NLRB v. Local Union No. 164, Int. Bro. of Electrical Wkrs., No. 16492.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: BIGGS, FREEDMAN and SEITZ, Circuit
• Citation: 388 F.2d 105
• Docket Number: No. 16492.
• Decision Date: 22 January 1968
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 164, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent, Board of Education of the Township of Ridgewood, New Jersey, Intervenor.

388 F.2d 105 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
LOCAL UNION NO. 164, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent,
Board of Education of the Township of Ridgewood, New Jersey, Intervenor.

No. 16492.

United States Court of Appeals Third Circuit.

Argued September 14, 1967.

Decided January 22, 1968.

Richard Adelman, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost,

388 F.2d 106

Asst. General Counsel, Allison W. Brown, Jr., Attorneys, N. L. R. B., on the brief), for petitioner

Thomas L. Parsonnet, Parsonnet, Parsonnet & Duggan, Newark, N. J., for respondent.

Vincent J. Apruzzese, Apruzzese & McDermott, Newark, N. J. (Orbe & Nugent, Octavius A. Orbe, Ridgewood, N. J., on the brief), for intervenor.

Before BIGGS, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Petitioner, N. L. R. B., seeks enforcement of its order finding respondent Union ("respondent") responsible for a secondary boycott of the type proscribed by § 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act as amended.

We first state the pertinent facts as found by the Trial Examiner and approved by the Board. The Board of Education of the Township of Ridgewood, New Jersey ("Ridgewood"), decided to construct a school at the so-called Travell site. Ridgewood engaged Breen Iron Works, Inc. ("Breen") as general contractor for the steel work. Breen fabricated the steel itself but subcontracted to East Rutherford Steel Erectors ("East Rutherford") the erection of the steelwork. Ridgewood also engaged K & Z Electric Company ("K & Z") as the general contractor for the electrical work.¹

About April 14, 1965, K & Z began its electrical work on the site with union labor obtained under its existing collective bargaining agreement with respondent. About May 12, 1965, East Rutherford began erecting steel and brought a gasoline driven generator on the site to furnish electricity for welding purposes. About May 27, welding commenced. East Rutherford, pursuant to its collective bargaining agreements, employed a member of Local 825, International Operating Engineers AFL-CIO, to operate and maintain the welding machine.

When East Rutherford assigned its union employee to operate and maintain the machine, K & Z was advised by respondent Union that K & Z was obligated under its contract with respondent to employ an electrician to maintain the generator. The respondent relied upon the following provision in its agreement with K & Z:

"2.7 — The contractor further agrees that he shall notify any general contractor, builder or owner with whom he may enter into any agreement calling for the work, labor or services of employees covered by this principal agreement as to the provisions set forth in same, and such agreement shall incorporate by reference the provisions of this contract, which shall be binding and operative and have the same force and effect upon such general contractor, builder or owner."²

* * * * * *

"13.15 — All electrical welding apparatus shall be maintained by separate full time maintenance electricians as follows: * * *."

Upon receipt of respondent's demand, K & Z notified the architects for Ridgewood. They in turn wrote to Breen advising Breen either to pay for the maintenance electrician which respondent demanded or use an acetylene welding method. Breen declined to do either. Instead it directed East Rutherford to stop work.

After a work stoppage of about eleven days, East Rutherford resumed work using the same generator. Thereupon respondent's business manager called an agent of K & Z and stated that the machine was back on the job and that K & Z under its contract with respondent was obligated to maintain it. The business

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manager was advised that K & Z had made no allowance for a maintenance electrician on the generator when it submitted its bid. He replied that it was K & Z's responsibility and that the only way it could get out of it was "by going to the owner and bring the facts." A letter from the respondent to K & Z stated that by failing to employ an electrician to maintain the machine, it was violating its collective bargaining agreement. The letter stated that appropriate action would be taken if nothing was done by June 10. It further stated that it would look only to K & Z to assure compliance with their agreement and would discuss the matter with no one else

On June 11, when its demand had not been honored, the Union notified K & Z that its men were off the job. The unfair labor charges were filed June 14, 1965. They alleged that respondent engaged in a strike against K & Z with an object of forcing and requiring K & Z, Ridgewood and Breen to cease doing business with East Rutherford and with others at the Travell site. The strike lasted until July 1, but there was no picketing. However, the work on the project was delayed by the strike.

The Board determined that respondent was responsible for an illegal secondary boycott and this enforcement petition followed.

Section 8(b) (4) of the Act provides in relevant part that it shall be an unfair labor practice for labor organization or its agents:

"(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 * * * 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 * * * : Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; * * *."

Clearly the Board was justified in finding that the respondent engaged in a strike. The real issue is whether an object thereof was unlawful.

As stated, the unfair labor charge was that an illegal object of the strike was to force or require K & Z,...