trial Examiner , and as a further reason for finding the picketing, including that of
October 23, unlawful , Member Rodgers would rely upon the fact that the primary em-
ployer had a regular place of business where the Respondent could have picketed. See
the dissenting opinion in Plauche Electric, Inc., 135 NLRB 250.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on October 29, 1962, a complaint was issued on Decem-
ber 7, 1962, alleging that Respondent , International Brotherhood of Electrical
Workers, Local 861, in furtherance of a labor dispute with Plauche Electric, Inc.,
herein called Plauche, engaged in conduct proscribed by Section 8(b)(4)(i) and
(ii) (B) of the National Labor Relations Act. Respondent filed an answer, deny-
ing that it had engaged in the unfair labor practices alleged.
A hearing was held in Lake Charles , Louisiana, on January 21, 1963, before
Trial Examiner Fannie M . Boyls. At the conclusion of the hearing , the parties
waived oral argument , but the General Counsel and Respondent each thereafter
filed a brief, which I have carefully considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
142 NLRB No. 119.
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 1107
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
Plauche Electric, Inc., with whom Respondent had a labor dispute, is a Louisiana
corporation having its principal office in Lake Charles, Louisiana It is engaged in
the building and construction industry as an electrical contractor. In the course
and conduct of its business, Plauche receives goods and materials from outside
the State of Louisiana valued in excess of $50,000; and during the past 12 months,
it performed services valued in excess of $19,000 at United States military installa-
tions, which services had a substantial impact on the national defense.
W. R. Aldrich & Company, herein called Aldrich, is engaged in and around Lake
Charles as a general contractor in the building and construction industry. It is
presently engaged near Lake Charles in the construction of the Kayouchee Coulee
Flood Gate project, under a contract awarded Aldrich by the Department of
Public Works, State of Louisiana. In the performance of that contract, Aldrich
has purchased and received goods and materials originating from outside the State
of Louisiana, valued in excess of $50,000. In connection with that Flood Gate
project, Aldrich awarded a contract, on June 23, 1962, to Plauche for the installa-
tion of electrical equipment. The value of that contract was $17,000.
The parties have conceded, and I find, that Plauche and Aldrich are, and have
been at all times material herein, employers engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. RESPONDENT AS A LABOR ORGANIZATION
Respondent, International Brotherhood of Electrical Workers, Local 861, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The General Counsel contends that Respondent, on and after October 24, 1962,
by picketing at a common situs construction project during extended periods when
employees of Plauche, with whom Respondent had a labor dispute, were not
present, induced and encouraged employees of Aldrich, the general contractor, and
employees of subcontractors at the site, to engage in a strike or refusal in the
course of their employment to perform services, an object being to force or re-
quire Aldrich and other persons to cease doing business with Plauche. It is alleged
that Respondent thus violated Section 8(b) (4) (i) and (ii) (B) of the Act.
In defense of its conduct, Respondent denies that an object of its picketing was
to force or require Aldrich or other persons to cease doing business with Plauche.
The fact that it picketed the common situs when Plauche employees were not
present there, it contends, is not indicative of an illegal object because Plauche had
not completed its contract with Aldrich and Plauche employees worked intermittently
between October 23 and December 5, 1962, the period of the picketing.
B. The subsidiary facts
At all relevant times, Aldrich, as the general contractor, was engaged in the
construction of the Kayouchee Coulee Flood Gate project, located just outside the
city limits of Lake Charles, Louisiana. It performed this work with the aid of
Plauche and several other subcontractors and their employees. Aldrich signed a
contract with Plauche for the electrical installation work on June 23, 1962.1 Re-
spondent had a labor dispute with Plauche but not with any of the other subcon-
tractors or with Aldrich.
In July or early August, Respondent's business manager, Richard Arbrough,
called Aldrich's business office in the city of Lake Charles and asked V. R.
Raxsdale, Aldrich's engineer in charge of industrial relations, whether he would
consider awarding the electrical work to be performed on the Flood Gate project
to a firm having a union contract with Respondent. Upon being told that Aldrich
had already awarded the contract for electrical work to Plauche, Arbrough told
Raxsdale that Plauche was a nonunion organization and asked if Raxsdale thought
1 Unless otherwise specifically Indicated, all dates mentioned herein refer to the year
1962
712-548-64-vol. 142-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was wise to award the work to a nonunion firm. Raxsdale replied that such a
matter should be the concern only of Respondent and Plauche.2
On October 23, at a time when employees of Plauche and other employees were
working on the Flood Gate project, Respondent started picketing near the entrance
to the jobsite with signs displaying the following legend:
NO DISPUTE WITH ANY OTHER EMPLOYER, I.B.E.W. LOCAL 861,
PROTESTS SUBSTANDARD WAGES AND CONDITIONS, PLAUCHE
ELECTRIC, INC., NO DISPUTE WITH ANY OTHER EMPLOYER.
The picketing continued on each normal workday thereafter (from Monday through
Friday) until December 5, when it was discontinued temporarily pursuant to a
stipulation in a Section 10(1) district court injunction proceeding . During this
period two pickets at a time were usually on duty. They could be seen by em-
ployees working on the jobsite.
Upon observing the pickets on the first day of the picketing , the carpenters and
millwrights started making preparations to leave their work but were persuaded
to remain upon being assured by Job Superintendent Tisdale that he would ask
Plauche to take his men off the job. After conversations with Tisdale and
Raxsdale, Plauche did pull his men off the job. He made arrangements with
Tisdale, however, to return on the following Saturday and on several other Satur-
days, as well as on one weekday after the pickets had left, in order to perform
necessary work under the contract. He also returned on one Monday , in late
November, during normal working hours after learning that the millwrights had
walked off the job because of the pickets and had refused to return despite Plauche's
absence from the jobsite.
Between October 23 and November 5, the carpenters , millwrights, and most other
workmen on the project normally arrived for work at 7 a.m. before the pickets
arrived and left work after the pickets had gone for the day. There appeared to
have been a tacit understanding among some of the workmen that although they
would not cross a picket line, they would not refuse to work behind one. They
accordingly continued to work as usual until November 5 when, upon reporting to
the jobsite, they found the pickets already on duty. The carpenters and millwrights
and their foreman refused to cross the picket line and did not thereafter work for
Aldrich while the jobsite was being picketed.
The picketing continued on and after October 24 despite knowledge by Respondent
that Plauche employees were not working on the jobsite while the picketing was in
progress . Plauche himself informed the pickets on October 24 that his men were not
working that day. Job Superintendent Tisdale thereafter told the pickets that
Plauche men had not been working for several days; and the carpenter foreman,
Shelby Carlisle, upon another occasion told one of the pickets , unidentified, that
Plauche men were not longer on the job.3 Indeed , Union Business Manager Arb-
rough, at the hearing, conceded that he knew the jobsite was being picketed when
Plauche men were not present.
Plauche had a regular place of business , consisting of two offices , a warehouse,
and a parking lot, in Lake Charles, at which its employees regularly report before
going to work on a project but Respondent at no time picketed this place of business.
Plauche had not yet completed the electrical work which it had contracted to do
on the Flood Gate project at the date of the hearing . This, however , was not because
of the picketing , but because of the nature of the work to be performed by Plauche
z The above findings are based in part upon Arbrough 's and in part upon Raxdale's
testimony . According to Arbrough, he called Aldrich's office in Lake Charles-not the
jobsite-and asked to speak to " the superintendent" but did not remember the name of
the person with whom he talked . Ragsdale testified that he received a call from some
person identifying himself as the business agent or business representative of the Union
at Aldrich's office in Lake Charles but did not remember the name of the person. He
further testified that he is the person to whom such a call would normally be referred.
Ray Tisdale, job superintendent on the blood Gate project , testified that no union repre-
sentative had ever called him but he learned that Plauche was nonunion after a union
representative had called Raxsdale I am satisfied , and find , that the telephone conver-
sation related above was between Arbrough and Raxsdale
2 There is also testimony , which I credit , that when Carlisle asked why the picketing
was continuing , the picket replied , "Well, I don't know , what it looks like to me they are
trying to put pressure on W. R Aldrich to bring Plauche into line " The picket's reply,
however , was on its face an expression of his personal opinion and I do not regard it as
a concession by Respondent.
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 1109
under its contract. Electrical installation work was required only at certain times
geared to the progress of other work on the project.
C. Analysis and conclusions
Respondent's picketing of the jobsite on October 23 when Plauche's employees
were working there was not unlawful for the picketing on that date met all the
requirements for lawful primary picketing of a common situs described by the
Board in Moore Dry Dock Company, 92 NLRB 547. The picketing after that date,
however, when Plauche's employees were not on the jobsite, did not meet one of the
Moore Dry Dock evidentiary standards, to wit, that at the time of picketing the
primary employer must be engaged in its normal business at the situs.
Respondent argues that since Plauche employees were only temporarily away from
the jobsite, had left a couple reels of wire and a conduit on the site, and were expected
to return from time to time to complete the work which Plauche had contracted to do,
Plauche must be considered as engaged in its normal business at the situs. I do not
agree. Here, we do not have a mere temporary absence of primary employees dur-
mg a lunch period or coffee break, as in International Brotherhood of Electrical
Workers, Local 861 (Plauche Electric, Inc.), 135 NLRB 250, nor a case in which
employees of the primary employer are waiting nearby ready to start work at the
common situs as soon as pickets might be removed, as in Local 28, International
Organization of Masters, Mates and Pilots, AFL-CIO (Ingram Barge Company),
136 NLRB 1175. Plauche's employees were absent from the Flood Gate project for
days and weeks at a time while the picketing was in progress, during which periods
they were engaged in their normal work at other locations. The situation here pre-
sented is analogous to that in International Brotherhood of Electrical Workers, Local
861, AFL-CIO (Cleveland Construction Corp.), 134 NLRB 586; in Local Union
#469, United Association of Journeymen, etc. (Hansberger Refrigeration), 135
NLRB 492; and in Teamsters, etc., Local 279 (Wilson Teaming Company), 140
NLRB 164, where the picketing took place during substantial periods of time when no
employees of the primary employer were present but when employees of other
employers were working. The Board in the latter cases found that the picketing
was being conducted at times when the primary employer was not engaged in its
normal business at the common situs and was therefore in violation of Section 8
(b) (4) (i) and (ii) (B) of the Act. See also, N.L.R.B. v. International Hod Carriers,
etc., Local 1140 (Gilmore Construction Co.), 285 F. 2d 397, 401 (C.A. 8).
Here, too, Respondent's picketing failed to meet that standard of the Moore Dry
Dock decision. This fact, without more, is sufficient to establish-and I find-
that Respondent induced and encouraged employees of Aldrich and other neutral
persons at the jobsite to engage in a strike or refusal to perform services, and
threatened, coerced, and restrained Aldrich and such other persons, an object in
each case being to force or require Aldrich to cease doing business with Plauche,
in violation of Section 8(b)(4)(i) and (ii) (B) of the Act.
My conclusion that Respondent's picketing had a proscribed object, moreover,
is reinforced by other considerations, such as Union Business Manager Arbrough's
query of Raxsdale as to whether he thought, it wise to give the electrical installa-
tion contract to a nonunion firm-a veiled threat-and the fact that Respondent
did not picket Plauche's regular place of business at all .4
CONCLUSIONS OF LAW
1. W. R. Aldrich & Company and Plauche Electric, Inc. are employers engaged
in commerce or in an industry affecting commerce within the meaning of Sec-
tions 2(6) and (7) and 8(b) (4) of the Act.
2. By inducing and encouraging employees of Aldrich and of other persons en-
gaged in an industry affecting commerce to engage in a strike or a refusal in the
course of their employment to perform services, and by threatening, coercing, or
restraining Aldrich and such other persons, in each case with an object of forcing
or requiring Aldrich to cease doing business with Plauche, Respondent has engaged
a In its brief, Respondent has not argued, as it did at the hearing, that the purpose of
the picketing was to advertise to the people of Lake Charles that it had a labor dispute
with Plauche Even if such publicity had been one object, it is clear that the picketing
also had as "an" object the forcing and requiring of Aldrich to cease doing business with
Plauche and that it fell within the proscription of the statute. N.L R.B. v. Denver
Building and Construction Trades Council (Gould & Preisner), 341 U.S. 675, 688-689.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii) (B)
of the Act.
3. The aforesaid unfair labor practices affect 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) (i) and ( ii) (B)
of the Act, my Recommended Order will require that Respondent cease and desist
therefrom and take certain affirmative action designd to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I hereby issue the following:
RECOMMENDED ORDER
The Respondent, International Brotherhood of Electrical Workers, Local 861,
its officers, representatives, agents, successors and assigns, shall:
1. Cease and desist from inducing or encouraging any individual employed by
W. R. Aldrich & Company or by any other person, other than Plauche Electric,
Inc., similarly engaged in commerce or 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 articles, materials, or commodities,
or to perform any services; or threatening, coercing, or restraining W. R. Aldrich &
Company, or any other person similarly engaged in commerce or in an industry
affecting commerce, where in either case an object thereof is to force or require
any such employer or person to cease doing business with Plauche Electric, Inc.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act:
(a) Post in conspicuous places in Respondent's business offices, meeting halls,
and all places where notices to members are customarily posted, copies of the
attached notice marked "Appendix." 5 Copies of said notice, to be furnished by
the Regional Director for the Fifteenth Region, shall, after being duly signed by
Respondent's authorized representative, be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive days. Reasonable steps
shall be taken by Respondent to insure that such 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 the Fifteenth
Region for posting by W. R. Aldrich & Company, if willing, at the Kayouchee
Coulee Flood Gate project.
(c) Notify the said Regional Director, in writing, within 20 days from the
date of receipt of this report, what steps Respondent has taken to comply herewith .6
5In the even that this Recommended Order be 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 be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
8In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 861, AND TO ALL EMPLOYEES OF W. R. ALDRICH & COMPANY
AND ITS SUBCONTRACTORS AT THE KAYOUCHEE COULEE FLOOD GATE PROJECT
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT engage in or induce or encourage any individual employed
by W. R. Aldrich & Company, or any other person engaged in commerce or
in an industry affecting commerce, to engage in a strike or a refusal in the
TIDEWATER EXPRESS LINES, INC.
course of their employment to use, manufacture , process, transport , or other-
wise handle or work on any goods , articles, materials , or commodities or to
perform services , or threaten , restrain , or coerce W. R. Aldrich & Company
or any other employer or person engaged in commerce or in an industry
affecting commerce , where an object in either case is to force or require any
employer or person to cease doing business with Plauche Electric, Inc.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LocAL 861,
Labor Organization.
Dated------------------- By-------------------------------------------
(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.
Employees may communicate directly with the Board 's Regional Office , T-6024
Federal Building (Loyola ), 701 Loyola Avenue, New Orleans , Louisiana , 70113,
Telephone No. 529-2411 , if they have any question concerning this notice or com-
pliance with its provisions.
Tidewater Express Lines , Inc. and Freight Drivers and Helpers
Local Union No. 557, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of America.
Case No. 5-CA-2132. June 13, 1963
DECISION AND ORDER
On March 1, 1963, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. The
Trial Examiner also found that Respondent had not engaged in cer-
tain other unfair labor practices and recommended that the complaint
be dismissed with respect to such allegations. Thereafter, the Gen-
eral Counsel and the Union filed exceptions to the Intermediate Report
and supporting briefs, and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following
modifications :
The Trial Examiner found Respondent did not engage in discrimi-
natory conduct in violation of Section 8(a) (1) and (3) of the Act
when it locked out its employees on March 14, 1962, in a reasonable
142 NLRB No. 122.