Int'l Brotherhood Electrical Workers, Local 861

National Labor Relations Board - Board Decisions

Nov 22, 1961

134 N.L.R.B. 586 (N.L.R.B. 1961)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor
practices , I shall recommend that it be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
I have found that Respondent discharged Marvin Rochon because he gave testi-
mony under the Act in a proceeding arising out of charges filed by the Union,
thereby violating Section 8 ( a) (3) and (4) of the Act. Accordingly, I shall recom-
mend that Respondent be ordered to reinstate Rochon to the position that he would
have occupied but for the Respondent 's discrimination against him , or to a sub-
stantially equivalent position , without prejudice to his seniority and other rights
and privileges . I shall also recommend that Respondent be ordered to make Rochon
whole for any loss of pay that he may have suffered because of the Respondent's
discrimination against him, by payment to him of a sum of money equal to the
amount he normally would have earned as wages from date of such discrimination
to the date of the offer of reinstatement , less his net earnings . F. W. Woolworth
Company, 90 NLRB 289.24
In view of the violations herein and the violations previously found by me against
Respondent , it is apparent that the commission of other unfair labor practices by
Respondent may reasonably be anticipated by its past conduct and that the pre-
ventive purposes of the Act may be thwarted unless the recommendations herein
are coextensive with the threat . To effectuate the policies of the Act, therefore, it
will be recommended that the Respondent cease and desist from infringing in any
manner on the rights guaranteed employees in the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. General Drivers and Dairy Employees Local Union 563, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Marvin
Rochon , Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) and (4) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
24 There is additional evidence In the record herein of discrimination by Respondent
against his employees because of their testimony in the proceeding in question Since
these were not alleged in the complaint nor claimed by the General Counsel as additional
violations of the Act , I shall recommend no affirmative order regarding them and will
rely on the cease and desist portion of the order herein to remedy such violations
International Brotherhood of Electrical Workers , Local 861,
AFL-CIO and Cleveland Construction Corp.
International Brotherhood of Electrical Workers, Local 861,
AFL-CIO and Elco Electric , Inc. Cases Nos. 15-CC-129 and
15-CC-130. November 22, 1961
DECISION AND ORDER
Upon charges and amended charges duly filed by Cleveland Con-
struction Corp., herein called Cleveland, and Elco Electric, Inc.,
134 NLRB No. 62.
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 587
herein called Elco, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for the Fifteenth Region,
issued an "Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing," and an amendment thereto, alleging that Inter-
national Brotherhood of Electrical Workers, Local 861, AFL-CIO,
herein called the Respondent, had engaged in and was engaging in
certain unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as
amended. Copies of the charges, the consolidated complaint, and
notice of hearing were duly served upon the Respondent and the
Charging Parties.
On April 28, 1961, all parties entered into a stipulation of facts,
which provides in pertinent part that the parties waive their rights
to a hearing before a Trial Examiner and the issuance of an Inter-
mediate Report and Recommended Order; that the entire record in
this proceeding shall consist of the aforementioned charges, con-
solidated complaint, notice of hearing, and the stipulation; and that
the Board make findings of fact, conclusions of law, and issue a De-
cision and Order upon the stipulated record. On May 11, 1961, the
Board issued an order approving the stipulation, transferred the
cases to the Board, and granted the parties an opportunity to file
briefs. A brief was filed by the General Counsel.'
Upon the basis of the aforesaid stipulation, and the entire record
herein, including the brief filed by the General Counsel, the Board .2
makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF TIIE COMPANIES INVOLVED
Cleveland Construction Corp., a Louisiana corporation, is en-
gaged at Crowley, Louisiana, as a general contractor in the building
and construction industry. It annually receives goods and materials
from points outside the State of Louisiana valued in excess of
$50,000.
' On July 12, 1961, the Respondent filed a motion in which it seeks to withdraw from
the stipulation herein In the alternative, it requests that this proceeding be consolidated
with Case No 15-CC-134 (not published in NLRB volumes), a case involving the same
parties, then pending before a Trial Examiner. The General Counsel filed an opposition
to the motion The Respondent ' s motion is based on an alleged discrepancy between
facts stipulated to in the stipulation and testimony given at the hearing in Case No
15-CC-134 with respect to a certain incident However, even if a discrepancy exists as
alleged, it is an immaterial one. For the validity of the other facts in the stipulation
has not been questioned and, as appears hereinafter , they clearly show the Respondent to
have violated the Act. In view thereof, and as the Intermediate Report in Case No
15-CC-134 has issued , and its recommendations complied with, we hereby deny the
Respondent 's motion in its entirety
2Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [ Members Leedom,
Fanning and Brown)
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elco Electric, Inc., a Louisiana corporation, is engaged in business
at Rayne, Louisiana, as an electrical contractor in the building and
construction industry. It annually receives goods and materials from
points outside the State of Louisiana valued in excess of $50,000.
We find that Cleveland and Elco are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and that it will effec-
tuate the policies of the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local 861, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR- PRACTICES
In December 1960, Cleveland signed an agreement with the Louisi-
ana Bank and Trust Company for the construction of a bank building
at Crowley, Louisiana. Cleveland subcontracted the electrical work
for this project to Elco. Other subcontractors were also hired on the
bank building job. At times material herein, the Respondent had a
labor dispute with Elco, but not with Cleveland or any subcontractor
on the bank building job other than Elco.
Construction of .the bank building began in January 1961. Elco's
employees worked on the job on February 17, 27, and 28 and on
March 6 and 9, 1961. On the night of February 28, 1961, Patrick
Derouen, Elco's president, was informed by Elias Broussard, a fore-
man of Cleveland, that there might be a picket line and that it might
be a good idea if Elco held off working. As a result of said conversa-
tion, Elco's employees did not report for work on March 1, 1961.
On March 1, 2, 3, 13, 14, 15, 16, and 17, 1961, the Respondent pick-
eted the bank building jobsite with signs bearing the legend: "No
dispute with any other employer. Elco Electric Co. has sub-standard
wages and working conditions. IBEW Local 861, AFL-CIO." Dur-
ing the course of this picketing, which was carried on during working
hours from 7:30 a.m. until 3:30 p.m., the employees of Cleveland and
of the various subcontractors refused to cross the picket line. No
Elco employee worked on these dates.
We agree with 'the General Counsel that the Respondent's picketing
violated Section 8(b) (4) (i) and (ii) (B) of the Act. The record is
clear that the Respondent had a dispute with Elco and that it engaged
in picketing at the bank building job where employees of employers
other than Elco with whom the Respondent had no dispute were work-
ing. The Board has defined the right of a union to picket in such com-
mon situs situations, where a secondary employer is harboring the situs
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 589
of a dispute between a union and a primary employer 3 One of the con-
ditions which must be satisfied if such picketing is to be deemed lawful
is that the picketing be conducted at a time when the primary em-
ployer is engaged in its normal business at the situs. This requirement
was not met in the instant case, as the Respondent picketed the bank
building job on 8 days, during the whole working day, at times when
no Elco employees were at work on the project. In view thereof, we
find that the Respondent engaged in secondary picketing for the un-
lawful object of causing Cleveland to cease doing business with Elco,
in violation of Section 8(b) (4) (i) (B) of the Act.' Such activity by
Respondent is also unlawful under Section 8(b) (4) (ii) (B).5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, oc-
curring in connection with the operations of the Companies here in-
volved, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow thereof.
V., THE REMEDY
Having found that the Respondent has violated Section 8 (b) (4) (i)
and (ii) (B) of the Act, we shall order it to cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Cleveland Construction Corp. and Elco Electric, Inc., are em-
ployers engaged in commerce or in an `industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of
Section 2 (5) of the Act.
3 See Moore Dry Dock Company , 92 NLRB 547, 549 Section 8(b) (4) (A) Involved in
Moore Dry Dock is now substantially Section 8 ( b) (4) (1) (B ) of the Act as a result of
the Landrum - Griffin amendments of 1959.
4 Member Leedom, while agreeing with the majority that the picketing at the bank build-
ing jobsite was unlawful because Elco , the primary employer , was not engaged in its
normal business there at the times of the picketing , would also rely upon all the facts
and circumstances surrounding the picketing , including the fact that the Respondent
failed to limit its picketing to Elco's Rayne, Louisiana , location where Elco 's employees
reported to work each day, and where they could have been effectively reached . Dallas
County Construction Employers' Association, Inc, 124 NLRB 696, enfd. as modified 281
F 2d 593 (C A 5). Cf. Washington Coca Cola Bottling Works, Inc., 107 NLRB 299,
303, enfd 220 F. 2d 380 (C A.D C )
i International Hod Carriers , Building and Common Laborers Union of America, Local
No. 1140, AFL-CIO (Gilmore Construction Company ), 127 NLRB 541, enfd as modified
285 F. 2d 397 (C A 8) ; Sheet Metal Workers ' International Association, Local Union
No. 3, AFL-CIO ( Siebler-Heating & Air Conditioning , Inc.), 133 NLRB 650.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By inducing and encouraging employees of Cleveland and of
other persons engaged in an industry affecting commerce to engage in
a strike or a refusal in the course of their employment to perform
services, and by threatening, coercing, or restraining Cleveland and
such other persons, in each case with an object of forcing or requiring
Cleveland to cease doing business with Elco, the Respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (b) (4),
(i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices.
within the meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the basis of the entire record in this proceeding, and pursuant
to Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,.
International Brotherhood of Electrical Workers, Local 861, AFL-
CIO, Lake Charles, Louisiana, its officers, representatives, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from inducing or encouraging any individual
employed by Cleveland Construction Corp. or by any other person,
other than Elco Products, Inc., similarly engaged at the Louisiana
Bank and Trust Company building site, to engage in a strike or a,
refusal in the course of his employment to use, manufacture, process,,
transport, or otherwise handle or work on any articles, materials, or
commodities, or to perform any services; or threatening, coercing, or
restraining Cleveland Construction Corp., or any other person similar-
ly engaged at the aforesaid building site; where in either-case an object
thereof is to force or require Cleveland Construction Corp. or any
other person similarly engaged at the aforesaid building site to cease
doing business with Elco Electric, Inc.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in the Respondent's business offices and meeting halls,,
copies of the notice attached hereto marked "Appendix." 6 Copies of
said notice, to be furnished by the Regional Director for the Fifteenth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material. Upon request of the
Regional Director, the Respondent shall supply him with a sufficient
e In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
GLADIOLA BISCUIT COMPANY 591
number of signed copies of said notices for posting by Elco Electric,
Inc., and Cleveland Construction Corp., if they desire to do so, at the
site which was involved in this proceeding.
(b) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 861, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to, effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT induce or encourage any individual employed by
Cleveland Construction Corp. or by any other person, other than
Elco Electric, Inc., similarly engaged at the Louisiana Bank and
Trust Company building site to engage in a strike or a refusal
in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform services; or threaten,
coerce, or restrain Cleveland Construction Corp. or any other per-
son similarly engaged at the aforesaid building site; where in
either case an object thereof is to force or require Cleveland Con-
struction Corp. or any other person similarly engaged at the
aforesaid building site to cease doing business with Elco Electric,
Inc.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 861, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Fant Milling Company , Inc., d/b/a Gladiola Biscuit Company
and John H . Jones, Joseph W. Jones, and Edward H. Martin.
Oases Nos. 1.1-CA-1766-1, 11-CA-1766-2, and 11-C,A-1766-3.
November 22, 1961
DECISION AND ORDER
On August 9, 1961, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceedings, finding that
134 NLRB No. 70.