Int'l Brotherhood Electrical Workers, Local 712

National Labor Relations Board - Board Decisions

Nov 28, 1961

134 N.L.R.B. 812 (N.L.R.B. 1961)

812 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
-International Brotherhood of Electrical Workers, Local 712,.
AFL-CIO [Golden Dawn Foods] and W. H. Hauer, d/b/a
Industrial Electric Service
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, Local 115, AFL-CIO and Fred P . Gallo, d/b/a
Gallo Refrigeration Company. Cases Nos. 6-CC-241 and 6-CC-
242. November 28, 1961 1
DECISION AND ORDER
Upon charges duly filed by W. H. Hauer, d/b/a Industrial Electric
Service, herein called Industrial, and Fred P. Gallo, d/b/a Gallo Re-
frigeration Company, herein called Gallo, the General Counsel of the
National Labor Relations Board, by the Regional Director for the
Sixth Region, on April 14, 1961, issued a consolidated complaint al-
leging the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
Local 115, AFL-CIO, herein called Respondent Local 115, and Inter-
national Brotherhood of Electrical Workers, Local 712, AFL-CIO,
herein called Respondent Local 712, had engaged in and were engaging
in unfair labor practices within the meaning of Section 8(b) (4)
(ii) (B) and Section 2(6) and (7) of the National Labor Relations.
Act, as amended. Copies of the charges, complaint, and notice of hear-
ing were duly served upon the Respondents and the Charging Parties.
With respect to the unfair labor practices, the complaint alleges, in
substance, that the Respondents have caused to be distributed and have
distributed handbills at the entrance to the parking lot of Loccisano's
Golden Dawn Supermarket, operated by Loccisano Brothers No. 2
Corporation, herein referred to collectively as Loccisano, and by so,
doing did threaten, restrain, and coerce, and are threatening, restrain-
ing, and coercing, Loccisano with the object of forcing Loccisano to
cease using the services of and doing business with other persons.
Respondents' answers, filed on May 11, and 12, 1961, admit certain
jurisdictional and factual allegations of the complaint, but deny the
commission of unfair labor practices.
On June 13, 1961, all parties to the proceeding entered into a motion
to transfer this proceeding directly to the Board for findings of fact,
conclusions of law, and Decision and Order. The parties stipulated
that they have waived their rights to a hearing before a Trial Exam-
iner and to the issuance of an Intermediate Report, that the charges,
order consolidating cases, consolidated complaint, answer, and the
transcript of testimony in Henry Shore Reg. Dir. v. Local 712, Inter-
national Brotherhood of Electrical Workers, AFL-CIO (Gallo Re-
frigeration Co.), 48 LRRM 2231 (D.C. W. Pa.), shall constitute the
134 NLRB No. 73.
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 712 813
entire record in the case, and that no oral testimony is necessary or
desired by any of the parties. On June 16, 1961, the Board granted
the motion, ordered the transfer of the proceeding to the Board, and
granted permission to the parties to file briefs. The General Counsel
filed a brief.
Upon the basis of the parties' stipulation, the General Counsel's
brief, and the entire record in the case, the Board 1 makes the
following :
FINDINGS OF FACT
I. COMMERCE
Industrial, a sole proprietorship, is an electrical contractor in the
building and construction industry and has its only office and place of
business in New Brighton, Pennsylvania. Gallo, a sole proprietorship,
is a refrigeration installation and maintenance contractor and has its
only office and place of business in New Castle, Pennsylvania. Both
Industrial and Gallo are members of Associated Electrical Contrac-
tors,' an employer association comprised of various electrical con-
tractors, which engages in collective bargaining with labor organiza-
tions on behalf of its employer members. In the operation of their
businesses, the members of Associated Electrical Contractors annually
receive goods and materials from outside the State of Pennsylvania
valued in excess of $50,000; and they annually sell goods to and per-
form services for other employers within the State of Pennsylvania
valued in excess of $50,000 which other employers, in turn, individu-
ally ship goods or perform services outside the State of Pennsylvania
valued in excess of $50,000 annually.
Loccisano Brothers No. 2 Corporation is a ,Pennsylvania corpora-
tion having its sole office and place of business in Chippewa Township,
Pennsylvania, and is engaged in the operation of a retail food market
under the trade name of Loccisano's Golden Dawn Foods. The corpo-
ration began operations on March 7, 1961. On the basis of its business
to date, by projection, Loccisano will gross in excess of $500,000 from
sales for the period March 7, 1961, to March 7, 1962. During the same
period Loccisano will purchase goods outside the State of Pennsyl-
vania valued in excess of $50,000.
Golden Dawn Foods, herein called Foods, a partnership having its
principal office and place of business in Sharon, Pennsylvania, is a
wholesaler engaged- in the business of supplying retail food stores with
food products and other supplies. During the past year, Foods, in the
course and conduct of its business operations, purchased and received
at its Sharon, Pennsylvania,, place of business, goods and materials
valued in excess of $50,000 directly from States other than Pennsyl-
Pursuant to the provisions of Section 3(b) of the' National ' Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman McCulloch and Members Rodgers and Fanning].
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vania, and during the same period Foods sold and shipped from its
Sharon, Pennsylvania, place of business, goods and products valued in
excess of $50,000 to points located outside the State of Pennsylvania.
Accordingly, we find,, and the Respondents admit, that Industrial,
Gallo, Loccisano, and Foods are engaged in commerce within the mean-
ing of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood.of Electrical Workers, Local 712, AFL-
CIO, and United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
Local 115, AFL-CIO, are labor organizations as defined in Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On September 6, 1960, Loccisano began construction of a building
at Beaver Falls, Pennsylvania, to be used as a supermarket. In No-
vember 1960, Loccisano entered into a contract with Industrial for the
performance of electrical work necessary in the construction of the-
building. Loccisano purchased refrigeration equipment for the super-
market from Foods, which hired Gallo to install the equipment and
maintain it for 1 year. The market opened for business on March 7,,
1961. On March 25,1961, from approximately 10:30 a.m. until 8 p.m.,
two to three men distributed handbills at the entrances to the parking
lot of Loccisano which is used by Loccisano's customers. The hand-
billers, admittedly under the direction and control of the Respondents,,
continued to distribute the handbills during business hours almost,
every day thereafter until enjoined pursuant to Section 10(1) .1 The
handbills stated :
PLEASE DO NOT PATRONIZE
GOLDEN DAWN
SUPER MARKET
(LOCCISANO BROTHERS)
Because
Electrical & Refrigeration Work
was done by persons other than
members of
L.U. 712-International Brotherhood of Electrical Workers
L.U. 115-Plumbers and Steamfitters
We are affiliated with Beaver County Building Trades Council
2 Henry Shore , Regional Director v. Local 712, International Brotherhood of Electrical
Workers, AFL-CIO, anpra.
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 712 815
Persons distributing the handbills stood on public property near the
customer entrances and did not block the entry or exit of any person.'
No work stoppage resulted from the handbilling, nor was there any
refusal by employees to handle products or to perform services.
The record further indicates that both Industrial and Gallo em-
ployed employees on the Loccisano job who were either nonunion, or
members of Associated Arts and Crafts, a labor organization not affili-
ated with the Beaver County Building Trades Council, and that In-
dustrial had, in 1959, severed its relationship with Respondent Local
712 because it could get employees from Associated Trades and Crafts
for less money.
At the time of the Federal district court hearing on April 14, 1961,
Industrial had completed approximately 95 percent of the electrical
work at the supermarket. Gallo had completed the installation of the
refrigeration equipment, and the only obligation remaining under its
contract with Foods was the 1 year of maintenance.
The General Counsel contends that the Respondents, by their hand-
billing, threatened, restrained, and coerced Loccisano within the mean-
ing of Section 8(b) (4) (ii) (B) of the Act.4 The General Counsel
reasons that the object of the handbilling was to require Loccisano, the
secondary employer, to cease doing business with Industrial and
Foods, and also to force Foods to cease doing business with Gallo, and
that the Respondents engaged in this activity in furtherance of their
dispute with Industrial, Foods, and Gallo. The General Counsel fur-
ther contends that the handbilling is not protected by the "publicity"
proviso of Section 8 (b) (4),5 because it involves no product or prod-
ucts, and because there is nothing in the Act which allows a union to
enlist the aid of the public in a boycott of the secondary employer's
entire business rather than the boycotting of a particular product. We
disagree.
3 One incident was shown in which an auto containing the handbillers blocked one en-
trance for a 15-minute period until, at the request of the State police, it was moved
The 'record indicates, however, that the persons distributing the handbills were in the
automobile because of inclement weather
* Section 8(b) (4) (ii) (B) states in pertinent part
It shall be an unfair labor practice for a labor organization or its agents-to threaten,
coerce, or restrain any person engaged in commerce or in an industry affecting com-
merce, where . . an object thereof is . . . forcing or requiring any person to cease
using, selling, handling, transporting, or otherwise dealing in the products of any
other 'producer, processor, or manufacturer, or to cease doing business with any
other person ,. . . .
The proviso to Section 8(b)(4) states:
Provided further, That for the purposes of this paragraph (4) only, nothing con-
tained in such paragraph shall be construed to prohibit publicity, other than picket-
ing, for the purpose' of truthfully advising the public, including consumers and
members' of 'a ' labor organization, that' a, product 'or products are produced by an
employer with whom the labor organization has a primary dispute and are distributed
by another employer, as long as such publicity does not have an effect of inducing
any Individual employed by any person other 'than the primary employer in the
course of his employment to refuse to pick up, deliver, or transport any goods, or
not to perform any services, at the establishment of the employer engaged in such
distribution t r i b u t i o n ;
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The proviso to Section 8 (b) (4) protects publicity, other than picket-
ing, providing certain requirements are met. The first requirement
is that the publicity be truthful. Although there is no serious alle-
gation that the handbills were misleading or fraudulent, we do note
that the handbills state that "Electrical & Refrigeration Work was
done by persons other than members of" the Respondents, when in
fact at the time of the hearing neither the electrical work nor the
refrigeration work was entirely completed. However, in view of
the fact that Industrial had completed 95 percent of its work and
Gallo's remaining obligation under its subcontract was solely main-
tenance, we find that the handbills were substantially accurate in
their representations. As there is no evidence of an intent to deceive
and there has been no substantial departure from fact, we find that the
contents of the handbills were truthful and that that requirement of
the proviso has been met .6
For the reasons stated in the Lohman Sales 7 case, supra, we find
without merit the General Counsel's contention that the handbilling
herein is not protected by the proviso because no product or products
are involved. We further find without merit, for the reasons stated
in Middle South Broadcasting Co.,8 the General Counsel's contention
that the handbilling is not protected by the proviso because the pro-
viso was not intended to permit a consumer boycott of a secondary
employer's entire business.
As the record indicates that the handbilling did not cause a work.
stoppage or a refusal by employees to handle products or perform
services, we find that the Respondents' leaflet circulation and distri-
bution was protected by the publicity proviso to Section 8(b) (4), and
therefore was not violative of Section 8(b) (4) (ii) (B), as alleged.
CONCLUSIONS OF LAW
1. W. H. Hauer, d/b/a Industrial Electric Service, is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Fred P. Gallo, d/b/a Gallo Refrigeration Company, is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
3. Loccisano Brothers No. 2 , Corporation is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
4. Golden Dawn Foods, a partnership, is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
6 International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Milk Drivers and Dairy Employees Local 537 (Lohman Sales Company), 132
NLRB 901.
7 Ibid See also Plumbers and Pipefitters Local Union No. 142, AFL-CIO (Shop Rite
Foods, Inc., d/b/a Piggly Wiggly ), 133 NLRB 307.
8 Local No 662, Radio and Television Engineers, affiliated with International Brother-
hood of Electrical Woikers, AFL-CIO (Middle South Broadcasting Co.), 133 NLRB 1698.
BOOTH BROADCASTING COMPANY 817
5. International Brotherhood of Electrical Workers, Local 712,
AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
6. United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
Local 115, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
7. The Respondents have not engaged in unfair labor practices in
violation of Section 8(b) (4) (ii) (B) of the Act.
[The Board dismissed the complaint.]
MEMBER RODGERS dissenting :
As I noted in my opinion in International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Milk
Drivers and Dairy Employees Local 537 (Lohman Sales Company),
132 NLRB 901, and Electrical Workers Local Union No. 73 (North-
western Construction of Washington, Inc.), 134 NLRB 498, the so-
called publicity proviso to Section 8(b) (4) is applicable only if the
primary employer, with whom the union has a dispute, produces a
product or products which are distributed by another employer. One
primary employer here, Industrial , is an electrical contractor. The
other, Gallo, is a refrigeration installation and maintenance contractor.
Neither produces anything. Each merely provides services, and cer-
tainly by no stretch of anyone's imagination can it be said that there
is distribution by another employer of the results of their labors. Ac-
cordingly, I would find the proviso inapplicable here, and would hold
that by handbilling Loccisano, the Respondent violated Section
8(b) (4) (ii) (B) of the Act.
Booth Broadcasting Company and Oral F . Osman a/k/a Bob
Fields, ' Petitioner
Booth Broadcasting Company and National Association of
Broadcast Employees and Technicians , AFL-CIO, Petitioner.
Cases Nos. 7-RD-363 and 7-RC-4875. November 28, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon petitions filed under Section 9 (c) of the National Labor Rela-
tions Act, a hearing was held before Thomas R. Wilks, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
'The Petitioner' s name appears as amended at the hearing.
134 NLRB No. 80.
630849-62-vol. 134-53