New Power Wire & Electric Corp. v. National Labor Relations Board

340 F.2d 71
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 7, 1965
DocketNos. 196, 197, Docket 28597, 28627
StatusPublished
Cited by3 cases

This text of 340 F.2d 71 (New Power Wire & Electric Corp. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Power Wire & Electric Corp. v. National Labor Relations Board, 340 F.2d 71 (2d Cir. 1965).

Opinion

HAYS, Circuit Judge.

These two cases which were briefed and argued together involve two aspects of the same controversy. The controversy arose out of a strike of certain employees of the New Power Wire and Electric Corp. The purpose of the strike was to obtain recognition of Local 3 of the International Brotherhood of Electrical Workers as the bargaining agent of the employees. Picketing by the striking employees led to charges of violation of Section 8(b) (1) (A) and Section 8(b) (4) (i) (ii) (B) of the National Labor Relations Act, 29 U.S.C. § 158(b) (1) (A) and § 158(b) (4) (i) (ii) (B). The Board held that the Union violated Section 8(b) (1) (A) but dismissed the complaint charging violation of Section 8(b) (4) (i) (ii) (B). We approve the Board’s action in both respects.

1. Section 8(b) (1) (A)

Section 8(b) (1) (A) provides that:

“It shall be an unfair labor practice for a labor organization or its agents—
“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 * * * ” 61 Stat. 141 (1947), 29 U.S.C. § 158(b) (1) (A) (1958).

The record contains ample evidence that the strikers (1) threatened nonstrikers with loss of their jobs and with physical harm, (2) physically attacked one of the nonstriking employees, and (3) sabotaged the Employer’s property in the presence of nonstrikers.1 We reject the reasoning of the Union in seeking to excuse or justify this conduct.

The Union argues that, even granting that the strikers conducted themselves as charged, it (the Union) cannot be held responsible.

The Board has taken the position that in order to establish the liability of a union for violation of Section 8(b) (1) (A) it is not sufficient that the rank and file members of the union engaged in the coercive conduct. Officials must have participated in, ordered or authorized the conduct. See United Steelworkers (Vulcan-Cincinnati, Inc.), 137 N.L.R.B. 95, 98 (1962); Local 761, Int’l Union of Elec. Workers (General Elec. Co.), 126 N.L.R.B. 123 (1960), enforced per curiam, 287 F.2d 565 (6th Cir. 1961); cf. Great Lakes Dist., Seafarers’ Int’l Union (Upper Lakes Shipping, Ltd.), 139 N.L.R.B. 216, 219 (1962). This rather narrow conception of who constitute the union may be open to further consideration when a case arises which makes such consideration necessary. In the present case those who engaged in the prohibited conduct were members of the [73]*73strike committee chosen by the strikers to direct the strike and organize the picketing. They were representatives of the Union for the purposes of the strike and were recognized as such by both the rank and file and the business agent of the Union. See National Labor Relations Board v. Local 815, Int’l Brotherhood of Teamsters, 290 F.2d 99 (2d Cir. 1961). Apart from this it is probable that the participation of the business agent, who regularly visited the picket lines, received reports from the committee, met with the strikers from time to time and knew of at least some of the incidents of misconduct, would be sufficient to implicate the Union. But in any event it is quite clear that a union cannot leave the direction of a strike and picketing to a “strike committee” and escape liability for the activities of the committee.

We will enforce the order of the Board against Local 3.

2. Section 8(b) (4) (i) (ii) (B) Section 8(b) (4) provides, in relevant part, that:

“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 * * * transport, or otherwise handle or work on any goods * * * 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 per- ' son to cease * * * handling, transporting, or otherwise dealing in the products of any other * * * 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 9: Provided,, that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *» 73 Stat. 542 (1959), 29 U.S.C. § 158(b) (4) (i) (ii) (B) (Supp. V, 1964).

The issue here is whether the picketing in which the striking employees engaged was “primary” picketing, which is authorized by the proviso of Section 8(b) (4) (i) (ii) (B) and protected by Section 7 of the Act or “secondary” picketing which is condemned by Section 8(b) (4) (i) (ii) (B).

New Power Wire and Electric Corp., the Employer, is in the business of doing rewiring work under contract with apartment house owners throughout New York City. At the time the strike began the Employer was doing work in fifteen to twenty buildings. The strikers posted pickets at most of these buildings. Strilcers also picketed the Employer’s head-' quarters. The picketing was carried oni only during working hours. When the Employer completed its work on a contract in a particular building, picketing of that building was discontinued. .^«J

The picketing at the Employer’s office was clearly primary picketing. But if the striking employees had been limited to picketing the Employer’s office the picketing would have been practically pointless, since the nonstriking employees at whom the picketing was directed spent their working hours at the sites where the Employer was doing its contract work. Frequently these employees went directly to and from their jobs, not stopping at the Employer’s office at all. There was, therefore, a particular need for the picketing of neutral premises, i. e., the contracting apartment houses.

[74]*74Common situs picketing of this kind is governed by the Moore Drydoek rules, which are designed .to assure that, as far as is practicable,' the picketing will be directed at the primary employer. Sailors’ Union of the Pacific (Moore Drydock Co.), 92 N.L.R.B. 547 (1950). In the present case the Union concededly observed in most respects the Moore Dry-dock criteria (picketing at the situs of the dispute at times-when the situs was on the picketed premises and the Employer was engaged in its normal business at the situs, in places reasonably close to the situs, disclosing that the dispute was only with the primary employer). See Local 761, Int’l Union of Elec. Radio & Mach. Workers v.

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