Local 3, Electrical Workers

National Labor Relations Board - Board Decisions

Jul 9, 1968

172 N.L.R.B. 1101 (N.L.R.B. 1968)

LOCAL 3, ELECTRICAL WORKERS 1101
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO and Surf Hunter Electric
Company, Inc. Case 29-CC-80
July 9, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 30, 1968, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that such allegations be dismissed.
Thereafter, the General Counsel, the Charging Par-
ty, and the Respondent filed exceptions to the Trial
Examiner 's Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modification
hereinafter set forth.
1. We find merit in Respondent's exceptions to
the Trial Examiner's findings that the picketing was
violative of Section 8(b)(4)(ii)(B) of the Act.
As more fully set forth by the Trial Examiner, in
September 1966, Stuart Berger , Inc. (hereinafter
called Berger ), a general contractor, was awarded a
contract for the construction of a Shell Oil Com-
pany gasoline service station. Berger orally con-
tracted with various subcontractors, including Surf
Hunter Electric Company, Inc., whose five em-
ployees were members of Local 199, Industrial
Workers of Allied Trades (hereinafter called Local
199). Surf Hunter, an electrical contracting concern,
was a member of the United Construction Contrac-
tors Association (hereinafter called the Associa-
tion ), which had about 100 employer-members, of
which at least 80 were electrical contractors. The
Association , on behalf of its members , negotiated,
executed , and administered collective -bargaining
agreements with Local 199 , which in turn
represented employees working for the employer-
members of the Association , including those of Surf
Hunter . Prior to 1962 , Surf Hunter , then known as
Hunter Electric , had a contract with Respondent.
The General Counsel conceded that Surf Hunter's
wage rates were below those being paid to Respon-
dent 's members . We also note that the Respondent,
Local 199, and the Association and several of its
employer -members have been involved in disputes
which allegedly concerned "area standards."
On Friday , January 6 , 1967, Surf Hunter em-
ployees began work at the jobsite in the presence of
Respondent 's pickets carrying signs objecting to
substandard working conditions and wages ("area
standards " picketing ). The picket signs improperly
identified the primary employer as "Ampak,"
which had no connection with the job although it
was a member of the Association . However , several
hours later the signs were corrected to read
"Hunter Electric" when a city inspector advised the
pickets that Ampak was not doing the electrical
work, and one of the pickets who formerly worked
for Hunter Electric ( the former name of Surf
Hunter ) recognized its owner , Herschkorn, on the
job. And the following day the signs were changed
to "Surf Hunter " when one of its trucks bearing
this legend was seen on the job. Thereafter, Surf
Hunter employees continued to perform some work
at the jobsite during the following week The
picketing continued until Friday , January 13, Surf
Hunter 's last day on the job. While the picketing
was in progress , Surf Hunter employees , as well as
the other trades, continued to work without in-
cident or interruption . At all times the picketing
was peaceful , unaccompanied by any incident of
coercion or threat . The pickets and officials of
Respondent spoke to no one, and there was no in-
terference with deliveries.
The Trial Examiner concluded that even though
the Respondent substantially complied with the
Moore Dry Dock standards,' its failure to commu-
nicate with Surf Hunter or Berger to ascertain
whether Surf Hunter 's employment conditions and
benefits did, or did not , meet the area standards
established that the Respondent's true objective
was to threaten and coerce Berger to cease doing
business with Surf Hunter . However , the record
clearly shows that Respondent was aware of Surf
Hunter's wages and working conditions in light of
Respondent 's longstanding dispute with the As-
sociation and its members and the fact that Surf
Hunter formerly had a contract with Respondent.
Therefore , it would have been pointless for Respon-
dent to inquire concerning the conditions main-
tained by Surf Hunter . As there is thus no support
for the only ground upon which the Trial Examiner
'Sailers' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547
172 NLRB No. 115
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based his conclusion that the Respondent's object
was illegal, we find that General Counsel has not
established by a preponderance of the evidence
that Respondent had an unlawful objective within
the prohibition of Section 8(b)(4)(ii)(B) of the
Act.
The Trial Examiner found a separate violation of
the Act solely because of Respondent's picketing
for a short time on January 6 with signs bearing the
name "Ampak." In view of our conclusion above,
and as the signs were changed to reflect the true
primary employer immediately after the error was
discovered, we find this incident insufficient to
require an unfair labor practice finding. The Moore
Dry Dock standards are not to be applied on a in-
discriminate per se basis but are merely aids in
determining whether a violation has occurred 2 In
the absence of evidence showing an illegal motive,
we find it inappropriate to rely on what appears to
be an inadvertent error which continued for only a
short time.
2. We find, for the reasons set forth by the Trial
Examiner, that Respondent did not violate Section
8(b)(4)(i)(B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
2 International Brotherhood of Electrical Workers, Local Union 861
(Plauche Electric, Inc ), 135 NLRB 250
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: Upon a
charge filed on January It, 1967, by Surf Hunter
Electric Company, Inc., hereinafter referred to as
Surf Hunter, the General Counsel of the National
Labor Relations Board issued a complaint on May
31, 1967, against Local 3, International Brother-
hood of Electrical Workers, AFL-CIO, hereinafter
referred to as the Respondent or Local 3, alleging
that the Respondent has engaged in certain unfair
labor practices in violation of Section 8(b)(4)(i)
and (ii)(B) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended, 29 U.S.C.,
Sec. 15 1, et seq., hereinafter referred to as the Act.
Thereafter, the Respondent filed a timely answer to
the complaint denying the commission of any unfair
labor practices.
Pursuant to notice, this case was heard by me at
Brooklyn, New York, at which hearing all parties
were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, to introduce evidence pertinent to
the issues, and to engage in argument. Subsequent
to the close of the hearing, timely briefs were filed
by counsel for the General Counsel and the
Respondent.
Upon the entire record in this case,' and from my
observation of the witnesses and their demeanor on
the witness stand, and upon substantial, reliable
evidence "considered along with the consistency
and inherent probability of testimony" (Universal
Camera Corporation v. N.L.R.B., 340 U.S. 474,
496), 1 make the following:
FINDINGS AND CONCLUSIONS
1. COMMERCE
Surf Hunter, a New York corporation maintain-
ing its principal office and place of business at Far
Rockaway, New York City, New York, is engaged
in performing electrical contracting and related ser-
vices. Surf Hunter is a member of the United Con-
struction Contractors Association, hereinafter
referred to as the Association, which has as mem-
bers employers engaged as electrical contractors in
the building, construction, and repair industry. The
Association, on behalf of its employer-members,
negotiates, executes, and administers collective-
bargaining agreements with Local 199, Industrial
Workers of Allied Trades, hereinafter referred to as
Local 199, which, in turn, represents employees
employed by the employer-members of the As-
sociation, including those employed by Surf
Hunter. During the past calendar year, employer-
members of the Association caused to be trans-
ported to their places of business in the State of
New York, construction materials valued in excess
of $50,000, of which amount, goods and materials
valued in excess of $50,000, were delivered to their
place of business in interstate commerce directly
from States other than the State of New York.
Stuart Berger, Inc., a New York corporation
hereinafter called Berger, maintaining its principal
office and place of business at South Hempstead,
New York, is owned and operated by Stuart Sol
Berger, a general contractor in the building and
construction industry, engaged primarily in the con-
struction of gasoline service stations. During the
past calendar year, Berger performed services out-
side the State of New York in excess of $50,000,
and purchased building supplies and materials
valued in excess of $50,000, from points located
outside the State of New York.
Surf Hunter and Berger are persons and em-
ployers engaged in commerce and in an industry af-
fecting commerce within the meaning of Sections
2(1), (2), (6), and (7) and 8(b)(4) of the Act.
' I hereby note and correct the following error contained in the trans-
cript
p 51 , 1 15, "back service" should read "Gasservice "
LOCAL 3, ELECTRICAL WORKERS 1103
II. THE LABOR ORGANIZATIONS INVOLVED
It is undisputed , and I find, that Local 3, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO, and Local 199, Industrial Workers of
Allied Trades, are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Whether, in picketing the Shell Oil Company
Construction jobsite from time to time between
January 6 and 16, 1967,2 the Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
B. The Facts
Toward the end of September 1966, based upon
its having submitted the low bid, Berger was
awarded the contract for the construction of a
gasoline service station by Shell Oil Company, to be
erected at the intersection of North Conduit
Avenue and Rockaway Boulevard in Queens.
Under its contract with Shell, for whom it had per-
formed similar construction work over a period of
years, Berger was permitted to, and during October
and November did, subcontract the work to con-
tractors employing only union labor. Thus, in
scheduling the construction of the station, Berger
orally contracted with various union subcontrac-
tors, including Surf Hunter, whose five employees
are members of Local 199 and, as such, covered
under an existing collective-bargaining contract.
On November 21, 1966, when the job was getting
under way, Milton Herschkorn, president of Surf
Hunter, sent a crew out to the Shell site, at which
time underground electrical conduits were put in
place. This preliminary work was completed in 1
day, at the close of which Surf Hunter's employees
left the jobsite and did not reappear at the location
until early January 1967.
Between January 6 and 13 members of Local 3
engaged in the intermittent picketing of the con-
struction site, and remained in the area until Janua-
ry 16. The Shell Oil site is located on the northwest
corner of North Conduit Avenue, running north
and south, and Rockaway Boulevard, a major four-
lane traffic intersection controlled by traffic lights.
The station itself, approximately 30 by 60 feet, is
located some 40 feet back from the property line,
which, in turn, is back approximately 20 feet from
the street gutter, within which area a partially
completed sidewalk and curbing ran around the
corner parallel to the intersecting streets. Directly
north of the Shell Oil site is located a motel, and
across Rockaway Boulevard on the northeast
corner of the intersection is Teddy's Diner, which
adjoins a motel to the north. Other than motel oc-
cupants who occasionally crossed over to Teddy's
Diner, very few pedestrians were present at any
time in the area. On the other hand, with Rockaway
Boulevard a major artery, auto traffic was heavy at
times and often backed up while waiting for a
change in lights. Daily, throughout this period of in-
termittent picketing, Dan Hull, a Local 3 member
and picket captain assigned to the Shell Oil site,
and his volunteer pickets made Teddy's Diner their
picket headquarters at times during each 8-hour
day when they were not engaged in picketing.
Mainly in dispute in this proceeding is the factual
question concerning the presence, or lack thereof,
of Surf Hunter electricians during the times when
men were on the picket line. In this regard, Dan
Hull and William Darcy, a Local 3 business
representative, testified to one set of facts, whereas,
General Contractor Berger and Surf Hunter's pre-
sident, Herschkorn, testified to another.
According to the testimony of Hull, at a district
meeting, attended by Local 3 members on
Thursday, January 5, Darcy informed Hull that
there had been reports of electricians working on a
gas station job at Rockaway Boulevard and Conduit
Avenue who were receiving wages and conditions
less than those received by Local 3 members, and
asked Hull to try to get out there with volunteer
pickets the following morning. Accordingly, the as-
sembled union membership was then apprised of
the impending picketing and Hull asked for volun-
teers to assist in the picketing. A number of men,
mostly unemployed, retirees, and those working in
the immediate area, agreed to help.
The following day, Friday, January 6, armed with
instructions from Darcy as to proper conduct on
the picket line, Hull arrived on the site about 9 a.m.
Upon arriving, and seeing two or three men doing
electrical work, Hull, along with 10 pickets,
picketed until 2 or 3 p.m., during which time there
were electricians working on the job. The picket
signs read, "To the public-the electricians work-
ing for Ampak Electric do not have the same work-
ing conditions or wages received by Local 3, IBEW,
AFL-CIO." That afternoon a city inspector arrived
on the job and told one of the pickets that Ampak
Electric was not doing the electrical work.
Thereafter, about 3 p.m., when one of the pickets
who formerly had worked for Hunter Electric Com-
pany recognized Herschkorn on the job, the name
of the subcontractor on the signs was changed to
Hunter Electric.3
The following day, Saturday, January 7, Hull and
his pickets were across the street in Teddy's Diner
when a truck bearing the name of Surf Hunter
drove up about 11 a.m., with four or five electri-
cians. Hull then, once again, changed the name on
the picket signs , this time to properly reflect Surf
Hunter as the electrical subcontractor on the job.
Thereafter, for about 1 hour while the Surf Hunter
' Unless otherwise specified , all dates refer to the year 1967
' Prior to December 1962, Surf Hunter was known as Hunter Electric
Company
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were working, some 20 to 25 Local 3
men engaged in picketing.
On Monday, January 9, Hunter was stationed in
Teddy's Diner when Herschkorn and two or three
electricians arrived on the job about 8 a.m., and
proceeded to perform electrical work. Hull im-
mediately established` a picket line comprised of 8
to 10 pickets. The picketing continued until about
3' p.m., during which time Surf Hunter employees
were on the job.
On Tuesday, January 10, Hull again awaited the
arrival of Surf Hunter employees from his vantage
point across the street in Teddy's Diner. When two
Surf Hunter electricians arrived at 9:30 a.m., and
after receiving instructions from Herschkorn
proceeded to perform work, Hull again set up an 8-
to 10-man picket line. The picketing continued
until lunchtime, at which time it stopped when the
electricians ceased working and left. The following
day, Wednesday, January 11, two electricians ar-
rived on the jobsite about 10:30 or 11 a.m.,
received instructions from Herschkorn, and went to
work. The work continued until 1:30 p.m., as did
the picketing, at which time the men left and the
picket line ceased. Although Hull was again present'
on Thursday, January 12, no electricians showed
up, no picketing occurred. and Hull left around 1
p.m.
On Friday, January 13, Hull met again with his
pickets at the diner at 8 a .m. Two Surf Hunter em-
ployees showed up about 11 a.m., spoke with
Herschkorn, and then worked until 2 or 3 p.m.,
during which time Hull's Local 3 members, 4 to 6
initially and 10 to 12 at lunchtime, engaged in
picketing. Although this was the last day of any
picket activity, Hull and his pickets remained in the
area observing and prepared to picket through
Monday, January 16, and until the following
Tuesday or Wednesday, January 17 or 18, when,
after having been notified by Darcy that a Local 3
contractor would take over shortly, Local 3 mem-
bers, employed by Gasservice Maintenance Co., ar-
rived on the job and took over the electrical work.
Upon the arrival of the Gasservice employees, one
of whom knew Hull and showed him his Local 3
union card, Hull called Darcy, telling him that a
Local 3 contractor was on the jobsite. Darcy
checked, and subsequently called Hull back,
authorizing him to officially call off the picketing.
Berger 's version of the crucial events is that fol-
lowing the appearance of Surf Hunter employees
on Friday, January 6, Berger was called on Satur-
day by a Shell oil official and apprised of picketing
on the site . Berger then went out to the job where
he observed 30 to 40 Local 3 pickets. On the even-
ing of Monday, January 9, after further picketing
during the day, and prodded by telephone calls
from Shell Oil officials with whom Berger was
' Specifically, Berger testified that " I had received telephone calls from
the oil company engineers complaining about the picket lines and I was
told to remove them There was no possible way for me to remove the
picket lines and I felt the only way that I could stay in the grace of the oil
company and continue doing their work was to somehow or other get these
bidding other jobs and who "were very unhappy
about their image," Berger removed Surf Hunter as
the electrical subcontractor and sent a night letter
to the Union, apprising it of the fact that Surf
Hunter would no longer be working on the job."
The telegram read as follows:
JANUARY 9 10:30 P.M.
LOCAL UNION # 3, I.B.E.W.
130 E. 25 ST. N.Y.
SURF HUNTER ELECTRIC CO. INC. WILL NOT BE
WORKING AT SHELL GAS STATION 154-10
ROCKAWAY BLVD. QUEENS UNTIL FURTHER
NOTICE. STUART BERGER, PRES . STUART BERGER,
INC. 1073 LONGBEACH RD. SOUTH HEMPSTEAD,
N.Y.
Notwithstanding the telegram, Berger testified that
picketing of the Shell Oil site continued every day
throughout the rest of the week, and, in fact, until
Monday, January 16, when Berger finally hired
Gasservice Company, a Local 3 contractor, to
finish the electrical work. Once Gasservice arrived
on the job, the picketing ceased.
During this period, according to Berger, the
picketing would start in the morning with perhaps 2
men, later build up to 6 men, with some 30 to 40
during lunchtime, and thereafter, dwindle down
again to just a few pickets. Further, according to
Berger, who testified that he was present at the site
for about 2 hours every day, Surf Hunter employees
worked only on Friday and Saturday, January 6 and
7, and did not to his knowledge work on Monday,
January 9, or at any time thereafter. Oddly enough,
according to Berger, the picketing never occurred
at any time that Surf Hunter employees were in fact
working on the job.
Herschkorn's version of the matter varies greatly
with that of Hull, and slightly with the testimony of
Berger. Thus, Herschkorn testified that, apart from
the November date, his employees first worked at
the Shell Oil site on Saturday, January 7, but that
on Friday afternoon the day before, having
received a telephone call apprising him of picketing
action at one of his jobs, he observed Local 3
picketing at the site . On Saturday the pickets were
already present in the morning when he and his
men (Surf Hunter employees) arrived. According
to Herschkorn, when his men started to work the
pickets dispersed, and his men continued to work a
half a day without further picketing.
On the next workday, Monday, January 9, while
two Surf Hunter employees were working on the
job, picketing again took place, the pickets carrying
signs which read "The electricians working for Surf
Hunter do not have the same working conditions or
wages received by Local 3, IBEW, AFL-CIO."5 On
people off of the job So we sent a telegram to Local 3 telling them that Surf
Hunter was no longer working there "
S Herschkorn took snapshots on Saturday and again on Monday showing
the pickets as they walked on the sidewalk in front of the job
LOCAL 3, ELECTRICAL WORKERS 1105
the evening of Monday, January 9, while in his of-
fice, Stuart Berger told Herschkorn that he had
been removed from the job, that pressure was being
put on him by Shell Oil whose "public image was
being distorted," and that Shell wanted Surf Hunter
off the job. When Herschkorn protested, Berger
asked him how he was going to get the pickets out
of there. Berger continued with, "they will picket
there forever."
Herschkorn testified that from January 9 on, no
Surf Hunter employees ever returned to the
jobsite.6 Notwithstanding that Surf Hunter had been
removed from the job and the Union so notified,
Herschkorn testified that he continued to visit the
Shell Oil site in his unmarked auto "at least three
times a day" for the rest of the week, spending
from 20 minutes to 1-1/2 hours each time. With
respect to the picketing that continued during this
period, Herschkorn testified that early in the morn-
ing, from 7:30 to 8:30, at noon, and again between
3:30 and 4:30 in the afternoon, the number of
pickets was large, as many as 37, tapering off in
between to as few as 2, 4, and 6.
Business Representative Darcy, who was respon-
sible for some 60 to 100 jobs, testified that he kept
in touch with Hull by telephone two or three times
a day, but that, with one exception, he was not
present at the construction site during this period.
Accordingly, Darcy was not in a position to cor-
roborate firsthand Hull's testimony as to the picket-
ing hours or the presence of electricians on the job.
Throughout his testimony, however, Darcy, from
whom all authority emanated concerning the
picketing, maintained that his instructions to Hull
were not to picket "if the electricians were not
working there . . ." and ". . . if there is no one
there, cease the line immediately." Based upon his
alleged reports from Hull these instructions were
complied with.
With respect to the telegram, Darcy testified that
he was out of his office all day on January 10 and
11, and until noon on Thursday, January 12. At
that time he first became aware of Berger's tele-
gram, and, when he could not contact Hull by
telephone, he went out to the site around 2 or 3
p.m., where he found no one, including Berger,
Herschkorn, Hull, or pickets. That night around 6
p.m., Darcy met with Hull and discussed the tele-
gram, Darcy instructing Hull to continue to picket
if Surf Hunter employees appeared. Finally, accord-
ing to Darcy, on Monday, January 16, he received a
telephone call from a Mr. Gellis, an official of Gas-
service Company, who told him that he was now
doing the job for Berger. Satisfied that Surf Hunter
was no longer in fact performing the electrical
work, the picketing of the Shell Oil job was called
off on January 16.
Summarizing with respect to the presence of
pickets and the appearance of Surf Hunter em-
ployees at the jobsite, while it is obvious from the
above accounts as well as the record generally that
no two of the four principals agree entirely as to the
events, Hull and Darcy generally assert that Local 3
members engaged in picketing the jobsite anywhere
from 1 to 7 hours on January 6, 7, 9, 10, 11, and
13, that on these dates during the hours of picket-
ing, and only during such hours, Surf Hunter elec-
tricians were on the job performing work. On the
other hand, Berger and Herschkorn generally agree
that Local 3 picketing continued throughout the
week in question, but assert that no Surf Hunter
employees worked on the job after Monday, Janua-
ry 9. While, for varying reasons, I have strong reser-
vations concerning the complete veracity of all four
of the principals in this proceeding, in resolving this
fact issue I find that Surf Hunter employees did in
fact continue to perform some work at the site dur-
ing the week in question. I do so, not necessarily
because I credit Hull or Darcy over Herschkorn or
Berger, but primarily because I fail to perceive any
possible reason why, if Surf Hunter were in fact
removed from the job as electrical subcontractor
and there were no electrical work being performed,
Herschkorn, who had several other jobs going, each
requiring his personal attention daily for but 15
minutes, found it necessary to visit the Shell Oil site
"at least three times a day" for periods up to 1-1 /2
hours. In the absence of any testimonial explana-
tion for his presence during this period or any com-
pany records supporting a contrary finding, I am
compelled to conclude that he was there for the
purpose of supervising the work of Surf Hunter em-
ployees. Nor do I credit Herschkorn's testimony to
the effect that on Saturday, January 7, the pickets
dispersed when Surf Hunter employees appeared
and started to work or Berger's testimony that the
picketing never occurred at times Surf Hunter em-
ployees were on the job.7
On the other hand, based in part upon several in-
consistencies and contradictions in the testimony of
Hull (as well as Darcy, and the voluntary and in-
determinate manner in which the pickets gathered
at various intervals during each day, I am per-
suaded, contrary to the testimony of Hull, and the
alleged instructions of Darcy, that the picketing was
not necessarily confined to such times as Surf
Hunter employees were working at the jobsite. Ac-
cordingly, while finding that Surf Hunter employees
were at times engaged in performing electrical
work during the week of January 9, 1 also find, as
testified to by Herschkorn and Berger, that Local 3
picketing occurred on occasion during this week at
times when Surf Hunter employees were not
present.
In addition to the above findings, the record
demonstrates that during the period in question,
Herschkorn testified that around the middle of the following week , r In this regard , 1 am inclined to feel that the testimony of Herschkorn, as
which would place it about January 18, and after all picketing had ceased, well as that of Berger , was perhaps predicated upon a misconception as to
one of his men went back to the job briefly to advise his successor as to what was necessary to prove their case
what had been done up to that point
354-126 O-LT - 73 - pt. 1 - 71
1 106 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
while picketing was in progress, other trades, in-
cluding carpenters, bricklayers, plumbers, cement
finishers, and laborers, all of whom were union
members, continued to work without incident or in-
terruption. It is further undenied that the picket
legend , addressed to the public and strictly infor-
mational in nature, was, in itself, lawful. The picket
line varied from as few as 2 or 3 pickets to as many
as 40 pickets, such variance explained by the fact
that the pickets were volunteer Local 3 members,
many of whom picketed during their lunch hour on
nearby jobs. At all times the picketing was peace-
ful, unaccompanied by any incident of coercion or
threat, by or to anyone. The record, in fact, dis-
closes that there was no interference with deliveries
at the jobsite and that the pickets spoke to no one
while on the picket line.8
ANALYSIS AND CONCLUSIONS
The General Counsel, in short, contends that, in
picketing the Shell Oil construction site, one of the
Respondent's objectives was to force Berger to
cease doing business with Surf Hunter because Surf
Hunter was a non-Local 3 contractor, thereby
preserving the work on the job for Local 3 mem-
bers, and thus that such picketing violated Section
8(b)(4)(i) and (ii)(B) of the Act.9 In support of its
position as to an unlawful objective, the General
Counsel relies in part on its assertion that the
picketing continued at times when no Surf Hunter
employees were working, on the fact that at times
as many as 40 pickets were picketing, and on the
failure of the Respondent at any time to discuss
"area standards" with either Surf Hunter or Berger.
The Respondent, in denying the complaint allega-
tions, contends that the sole purpose in picketing
here was to inform the public that it was protesting
Surf Hunter's payment of substandard wages, a law-
ful objective, and that, even if the purpose of the
picketing were other than informational to any ex-
tent, the picketing was primary rather than secon-
dary. In support of its position, the Respondent re-
lies upon the truthful nature of the informational
signs addressed to the public, and points to the lack
of any evidence of inducement, threat, or coercion
-of anyone.
Long ago, and since adhered to, the Board
established certain standards for picketing on a
common jobsite such as here, criteria which, if met,
would presumptively indicate that the Union was
attempting to limit its dispute to the primary em-
ployer and not to enmesh other secondary em-
ployers.10 In applying these standards, the Board
has indicated that they are not to be applied on an
indiscriminate per se basis, but are to be used mere-
ly as aids in determining the basic question as to a
statutory violation." The Board has also made it
clear that nominal compliance with Moore Dry
Dock standards does not conclusively attest the
legality of common situs picketing, and that "atten-
dant circumstances may establish that the Union's
conduct did, in fact, have an object proscribed by
the Act, mainly, to embroil the operations of the
neutral common-situs employer.""
Thus, as applied to the facts of this case, it would
appear, on the surface at least, that the picketing
here after the first day was, for the most part, con-
ducted in accordance with the Moore Dry Dock
standards. The fact that some picketing occurred
on occasion when employees of Surf Hunter, the
primary employer, were not working does not,
standing by itself under the circumstances of this
case, constitute noncompliance with such stan-
dards.13 Notwithstanding such apparent conformity
with Moore Dry Dock after January 7, and fully
'recognizing the fact that the picketing resulted in
no work cessation or delivery stoppages on the part
of employees of other secondary employers, the
record discloses attendant circumstances connected
s Concerning one alleged isolated exception, Herschkorn testified that
on the first day he asked the pickets what was going on and received no
reply except for one who told him to see Darcy across the street Unable to
find Darcy , Herschkorn asked another, identified at the hearing as Hull,
whether this was a strike , and allegedly was told, " No, there is an organiza-
tional drive " I credit Hull 's denial that he made this statement or that he
ever talked with Herschkorn at all
° Section 8 ( b)(4)(i) and ( ii)(B) of the Act provides
8(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 em-
ployed by any person engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal in the course of his em-
ployment to use, manufacture , process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities or to per-
form any services , or (u) to threaten , coerce, or restrain any person
engaged in commerce or in an industry affecting 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 requiring any other employer to
recognize or bargain with a labor organization as the representative
of his employees unless such labor organization 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 otherwise unlawful, any
primary stnke or primary picketing
10 Sailers' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 The conditions therein set forth require that ( a) the picketing
be strictly limited to times when the situs of the dispute is located on the
secondary employer 's premises, (b) at the time of the picketing the primary
employer be engaged in its normal business at the situs , ( c) the picketing be
limited to places reasonably close to the location of the situs ; and (d) the
picketing disclose clearly that the dispute is with the primary employer
" International Brotherhood of Electrical Workers, Local Union 861
(Plauche Electric, Inc ), 135 NLRB 250, International Brotherhood of Elec-
trical Workers, Local Union No 11 , AFL-CIO (L G Electric Contractors,
Inc ), 154 NLRB 766
it Local 895 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL (Eastern New York Construc-
tion Employers , Inc ), 153 NLRB 993
" See Local 3, International Brotherhood of Electrical Workers, AFL-CIO
(New Power Wire and Electric Corp ), 144 NLRB 1089
LOCAL 3, ELECTRICAL WORKERS 1107
with the picketing which , because " in any of these
secondary boycott situations the ultimate deter-
mination depends upon the Union 's objective, 1114
warrant close scrutiny.
In looking at these "attendant circumstances,"
full recognition must be accorded the Board 's hold-
ing that picketing by a union to protest the payment
of substandard wages , referred to generally as area
standards picketing , is legitimate conduct where it
had been determined that such is the purpose.15 At
the same time , it must also be recognized that
where a picketing union has in fact an unlawful
concurrent objective at the time of the picketing,
the lawful objective does not relieve the Union of
the consequences of the unlawful conduct. 16
Thus, with respect to Local 3's initial interest in
this construction job, Darcy, the one man responsi-
ble for the Union 's decision to picket , testified that
he received two reports on January 4 or 5 from
Local 3 men who were working in the area and had
been following the job's progress . According to
these reports , the men had talked with electricians
and were informed that Ampak Electric Company
was on the job and performing the electrical work.
Assertedly , based upon this information , Darcy met
with Local 3 members in the area on January 5,
and decided to picket the site . He told the men that
this would be informational picketing and in-
structed them precisely as to how to picket. The
following morning , Friday, January 6 , the picketing
commenced with signs reflecting Ampak Electric as
the contractor whose employees "do not have the
same working conditions or wages received by
Local 3, IBEW , AFL-CIO." Darcy testified that
these signs were changed later that day about 3
p.m., when a city inspector happened on the job
and informed the pickets of their mistake, that
Hunter was doing the job.17
Apart from having a very poor opinion of Darcy's
veracity while testifying on the witness stand, based
in part upon his propensity for avoiding questions,
there is no evidence reflecting that any electricians
were employed on the job on January 4 or 5, or,
with the exception of the 1 day the prior
November , at any time before January 6 . Secondly,
there is no showing that a company by the name of
Ampak Electric at any time had anything to do with
the Shell Oil construction job. I am convinced, on
the record as a whole , that at some point on Friday,
January 6 , Darcy, with no knowledge as to who the
electrical subcontractor was, was made aware by
his Local 3 members in the area that non-Local 3
electricians were starting the job. Thus, without
knowledge as to who was doing the job, and, ac-
cordingly, what the wages and conditions of work
were with respect to such subcontractor, and based
solely upon the fact that Local 3 members were not
performing the work, Darcy decided to picket the
jobsite. Darcy's own testimony, on cross-examina-
tion, lends itself to this conclusion. At one point,
after admitting that on such occasions when ap-
prised by his members that non-Local 3 members
were doing a particular job he became very much
concerned, Darcy testified as follows:
Q. Your people from Local 3 were not
doing the work on this particular job, right?
A. That's right.
Q. Now, you determined that because your
people told you this, correct?
A. That's right.
Q. And as a matter of procedure you deter-
mined to picket this job, is that correct?
A. That's right. We decided to protest,
yes.18
Apart from the fact that the picketing com-
menced with signs protesting the "working condi-
tions and wages" of the wrong electrical subcon-
tractor, in itself a deviation from the Moore Dry
Dock conditions, Darcy in fact did not know who
the Respondent was picketing or whose substan-
dard wages and working conditions the Respondent
was protesting to the public. In fact, under these
circumstances, Darcy could not have known what
the working conditions and wages were of those
electricians working on the job. Nor did Darcy or
any official of the Union at any time , before or
after the advent of the picket line, attempt to find
out what the electricians on the job were being
paid, for the Respondent at no time attempted to
communicate with either Herschkorn concerning
this matter, or with Berger . And this is not a case
where the principals knew each other and the
Respondent, perhaps, could have reasoned that
such a communication would have been pointless.19
Thus, even assuming , which I do, that one of the
Union's objectives here was, as it asserts , an infor-
mational one addressed to the public, picketing
which starts in this manner and continues until such
time as the picketing union is assured that a Local 3
subcontractor has taken over the construction job
" Local 761, International Union of Electrical, Radio and Machine Wor-
kers, AFL-CIO [General Electric Company] v N L R. B, 278 F 2d 282, 285
(C.A D.C.)
" See International Hod Carriers , Building and Common Laborers' Union
of America, Local No. 41, AFL-CIO (CalumetContractors Association and
George DeJong ), 133 NLRB 512, Houston Building and Construction Trades
Council ( Claude Everett Construction Company), 136 NLRB 321, Local
107, International Had Carriers , AFL-CIO ( Texarkana Construction Com-
pany ), 138 NLRB 102 , cf Local 25, International Brotherhood of Electrical
Workers, AFL-CIO ( Sarrow -Suburban Electric Co, Inc ), 152 NLRB 531.
" Local 3, IBEW (Atlas Reid , Inc ), 170 NLRB 584, International
Brotherhood of Electrical Workers, Local Union No 11, AFL-CIO (L. G
Electric Contractors, Inc ), supra, see also N L R.B v Denver Building and
Construction Trades Council, 341 U S 675, 689 (1951), Northeastern Indi-
ana Building and Construction Trades Council (Centhvre Village Apart
ments), 148 NLRB 854
' As testified to by Hull, the signs were changed again the following
morning , Saturday, January 7, to show Surf Hunter as the electrical con-
tractor with whom Local 3 had a dispute.
18 The Trial Examiner ascertained at the hearing that whenever the word
"protest" was used , the witnesses were using it synonymously with "picket-
ing "
18 Cf. Hoban v. Local No. 4, Hoisting and Portable Engineers, Operating
Engineers (0 DiMascio Construction Corp ), 65 LRRM 3009, 3012.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raises a presumption that a second union objective
was that of seeking to cause the neutral general
contractor , Berger , to cease doing business with
Surf Hunter . I so find . I am convinced , as asserted
by the General Counsel , on the record as a whole,
that the Respondent would not have been satisfied
with anything less than the removal of Surf Hunter
from the jobsite in favor of the Local 3 contractor,
a resultwhich in fact was achieved. This objective,
as distinguished from the lawful objective of protest-
ing to the public "substandard wages and working
conditions," is unlawful and one proscribed by the
Act.20
I further conclude that, although the Respondent
was interested in protesting substandard wages
(once it had determined who the primary employer
was), the more immediate objective of Respon-
dent 's picketing was the removal of Surf Hunter
and its non-Local 3 electricians from the
jobsite. Accordingly, contrary to the Respondent's
assertion that its picketing was primary in nature, a
position which must fall in view of the finding of an
unlawful objective, I find that the Respondent, in
picketing the Shell Oil site between January 6 and
13, 1967, engaged in restraint and coercion of a
neutral secondary employer within the prohibition
of Section 8(b)(4)(ii)(B) of the Act.21 I further find
as a separate violation of this section, the Respon-
dent 's conduct in picketing the construction site on
Friday, January 6, 1967, with untruthful signs,
legends reflecting the name of an employer with
whom it had no dispute and one, who in fact was in
no way involved with the general contractor on the
construction project.22
General Counsel asserts, and the complaint al-
leges, that in picketing the Shell Oil site, the
Respondent violated Section 8(b)(4)(i )( B) of the
Act in that such conduct induced and encouraged
employees of Berger and other subcontractors on
the job to refuse to perform services. In this regard,
the record reveals that no one, Respondent 's offi-
cials or picketing Local 3 members , spoke to any of
the employees on the job. Nor was there any at-
tempt to enlist the support of working employees
notwithstanding that all such employees employed
by other subcontractors were union members.23
The picket signs, after the first day, were lawful
area standard signs, directed to the public.
Although, based upon my finding herein, there
were occasions when picketing occurred in the
absence of Surf Hunter 's employees , no work stop-
pages resulted . Thus, in the absence of other fac-
tors supporting the General Counsel's position in
this regard , and mindful that picketing which may
be found to coerce and restrain an employer does
not automatically give rise to a finding that such
also induces or encourages employees to make
common cause with the Union for an unlawful ob-
ject,24 I find that the General Counsel has failed to
prove a violation of Section 8(b)(4)(i)( B) of the
Act.25
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III , above, occurring in connection with the
Companies ' operations described in section 1,
above, have a close, intimate , and substantial rela-
tionship 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.
V. THE REMEDY
It having been found that the Respondent en
-gaged in certain unfair labor practices in the form
of unlawful secondary conduct, I shall recommend
that it cease and desist therefrom and that it take'
certain affirmative action which is necessary to ef-
fectuate the policies of the Act, While the General
Counsel, in his brief, requests a broad order to
eliminate " the widespread use of secondary activi-
ties" by Local 3, the result of its alleged dispute
with Local 199, the General Counsel fails to cite
cases sufficient to support its assertion in this re-
gard. Accordingly, as the facts found herein do not,
in my opinion , warrant such an order, I must deny
the request.
Upon the basis of the foregoing findings and con-
clusions,28 and upon the entire record in this case', I
make the following:
CONCLUSIONS OF LAW
1. Local 3, International Brotherhood of Electri-
cal Workers, AFL-CIO, and Local 199, Industrial
Workers of Allied Trades, are labor organizations
within the meaning of Section 2 (5) of the Act.
20 In reaching this conclusion , I do not rely on the fact, one stressed by
the General Counsel , that at times there were as many as 40 pickets on the
line with but few pedestrians in the vicinity This , in itself, is not necessarily
inconsistent with the mere area standards objective . Retail Clerks Interna-
tional Association , Local Union No. 899 , AFL-CIO ( State-Mart, Inc., d/b/a
Giant Food), 166 NLRB 818.
_' International Brotherhood of Electrical Workers , Local Union No II,
AFL-CIO (L G Electric Contractors , Inc ), supra ; Local 254, Building Ser-
vice Employees International Union , AFL-CIO ( Herbert Kletjian, d/b/a
University Cleaning C o ), 1 5 1 NLRB 341, Building Service Employees Inter-
national Union , Local No 105 ( Industrial Janitorial Services, Inc ) , I S I
NLRB 1424.
" Apart from the crucial importance of the objective of picketing con-
duct under Section 8 (b)(4) of the Act, it seems to me that coextensive with
the right of a union to picket, particularly at a common situs , is the obliga-
tion of that union to ascertain in advance the name of the employer it in-
tends to picket.
" Oddly enough, it does not appear that Berger , the general contractor,
even had any of his employees working at the iobsite
24 Upholsterers Frame & Bedding Workers, Twin City Local No. 61 (Min-
neapolis House Furnishings Company), 132 NLRB 40
" Local 3, International Brotherhood of Electrical Workers, AFL-CIO
(Atlas Reid, Inc ), supra
"The Respondent 's proposed findings of fact contained in its brief are
adopted only to the extent that they are consistent with my express findings
set forth herein
LOCAL 3, ELECTRICAL WORKERS
2. Surf Hunter Electric Company, Inc., and
Stuart Berger , Inc., are persons and employers en-
gaged in commerce and in an industry affecting
commerce within the meaning of the Act.
3. By picketing at the Shell Oil Company con-
struction site at North Conduit Avenue and
Rockaway Boulevard in Queens , New York , at par-
ticular times between January 6 and 16 , 1967, the
Respondent Union threatened , coerced, and
restrained Stuart Berger , Inc., with an object of
forcing or requiring that employer to cease doing
business with Surf Hunter Electric Company, Inc.,
in violation of Section 8(b)(4)(ii )( B) of the Act.
4. The Respondent Union has not engaged in
conduct violative of Section 8(b)(4)(i)(B) of the
Act.
5. The above unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this case , I recommend that the Respondent
Union , Local 3, International Brotherhood of Elec-
trical Workers , AFL-CIO, its officers, representa-
tives, and agents , shall:
1. Cease and desist from threatening , coercing,
or restraining Stuart Berger, Inc., or any other per-
son engaged in commerce or in an industry affect-
ing commerce where an object thereof is to force
or require Stuart Berger , Inc., to cease doing busi-
ness with Surf Hunter Electric Company, Inc.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Post at its business office and meeting halls
copies of the attached notice marked "Appen-
dix."27 Copies of said notice , on forms provided by
the Regional Director for Region 29, after being
duly signed by Respondent Union's authorized
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 mem-
bers are customarily posted . Reasonable steps shall
be taken by it to insure that said notices are not al-
tered , defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 29
signed copies of said notice for posting by Stuart
Berger , Inc., if willing , in places where notices to
employees are customarily posted.
1109
(c) Notify the Regional Director for Region 29,
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 Ap-
peals 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, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 3,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS , AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify you that:
WE WILL NOT threaten, restrain, or coerce
Stuart Berger, Inc., or any other employer or
person engaged in commerce or in industry af-
fecting commerce where an object thereof is to
force or require them to cease doing business
with Surf Hunter Electric Company, Inc.
LOCAL 3, INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
Labor Organization
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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 Regional
Office, 16 Court Street, Fourth Floor, Brooklyn,
New York 11201, Telephone 596-3535.