Local No. 441, Electrical Workers

National Labor Relations Board - Board Decisions

Feb 5, 1974

208 N.L.R.B. 943 (N.L.R.B. 1974)

LOCAL NO. 441, ELECTRICAL WORKERS 943
Local No . 441, International Brotherhood of Electrical
Workers, AFL-CIO and Rollins Co munications,
Inc. Case 21-CC-1459
February 5, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 29, 1973, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision ' in light of the exceptions and
briefs and finds, in accord with certain exceptions of
the General Counsel and the Charging Party, and
contrary to the recommendations of the Administra-
tive Law Judge, that the complaint herein should not
be dismissed in its entirety. The Board has therefore
decided to affirm only those rulings, findings, and
conclusions of the Administrative Law Judge which
are consistent with its Decision herein.
Rollins Communications, Inc., herein called Rol-
lins, is engaged in the business of installing and
maintaining communication equipment. The em-
ployees of Rollins have at all times material herein
been represented by the Communication Workers of
America, herein called CWA. James A. Carter is an
owner-builder and has been engaged in the construc-
tion of an inn known as El Camino Village Inn,
herein called the Village project. In connection with
the construction of the Village project, Carter
contracted with Rollins for the installation and
maintenance of telephone communication equip-
ment. Electrical work other than telephone installa-
tion was subcontracted to Grove Electric. At no time
material herein has Respondent been engaged in a
labor dispute with Carter.
On April 5, 1973, Respondent's business represent-
ative, M. B. "Tink" Addington, appeared at the
Village project jobsite and spoke to the- electricians
employed by Grove Electric. When Carter asked
Addington what the problem was, Addington rep-
u International Brotherhood of Electrical Workers, Local Union No. 11,
AFL-CIO (L. G. Electric Contractors, Inc.), 154 NLRB 766.
2 Sheet Metal Workers International Association, Local No. 284 and its
Agents Loren Baker and Bob Hoey (Patrick Herring, d/b/a Quality Roofing
Company), 169 NLRB 1014; Truck Drivers & Helpers Local Union No. 592,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
lied: "There is no problem . If there is a problem I
will let you know."
The next day, on April 6, 1973, Carter arrived at
the Village project about 7 a.m. He observed
Addington in the area sitting in his automobile, and
shortly thereafter he saw Addington picketing the
Village project witl a sign indicating . a dispute with
Rollins. As the electricians arrived on the scene, they
joined in the picketing. Carter told Addington that
he felt that this was a jurisdictional dispute between
Respondent's Union and CWA since Rollins' em-
ployees were represented by the CWA. Addington
replied to Carter: "I have got my job to do. You have
got your job to do and that is it." Shortly thereafter
Carter left the jobsite.
When Carter returned around noontime his job
was virtually shut down, and he asked Addington
what he could do to get his job going. Addington said
he would remove the picket line if Carter would give
him a letter stating that Rollins' men would not go
back to work until they were paid prevailing wages
and benefits . Carter replied that he would not give
Addington such a letter, but that he would agree
verbally to keep Rollins ' men off the job until the
dispute was straightened out. Addington refused to
accept anything less than a letter.
Later in the day Carter again asked Addington
whether he would take the pickets off the line and
have the electricians go back to work if Rollins' men
were removed from the job. Addington said that as
long as Carter had Rollins ' men stop work and all of
Rollins' tools were removed from the project he
would cease the picketing and the electricians would
go back to work . Carter then requested Rollins' men
to leave and remove their tools . Once this was done
the picketing ceased and the electricians went back
to work.
The Administrative Law Judge concluded that the
facts in the instant case were "quite similar" to those
in L G. Electric,1 but refused to find a violation of
8(b)(4)(B) on grounds that recent Board cases had
amounted to a "tacit overruling" or "at least an
eroding" of the L G. Electric decision . Unlike the
Administrative Law' Judge we do not view our
decisions in Quality Roofing, Estes Lines, or Buck's
Butane Propane Service2 as amounting to "a tacit
rejection" or "an eroding" of L G. Electric; rather,
we find these cases factually distinguishable. In
Quality Roofing, statements by a respondent union to
a neutral prime contractor that "If [the subcontrac-
tor, Herring, with whom the Respondent had a
housemen and Helpers of America (Estes Express Lines, Inc.), 181 NLRB 790;
Freight, Construction, General Drivers, Warehousemen and Helpers Union,
Local 287, International Brotherhood of Teamsters, Chauffeurs Warehouse-
men and Helpers of America (Buck 's Butane-Propane Service, Inca 186
NLRB 187.
208 NLRB No. 124
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute] is roofing up there, you will probably have a
picket on that job." "If [Herring] goes to work, we'll
have pickets on your job within five minutes," and
other statements of like variety , were found not to
amount to a request to cease doing business with
Herring. These statements were more indicative of
"an intention to engage in primary picketing directed
at Herring's business operations" (at 1016).
Estes Lines involved ambulatory picketing by
Respondent, the certified bargaining representative
of Estes' truckdrivers , during a strike against Estes.
Respondent notified the neutrals by letter of the
dispute and of its intention to engage in ambulatory
picketing: Three instances in which respondent
advised neutrals that it would picket if Estes' trucks
remained on neutral property were regarded by the
Board as "nothing more than a legitimate expression
of Respondent 's intention to exercise its unques-
tioned right to picket Estes at the neutral employer's
site in the lawful manner prescribed by the Board."
Buck 's Butane-Propane Service relies heavily on
Estes. In Buck's, respondent struck and picketed
Buck 's at its premises , as well as at neutral delivery
points. Some of the statements by respondent to
neutrals were, as paraphrased, "[I]t would be.very
possible if the truck was making deliveries at your
canneries . . that there would be pickets," "by
chance if a truck of Buck's was making a delivery on
your premises that we would be picketing that
equipment, and that equipment only," "in them
making a delivery here, we may be here with pickets
picketing Buck 's Gas Service," "[the Union ] suggest-
ed that we find another supplier, at least until the
labor dispute was settled, and to avoid confusion on
our property with the pickets," and "[the Union] told
me why didn't I buy my propane from someone
else." These statements were found to be within the
purview of Estes, as predicting primary picketing.
The instant case is quite different. Here the
Respondent was not engaging in ambulatory picket-
ing of an employer with whom there was a primary
dispute; rather the Respondent was picketing in
protest over allegedly substandard wages paid by
Rollins, whose employees were represented by
another union. Respondent, through its agent Add-
ington, agreed to remove its picket line if the neutral,
Carter, would give a written commitment that
Rollins' employees would not be put back to work
until Rollins paid prevailing wages and benefits.
Addington was not predicting the occurrence of
primary picketing at a neutral location, but rather
was seeking a commitment from the neutral which
would either result in cessation of business with
Rollins, or else a significant disruption in their
relationship. The facts of this case are strikingly
similar to those in L G. Electric, in which the
respondent picketed a general contractor , Lammens,
to protest the failure of a subcontractor, L. G.
Electric, to pay prevailing trade .wages. The employ-
ees of L. G. Electric were represented by another
union . Respondent told Lammens he would have to
get rid of the subcontractor and the work would have
to be covered by an AFL contract before picketing
would cease. There we found that an object of the
picketing was to disrupt relations between a neutral
and a subcontractor in violation of Section
8(b)(4)(B).
Picketing for a lawful objective, such as to preserve
area standards , may be unlawful if there is addition-
ally an unlawful objective as revealed by contempo-
raneous statements of union agents or other perti-
nent evidence.3 In L. G. Electric and in the instant
case, the secondary employer, as a condition for
getting rid of the pickets, was required by the union
to take specific affirmative action-the choice of
action was not left to the secondary employer. In
these circumstances, in both L G. Electric and in the
instant case, the secondary was being enmeshed by
the union in a dispute not his own . In the instant case
Addington's insistence on a letter of commitment
from Carter was clear and convincing evidence that
an object of Respondent's picketing was to cause a
disruption in Carter's business relationship with
Rollins or a cessation of business between Carter and
Rollins.
We adhere to the rule of L G. Electric that
picketing , even though it may be in compliance with
Moore Dry Dock standards, may be found unlawful
where there is evidence that an objective of the
union's picketing was to enmesh a neutral in a
dispute between the union and another party by
disrupting relations between the neutral and such
other party. We conclude from an examination of the
entire course of conduct engaged in by the Respon-
dent that it would not have been satisfied with
anything less than the removal of Rollins from the
jobsite, and that this unlawful object , as well as the
lawful object of maintaining area standards, was
reflected in the picketing. Unlike our colleague, who
is dissenting for the reasons set forth in his dissent in
L G. Electric, supra, we are unable to separate the
picketing from the accompanying statement explain-
ing when picketing would cease. We, therefore,
conclude that not only the making of such statements
but also the picketing which makes the statements
meaningful must be enjoined. Therefore, we find that
by its conduct Respondent violated Section 8(bX4Xi)
and (ii)(B) of the Act.
3 Northeastern Indiana Building and Construction Trades Council (Cent- grounds 352 F.2d 696 (C.A.D.C.. 1965).
Iivre Village Apartments), 148 NLRB 854, enforcement denied on other
LOCAL NO. 441, ELECTRICAL WORKERS 945
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of 'the
Act.
CONCLUSIONS OF LAW
1. Rollins Communications , Inc., and James A.
Carter, an owner-builder of El Camino Village Inn,
are, and at all times material herein have been,
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local No. 441, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By inducing or encouraging individuals em-
ployed by persons engaged in commerce , or in an
industry affecting commerce, to engage in a strike or
refusal to perform services, and- by coercing or
restraining persons engaged in commerce or in an
industry affecting. commerce , with an object of
forcing or requiring James A. Carter, an owner-
builder, to cease doing business with Rollins Com-
munications, Inc., Respondent has violated Section
8(bx4)(i) and (ii)(B) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) 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 Respondent,
Local No. 441, International Brotherhood of Electri-
cal Workers, AFL-CIO, its officers , agents, and
representatives , shall:
1. Cease and desist from threatening , coercing, or
restraining James A. Carter, owner-builder, or any
other person engaged in commerce or in an industry
affecting commerce , where an object thereof is to
force or require the aforesaid employer or person to
cease doing business with Rollins Communications,
Inc.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix ." 4 Copies of
said notice , on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent Union 's representative , shall be posted
by Respondent Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent Union has taken to comply
herewith.
MEMBER FANNING , dissenting:
For the reasons set forth in my dissent in L G.
Electric Contractors, Inc., supra I dissent in the
instant case . I would affirm the findings , conclusions,
and recommendations of the Administrative Law
Judge and dismiss the complaint in its entirety.
4 In the event that this 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 an Order of the
National Labor Relations Board.""
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States. Government
WE WILL NOT engage in a strike , or induce or
encourage individuals employed by James A.
Carter, owner-builder, or any other person en-
gaged in commerce , or in an industry affecting
commerce , to engage in a strike , or a refusal in the
course of their employment to use, manufacture,
process, transport, or otherwise handle or work
on any goods, material , articles, or commodities,
or to perform any services ; nor will we threaten,
coerce, or restrain the above-named employer, or
any other person, where an object thereof is to
force or require James A. Carter, owner-builder,
to cease doing business with Rollins Communica-
tions, Inc.
LOCAL No. 441,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office,,, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Los Angeles; California, on May 31, 1973,
based on charges filed April 9, 1973, and"a complaint
issued April 19, 1973. The complaint alleges that Respon-
dent violated Section 8(bx4)(i) and (ii)(B) by certain
conduct at a construction project in Orange , California.
Respondent ' denies any violation of the Act. Respondent
and the General Counsel Dave filed briefs.
Upon the entire: record in the case, including my
observation of the witnesses , I make the following:
FINDINGS OF FACTS
1. THE BUSINESS OF THE EMPLOYERS AND THE LABOR
ORGANIZATIONS INVOLVED
Rollins Communications, Inc., the charging party herein,
with an office and place of business in Torrance,
California , is engaged in the business of installing and
maintaining communication equipment . Rollins annually
purchases and receives goods, materials, and supplies
valued in excess of $50,000 directly from suppliers located
outside the State of California. James A. Carter is an
owner-builder, engaged in the construction of an inn
known as the El Camino Village Inn at Orange, California,
where it has contracted with Rollins for the installation
and maintenance of communication equipment . I find, as
the parties stipulated, that Rollins and Carter are employ-
ers engaged in commerce within the meaning of Section
2(6) and (7) of the Act. Respondent is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue and the Facts
The single narrow issue in this case is whether a union
engages in a "secondary boycott" when it responds
affirmatively to a question from the general contractor, at
the common situs where it is engaging in lawful informa-
tional picketing directed at a subcontractor, whether the
picket line will be removed if the offending subcontractor
is no longer at the jobsite.
Fleshing out the above-abbreviated statement of the
facts of this case, the evidence shows that, Respondent
Union, on April 6, 1973, began picketing at the Village Inn
project, with informational picket signs naming Rollins.'
The previous day, James Carter had noticed Respondent's
business representative, M.B. Addington, talking to the
electricians on the job. Carter went over to Addington and
asked him what the problem was, and Addington replied
"There is no problem. If there is a problem I will let you
know." About noon on April 6, Carter approached
Addington , the picketing having begun earlier that morn-
ing. There is some slight variation between the testimony of
Carter and that of Addington as to precisely what was said.
According to Carter, he asked Addington what he could do
"to get this thing gq}ng?" Addington then replied that if
Carter would give him a letter to the effect that the Rollins
men would not go back to work until they received
prevailing wages and benefits, the picket line would be
removed. Ultimately, Addington agreed to end the
picketing with Carter removing the Rollins' employees
from the job. Carter also testified that Addington told him
he was picketing because the Rollins' employees were not
being paid the prevailing wages and benefits , that the
picket line was an "informational picket line," and that the
electricians (who worked for another subcontractor on the
project) would be permitted to cross the picket line.
Finally, Carter stated on cross-examination "I do not recall
at any time that he [Addington] told me that he wanted
them [Rollins' employees] off of the job, but at all times
that he wanted them to be paid the prevailing wages and
benefits and until that was done, he wasn't satisfied."
Addington testified that Carter approached him and
"gave me the choice if I would take down the picket line,
asked me if I would take my picket line down if he had
Rollins' people removed from the job." Addington then
asked Carter for a letter to that effect. The rest of the
conversation, which was not detailed by Addington in his
testimony, apparently occurred as Carter testified. In the
light of Carter's concluding statement on cross-examina-
tion, set forth above, I am inclined to go along with
Addington's version, the only effect of which is to have
Carter rather than Addington as the first to mention
getting Rollins' employees off the job as the quid pro quo
for removal of the picket line.
B. The State of the Law and Discussion
The General Counsel places principal reliance on
International Brotherhood of Electrical Workers, Local
Union No. 11, AFL-CIO (L G. Electric Contractors, Inc.),
154 NLRB 766, herein called L.G. Electric. There, a
majority of a Board panel (Chairman McCulloch and
Member Jenkins, with Member Fanning dissenting) found
a violation of Section 8(b)(4)(i) and (ii)(B) in circumstances
quite similar to those in the instant case. The general
contractor in that case called the union representative
when he learned that the union was picketing the project
with a sign reading "L.G. Electric [the primary employer]
does not pay the prevailing wage scales," asked how he
could get rid of the pickets , and was advised that he would
have to get rid of L.G . Electric. Member Fanning, in
dissent, was of the view that lawful picketing was not made
unlawful by a statement that the picketing would cease if
the primary employer left the job.
In a subsequent case, Sheet Metal Workers International
Association, Local No. 284 (Quality Roofing Company), 169
I There was no testimony as to precisely what the picket sign said, but it
was conceded by the General Counsel that the picketing and the picket
signs, standing alone, would have been perfectly lawful but for conversa-
tions between Carter and Addington described below.
LOCAL NO. 441, ELECTRICAL WORKERS 947
NLRB 1014, the Board dismissed 8(bX4Xi) and (iiXB)
allegations, reversing a Trial Examiner's contrary holding,
on facts that do not appear readily distinguishable from
those in L G. Electric. Indeed, Chairman McCulloch would
have found the 8(b)(4) violations for the reasons expressed
in L G. Electric, and Member Fanning "concurred" in the
majority's dismissal for the reasons set forth in his dissent
in L G. Electric. The other two Board members on the
decision were Members Jenkins (who was on LG. Electric),
and Zagoria (who was not). The crucial statement of the
union's business agent in Quality Roofing, in. response to
requests by the general contractor, was "If Quality Roofing
[the primary employer] goes to work, we'll have pickets on
your job within five minutes."
In a more recent case, the Board (Chairman Miller and
Members Fanning and Brown) affirmed without comment
a Trial Examiner's decision dismissing secondary boycott
allegations where the Trial Examiner's reasoning was
almost precisely that of Member Fanning in his dissent in
L .G. Electric. and -rejected the views of then Chairman
McCulloch both in L .G. Electric and a subsequent case,
Truck Drivers & Helpers Local Union No. 592, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware
housemen and Helpers of America, (Estes Express Lines, Inc.),
181 NLRB 790, where McCulloch was in dissent.
But despite what appears to be a tacit rejection of L .G.
Electric, it has never been expressly overruled, and it is
cited, without discussion, in many decisions of Trial
Examiners, later affirmed by the Board, as well as in string
citations by the Board itself. I am, in these circumstances,
in effect left to my own devices. As I analyze Section
8(bX4)(i) and (ii)(B), there are two elements to a violation
thereof. There must be unlawful means, and there must be
an unlawful object. The former consists of, under subsec-
tion (i), inducing or encouraging employees to strike, or
otherwise wholly or partially cease work, and under
subsection (ii), the threat of such action or some other form
of coercion directly to the neutral employer. The latter (the
object) consists of what is generally called the "cease doing
business" objective, as set forth more fully in (B). Since
virtually all "primary" (lawful) picketing has at least in
part the second objective, and since the picketing standing
alone here was concededly lawful, the question to be
resolved is that of the means. But, as Member Fanning
pointed out in his L.G. Electric dissent: "I think it totally
unrealistic to rule that a general contractor in such a
situation is uninvolved and unaffected by the act of
picketing against a subcontractor on his jobsite and then,
suddenly, is drawn into that dispute when a union agent
articulates what the general contractor knew from the
commencement of the picketing, namely, that he was in a
position to remove the source of the dispute from his job
by removing the offending subcontractor."
Indeed, faced with a question by the general contractor,
a union representative would always have to lie to escape a
violation under the,, L G Electric rule, for obviously the
picketing would cease if the primary employer were off the
job. Strangly enough, that very "lie" (that removal of the
offending employer would hot end the picketing) would in
fact demonstrate that the union's means were unlawful, for
it would show that the picketing was directed at the neutral
employers all along, and not at the primary employer at all.
In short , once the general contractor in these situations
asks the key question, what will make the picket line go
away, and, as here, himself asks if removal of the primary
employer will make it go away, a violation of Section
8(bx4)(B) automatically flows from any answer given by
the union agent responding to the question, under the
majority view in L.G. Electric. For practical purposes, that
would completely negate the right of a union to picket an
offending employer at a common situs. No matter how
stringently the union sought to adhere to the Moore Dry
Dock standards (92 NLRB 547), no matter how carefully
the union sought to avoid any enmeshment of the neutrals
at the common situs, all this would be to no avail. A
violation, and the consequent removal of the picket line by
10(1) injunction and Board order, would nullify all that
careful adherence to legitimate means and make the
union's conduct unlawful.
Given the present uncertain state of the law, and
therefore constrained to follow my own reasoning, I am of
the opinion that Quality Roofing represents both the more
logical and more practical view, and that Member Jenkins'
participation therein indicates a tacit overruling of L G.
Electric, or at least an eroding thereof. Accordingly, I
conclude, as the Board did in Quality Roofing, that there is
insufficient evidence in this case to warrant the conclusion
that Respondent was engaged in secondary activities.
CONCLUSION OF LAW
The evidence does not establish that Respondent
engaged in the unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication.}