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MCLEOD EX REL. NLRB v. LOCAL 3

June 5, 1962

Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
LOCAL NO. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent



The opinion of the court was delivered by: DAWSON

This action is brought by the petitioner, the Director of the Second Region of the National Labor Relations Board (hereinafter called the Board), for a temporary injunction against the respondent under Section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C.A. ยง 160(l) (hereinafter called the Act). The injunction is sought pending the final disposition of the matters here involved which are now under consideration by the Board pursuant to a charge filed by New Power Wire & Electric Corporation (hereinafter called New Power) and P & L Services, Inc. (hereinafter called P & L). The charge alleges that respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(b)(4)(i)(ii)(B) of the Act, which proscribes what are commonly, though somewhat loosely, referred to as secondary boycotts. *fn1"

A hearing was held by this Court on May 16, 1962, at which time testimony was taken from which the Court finds the following facts:

 New Power is a licensed electrical contractor which has contracts with various owners to rewire apartment houses. P & L is an affiliated corporation that furnishes labor for the electrical rewiring contracts. The present controversy relates to picketing carried on by members of the respondent who were formerly employed by New Power or P & L. The picketing took place in front of nine different apartment buildings at various locations in New York City where New Power had entered into contracts with the owners for electrical rewiring. The picketing, which began on March 5, 1962, was conducted daily between the hours of 8:00 A.M. and 4:30 P.M., five days a week, during which hours electricians employed by New Power and P & L would normally have been working on the electrical rewiring jobs. The signs carried by the pickets read, in relevant part, as follows:

 ELECTRICIANS EMPLOYED ON THIS JOB BY NEW POWER WIRE and ELECTRIC CORP.

 Are Not Members Of LOCAL UNION NO. 3 I.B.E.W.

 And Are Employed By NEW POWER WIRE and ELECTRIC CORP. IN VIOLATION OF ITS AGREEMENT WITH ELECTRICAL WORKERS LOCAL UNION NO. 3

 The background of the dispute between New Power and the union can be set forth briefly. For some time prior to the dispute, New Power had a collective bargaining agreement with the respondent which apparently is still in effect at the present time. In July 1961 New Power began to discharge some of its employees who were members of the respondent and to hire non-union personnel. The respondent contends that such action violated the collective bargaining agreement. Subsequently, in February 1962, the respondent organized nearly all of the sixty non-union electricians then employed by New Power or P & L, and on March 20, 1962 it filed a petition for representation with the Board. On March 30, 1962 New Power and P & L filed unfair labor practice charges against the respondent relating to the picketing above described and the Board refused to proceed with the petition for representation until the unfair labor practice charges had been disposed of. On May 2, 1962 the Board filed this application for a temporary injunction.

 The basis of the Board's complaint is that the picketing by the respondent is in violation of Section 8(b)(4)(i)(ii)(B) of the Act (29 U.S.C.A. 158(b)(4)(i) (ii)(B)). This section, as amended in 1959, provides as follows:

 '(b) It shall be an unfair labor practice for a labor organization or its agents --

 '(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce 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 any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is --

 (B) 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, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.'

 Prior to the 1959 Landrum-Griffin amendments to the Act, Section 8(b)(4) of the earlier Taft-Hartley Act was more limited in scope. The former Section 8(b)(4) made it an unfair labor practice for a union to exert secondary pressure on a disputing employer by inducing or encouraging the employees of a neutral employer to engage in a work stoppage for a proscribed object. 61 Stat. 141 (1947), 29 U.S.C.A. 158(b)(4). No provision was made for direct pressure against the neutral employer himself. The 1959 amendments retained the prohibition against employee inducement as Section 8(b)(4)(i) but added as Section 8(b)(4)(ii) a prohibition against direct coercion of a neutral employer. See Comment, The Landrum-Griffin Amendments: Labor's Use of the Secondary Boycott, 45 Cornell L.Q. 724, 726 (1960). Both issues are presented here.

 As to Section 8(b)(4)(i), there was no convincing evidence offered at the hearing that the employees of any neutral employer were induced or encouraged to engage in a strike or refusal to handle any goods or to perform any services. No other construction was taking place in the nine apartment buildings which were picketed by the respondent, nor were union members of any other trades at work in these buildings. There was no testimony that any outside deliveries were halted or interfered with, or that the activities of the pickets were an encouragement or an inducement to other employees not to perform their regular duties. The testimony was similarly unconvincing that the picketing was directed against any of the building superintendents or maintenance personnel. Of course an unsuccessful inducement may be a violation of the Act, but there must be evidence that the union tried or wished to interfere with other workers. United Brotherhood of Carpenters v. N.L.R.B., 109 U.S.App.D.C. 249, 286 F.2d 533 (1960). No such evidence was presented here.

 The only persons against whom the picketing might conceivably have been directed (other than New Power and P & L) would be the building owners themselves. Section 8(b)(4)(ii), which was inserted by the 1959 Landrum-Griffin amendments, declares it unlawful for a union 'to threaten, coerce or restrain any person engaged in commerce or in an industry affecting commerce' for any of the stated prohibited objects. *f ...


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