N.L.R.B. v. Local 3, Intern. Broth. of Elec. Workers, AFL-CIO, AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation542 F.2d 860
Docket NumberNos. 990,991,AFL-CI,D,R,s. 990
Parties93 L.R.R.M. (BNA) 2417, 79 Lab.Cas. P 11,643 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,espondent(two cases). ockets 75-4235, 75-4269.
Decision Date27 September 1976

John C. Rother, Atty., N. L. R. B., Washington, D. C. (Aileen A. Armstrong, Atty., John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., of counsel), for petitioner.

Norman Rothfeld, New York City (Menagh, Trainor & Rothfeld, New York City, of counsel), for respondent.

Before MOORE and TIMBERS, Circuit Judges, and NEWMAN, * District Judge.

MOORE, Circuit Judge:

The National Labor Relations Board ("Board") seeks enforcement of its orders, 220 NLRB No. 57 and 220 NLRB No. 117, in two consolidated cases which involve unfair labor practices in violation of the National Labor Relations Act ("Act"), 29 U.S.C. § 151 et seq., by Local 3, International Brotherhood of Electrical Workers, AFL-CIO ("Local 3"). For the reasons stated below, we grant enforcement.

I. FACTS

The Board was justified, on the basis of the record as a whole, in finding the following facts:

Local 3 represents electricians who perform construction work within the City of New York ("City") for certain electrical contractors who are contractually affiliated with it. These contractors in turn perform work for, among others, the Board of Education ("School Board"), which contracts for the construction and repair of school buildings. Contracts are subject to a competitive bid and award system, with subdivision bid and award for electrical work if total construction costs are in excess of $50,000.

Among the contractors which bid successfully on School Board projects in early 1974 was a joint venture ("Wickham-Perone") formed by Wickham Contracting Co. ("Wickham"), which supplies funds and bonding capital, and Ralph Perone ("Perone"), an individual employer who possesses the necessary electrical license for work undertaken in the City. The electricians employed by Wickham and Perone, who apparently work intermittently on joint venture projects in the City, are represented by Teamster Local 363 ("Teamsters"). Perone is a party to an individual collective bargaining agreement with the Teamsters; Wickham is a member of the United Construction Contractors Association ("Association"), a multi-employer bargaining unit which also bargains with the Teamsters.

Beginning in 1973, Local 3 attempted to oust the Teamsters from their position as bargaining representative for employees of Association members; Local 3 sought Board certification in mid-1973, and an election to choose a bargaining representative was held During 1974, Local 3 also applied pressure on Wickham to switch its bargaining representative from the Teamsters to Local 3, and in addition effected a work stoppage at School Board jobsites in an effort to force the School Board to award contracts only to Local 3 contractors.

on September 19, 1974. Following a period during which the Board heard various challenges and objections to ballots cast in the election, it determined that the Teamsters had defeated Local 3. 1

The Wickham-related pressure began in July 1974 and included threats of trouble if Wickham did not capitulate, and picketing of the Wickham offices 2 and two Wickham jobsites. 3 The pickets, members of Local 3, carried signs, some of which read "Employees of Wickham on strike" or "Employees of Wickham-Perone on strike", 4 and others of which stated that the strike was for decent wages and recognition. Wickham's president (Biele) resisted this pressure, insisting that his employees had the right to choose their own representative and that Wickham, as a member of the Association, had a right and an obligation to bargain with the Teamsters. 5

During the same period Local 3 members, with union sanction, walked off their jobs at School Board jobsites, complaining that the School Board was threatening the job security of Local 3 members by awarding contracts to employers who bargained with the Teamsters. Local 3 proposed that the School Board adopt a lay-off plan that would provide such job security; its legality was challenged by the School Board in view of the bid and award system under which the School Board has no direct dealings with construction trade unions but only with the competitive bidders for particular School Board contracts. 6 The shutdown of School Board jobsites continued until halted by federal court injunction. 7

II. FINDINGS BELOW

The Board found that with respect to Wickham, Local 3 violated section 8(b)(1) (B) of the Act 8 by restraining and coercing Wickham in the selection of its representatives for the purpose of collective bargaining.

With respect to the School Board, the Board concluded that Local 3 induced those of its members who were working at School Board jobsites, to walk off their jobs and, that further, such a strike in fact took place, all with an object of forcing the School Board to cease doing business with Wickham and other employers whose electricians were not members of Local 3; this, the Board found, was an unfair labor practice in violation of the Act's prohibition (section 8(b)(4)(i) and (ii)(B) ) 9 against secondary boycotts.

The Board entered cease and desist orders on both violations.

III. SECONDARY BOYCOTT AGAINST THE SCHOOL BOARD

The Board's finding that an object 10 of the work stoppage, if not the principal object, 11 was to pressure the School Board to cease awarding work to non-Local 3 contractors, specifically Wickham, Perone, and Iovine, 12 is supported by substantial evidence and will not be disturbed. 13 This Court must accordingly reject Local 3's arguments that the work stoppage was legitimated by the expiration of Local 3's collective bargaining agreement, 14 and by a desire to preserve the union's work as evidenced by the proposed layoff plan. 15

Under the facts as found by the Board, it is clear that Local 3 was engaged in a secondary boycott in contravention of section 8(b)(4)(B) of the Act. In National Woodwork Manufacturers Assoc. v. N.L.R.B., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), the Supreme Court approvingly quoted Judge Learned Hand's definition of the term:

"The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands." 386 U.S. at 627, n.16, 87 S.Ct. at 1259, quoting International Bro. of Electrical Workers, No. 501 v. N.L.R.B., 181 F.2d 34, 37 (2d Cir. 1950) (emphasis supplied)

Explicating further, the Supreme Court, in a discussion particularly appropriate to the case at bar, made clear that a union's attempts to control the amount of unit work procured by its members' employers, through means of pressuring third parties, falls squarely within the definition. 16 Reviewing the legislative history and commenting on its decision in Allen Bradley Co. v. Local Union No. 3, etc., Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), the Court wrote as follows:

"Allen Bradley held violative of the antitrust laws a combination between Local 3 of the International Brotherhood of Electrical Workers and both electrical contractors and manufacturers of electrical fixtures in New York City to restrain the bringing in of such equipment from outside the city. . . . (T)he boycott of out-of-state electrical equipment by the electrical contractors' employees was not in pursuance of any objective relating to pressuring their employers in the matter of their wages, hours, and working conditions; there was no work preservation or other primary objective related to the union employees' relations with their contractor employers. On the contrary, the object of the boycott was to secure benefits for the New York City electrical manufacturers and their employees. 'This is a secondary object because the cessation of business was being used tactically, with an eye to its effect on conditions elsewhere.' Second, and of even greater significance on the question of the inferences to be drawn from the references to Allen Bradley, Senator Taft regarded the Local 3 boycott as in effect saying, 'We will not permit any material made by any other union or by non-union workers to come into New York City and be put into any building in New York City.' 93 Cong.Rec. 4199, II 1947 Leg.Hist. 1107. This clearly shows that the Senator viewed the pressures applied by Local 3 on the employers of its members as having solely a secondary objective. The Senate Committee Report echoes the same view:

'(It is) an unfair labor practice for a union to engage in the type of secondary boycott that has been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of (emphasis added) some labor organizations other than local No. 3.' S.Rep. No. 105, 80th Cong., 1st Sess., 22, I 1947 Leg.Hist. 428. (Emphasis supplied.)

Other statements on the floor of Congress repeat the same refrain. Third, even on the premise that Congress meant to prohibit boycotts such as that in Allen Bradley without regard to whether they were carried on to affect labor conditions elsewhere, the fact is that the boycott in Allen Bradley was carried on, not as a shield to preserve the jobs of Local 3 members, traditionally a primary labor activity, but as a sword, to reach out and monopolize all the manufacturing job tasks for Local 3 members." 386 U.S. at 628, 629-630, 87 S.Ct. at 1260-1261 (footnotes omitted, emphasis supplied in part).

This is precisely the...

To continue reading

Request your trial
8 cases
  • In re Rath Packing Co.
    • United States
    • U.S. Bankruptcy Court — Northern District of Iowa
    • 28 Marzo 1984
    ... ... UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC; Local No. 171, ... Union or the NLRB arising out of the unfair labor practice charge ... "); N.L.R.B. v. Local 3, Int'l Broth. Elec. Workers, 542 F.2d 860, 866 (2d Cir.1976) ... ...
  • Wickham Contracting Co., Inc. v. Local Union No. 3, Intern. Broth. of Elec. Workers, AFL-CIO
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 29 Enero 1992
    ...desist order. The NLRB's determination and order were upheld by this Court the following year. See NLRB v. Local 3, Int'l Bhd. of Elect. Workers, 542 F.2d 860 (2d Cir.1976) ("Wickham I" ). In the civil suit commenced by Wickham, a jury eventually found the union liable in 1982, and awarded ......
  • Retail Store Employees Union, Local 1001, Retail Intern. Ass'n, AFL-CIO v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 7 Enero 1980
    ...Layers Local 419 v. NLRB, supra note 24, 151 U.S.App.D.C. at 346-347, 467 F.2d at 400-401. Accord, NLRB v. International Bhd. of Electrical Workers, 542 F.2d 860, 865-866 (2d Cir. 1976). Cf. United Tel. Workers v. NLRB, supra note 25, 187 U.S.App.D.C. at 233, 571 F.2d at 667.29 See Local 24......
  • United Tech. Com. v. Intern. Broth. of Elec. Wkrs.
    • United States
    • U.S. District Court — Southern District of New York
    • 8 Noviembre 1984
    ...States Electrical Contractors, Inc.), 205 NLRB 270 (1973); Local No. 3, IBEL (Wickham Contracting Co.), 220 NLRB 785 (1975), enf'd, 542 F.2d 860 (2d Cir.1976); Local No. 3, IBEW (Mansfield Contracting Corp.), 205 NLRB 559 (1973); Local No. 3, IBEW (Hylan Electric Co.), 204 NLRB 193 (1973), ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT