Local 38, IBEW, AFL-CIO

National Labor Relations Board - Board Decisions

Mar 29, 1963

141 N.L.R.B. 983 (N.L.R.B. 1963)

LOCAL 38, IBEW, AFL-CIO 983
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, 1200 Rialto Building, 906 Grand Avenue, Kansas City 6, Mis-
souri, Telephone No. Baltimore 1-7000, Extension 731, if they have
any questions concerning this notice or compliance with its provisions.
Local 38, International Brotherhood of Electrical Workers, AFL-
CIO and S. Simon Construction Company
Local 38, International Brotherhood of Electrical Workers, AFL-
CIO and The Cleveland Electric Illuminating Company. Cases
Nos. 8-CC-166 and 8-CC-167. March 29, 1963
DECISION AND ORDER
On January 11, 1963, Trial Examiner Sidney Sherman issued his
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 Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a brief in support thereof, and the Charging
Parties 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
Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
INTERMEDIATE REPORT
Copies of the charges herein were served upon the Respondent on August 3
and 9 , 1962 , a consolidated complaint issued on September 6,1 and the case was heard
on November 13 and 14 . The issues litigated were whether the Respondent had
violated Section 8(b) (4) (i ) and (ii) (B) of the Act . After the hearing , briefs were
filed by all parties.
1 All events herein related occurred in 1962, unless otherwise stated.
141 NLRB No. 87.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the entire record 2 and my observation of the witnesses, I adopt
the following findings and conclusions:
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
The complaint alleges, and the Respondent conceded at the hearing, that The
Cleveland Electric Illuminating Company, hereinafter called CEI, is a public utility,
with its principal offices in Cleveland, Ohio, that it is engaged in the business of
furnishing electrical service, that it annuallyreceives gross revenues in excess of
$250,000, and annually receives directly from', out-of-State points supplies valued in
excess of $50,000. I so find.
M & K Electric, Inc., hereinafter called M & K, an electrical contractor, operating
in the Cleveland, Ohio, area, annually receives indirectly from out-of-State sources
supplies valued at about $40,000.
EL-O Electric Co., hereinafter called EL-O, is an electrical contractor operating
in the Cleveland area. It annually purchases directly from out-of-State suppliers
about $1,000 worth of goods. It also purchases annually about $100,000 worth of
goods from local distributors for out-of-State manufacturers. Most of these goods
are shipped directly by the manufacturers to EL-O.
S. Simon Construction Company, hereinafter called Simon, is engaged in the
building business in the Cleveland area, and annually receives directly from out-of-
State suppliers goods valued in excess of $50,000. The instant proceeding involves an
alleged work stoppage by employees of EL-O, Simon's electrical contractor, at an
apartment house project.
This proceeding also involves an alleged work stoppage by employees of M & K
at an apartment house project known as Holland Gardens, which was being built
by a "partnership" consisting of three firms, identified in the record as Zaremba
and Sons, Drost and Drost, and Forest City Enterprises. This partnership (or joint
venture) will be referred to hereinafter as "Holland." Walter Zaremba, a representa-
tive of Zaremba and Sons, testified, and I find, that his firm annually receives mate-
rials valued at about $500,000, which "originate" outside the State of Ohio.
I find that CEI, M & K, EL-O, Simon, and Holland are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and in an industry affecting com-
merce within the meaning of Section 8(b) (4) of the Act.3 I find further that it will
effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Local 38, International Brotherhood of Electrical Workers, AFL-CIO, herein called
the Respondent , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint, as amended, alleges that the Respondent violated Section 8(b) (4) (i)
and (ii) (B) of the Act by certain conduct detailed below.
The Union denies the foregoing allegations.
Basically, the instant controversy originated in a dispute between (1) the Re-
spondent and (2) CEI and the two general contractors involved (Simon and Hol-
land) as to whether the work of "racking" electrical powerlines on apartment buildings
under construction should be done by employees of CEI, who were not members
of Respondent, or by members of the Respondent in the employ of the electrical
subcontractors involved herein (EL-O and M & K). The term "racking" refers to
one of two common methods used to lead outside electrical wires from a CEI
distribution pole to the vertical "service pipes" 4 affixed to the exterior walls of a
building. One of the methods is "looping," which involves simply running the wire
2 The transcript of testimony taken herein is hereby ordered corrected in the following
respects:
1. Page 29, lines 19 and 20, change "Sammy" to "Dir. Fanning."
2. Page 39, line 24, change "accept" to "reject."
3. Page 49, line 16, change "labor" to "Board."
4. Page 162, line 6, change "employee" to "employer."
5. Page 186, lines 3 to 5, strike entire sentence and substitute: "T can't reverse a
case that they decided. They can reverse my Intermediate report if they agree with
you."
6. Page 254, line 8, change "building goods" to "billing goes."
7. Page 349, line 23, change "I will move" to "I will entertain a motion."
.S. M. Kisner and Sons, et al., 131 NLRB 1196
* These pipes contain wires which lead the power to the interior of the building.
LOCAL 38, IBEW, AFL--CIO 985
-directly from the utility pole to the top of each service pipe so that the wire makes
no contact with the building before it reaches the pipe. However, this method has
disadvantages, from the standpoint of esthetics and safety, particularly in the case of
an apartment building having a large number of outside connections. To overcome
this objection and mitigate the unsightliness and hazard of a large tangle of wires
running from distribution poles to service pipes, the practice has grown up of
"looping" a single wire from the pole to the nearest point on the building and thence
running it horizontally along the exterior wall of the building to connect with the
service pipes serving the individual apartments. The horizontal wire is attached to
the building wall at intervals by fasteners called "racks," and the entire process
of running the wire in this fashion horizontally from one point on the building wall
to another is called "racking." In the instant case, the issue as to the assignment of
this work arose in connection with the construction of two apartment house projects-
the Holland Gardens and Simon projects. The events at each project will be sep-
arately considered.
A. Events at Holland Gardens
1. Before June 4-the threats
At Holland Gardens the builder was Holland, and the electrical contractor was
M & K, whose employees were represented by the Respondent.
At an early stage in the construction of this project, it was agreed by Holland
and CEI that at least some of the powerlines leading to the project would be racked,
and that the racking would be done by employees of CEI. Thereafter, in the fore-
part of April, Seiholzer, business agent of the Union, called Yanda, a CEI representa-
tive, and importuned him to give up the racking work so that it could be assigned
to M & K, but no agreement was reached. On June 1 Yanda notified Seiholzer that
CEI had begun the racking work at Holland Gardens that morning. According to
Yanda, Seiholzer retorted that he might have to "pull the job."
Swartz, president of M & K, testified that on May 30 and June 1, he discussed the
racking work at Holland Gardens with Seiholzer, who insisted that such work be
done by the employees of M & K and not by CEI; and that on June 1 Seiholzer re-
marked that if any of the buildings were racked he would "pull the job."
While admitting that he had conversations with Yanda and Swartz in which he
urged the Respondent's claim to the racking work at Holland Gardens, Seiholzer
denied the threats attributed to him. However, he admitted telling Yanda on June 1
that the electricians might walk off the job.
2. The June 4 "walkout"
It is undisputed that about 8 a.m. on June 4 a number of CEI employees returned
to Holland Gardens and began to rack several of the buildings in the project; that
Seiholzer arrived at the project about 2:45 p.m. and conferred with the M & K
electricians; that about 3:30 p.m.-an hour before their normal quititng time-the
electricians walked off the job, severing the line that supplied power and light to other
mechanics on the job; and that the electricians did not return to Holland Gardens
until June 8.
The General Counsel contends, and the Respondent denies, that Seiholzer induced
the electricians to leave the job on June 4. Seiholzer testified that: on that date 6
he arrived at Holland Gardens about 2:45 p.m.; when one of the electricians (Spino)
urged removal of the CEI crew from the premises, Seiholzer called Yanda, telling
him that the M & K electricians would probably leave the job; thereafter one of the
electricians (Krieger) proposed that they leave, to which the others agreed, including
the foreman, Srnykowski; Seiholzer did not attempt to persuade the men to remain
at work; and in response to an inquiry by one of the men, he advised them to turn
off the supply of power to the other crafts but only because this was routine pro-
cedure for the electricians at the end of their work shift.
Thus, according to Seiholzer, the electricians' quitting of the job on June 4 was
spontaneous, action not induced by him.
3. Discussion
I find , contrary to Seiholzer 's testimony, that on June 1 , he did threaten Yanda
and Swartz that if any racking was done by CEI at Holland Gardens, Seiholzer would
" While Seiholzer fixed the date as about 2 weeks after June 1, it is clear from the con-
text that he was, mistaken as to the date and that the "walkout" incident described by
him is the same as that which, according to the credited testimony of other witnesses,
occurred on June 4.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause the electricians to leave the job. I was favorably impressed by Swartz' de-
meanor, and I have also given weight to the fact that, unlike Seiholzer, he apparently
had nothing to gain by his testimony as to Seiholzer's threat. In fact, if anything,
it was to his interest to aid the Respondent, which was seeking to obtain the racking
work for M & K and its employees. I have no difficulty, therefore, in crediting
Swartz as against Seiholzer. While both Yanda and Seiholzer were interested wit-
nesses, the fact that Seiholzer, as I have just found, addressed to Swartz on June 1 the
same threat as Yanda says was addressed to him the same day tends to corroborate
Yanda's version, and I credit it.
As for Seiholzer's testimony that the employees decided to leave the job of their
own volition, it seems a strange coincidence that, although the CEI crew had been
racking since early in the morning on June 4, the electricians did not decide to leave
the job until late in the afternoon, and only after the arrival on the scene of Seiholzer,°
who, only a few days before, had as I have just found, intimated that he would take
them off the job if the CEI racked. It seems strange also that Seiholzer was able
to predict accurately, in his call to Yanda on June 4, that the electricians would quit
the job, even though, according to Seiholzer's own testimony, Krieger proposed leav-
ing only after Seiholzer's call to Yanda. I deem it significant also that, although
Spino and Krieger were both members of Respondent and might therefore be ex-
pected to be favorably disposed to it, neither was called to corroborate Seiholzer.
For all these reasons, I do not credit Seiholzer's version of the walkout as a spon-
taneous act of the electricians.
Moreover, even if it be true that the walkout was conceived by the electricians,
rather than by Seiholzer, the fact that he offered no objection could not fail to lead
the electricians to believe that he approved of their plan. In that respect, Seiholzer,
encouraged the electricians (even if he did not induce them), to walk off the job.
While Seiholzer (and Respondent's business manager, Chapple) denied that he
had authority to order a walkout, this denial is belied by the fact that, as I have
found, he threatened Yanda and Swartz that he might or would "pull" the men off
the job. Moreover, as Respondent's business agent, he had been designated by the
Respondent, and was regarded by the M & K electricians, as the channel of com-
munication between the Respondent and the M & K electricians,7 and so had at least
apparent authority to transmit to them any instructions relating to strike action, or
to interpret union policy in that area. Accordingly, his inducement or encourage-
ment of the June 4 walkout fell within the scope of such apparent authority.8
Accordingly, I find that the Respondent induced or encouraged M & K electricians
to quit the Holland Gardens job on June 4, because of the presence of the CEI
"racking" crew, that its immediate object was to force M & K to cease doing business
with Holland until it assigned the racking work to M & K, and that Respondent's
ultimate object was to force Holland to cease dealing with CEI, insofar as the rack-
ing work was involved. I find therefore that, by Seiholzer's inducement or encourage-
ment of the M & K electricians to leave the job, the Respondent violated Section
8(b) (4) (i) and (ii) (B) of the Act .9 I find further that, by Seiholzer's aforemen-
6 While there is evidence that the electricians performed little, if any, work, even prior
to Seiholzer's arrival, the fact remains that they did not actually leave the job until after
his visit.
7 Witness the fact that, as Selholzer admitted, the electricians turned to him for advice
as to whether, in leaving the job prematurely, they should turn off the powerline serving
the other crafts. According to Seiholzer, this was a matter covered by the Respondent's
contract with M & K.
8 He clearly had apparent, if not actual, authority to advise the electricians against
engaging in what, according to him, was a wildcat strike.
e In view of this finding, it is not necessary to pass upon the Respondent's contention
that the M & K electricians did not actually refuse to perform services for their employer
but left the job only after their foreman, Smykowski, had obtained permission from Swartz
for them to leave. This contention mistakenly presupposes that inducement is not un-
lawful unless it results in an actual refusal to perform services. If, as I have found,
Seiholzer induced or encouraged the men to leave the job, that is sufficient to establish a
violation, and it would be no defense that the men did not in fact leave or that they left
only after obtaining permission from their employer. Moreover, if the point were mate-
rial, I would find an actual refusal by the electricians to perform services. For the same
reason as I have credited him against Seiholzer (see above), I would credit Swartz against
Smykowski and find , notwithstanding some contrary testimony by Smykowski that on
June 4, the latter did not request permission for the electricians to leave Holland Gardens,
but advised Swartz, in effect, that the men had already decided to leave, and that Swartz
LOCAL 38, IBEW, AFL-CIO 987
tioned threat to Swartz to strike the Holland Gardens job, the Respondent violated
Section 8(b) (4) (ii) (B) of the Act.
B. Events at the Simon Project
On July 27, Simon was engaged in the construction of a group of apartment
buildings in the Cleveland area, and on that date, CEI, pursuant to a prior arrange-
ment with Simon, began to do racking work on one of these buildings. Thereupon,
the employees of EL-O, the electrical subcontractor, removed from the walls of the
foregoing building the vertical wires (and the "service pipes" which enclosed the
wires) 10 running from the meter boxes on the exterior walls of the building to the
horizontal wires near the roof of the building which were being racked by CEI.
The removal of the foregoing service wires (and pipes) necessarily prevented the
furnishing of electrical service to the individual apartments, thereby rendering
nugatory CEI's racking work. When Simon appealed to EL-O's foreman, Shaw, to
restore the service wires, the latter reported that the electricians refused to do so.
Frankel, president of EL-O testified that on July 30 he visited the job and found
that the aforementioned service pipes (and wires) had been removed, that he was
told by his foreman, Shaw, that it had been necessary to remove the service pipes to
prevent CEI from proceeding with the racking, and that later, on August 1, Shaw
refused to comply with Frankel's order to restore the pipes on the ground that he
had been ordered to remove the pipes and had as yet received no contrary order.
The service pipes and wires were not in fact restored until 7 or 8 days later.
Respondent' s business agent, Brubaker, testified that on July 27, upon being notified
by Shaw 11 that the CEI had begun to rack at the Simon project, he visited the job,
instructed Shaw to remove the service wires described above, and that soon thereafter
Shaw called his attention to the fact that the wires were being racked by the CEI
employees in such a manner as to violate the applicable building code.
There is no dispute that Brubaker induced the employees of EL-O to remove the
service wires. However, the Respondent contends that (1) there was no refusal to
perform services, and (2) the sole reason for such inducement was not the fact
that employees of CEI were performing the racking work, but that their work did
not conform to the requirements of the local building code.
As to (1), this defense requires a determination as to whether inducing employees
to undo their own work is tantamount to inducing them to refuse to perform services.
I find that it is. A necessary corollary of an employee's duty to perform services for
his employer is the duty not to do anything which would nullify or impair the effec-
tiveness of such services. When the EL-O employees tore down the wires they had
installed, their employer was in the same position as if they had refused to install
the wires in the first instance. Otherwise stated, the willful destruction by employees
on their employer's time of work installed by them is tantamount to a refusal to
perform services for their employer during the time so spent. Moreover, the natural
tendency, and actual effect, of Brubaker's inducement of the EL-O electricians to
remove the service pipes and wires was to cause them to refuse to restore such pipes
and wires, as witness Shaw's response to Frankel's request, as related above. In
that respect, at least, there was clearly inducement by Brubaker of the EL-O em-
ployees to refuse to perform services.
In any event, the removal of the service wires, clearly violated Section
8(b) (4) (ii) (B) of the Act, as it constituted coercive conduct with an object of
disrupting business relations between Simon and CEI until the racking work was
assigned to the EL-O electricians.
In support of its second defense,12 Respondent adduced testimony by Brubaker's
superior, Chapple, who was Respondent's business manager. He admitted that he
authorized Brubaker to order removal of the service wires,13 but asserted that this
chose to use them elsewhere only because of their refusal to work at Holland Gardens.
The fact that the electricians under these circumstances were transferred to other work
does not alter the fact that they refused to perform particular services, i.e., work at
Holland Gardens.
10 See footnote 4, supra. These wires are hereinafter referred to as the "service wires."
11 Shaw was a member of Respondent.
13 This defense assumes, as does the ensuing discussion, that if the Respondent's sole
object was to enforce the building code, there would be no violation, even though the
necessary effect of the removal of the service wires was to disrupt business relations be-
tween Simon and CET.
la,Chapple denied only that he authorized removal of the pipes in addition to the wires.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision was reached only after determining , from a discussion with Brubaker, that
the racking work by CEI at the Simon project violated the "National Electrical
Code." 14 Chapple said in this regard:
We decided that as long as their work that was installed was against the National
Electrical Code, that we would remove . . . the wires so they could not attach
our work to the work that they had put up and that was against the code.
While Chapple does not expressly so state, Respondent would have the inference
drawn from the foregoing testimony that the alleged code violation was the sole
reason for the removal of the service wires. However, the following considerations
militate against such inference:
1. Chapple, himself, admitted that prior to the foregoing events he participated in
two meetings with Yanda, the CEI representative, 15 in which he urged the claim of
Respondent's members to the racking work, and that at the second of these meetings
he defended Respondent's action in sending a circular "directive," dated June 1, to
various electrical contractors in the Cleveland area, which was admittedly designed
to induce them to bid on racking work. Chapple admitted that there was no discus-
sion at these meetings of any code violation by CEI in connection with its racking
work. Moreover, reference has already been made to Seiholzer's conferences with
Yanda, his threats addressed to Yanda and Swartz, and the work stoppage at
Holland Gardens, none of which was related to any code violation. In view of
this background of strenuous efforts by Respondent since April to wrest the racking
work from CEI, it strains credulity to believe that on July 27 the Respondent's
objective suddenly underwent a complete metamorphosis and that Respondent was no
longer animated by the desire to obtain more work for its members but rather by a
concern over violations of the local building code.16
2. According to Brubaker, the only discussion he had with Chapple regarding the
alleged code violation by CEI on the Simon job occurred on July 27, and this dis-
cussion occurred after Brubaker had already ordered removal of the service wires for
reasons unrelated to the code violation. Brubaker testified that the sequence of
events on July 27 was as follows:
a. After arriving at the Simon project, he discussed the racking work with EL-O's
foreman, Shaw, and ordered him to remove the service wires because of Brubaker's
belief that the racking "was our work." No reference was made by him at that
particular moment to any code violation.
b. Shortly after the foregoing order was given , Shaw called to Brubaker' s attention
the alleged code violation by CEI.
c. Brubaker then called Chapple for confirmation of Brubaker' s decision to remove
the wires, reporting in this conversation the alleged code violation, and Chapple
approved the proposed removal of the wires.
d. The electricians removed the wires.
Thus, even if one takes the view of Brubaker's testimony most favorable to
Respondent, it is clear that the alleged code violation at the most merely strengthened
his feeling that the wires should be removed, and that, even absent such violation
he would have had the wires removed in any event, because of the Respondent's
jurisdictional claim. However, it may be urged that Chapple's motivation is more
significant than Brubaker's, who was merely Chapple's subordinate, and that, even if
one accepts Brubaker's testimcny, it should be found at least that Chapple on July 27
approved Brubaker's decision to remove the wires solely because of the reported code
violation. However, Brubaker did not so testify. He stated only that he advised
Chapple of his order to Shaw to remove the wires, and of the code violation involved
in CEI's racking work and that Chapple approved Brubaker' s order . It follows that
all that Brubaker's testimony adds to Chapple' s is to confirm that the latter was aware
of the code violation before the wires were actually removed, but Brubaker' s testi-
mony does not indicate that the code violation loomed so large in his discussion with
Chapple as to warrant the inference that it displaced all other considerations.
14 ^Chapple testified at one point that this decision was reached 2 days before the July 27
incident. However, elsewhere he gave the date as that on which CEI was engaged in
racking at the Simon job. It is clear that CEI did not begin to rack there until July 27.
Accordingly, I construe Chapple's testimony to relate to July 27 rather than July 25.
35 While Ch.apple was uncertain as to the date of the last of these meetings, I find, on
the basis of Yanda's uncontradicted testimony that the date was July 9.
19 There was no evidence or contention that the EI O electricians might be subject to
any legal sanctions if they failed to remove the service wires, or that the alleged code
violations by CEI constituted a hazard to them.
LOCAL 3 8, IBEW, AFL-CIO 989
3. The record contains testimony by CEI's representative, Morris, by EL-O's presi-
dent, Frankel, and by Simon, that the only reason assigned to them by Shaw or
Brubaker on or about July 27 for removal of the service wires was the jurisdictional
dispute with CEI over the racking work.'' Moreover Magri, Simon's superintendent
on the project, while admitting that he heard the EL-O electricians discuss a code
violation on July 27, insisted that their avowed reason for taking down the service
wires was not such violation but rather their jurisdictional claim to the racking.
As none of the foregoing testimony was contradicted, I credit it.
In view of all the foregoing considerations, I find that it was at least one of the
Respondent's objectives, in ordering the removal of the service wires, to force EL-O
not to make certain installations for Simon (the attachment of the service wires to
the racking) until Simon assigned the racking work to EL-O and to force Simon to
cease doing business with CEI insofar as the racking work was involved.
I find therefore than on July 27, the Respondent induced employees of EL-O to
refuse to perform services for their employer, with an object of forcing EL-O to
cease doing business with Simon to the extent indicated above, and of forcing Simon
to cease doing business with CEI, to the extent indicated above, thereby violating
Section 8(b) (4) (i) and (ii) (B) of the Act.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
the operations of CEI, as set forth in section I , above , have a close , intimate, and
substantial relation to trade, traffic , and commerce and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, it
will be recommended that the Respondent be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Cleveland Electric Illuminating Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. EL-O Electric Co., M & K Electric, Inc., S. Simon Construction Company,
and Holland are engaged in commerce or in an industry affecting commerce within
the meaning of Section 8(b) (4) of the Act.
3. Local 38, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
4. By inducing and encouraging individuals employed by EL-O Electric Co., and
M & K Electric, Inc., to engage in a strike or a refusal in the course of their employ-
ment to perform services, and thereby coercing and restraining the foregoing em-
ployers, with an object of (1) forcing or requiring them to cease doing business with
S. Simon Construction Company and Holland, respectively, and (2) forcing Simon
and Holland to cease doing business with The Cleveland Electric Illuminating Com-
pany, the Respondent has violated Section 8(b) (4) (i) and (ii) (B) of the Act.
17 According to Frankel, Shaw, on July 30, told him that the service wires had been re-
moved to prevent CFI from racking the building, and it was not until about 8 days later
that Shaw mentioned the alleged code violation.
18 In view of my findings herein, I do not deem it necessary to make any findings as to
additional alleged violations by the Respondent, particularly the cutting of the wires at
Holland Gardens. Such a finding would require resolution of conflicting testimony as to
Respondent's motivation, and would not affect the remedy.
I find no merit in various defenses of Respondent not discussed above, but argued in
its brief, including the contention that (1) CFI was an "ally" of Simon and Holland be-
cause it made no charge for the racking work, and offered them various other inducements
to obtain their patronage, and (2) the Respondent's conduct was justified because its mem-
bers were entitled to do the racking work. As to the latter defense, see Boston Gas Com-
pany, et at., 137 NLRB 1299; United States Steel Corporation, American Bridge Division,
127 NLRB 823.
I do not deem it necessary to determine whether CEI or Holland and Simon were the
primary employers herein, as in any case, the Respondent's conduct would be unlawful.
See Boston Gas Co., supra, footnote 1.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. 5. By threatening M & K Electric, Inc., with a strike of its members, with an object
of forcing M & K to cease doing business with Holland, and Holland to cease doing
business with CEI, the Respondent has violated Section 8(b) (4) (ii) (B) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and the foregoing findings of fact and conclu-
^sions of law, it is recommended that Respondent Local 38, International Brotherhood
of Electrical Workers, AFL-CIO, its officers, agents, successors, and assigns, shall
be required to:
1. Cease and desist from engaging in, or inducing any individual employed by
EL-O Electric Co., or M & K Electric, Inc., or any other person to engage in, a
strike or refusal in the course of their employment to perform services, and coercing
or restraining the foregoing employers or any other person by such conduct or by
threats thereof, with an object of forcing the foregoing employers or any other per-
son to cease doing business with Holland,19 S. Simon Construction Company, or any
other person, or of forcing Holland Simon, or any other person to cease doing busi-
ness with The Cleveland Electric Illuminating Company.
2. Take the following affirmative action, which is necessary to effectuate the
policies of the Act:
(a) Post in conspicuous places in the Respondents' business offices, meeting halls,
and all places where notices to its members are customarily posted, copies of the
.notice attached hereto marked "Appendix." 20 Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being duly signed by
official representatives of the Respondent, be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Eighth Region signed copies of the
aforementioned notice for posting, if they are willing, by The Cleveland Electric II-
luminating Company, EL-O Electric Co., M & K Electric, Inc., S. Simon Construc-
tion Company, and Holland, in places where notices to their employees are cus-
tomarily posted. Copies of said notices, to be furnished by the Regional Director for
the Eighth Region, shall, after being signed by the Respondent, as indicated, be forth-
with returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Eighth Region in writing within 20 days
from the date of receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith 2I
19 This denotes a partnership or joint venture consisting of Zaremba and Sons, Drost
and Drost , and Forest City Enterprises.
20 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
21 If 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS, AND To ALL EMPLOYEES OF THE CLEVELAND
ELECTRIC ILLUMINATING COMPANY, M & K ELECTRIC, INC., EL-O ELECTRIC
CO., ZAREMBA AND SONS, DROST AND DROST, FOREST CITY ENTERPRISES, AND
S. SIMON CONSTRUCTION COMPANY
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 Man-
agement Act, we hereby notify you that:
WE WILL NOT induce or encourage, or threaten to induce or encourage, any
individual employed by M & K Electric, Inc., or by EL-O Electric Co., or by
any other person to engage in a strike or a refusal to perform services, or other-
wise coerce or restrain the above-named employers or any other person, with
an object of forcing or requiring said employers or any other person to cease
doing business with S. Simon Construction Company, Zaremba and Sons, Drost
and Drost, Forest City Enterprises, or any other person, or with an object of
DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 991
forcing them to cease doing business with The Cleveland Electric Illuminating:
Company.
LOCAL 38 , INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
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, 720
Bulkley Building; 1501 Euclid Avenue, Cleveland 15 , Ohio , Telephone No. Dunbar
1-1420, if they have any question concerning this notice or compliance with its
provisions.
District 65, Retail , Wholesale & Department Store Union, AFL-
CIO and Eastern Camera & Photo Corp . and Subsidiary Com-
panies of Eastern Camera & Photo Corp ., Listed in Appen-
dix A, Parties in Interest
District 65, Retail , Wholesale & Department Store Union, AFL-
CIO and Eastern Camera & Photo Corp . and Subsidiary Com-
panies of Eastern Camera & Photo Corp ., Listed in Appen-
dix A, Parties in Interest
District 65, Retail, Wholesale & Department Store Union, AFL-
CIO and Eastern Camera & Photo Corp . Cases Nos. 2-CP142,
2-CB-3424, and 2-CC-709. March 09, 1963
DECISION AND ORDER
On July 16, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in unfair labor
practices and recommending that the consolidated complaint be dis-
missed in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and the Company filed exceptions to
the Intermediate Report and supporting briefs. The Respondent filed
a brief in support of the Intermediate Report.
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 Inter-
mediate Report, the exceptions and the briefs, and the entire record in
these cases, and finds merit in the exceptions of the General Counsel
and the Company. Accordingly, the Board adopts the findings of the
Trial Examiner only to the extent consistent herewith.
I. SECTION 8(b) (1) (A) CONDUCT
The consolidated complaint alleged that certain incidents which
occurred on or near the picket lines surrounding the Company's place
141 NLRB No. 85.