Local No. 3 IBEW

National Labor Relations Board - Board Decisions

Jul 28, 1971

192 N.L.R.B. 283 (N.L.R.B. 1971)

LOCAL NO. 3 IBEW 283
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO and Bisantz Electric
Co., Inc. Case 29-CC-261
July 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 23, 1971, Trial Examiner Arthur Leff
issued his Decision in-the above-entitled proceeding,
finding that -the Respondent had engaged in and was
engaging in certain, unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and, take certain affirmative action, as set
forth in the attached,- Trial Examiner's Decision.
Thereafter; the Respondent filed exceptions to the-
Decision and the General Counsel filed a brief in
support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National' Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner who conducted the hearing and finds that
no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the ° entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the' National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Local Union No. 3, International
Brotherhood of-, Electrical, Workers, AFL-CIO, its
officers, agents, and : representatives, shall take the
action set forth in the Trial Examiner's recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Trial Examiner: Upon a charge filed on
October 14, 1970, by Bisantz Electric Co,, Inc., herein
called Bisantz, the General Counsel of the National Labor
Relations Board, by the Regional Director of Region 29,
Prior to 1969, the Association 's collective-bargaining relationship was
with Local 199, Industrial Workers of Allied Trades. The Association had a
contract with Local 199 for a 3-year term running from November 17,
issued a complaint dated November 17, 1970, against Local
Union No., 3, International Brotherhood of Electrical
Workers, AFL-CIO, herein called the Respondent, -alleging
that the Respondent had engaged in unfair labor practices
within -the meaning of Section 8(b)(4)(i)- and (ii) (B) and
Section 2(6) and ((7) of the National Labor Relations Act, as
amended. The Respondent filed an answer placing in issue
all material allegations of the complaint. A hearing was
held on January 14 and 15, 1971, before Trial Examiner
James F. Foley. At the conclusion `of' the hearing the
General Counsel and the Respondent argued the issues
orally on the record. Thereafter, the General Counsel and
the Respondent filed briefs.
Following the conclusion of the hearing, Trial Examiner
Foleybecame unavailable to the Board, within the meaning
of Section 5(c) of the Administrative Procedure Act and
Section 102.36 of the Board's Rules and Regulations, Series
81 as amended, to make " a-recommended or' initial decision"
based on the record made before him in this proceeding. All
parties consented to waive a hearing de novo and to,, the
issuance of a Trial Examiner's Decision, based on the
existing completed record, by another Trial Examiner to be
designated by the 'Chief Trial Examiner. On March 15,
1971, the Chief Trial Examiner duly designated me as the
Trial Examiner for the purpose stated above.
Upon consideration of the entire record'in the case, and
the briefs-filedby the parties, I make the following:
FINDINGS OF FACT"- -
I. COMMERCE
Bisantz Electric Co., Inc., a New York corporation, with
its principal office and place of business- in Jamaica, New
York, is engaged in business as, an, electrical contractor in
the building and construction industry. During 1970,
Bisantz purchased electrical materials and supplies valued
at approximately $70,000 from local supply houses located
in the State of New York. Although some of such materials
and supplies undoubtedly originated outside the State of
New York, ,the record does not show the extent to which
they did so. The record therefore does not establish that
Bisantz's own indirect inflow is sufficient to meet the
Board's standards for the assertion of jurisdiction. It
appears, however, that Bisantz, at all times since November
14, 1967, has been, and now is, an employer-member of
United Construction Contractors Association, Inc., an
association of employers engaged in performing services in
connection, with the installation of electrical wiring and
fixtures and related services in the building and construc-
tion industry. The Association, on behalf of its employer-
members, including Bisantz, negotiates, executes, and
administers collective-bargaining agreements with Local
819, International Brotherhood of Teamsters, which, in
turn, represents employees employed by the employer
members of the Association, including employees em-
ployed by Bisantz 1 As will- more fully appear below, the
Respondent's primary dispute-with Bisantz, which led to its
alleged unlawful picketing herein involved, is related to a
1967. In 1969 , Local 199 was merged into Teamsters Local 919 which, with
the approval of the Association , took over Local 199s contract with the
Association.
192 NLRB No. 63
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broader dispute which the Respondent. has with Associa-
tion members generally because the Association's contract
with Local 819 stipulates wage rates and other terms and
conditions of , employment that are regarded by the
Respondent as.below that of prevailing area standards. "In
these circumstances, the relevant criteria in determining the
Board's jurisdiction is the effect on commerce of the
combined operations of all the -employers in the
Association," 2 -
The record discloses that in 1970, employer-members of
the Association, purchased from firms outside the State of
New York, and caused to be transported in interstate
commerce to their places of business or to the site of-their
work operations within the State of New York, construction
materials valued in excess of $50,000. The Board has
heretofore asseed jurisdiction over one of the employer-
members of -the-' Association on the basis of its operations
alone3 and in at least three cases has assertedjurisdiction
over controversies involving other individual employer-
members of the Association on the basis of the Associa-
tion's meeting the Board's jurisdictional standards.4
Accordingly, I find,that the Association is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and that on the basis of Bisantz's membership in the
Association, it would effectuate, the policies of the Act to
assert jurisdiction in this - proceeding over Bisantz's
operations. I further, find that Bisantz is engaged in an
industry affecting commerce within the meaning of Section
8(b)(4)(B) of the Act. 5
Atlantic Construction Company, Inc., a New York
corporation, with its office and principal place of business
at Brooklyn, New York, is engaged in business as a general
contractor in the building construction industry. I find, as
alleged in the complaint, that Atlantic is a person engaged
in an industry affecting commerce within the meaning of
Sections 2(6) and (7) and 8(bX4) of the Acts
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Local Union No. 3, International
Brotherhood of ` Electrical Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
Between October 13 and October 27, 1970, the Respon-
dent picketed a construction job site located at 6915 Austin
Street, Forest Hills, New York, at which Bisantz was the
electrical subcontractor. The question in this case is
whether the Respondent, violated Section 8(b)(4)(1) -and
(ii)(B) of the Act, by engaging in such picketing and in
2 Belleville Employing Printers, 122 NLRB 350, 352; Westside Market
Owners Association, et aL, 126 NLRB 3'50,352; Local 3, IBEW, AFL-CIO,
153 NLRB 717, 719 Atias Electric Service Co., 176 NLRB No. 110. ' '
,3 Local, 3, IBEW,, AFL-CIO (Jack Picoult and A,l Picoult, d/bia Jack
Prcoult), 137 NLRB 1,401
4 Local 3, IBEW, AFL-CIO (Darby Electric Co.), 153 NLRB 717; Local
3, IBEW,, AFL-CIO (Surf Hunter Electric, Co.) 172 NLRB No. 115; Atlas
Electric Service Co., 176 NLRB No. 110.
1 5 Sheet Metal Workers International Association, Local Union No. 299 (S.
certain related conduct to be described below. 'No other
violation of the Act is charged or involved.
B. The Relevant Facts
Bisantz at one time had conducted its electrical
contracting business as a union contractor identified with
the Respondent and had complied with the employment
terms and conditions established by the Respondent's
collective-bargaining agreements with area employers. In
1967, however, Bisantz became a member of the United
Construction Contractors' Association, an employers'
association composed primarily of electrical contractors
which at' that time maintained a collective-bargaining
relationship with Industrial Workers of Allied Trades,,
affiliated with the National Federation of Independent '
Unions, and now maintains the same relationship with
Local 819, International Brotherhood `of Teamsters, into
which Local 199 was merged `in 1969: As "•an employer-
member of the Association, Bisantz was bound to `'the
agreements which the Association negotiated' on behalf of
its members. The Respondent has had a continuing dispute
with the employer-members of the Association because -of
their failure to maintain wage standards and other terms
and conditions of employment equal to those enjoyed by
members of the'Respondent.7 At the time of the,e events here
in controversy the wages and fringe benefits provided'for in
the Association's contract with Teamsters Local 819 were
substantially less than those called for by the Respondent's
contracts with the employers with which it deals%`Although
the wage, rates which Bisantz actually pays its employees
are, markedly higher than those stipulated in the Associa-
tion's contract with Local 819, it appears that, with fringe
benefits, taken into account, they still fall,,short of those
required by the Respondent's contracts. When the Respon-
dent engaged in the picketing here involved, it did not know
the actual wage- rates paid by Bisantz. It was familiar,,
however, with the terms of the Association's contract with
Local 819, and assumed on that basis that Bisantz's wage
rates did not measure up to prevailing area standards as set
by its own contracts.
In 'September and October 1970, Atlantic Construction
Company, Inc.,- was engaged as a general contractor in
performing a major, alteration job on an office building
owned by International Escort Tours, located at the Austin
Street address mentioned above. The-building on'which the
alterations were being performed occupies° a '50-foot
frontage along Austin Street and also faces on"69th Place; 'a
street running parallel to Austin Street. There is a rear
entrance to the building on 69th Place. On the Austin Street
side, there is a driveway, approximately 20 feet in length,
running from the street to the building entrance.
Atlantic subcontracted to Bisantz the job of installing
electrical wiring 'and fixtures in the building being
M. Kisner& Sons), 131, NLRB 1196, 1199.
B Aid
7 The existence of that dispute is reflected in,other cases that have come,
before' the Board . See, e.g., Local 3, IBEW, AFL-CIO, (Darby Electric Co.),
supra; Local 3, IBEW, AFL-CIO (Surf Hunter Electric Co.) ° supra ` '
8 The Respondent is the dominant union representing electricians in the
New Yorke City area , and the wage rates fixed by, its contracts are followed
by the controller of the City of New York in his prevailing 'wage rate
determinations for electricians. -
LOCAL NO. 3 IBEW 285
renovated . Bisantz began work at the building on
September 20,_ using two employees and at times four, and
did not fully complete work on the job until after October
27. The working hours of Bisantz's employees were from
8:30 a.m. -to 5 p.m., Monday through Friday. During the
period that Bisantz worked at Austin Street , work was also
being performed there by employees of other employers.
Among them were laborers employed by Atlantic, who
were members of an AFL-CIO Laborers Local, as well as
by employees of various other subcontractors of Atlantic
who were performing air-conditioning, plumbing, store-
front, heating, duct, and sheet metal work.
On October 13, the Respondent set up a picket line at the
Austin Street job site, according to the Respondent solely
for the purpose of, advertising -to the public Bisantz's
"substandard" employment conditions. Picketing contin-
ued through October 27. The pickets carried placards
reading as follows:
Notice to the public-Bisantz pays substandard wages
to its electrical workers, We want all electrical workers
to be paid a decent wage. Local 3, I.B.E.W., AFL-CIO
Picketing took, place only in front of the Austin Street
entrance to the building; there was never any picketing at
the rear entrance on 69th Place. Three to six pickets were
present at a time . The pickets usually arrived at the job site
at about 8 :30 a.m. and remained until about the close of the
work day. Picketing was conducted only while Bisantz's
employees were present at the job site.
William Darcy, the Respondent's business representative
in charge of the picketing, and Frank Pepe who was
designated by Darcy-as the picket captain, testified that the
pickets were specifically instructed not to say anything to
any of the employees on the job and not to interfere with
any work operations or, with the delivery of materials and
supplies to the job site. There is no evidence that the pickets
ever orally appealed to employees of the general contractor
or to any employees of the various subcontractors on the
job to respect the picket line, and the record affirmatively
shows that all such employees continued to work without
interruption throughout the period,of picketing. It appears
that there were but a few deliveries of supplies made to
contractors on the job during the two weeks of picketing.lo
To show, that the, pickets deviated from the instructions
which the Respondent states it gave them, the General
Counsel adduced evidence as to two specific occurrences.
Both involved deliveries of materials to neutral employers
on the job,•- one a 'delivery of plumbing supplies for the
plumbing subcontractor, and the other a delivery of lumber
for the general contractor.
With regard to the plumbing supply occurrence, Salva-
tore Asaro, Atlantic's vice president who also worked as a
9 The exact completion date is in dispute. This will be dealt with later,
10 Frank Pepe as picket captain kept a record for the Respondent of
trucks of neutral employers which came or made deliveries to the job site,
Apart from the two to which detailed reference is made below, he listed in
his testimony the following : (1') a pre-cast company truck which delivered a
manhole for installation by - Bisantz ; (2) a telephone company truck
carrying , employees of that , company who worked on the job site; (3) a
cartage company truck which left a container for- rubbish removal ; (4) the
truck of an electric supplier which delivered material for Bisantz 's use; and
(5) a fastening company which was seeking to sell job tools to men working
on the job. -
11-Of the several pickets who appeared as witnesses for the Respondent,
laborer on the job, testified: One morning during the period
of the picketing a truck of the New York Plumbing Supply
Co., arrived at the job site with-a delivery for Ben Hi%; the
plumber-subcontractor. The driver backed his truck into
the driveway at the Austin Street entrance. As the driver
was waiting for the plumbing subcontractor 's employees to
come out to the truck to receive the delivery, an
unidentified picket approached-the'driver, told him that he
had "crossed the picket line," and remarked , "You can't
cross the picket line," Thereupon, the driver returned to his
truck, without leaving the supplies intended for delivery,
and drove away from the job site. Salvatore Asaro's
account of this incident, although disputed by the
Respondent , is credited .11 The Respondent emphasizes in
its brief that Salvatore Asaro "admitted" that the New
York Plumbing Supply Co. made several other deliveries to
the job site without incident. But a careful reading of
Asaro's testimony shows that these other deliveries were
made at times when there was no picketing.
With regard to the lumber delivery occurrence, Salvatore
Asaro and his brother Frank , a stonemason employed by
Atlantic, testified substantially as follows: On October 16, a
truck of Mensch Lumber and Mill Co. arrived at the job
site with a delivery of lumber-for Atlantic. The driver told
Frank Asaro that he was unwilling to'bring the truck into
the private driveway to make the delivery because he did
not want to cross the picket' line . At Frank Asaro's
suggestion, he agreed, however, to give the key to the truck
to Frank Asaro so that the latter might drive in the truck
himself, and then walked away from the job site. Frank
Asaro entered the truck and began backing it into the
driveway, but was prevented from doing so by some four or
five pickets, carrying signs, who stationed themselves in the
driveway Frank Asaro was seeking -to enter. Frank Asaro
left the truck- and requested the pickets to allow him to
enter, at the same time stating to them that the delivery had
nothing to do with the electricians on the job. Asaro's
request of the pickets to move was met, however, only by
silence. As a result, Asaro was able to move the truck only a
few feet into the driveway, and Atlantic's employees were
obliged to unload the truck by hand near the curb,
temporarily blocking passageway along the sidewalk. From
that point, Atlantic's laborers' crew carried,the lumber into
thebuilding, without physical interference by the pickets.
The Respondent's witnesses, pickets present at the time,
did not question the Asaro brothers' account of the Mensch
Lumber delivery incident as to most of its details. They
denied, however, that they intended to, or did, obstruct
entrance of the truck into the driveway, and asserted that
Frank Asaro was unable to back the truck any further into
the driveway than he did only because the driveway was
only one-Frank Pepe, the picket captain-adverted to this incident while
testifying. His testimony concerning it was as follows : "He-[the driver]
came up to the job and seen the picket line there or a demonstration. He
read the sign, got back in his truck and went away." Pepe did not
specifically deny that a picket spoke to the driver before he drove off.
Pepe's reference to the fact that the driver "got back in his truck" lends
support to Salvatore's more detailed account of what occurred . The driver
did not have to get out of the truck to read the picket sign . Moreover, a
reading of Salvatore Asaro's overall testimony leaves one with the
unpression that he was an objective -witness, not given to improvisation. As
to the incident in question, the Respondent made no effort to shake
Salvatore Asaro's testimony on cross-examination.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obstructed by piles of debris and other physical obstacles
that impeded deeper , entrance . I do not credit their
testimony in the latter respect which is at variance with
what I regard as the more plausible testimony of Frank
Asaro . Asaro, although conceding the presence of debris in
the nearby area, insisted that,the driveway was kept clear,
because, as he explained, it would have been "stupid" for
Atlantic to have obstructed the driveway ' whose use was
necessary to reach the building . Moreover, the testimony of
Respondent's witnesses concerning debris in the driveway
is at apparent odds with the admission , of one of the
Respondent's witnesses (Michael Feerick), at one point of
his cross-examination, that he saw trucks go into the
driveway "every day." A further conflict in testimony arises
from the denial of the Respondent 's, witnesses that they
stationed themselves in a position to block the , Mensch
truck while Asaro was attempting to back it into the
driveway. According to the pickets ' account of what
occurred, they were -then simply engaged in picketing,
circling the driveway area' near,the street curb. But as is
further--reflected by,their testimony , they conducted their
picketing in close formation,' at most 8 feet apart. Even
accepting the Respondent's version, it is clear that the
pickets must have been aware that their very presence at
that particular-place would stop Asaro froui backing up the
truck any further than he did because he would not want to
risk;injury to them. Their failure to move out of the path of
the truck, particularly after being specifically requested by
Asaro to do so,,can thus only_beviewedas an affective and
deliberate physical =blocking , of, the truck under ' either
version of the facts . I so find.
The Respondent ceased picketing the Austin Street job
on October- 27. The pickets were withdrawn about 1:30 or 2
p.m., about-2 hours before the close of the work day.
Joseph Asaro, Atlantic's president, testified that about an
hour- or -so before the picketing stopped, he, telephoned the
Manhattan , office of the Respondent . He told the girl who
answered the, phone that he wished to speak to someone
about the Austin Street job which was being picketed. His
call was referred to a ma n whom he was unable to identify
while testifying,, either by name or ' job title. After
identifying himself as ,president of Atlantic, Asaro-told the
person , to-,whom he spoke that Bisantz was "just finishing
up" its portion of,the work on the Austin Street job and had
only a few-minor