IBEW, Local 501

National Labor Relations Board - Board Decisions

Jan 31, 1975

216 N.L.R.B. 417 (N.L.R.B. 1975)

IBEW, LOCAL 501 417
International Brotherhood of Electrical Workers,
Local Union No . 501, AFL-CIO (Atlas Construc-
tion Company) and Associated General Contrac-
tors of Connecticut , Inc. Cases 2-CC-1316 and 2-
CC-1317
January 31, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On June 27, 1974, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and a supporting
brief, Respondent filed an answering brief, and the
Air Conditioning and Refrigeration Institute, et al.,1
filed an amici curiae brief in support of the General
Counsel's and Charging Party's exceptions.
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 has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The issue in the instant proceeding involves our
right-of-control doctrine which presumes an employ-
er to be "neutral" if that employer, when faced with a
coercive demand from its union, is powerless to
accede to such a demand except by bringing some
form of pressure on an independent third party. As
we stated in George Koch Sons, Inc., "in [such] a
situation . . . where the pressured employer cannot
himself accede to the union's wishes, the [union's]
pressure is secondary because it is undertaken for its
effect elsewhere." 2 The secondary nature of such
activity thereby falls within the ambit of Section
8(b)(4)(B).
As we explained in Koch:
[O]ur analysis has not nor will it ever be a
mechanical one, and, in addition . . . [w]e have
studied and shall continue to study not only the
situation the pressured employer finds himself in
but also how he came to be in that situation. And
if we find that the employer is not truly an
Air Conditioning and Refrigeration Institute, Air Moving and
Conditioning Association , Inc., American Boiler Manufacturers Associa-
tion , Architectural Woodwork Institute , Associated Builders & Contractors
Inc. American Consulting Engineers Council , National Electrical Manufac-
turers Association , National Society of Professional Engineers, and
National Woodwork Manufacturers Association.
2 Local Union No 438, United Association of Journeymen and Apprentices
216 NLRB No. 73
"unoffending employer" who merits the Act's
protections, we shall find no violation in a union's
pressures ... even though a purely mechanical
or surface look at the case might present an
appearance of a parallel situation.3
In dismissing the instant complaint, the Adminis-
trative Law Judge found that Respondent did not
commit a violation of Section 8(b)(4)(B) because
Employers Santella and Rice had voluntarily forfeit-
ed a potential for control of the work sought by
Respondent and, by virtue of that fact could not, in
effect, be deemed an "unoffending employer." Thus,
the Administrative Law Judge concluded that the
coerced Employers herein came within the qualifying
language of Koch quoted above, inasmuch as they
voluntarily "came to be" in the situation in which
they found themselves. We disagree and, for the
reasons stated below, believe a violation has been
established.
In the past, we have indicated that an employer
could not be considered "unoffending," and there-
fore neutral , if it actively and knowingly contracted
away its control by initiating the very restrictions
which ultimately gave rise to the union's demands,
Painters District Council No. 20, Brotherhood of
Painters, Decorators and Paperhangers of America,
AFL-CIO (Uni-Coat Spray Painting, Inc.), 185
NLRB 930, 932 (1970), or if the coerced employer
was, in fact, given control of the work at issue but, of
its own volition, withheld the work from the union,
Pipe Fitters Local No. 120, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO (Mechanical Contractors' Association of
Cleveland, Inc.), 168 NLRB 991, 992 (1967). In both
cases, the coerced employer's forfeiture of neutral
status was based on some affirmative conduct which
the employer could reasonably conclude would
conflict with his collective-bargaining obligations,
coupled with the absence of any demand for such
conduct by an independent third party such as a
general contractor or project owner.
In the instant situation, Santella and Rice did not
actively seek to have the general contractor, Atlas
Construction, withhold the operation of the tempo-
rary power supply from their employees. Such work
was never offered them by Atlas, whose decision was
completely unrelated to their own desires 4 or
obligations.
of the Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (George Koch Sons, Inc), 201 NLRB 59, 63 (1973), enfd . sub nom.
George Koch Sons, Inc. v. N.LR.B., 490 F .2d 323 (C.A. 4,1973).
3 Id at 64.
4 Cf. Uni-Coat Spray Painting, supra, where the Board observed that the
asserted neutral actively sought a license for a product to be applied only by
spraying and thereby knowingly set the stage for potential conflict.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In essence, the Administrative Law Judge's dis-
missal was based on the fact that Santella and Rice,
in his view, simply did not try hard enough to secure
the operation of the temporary power supply from
Atlas at the negotiation stage of the subcontracts
involved. But to attempt to define the parameters of
"unoffending employer" based solely on an expendi-
ture of effort on the part of the employer seeking the
Act's protection seems realistically futile, as well as
administratively unmanageable.5 What a subcontrac-
tor does at this stage is a circumstance to be
considered, but is not alone decisive.
In our view the instant case is indistinguishable
from the problem in Koch in that both present a
situation in which the respondent union coercively
demanded the assignment of certain work which, at
the time of demand, its employer was powerless to
assign . The distinction drawn by the Administrative
Law Judge, namely, that in Koch the general
contractor was itself contractually bound to withhold
the work from the subcontractor while, in the instant
case , the general contractor, Atlas, was not similarly
bound by the project owner, is not a helpful
distinction. In either case, the focus of our inquiry is
on the authority of the party upon whom the union
places its demand, for it is that party seeking the
neutral designation.6
It is also a distinction we have not drawn. Thus, in
The Austin Company, Inc.,7 Austin, the general
contractor, although capable of awarding the cutting
and threading of internal piping on climate control
units, nevertheless, on its own decision, withheld the
award of such work from the subcontractor. Re-
spondents' coercive demand for the work from the
subcontractor, Hudik-Ross Company, was found to
be secondary because:
Hudik was incapable of assigning its employees
this work; such work was never Hudik' s to assign
in the first place . . . these facts clearly indicate
that the Respondent was exerting prohibited
pressure on Hudik with an object of either forcing
a change in Austin's manner of doing business or
forcing Hudik to terminate its subcontract with
Austin.8
We conclude that Respondent's pressure herein
was similarly undertaken for its effect elsewhere
S Suppose, for example, that a subcontractor at the early stages of
negotiation realizes that the general contractor will adamantly adhere to its
own decision to withhold from the subcontractor certain work that the
latter's employees are entitled to by contract. Should the subcontractor
nevertheless insist on the incorporation of such work merely to preserve a
possible future claim to "neutral" status? Could not the Union then argue
that the "insistence" was a sham?
6 The thrust of such a distinction may, presumably , reveal evidence of
the "neutral" status of the general contractor as well, but we need not reach
that question nor is it germane to our inquiry here.
7 Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler,
inasmuch as Santella and Rice were incapable of
awarding to Respondent's members work that had
been retained by the general contractor, work never
theirs to assign in the first instance. Thus, the
pressure was secondary in its reach, directed at
employers powerless to accede and therefore neutral.
Accordingly we find that by its conduct the
Respondent violated Section 8(b)(4)(ii)(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 International
Brotherhood of Electrical Workers, Local Union No.
501, AFL-CIO, White Plains, New York, its officers,
agents, and representatives, shall:
1. Cease and desist from threatening, coercing, or
restraining Peter M. Santella, Inc., or Rice Electrical
Contracting Company, or any other person engaged
in commerce or in an industry affecting commerce,
where an object thereof is to force or require Peter
M. Santella, Inc., or Rice Electrical Contracting
Company, or any other person to cease doing
business with Atlas Construction Company because
it retains for its own employees the operation of
temporary electrical power at construction sites.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Post at its office in White Plains, New York,
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the
Regional Director for Region 2, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 2
with signed copies of said notice for posting by Peter
M. Santella, Inc., Rice Electrical Contracting Com-
pany, and Atlas Construction Company, if they so
desire, in places where notices to employees are
customarily posted.
Pneumatic Tube, Ice Machine and General Pipefitters of New York and
Vicinity, Local Union No. 638 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO (The Austin Company, Inc.), 204 NLRB 760 (1973).
8 Id.
9 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 tl•e
National Labor Relations Board."
IBEW, LOCAL 501 419
(c) Notify the Regional Director for Region 2, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
Upon the entire record in this proceeding - virtually all
the critical evidence is undisputed - and upon considera-
tion of the arguments advanced and the authorities
adduced by the parties, I make the following:
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain Peter
M. Santella, Inc., or Rice Electrical Contracting
Company, or any other person engaged in
commerce or in an industry affecting commerce,
where an object thereof is to force or require Peter
M. Santella, Inc., or Rice Electrical Contracting
Company or any other person to cease doing
business with Atlas Construction Company be-
cause it retains for its own employees the
operation of temporary electrical power at con-
struction sites.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL UNION No. 501,
AFL-CIO
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN , Administrative Law Judge : Pursuant
to separate timely unfair labor practice charges filed by
Associated General Contractors of Connecticut , Inc., the
Charging Party herein, against the International Brother-
hood of Electrical Workers, Local Union No. 501, AFL-
CIO, Respondent herein , a consolidated complaint issued,
dated April 30, 1974. The consolidated complaint alleges in
substance that Respondent engaged, at two separate
construction sites in Stamford, Connecticut, in secondary
boycott activity violative of Section 8(bx4XiiXB) of the
National Labor Relations Act, as amended.'
At the hearing conducted before me in New York City
on May 21, 1974, the parties stipulated that the evidence in
this matter would consist of the record compiled before
Judge Jon O. Newman of the United States District Court
for the District of Connecticut in an injunction proceeding
under Section 10(1) of the Act dealing with the instant
controversy . That record was supplemented by brief oral
tdstimony at the instant hearing by one witness . Memoran-
da on the evidence and the law submitted to Judge
Newman were resubmitted as briefs in this case and
Respondent, pursuant to permission granted at the instant
hearing, submitted a short supplemental brief.
I By letter dated May 30, 1974, a copy of which was served on all the
parties, General Counsel informed me that the evidence did not substantiate
an additional allegation of the complaint that Respondent 's conduct also
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Atlas Construction Company, a Connecticut corporation
with an office and place of business in Stamford,
Connecticut, provides general contracting services in the
building and construction industry and during the past
year, a representative period, furnished services valued in
excess of $50,000 in States other than Connecticut.
During the period here under consideration Atlas was
furnishing general contracting services for Stamford Realty
and Construction Company which was erecting a plant in
Stamford, Connecticut, for the Stamford Dressed Beef
Company. This project will be referred to herein as the
Stamford job. During the same period Atlas was furnishing
similar services to Herloy , Inc., which was erecting an
office building in Stamford, Connecticut, for an enterprise
known as Hilti, Inc. This project will be referred to herein
as the Hilti job.
Atlas subcontracted certain of the electrical work on the
Stamford job to Peter M. Santella , Inc., herein Santella.
Santella in the course of its performance of electrical work
furnished services during the past year valued in excess of
$500,000 ; more than $50,000 worth of these services was
performed for Atlas.
Atlas subcontracted certain of the electrical work on the
Hilti job to Rice Electrical Contracting Company, herein
Rice. Rice, like Santella , furnished electrical services
during the past year valued in excess of $500,000 of which
more than $50,000 worth was performed for Atlas.
On the foregoing undisputed facts I find that Atlas,
Santella, and Rice are employers and persons engaged in
commerce within the meaning of Sections 2(1), (2), (6), and
(7) and 8(b)(4) of the Act.
Respondent represents the electrical employees of
Santella and Rice and has collective-bargaining relation-
ships with both enterprises covering those employees. It is
undisputed and I find that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
Jurisdiction is properly asserted in this proceeding.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As the evidence establishes and as the parties acknowl-
edge, the resolution of this case turns on the applicability
and scope of the Board's so-called "right to control" the
work doctrine. In essence, that doctrine is that a union-
coerced employer who is powerless to satisfy the union's
demands except by bringing pressure on another independ-
ent contractor to chgnge a business or labor policy, or
alternatively by ceasing to do business with such other
contractor, is presumed to be a neutral secondary employ-
er, absent proof to the contrary. The Board elucidated the
violated Section 8(bx4XIXB) of the Act and, accordingly , moved to
withdraw that allegation . That motion is granted. The letter will be marked
Its ALI Exh. I and is hereby admitted into the record of this proceeding.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicability and scope of this doctrine in Local Union No.
438 an4 United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO (George Koch Sons, Inc.), 201
NLRB 59 (1973), enfd . sub nom . 490 F .2d 323 (C.A. 4,
1973). Significant in both the Board and court decisions is
the proposition that the "right to control" doctrine is not a
rigid per se principle, but rather a significant criterion
which must be appraised in the light of all the surrounding
circumstances.
The relevant evidence is set forth hereunder.
A. The Contractual Relationship between
Respondent and Santella and between Respondent
and Rice
It is undisputed that both Santella and Rice , during the
period relevant here , operated under a collective -bargain-
ing relationship with Respondent for their electrical
workers . A critical clause in the collective -bargaining
agreement covering Santella and Rice , respectively, provid-
ed that:
Where wiring systems and equipment are required for
lighting, power, heat, etc., during the periods of
construction of a building, these systems and equip-
ment shall be installed , maintained and operated by
electrical workers.
The legality of this clause, commonly known as a work
protection clause, is plain and is not challenged here.
Another contractual provision in the collective-bargain-
ing agreement covering Santella and Rice and relevant
here provided that:
Members of the Union [Respondent] shall not work for
any employers except those who comply with the
working rules later stated in this agreement.
The clause first quoted is one of the "working rules."
B. The Stamford Job
As noted, Atlas performed the general contracting
.Services for the construction of a plant for the Stamford
Dressed Beef Company. In the discharge of this function
Atlas, as agent for Stamford Realty, subcontracted the
performance of the electrical work for this job to Santella.
In negotiating for this subcontract , Atlas sought and
obtained a provision that Santella was not to be responsi-
ble for or assigned any work in relation to maintaining
temporary electrical power at the construction site.
Temporary power is utilized on construction sites and
involves the use of a switch box through which electricity
can be turned on and off during the various stages of
construction . Atlas, which does not employ electricians,
retained this work for itself. Santella , notwithstanding its
contractual commitment to Respondent previously quoted
herein, accepted the electrical subcontract with this
exclusion.
Construction at the site began in 1973. Santella com-
menced performance under its subcontract in early March
1974 and continued to work until March 27, 1974. On or
about that date Respondent notified Santella that the latter
was in violation of their collective -bargaining agreement
because it had no electricians to operate the temporary
power. As a result Santella ordered its employees to cease
work at the jobsite . Atlas protested Santella's failure to
complete its work under the subcontract and negotiations
ensued between Atlas, Santella, and Respondent to
compromise their differences . Respondent reiterated to
Santella that the employees it represented would not work
on the jobsite so long as Santella , in breach of their
collective-bargaining agreement , did not perform the
temporary power work. Atlas, on the other hand, rejected
suggestions by Santella that that function be assigned to
Santella 's employees. Eventually , however, a compromise
was reached after Santella agreed to employ an electrician
represented by Respondent to remain on the site as long as
the temporary power was on. Santella 's employees then
returned to work at the jobsite.
C. The Hilti Job
The situation at the Hilti job was largely parallel to that
at the Stamford job. Rice , the electrical subcontractor, was
bound to the same collective -bargaining provisions , previ-
ously quoted, as Santella . And like Santella , Rice, in
disregard of these provisions , accepted an electrical
subcontract which did not include the maintenance or
operation of temporary power , a function retained by
Atlas . The Hilti job also began in 1973 and Rice
commenced its electrical work on that job in mid-March
1974. Rice continued to work until April 5, 1974. On the
latter date Respondent told Rice that Rice was in breach of
its collective-bargaining agreement because it had not
assigned electricians for the temporary power operation.
Respondent told Rice , further, that unless Rice remedied
this situation, Respondent would pull the employees it
represented off the job. As a result , Rice discontinued its
work on the Hilti job. Rice later returned to continue its
work under a purely tentative arrangement but the basic
dispute was not and has not been adjusted.
D. Analysis and Concluding Findings
There is no question in view of the foregoing evidence
that Respondent, by invoking its contract with Santella
and Rice respectively and by informing both entities that
the employees Respondent represented would not work at
the respective sites so long as all of the electrical work was
not being performed by them, exerted coercive pressure
upon Santella and Rice and caused a cessation of business
relationships at the Stamford and Hilti jobs. General
Counsel contends that this action constituted a secondary
boycott in that Santella and Rice , although the direct
employers of the employees involved, were in fact
secondary employers or neutrals in the dispute . General
Counsel predicates this contention on its view of the "right
to control" the work doctrine. Specifically, General
Counsel argues that, inasmuch as Santella and Rice were
not assigned the maintenance and operation of temporary
power in the first instance under their respective subcon-
tracts, the right to assign that work to their electricians was
beyond their control . The real target of Respondent's
IBEW, LOCAL 501 421
action, according to General Counsel , had to be Atlas
which withheld the disputed work from Santella and Rice
in the first instance . Accordingly, Atlas was the primary
employer and Santella and Rice were neutrals . It follows,
General Counsel contends, that Respondent by exerting
coercive pressure against Santella and Rice engaged in a
secondary boycott within the meaning of Section
8(bx4XiiXB) of the Act.
Respondent, on the other hand , contends that it has a
primary dispute with Santella and Rice, respectively; that
both enterprises violated their collective-bargaining agree-
ment with Respondent ; and that Respondent invoked its
right, explicitly set forth in the agreement , not to work for
an employer who failed to comply with the established
working rules . As General Counsel conceded in his
memorandum to the District Court, "[i]f Santella and Rice
are primary employers with whom the union has a primary
dispute then the union would not have violated Section
8(bX4XB) of the Act."
As noted , a critical touchstone for resolving this primary-
secondary conflict is the "right to control" doctrine.
Extended discussion of the validity of this doctrine here
would be superfluous because it has been abundantly-
perhaps overabundantly - analyzed and dissected in a
long series of decisions by the Board and the courts, quite
frequently with contrary results on the same set of facts.
Many of the decisions, including the decision in National
Woodwork Manufacturers Association v. N.LR.B., 386 U.S.
612 (1967), are cited in the Board and court decisions in
the Koch case cited at the outset of this section of this
Decision . Reference to those decisions will demonstrate the
litigational history of the "right to control" doctrine and
obviate the need for tedious recapitulation here.
For present purposes it would appear to suffice to make
reference to the Board's decision in the Koch case, affirmed
by the Court of Appeals in the Fourth Circuit, where the
Board made a detailed exposition of its "right to control"
doctrine and the limitations to that doctrine . There, the
Board repudiated the notion that it "looked solely at the
pressured employer's 'contract right to control' the work at
issue at the time of the pressure to determine whether the
pressure was primary or secondary." Rather, the Board
said, it
has always proceeded with an analysis of (1) whether
under all the surrounding circumstances the union's
objective was work preservation and then (2) whether
the pressures were directed at the right person, i.e., at
the primary in the dispute.
Explicating its position further, the Board said:
in addition to determining, under all the surrounding
circumstances, whether the union's objective is truly
work preservation, we have studied and shall continue
to study not only the situation the pressured employer
finds himself in but also how he came to be in that
situation . And if we find that the employer is not truly
an "unoffending employer" who merits the Act's
protections, we shall fmd no violation in a union's
pressures such as occurred here, even though a purely
mechanical or surface look at the case might present an
appearance of a parallel situation . [Footnotes omitted.]
The Fourth Circuit adopted and affirmed the Board's
view that "the Board has not exalted right -to-control as per
se the conclusive indicium of a secondary boycott " The
court explained further:
Admittedly, an employer should not have an
unfettered license to contract out work and, as a result,
acquire a shield from union collective bargaining
agreements . Certainly where the employer was initially
in a position to accede to potential union demands
through the negotiating stages of the contract , then he
should not later be deemed a neutral if he intentionally
forfeited his potential for control.
Applying the foregoing principles in the Koch case, the
Board found , and the court agreed, that the pressured
employer there, Phillips, although the direct employer of
the employees involved , was nonetheless a neutral and
concluded that a proscribed secondary boycott had taken
place. However, the Board 's decision was based on the
"surrounding circumstances," labelled "extraordinary" by
the court. Thus, it appeared in Koch that the prime
contractor, Koch, who subcontracted the work to Phillips,
the pressured employer, had no authority in the first
instance to award the disputed work (pipe fabrication) to
Phillips. Because Koch had no such authority in the first
instance, Phillips had no bargaining power with respect to
that work. Accordingly, the Board held (201 NLRB 59):
Thus, although the [union's] claim of work preservation
was indeed valid, Phillips by its contract with Koch had
no power to give the [union] the work [it] sought, since
such work was never Phillips' to award in the first
place . And as Phillips had no past , present, or future
authority to award this work to the [union], [its] actions
here must have been undertaken in order to produce
their effects elsewhere. Therefore, since the pressure
directed at Phillips was undertaken for its effects
elsewhere, such activity was secondary even though
Phillips was the immediate employer here.
The court made a like analysis (490 F.2d 323):
But the' circumstances now presented show that G.E.
required Koch to pretest the pipe at the latter's location
in Indiana - thus away from the jobsite - and for this
purpose the pipe had first to be fabricated. Since Koch
was inextricably tied to this schedule, Phillips had no
bargaining power with respect to this work. Conse-
quently, Phillips did not surrender its right -to-control,
for it never had any.
The situation in the instant case is wholly and sharply
distinguishable . Unlike Koch, Atlas was not bound in any
way to withhold any of the electrical work from Santella or
Rice. The record here demonstrates that Atlas had full
authority to grant all or part of the electrical work at both
sites and Santella and Rice had full bargaining power with
respect to that work. Under the circumstances it is plain
that Santella and Rice, in effect, voluntarily surrendered
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their right to control when they negotiated away the work
which they had earlier agreed in their collective -bargaining
agreement to preserve for their employees . Respondent's
statement that it would withhold the services of the
employees of Santella and Rice , because of their voluntary
abandonment of their contractual commitment to Re-
spondent, was a further exercise of a contractual commit-
ment not to work where there was a violation by the
employer party to the agreement of an established working
rule.
Here , Santella and Rice cannot be regarded as "unof-
fending employers" who merit the Act's protections and, as
the Board noted in Koch, it will "find no violations in a
union 's pressures such as occurred here" based on "a
purely mechanical or surface look at the case." And as the
Fourth Circuit said in like vein, "where the employer was
initially in a position to accede to potential union demands
through the negotiating stages of the contract , then he
should not later be deemed a neutral if he intentionally
forfeited his potential for control."
Here Santella and Rice had the potential for control. By
their voluntary action they forfeited that potential . Signifi-
cant here, as the Board holds, is not only the situation
Santella and Rice as pressured employers found themselves
in but how they came to be in that situation. The
surrounding circumstances here , unlike those in Koch,
would justify a finding of a proscribed secondary boycott
only by a naked and mechanical application of the "right
to control" the work doctrine.
Accordingly, I find that in the instant case Santella and
Rice were primary employers and that the pressures
directed against them by Respondent were directed against
them as primary employers . In such a frame of reference
the familiar circumstance that Respondent 's primary
action also had secondary effects does not convert legal
conduct into proscribed activity.
CONCLUSION OF LAW
International Brotherhood of Electrical Workers, Local
Union No. 501, AFL-CIO, the Respondent herein, has not
violated Section 8(b)(4XB) of the Act, as alleged in the
complaint.
[Recommended Order for dismissal omitted from publi-
cation.]