Smith, Feinberg and Mansfield, Circuit Judges.
The National Labor Relations Board has petitioned for enforcement of an order against Local Union #3, International Brotherhood of Electrical Workers, (the "Union") to cease and desist from violations of the secondary boycott provisions of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (B). The Board's decision, adopting the findings, conclusions, and order of the Trial Examiner, appears at 197 N.L.R.B. 328, 197 NLRB No. 59, 80 LRRM 1630 (1972). We find substantial evidence in the record to support the order, and enforce.
The underlying facts are not in dispute. New York Telephone Company ("Telco") has for many years subcontracted the jobs of installing telephone wire and cables and fastening certain iron work and terminals in buildings under construction or major alteration to independent contractors. Telco contracted with L.K. Comstock and Co. ("Comstock"), Lord Electric Co. ("Lord"), and J. Livingston and Co. ("Livingston") to do such work on a number of Manhattan jobsites. The employees of these contractors were represented by Local #3. Under the usual procedure, the material used by the contractor was delivered to the jobsite by Telco employees, who unloaded it from the trucks. The Local #3 members then would transfer the material to the point of use, and install it.
In July of 1971, Telco employees, represented by the Communications Workers of America ("CWA"), went out on strike. Consequently, Telco management personnel were assigned the delivery jobs outlined above. At least during the period prior to August 31, 1971, these deliveries were accepted by the contractors' employees and installed, although there were apparently one or two instances in which Union members refused to accept or place the materials.
On August 31, a luncheon meeting took place between Thomas Van Arsdale, the Union business manager, Peter J. McCall, a Telco representative, Anthony Salerno, Comstock's telephone superintendent, and John Fenley, Lord's general superintendent.*fn1 The instances of non-acceptance of Telco deliveries were discussed. There was a conflict of testimony as to whether Van Arsdale stated that Union members had been instructed not to accept such deliveries, or whether he merely said that such actions were individual acts of conscience on the part of Local #3 members. The Trial Examiner found it unnecessary to rely upon what was said at the meeting, and did not resolve the dispute.
Telco then contracted with independent truckers to deliver the materials to the jobsites; several such deliveries were accepted. On about September 7, however, a telephone conversation took place between Fenley and McCall. McCall was told that Fenley and Salerno had met with Van Arsdale, who informed them that the new delivery arrangement might also lead to difficulties. Again, it was a matter of dispute -- which the Trial Examiner did not find it necessary to resolve -- whether Van Arsdale stated that Union members had been instructed to refuse deliveries, or whether he simply reported the possibility.
On September 9, Local #3 held its regular monthly membership meeting. In the course of his business report, Van Arsdale discussed the Telco situation, and told the membership that it was his view that when Telco management or independent truckers delivered materials to jobsites, they were acting as strikebreakers. He further stated that "if we were . . . to be true to the trade union principles, that there . . . would be no basis for men working under those circumstances." Van Arsdale emphasized, however, that this was his personal view and that others would have to make up their own minds. Van Arsdale had also made these views known in a number of individual discussions with Local #3 members.
On September 10, a meeting took place between McCall and Van Arsdale. McCall told Van Arsdale that Telco was taking a serious view of any refusals to accept deliveries, and might either bring court action or eliminate the subcontracting system entirely, leaving the installation work to be done by Telco employees. McCall testified that Van Arsdale "said he was sorry but they had taken a Trade Union stand that they could not be in a position of aiding or abetting strike breakers; that he considered such work, such material, deliveries to be strike breaking."
At about the same time, a number of interruptions began to occur on Manhattan projects. On September 9, employees of Comstock on a job at 94th and Park Avenue, and employees of Lord at a job on Madison Avenue, refused to install wire and cable. On September 10, a Livingston foreman, a member of Local #3, refused to do a job at One Liberty Plaza involving deliveries by management personnel. On the same day, Livingston employees at 1409 Broadway refused to accept deliveries from "strikebreakers." On September 17, Livingston electricians at 919 Third Avenue refused to install material delivered by Telco personnel.
On September 21, Telco filed unfair labor practice charges against the Union. Pursuant to § 10 (l) of the Act, 29 U.S.C. § 160 (l), the Board's Regional Director sought a temporary restraining order against the Union's work interruptions. Such an order was issued by the District Court for the Southern District of New York on October 20, 1971. 80 LRRM 2436.
On October 22, Comstock employees refused to install material at the 450 Park Avenue and 94th and Park Avenue jobsites. The District Court then granted a preliminary injunction on October 28, 1971. 80 LRRM 2557. On December 29, 1971, the District Court found the Union in civil contempt and directed it to purge itself. 337 F. Supp. 31 (S.D.N.Y. 1971).
Inter alia, § 8(b) (4) of the National Labor Relations Act makes it an unfair labor practice for a union
"(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 ...