Local 323, IBEW

National Labor Relations Board - Board DecisionsOct 12, 1973

206 N.L.R.B. 377 (N.L.R.B. 1973)

LOCAL 323, IBEW - 377 International Brotherhood of Electrical Workers, AFL-CIO, Local 323 and Indian River Electric, Inc. Case 12-CC-828 October 12, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY. AND PENELLO On May 25, 1973, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed an ex- ception, and the Charging Party filed a brief in sup- port of the Administrative Law Judge's Decision. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' the primary, Indian River Electric, was not engaged in its normal business at the site. The Respondent argues that it had no way to know that Indian River had completed the preliminary elec- trical work and that if the facts known to it could lead to the conclusion-even if wrong--that Indian River was engaged in its normal business at the site, then its picketing was lawful. In support of this argument it cites Brownfield Electric, Inc., 145 NLRB 1163. How- ever, Brownfield does not stand for that proposition. The picketing in that case was held to be primary only because the primary employer was found to be en- gaged in its normal business at the common situs despite the intermittent absences of its employees 2 The Respondent picketed at the risk that Indian River was no longer engaged in its normal business at the jobsite. Indian River had no tools or materials stored at the site and its employees were absent be- cause there was no work for them to perform at the site for another 5 weeks. Therefore, I conclude that Indian River was not engaged in its normal business at the site and that the picketing was not primary. Accordingly, I concur with the majority's finding that the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as herein modified, and hereby orders that the Respondent, In- ternational Brotherhood of Electrical Workers, AFL- CIO, Local 323, Vero Beach, Florida, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as modified below: Reletter paragraph 1 of the Administrative Law Judge's recommended Order as 1(a) and add the fol- lowing as 1(b): "(b) Cease and desist from inducing and encourag- ing employees of Henry E. Runge and Sons, Inc., W. E. Fersch Masonry, or any other person engaged in commerce or in an industry affecting commerce, to cease work for their employer where an object thereof is to force or require their employer or any other person to cease doing business with Indian River Electric, Inc., or with any other person." MEMBER FANNING , concurring: I agree with the majority that the Respondent vio- lated Section 8(b)(4)(i) and (ii)(B). However, I do so because it continued to picket the premises of the secondary employer, Henry E. Runge and Sons, when 1 The General Counsel has excepted to the Administrative Law Judge's inadvertent failure to order the Respondent to cease and desist from engag- ing in conduct which he had found to have violated Sec. 8(bX4)(i)(B) of the Act As this omission was clearly an oversight (see the last paragraph of sec. III, B; of the Administrative Law Judge's Decision; his third "Conclusion of Law"; and "The Remedy"), we shall modify the Administrative Law Judge's recommended Order accordingly. Z The primary employer in Brownfield was temporarily and intermittently absent for a total of 4 days during the picketing, However, it continued to store tools and materials on the premises and had not completed its work. On those facts, and evidence suggesting the absence of primary employees was caused by the effectiveness of lawful primary picketing, the Board con- cluded that the primary employer was engaged in its normal business at the common situs even though it had no employees on the premises. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On February 20, 1973, Indian River Electric, Inc., hereinafter called Indi- an River, filed a charge with the Regional Director for Region 12, of the National Labor Relations Board , herein- after called the Board , alleging that International Brother- hood of Electrical Workers, AFL-CIO, Local 323, hereinafter called Respondent, violated the Act by inducing and encouraging employees of W. E. Fersch Masonry, hereinafter called Fersch , and Henry E. Runge and Sons, Inc., hereinafter called Runge , general contractors, to en- gage in a strike and threatened , coerced, and restrained said Fersch and Runge with the object of forcing Runge to cease doing business with Indian River, all in violation of Section 8(b)(4)(i) and (ii)(B). The said Regional Director , on March 206 NLRB No. 88 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 21 1973, issued a complaint and notice of hearing contain- ing the same allegations which in its duly filed answer Re- spondent denied . On the issues thus raised , a hearing was held before me, at Vero Beach, Florida, on April 4 and 5, 1973. All parties were present and represented by counsel and were afforded full opportunity to be heard, to produce, examine and cross-examine witnesses, and to introduce evi- dence material and relevant to the issues . At the conclusion of the hearing, oral argument was delivered by the General Counsel, briefs were received from the Charging Party and the Respondent. Upon the entire record in the case and in consideration of the briefs and oral argument , I make the following: FINDINGS OF FACT I JURISDICTIONAL ALLEGATIONS The General Counsel alleges, and I find, Indian River, a Florida corporation, is engaged in the building and con- struction industry as an electrical contractor and that dur- ing the past 12 months Indian River purchased and received materials and supplies valued in excess of $50 ,000 directly from points located outside the State of Florida. Runge is a Florida corporation engaged as a general con- tractor in the building and construction industry, presently engaged as the general contractor for the construction of a steak house in Vero Beach, Florida. Fersch is engaged in the building and construction industry as a masonry contractor and is presently engaged in masonry construction at the steak house project. The General Counsel further alleges that Indian River is an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act.' II THE RESPONDENT The Respondent is a labor organization within the mean- ing of Section 2(5) of the Act and Gene Chesser, its assistant business agent, is an agent within the meaning of Section 2(13) of the Act. III THE UNFAIR LABOR PRACTICES A. Background Runge subcontracted the masonry work on the steak house job to Fersch, a contractor using union employees, and the electrical work to Indian River, an electrical con- tractor who had apparently had a longstanding labor dis- pute with Respondent. The steak house is designed to be built upon a concrete slab. Preparatory to pouring the slab, certain electrical work was performed by Indian River, using two employees, in- stalling electrical lines into the j obsite and conduit into the base into which the slab of concrete was to be poured. On 1 Respondent neither admitted nor denied the allegations set forth above. The General Counsel's evidence adequately supports them. Wednesday, February 7,2, all work preparatory to pouring the slab was completed, the conduit had been placed by the electrical workers employed by Indian River, and all em- ployees departed from the site pending the pouring of the concrete slab on Thursday, February 8. On Wednesday, the job was picketed throughout the day by Respondent, under the direct supervision of Assistant Business Representative Chesser. When the electricians completed installing the conduit at about 1 p.m., they left in Indian River's truck and did not return. At around 3 p.m., another employee of Indian River came to the jobsite and installed flood lights and departed. There was then no fur- ther electrical work that could be done for a period of some 5 weeks. There was no time on Wednesday when Respon- dent did not picket until the ending of the normal workday. During the picketing Wednesday morning, Chesser was carrying a picket sign and Mark Runge, the president of Runge, talked with him in the presence of Business Agent Wolfe, of the Masonry Workers Union, which represe&ed the employees of Fersch. Runge asked Wolfe if the masonry employees would honor the picket line, Wolfe answered that they would do so and Chesser walked away from them. On Thursday, February 8, Mark Runge and his father, Henry, arrived at the jobsite shortly after 8. The pickets, with Chesser, arrived almost immediately after the Runges. The pickets commenced picketing. No one showed up from Fersch to pour concrete. At sometime between 8 and 10 a.m. a conversation took place between Mark, Henry, and Craig Runge, and Chesser. There is sharp conflict as to what was said by whom in this conversation. The Runges all testified that one of their number, probably Mark, asked Chesser what had to be done to get rid of the picket. Chesser answered that they would have to write him a letter that Indian River was off the job and would not be back and he would remove the picket in 5 minutes. Chesser's version is that Henry Runge said to him "we don't want any trouble, we're wanting to have the job progress, we have cnacelled Indian River Electric's contract, now what else must we do for you to take the pickets off." Chesser answered, "if you will write me a letter stating what you have told me, that you have cancelled Indian River Electric's contract or that they are off the job and will not be back, I'll take my pickets down immediately. I need confirmation that in fact you have done this." According to Henry Runge's version, at this point they left the jobsite and went to Indian River's office where they ascertained that Indian River would not voluntarily give up the contract. They then went to their own office where they prepared a letter withdrawing the contract from Indian Riv- er, returned, got a receipt for their letter from Indian River, then returned to the jobsite, and gave it to Chesser, who thereupon called off the picket. According to Chesser's version, the Runges then left the jobsite and returned in about an hour and gave him a copy of the letter addressed to him, stating that they had canceled their contract with Indian River and were negotiating with another firm because Respondent was picketing their job and the local mason union "will not work and this is holding up the job at the minute." The letter ends "Our contract 2 All dates hereinafter are in the year 1973 unless otherwise specified LOCAL 323, IBEW with Indian River Electric, Inc., is canceled and they will not be on the job again." B. Discussion and Conclusions Assuming jurisdiction, which I have found here to exist, the complaint raises three necessary elements of proof; (a) the proscribed objective, to bring about a cessation of busi- ness between primary and secondary employer; (b) the coercion of secondary employers to achieve that objective; and (c) the inducement of employees of secondary employ- ers to strike to achieve the primary objective. The primary employer here is Indian River with whom Respondent has long had a labor dispute. The secondary employers are Runge, with whom Indian River has a subcontract, and Fersch, another subcontractor of Runge. Respondent con- tends that its object is to call the attention of the public to the fact that Indian River does 'not sustain the area stan- dards for its employees in terms of wages and working conditions. No evidence that this is so was adduced. To this end Respondent contends it picketed the job with picket signs stating that Indian River was a substandard employer. As in most construction industry, secondary boycott cases this is a "common situs" case. That is to say each of the three employers with whom we are here concerned was engaged to perform some part of its operations at the situs of the steakhouse. Under the so called Moore Drydock 3 rule, picketing of the premises of a secondary employer is prima- ry if it meets the following conditions : (a) the picketing is 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 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. The Moore Drydock standards are not to be applied indis- criminately on a per se basis but are merely aids in determin- ing the underlying question of whether the picketing is designed to embroil secondary employers in the primary dispute. Other aids are also available to reach a determina- tion on this issue . Whether for instance the primary employ- er had a permanent establishment that may be picketed effectively or whether other evidence exists that sheds light on the true objective of Respondent. In the instant case there is no evidence that Indian River's place of business, from which its trucks and employees are dispatched to its various jobs, was ever picketed. Applying the Moore Drydock tests, it is clear that the picketing herein took place at times when Indian River was not engaged in its normal business at the site . Respondent, apparently relying on the Board decision in the Plauche case 4 appeared to contend that because Indian River could conceivably have had an employee on the job, although it had no reason to believe that any employee was scheduled to work after the preliminary work had been done until the concrete floor was completed, it continued to be engaged in 3 Sailors' Union of the Pacific, AFL (Moore Drydock Company), 92 NLRB 547. 4I.B.E.W. Local Union 861 (Plauche Electric Company, Inc.), 135 NLRB 250. 379 its normal business at the situs. This case must be distin- guished from Plauche, however. There the Board dealt with the situation where picketing continued while Plauche's em- ployees took time off for lunch or a coffeebreak. In the instant case Indian River's employees were clearly off the job; their arrival and departure was signaled by the presence or absence of the truck bearing Indian River's name. When the Indian River employees finally departed on February 7, they left nothing on the job suggesting their continued em- ployment on the job and they appeared there at no time on February 8 or indeed at no time until the time of the hear- ing -The conversations between the Runges and Chesser give a clue to Respondent's objective of continued picketing. It is clear from what Chesser said that he believed that he had a right to picket as long as Indian River was the subcontrac- tor on the job, and it was only the assurance given to him in writing that Indian River would not return that convinced Chesser that he should take the picket down. Chesser's reac- tion, according to his testimony, was immediately to go to 'another electric shop nearby with whom he had a contract and tell the shop superintendent that Henry Runge had canceled the Indian River Electric contract and that he thought the Union was going to get some relief on the job. He then called his business manager with the same message. He did this as soon as Runge departed to write the letter and before Chesser had the letter in hand. I conclude that the "area standards" language on the picket sign and the "area standards" defense of Respondent is a subterfuge . Respondent's real purpose herein was to force Runge to get Indian River off the job. As soon as this purpose was accomplished the pickets were taken down. While Respondent makes much of the differences between the accounts of the conversations on February 8 between the Runges on the one hand and Chesser on the other, and contends that Respondent at no time suggested that Runge had to get rid of Indian River, I find that Respondent's actions were inconsistent with so-called area standards picketing.5 I find therefore that the General Counsel proved by a preponderance of the evidence that Respondent's ob- jective in the picketing was the proscribed objective of caus- ing Runge to cease doing business with the primary employer. With regard to the coercion of employers and the induce- ment of employers, the picketing, under the circumstances engaged in here, clearly had that objective and that affect of causing the Masonry workers to refuse to make the con- crete pour. Chesser, who had been engaged in the building and construction industry for 12 years, well knew that all work on the project would stop. There is no better way to coerce a general contractor than to stop his job in this fashion, and by its picketing and his failure to reassure Mason Business Agent Wolf that the picketing was not directed at the Mason employees, Chesser, on behalf of the Union, clearly induced employees to withhold their services 5 An additional support for this conclusion is to be found in the fact that when Runge asked the Mason 's business agent whether his men would work behind the picket line and Wolf answered that they would not, Chesser deliberately walked away rather than reassuring Wolf that the picketing was not aimed at Runge or limited to Indian River, as good faith would seem to require him to do. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Fersch, the other secondary employer. Accordingly, I find that Respondent induced and encouraged individuals employed by Fersch to engage in a refusal in the course of their employment to perform services for Fersch on the steakhouse job and coerced Runge and Fersch- with the object of forcing or requiring Runge to cease doing business with Indian River in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Charging Party's operations described in section II, above, have a close, inti- mate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is a labor organization engaged in com- merce within the meaning of Section 2(5) of the Act. 2. Runge, Fersch, and Indian River are employers en- gaged in commerce or in industries affecting commerce within the meaning of, Section 2(2), (6), and (7) and 8(b)(4) of the Act. 3. Respondent has threatened, coerced and restrained persons engaged in commerce or in an industry affecting commerce and has induced and encouraged employees of persons engaged in commerce or in an industry affecting commerce to induce those persons to cease doing business with the primary employer with whom it had a labor dispute thereby engaging in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act. any other person. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 7 Copies of said no- tice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's authorized rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director with signed copies of the aforesaid notice for posting, if desired, by Henry E. Runge Inc., W. E. Fersch Masonry or Indian River Electric Inc., at places where they customarily post notices to their employees. (c) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing and Order of the National Labor Relations Board " APPENDIX THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend the customary cease- and-desist order and the usual affirmative relief in cases of this nature including the posting of notices. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 International Brotherhood of Electrical Workers, AFL- CIO, Local 323, Vero Beach, Florida, its officers, agents, and representatives shall: 1. Cease and desist from threatening, coercing, or re- straining Henry E. Runge and Sons, Inc., or W. E. Fersch Masonry or any other person engaged in commerce or in an industry affecting commerce where an object thereof is to force or require Henry E. Runge Inc., or such person to cease doing business with Indian River Electric Inc., or with NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence before an Administrative Law Judge of the National Labor Relations Board, it was found that we, International Brotherhood of Electrical Workers, AFL- CIO, Local 323, have violated the law and we have been ordered to post this notice and abide by its terms. WE WILL NOT threaten, coerce, or restrain Henry E. Runge and Sons Inc., or W. E. Fersch Masonry, or any other person engaged in commerce or in an industry affecting commerce, and WE WILL Nor induce employees of Henry E. Runge and Sons Inc., W. E. Fersch Masonry, or any other person engaged in commerce or in an industry affect- ing commerce to cease work for their employer where an object thereof is to force or require such other per- son to cease doing business with Indian River Electric Inc. LOCAL 323, IBEW 381 INTERNATIONAL BROTHERHOOD This is an official notice and must not be defaced by OF ELECTRICAL WORKERS , anyone. AFL-CIO, LOCAL 323 This notice must remain posted for 60 consecutive days (Labor Organization) - from the date of posting and must not be altered, defaced, or covered by any other material. Dated By Any questions concerning this notice or compliance with (Representative) (Title) its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, P.O. Box 3322, Tampa, Florida 33602, Telephone 813-228-7711, Ext. 227.