Orange County District Council of Carpenters

ORANGE COUNTY DISTRICT COUNCIL OF CARPENTERS Orange County District Council of Carpenters; and Carpenters Local 2361 and John C. Wabbel and J. A. Stewart Construction Co. Cases 21-CB-6506 and 21-CB-6536 May 29, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon charges filed by John C. Wabbel, an individ- ual, on May 15, 197 8,7 and amended on June 19, in Case 21-CB-6506, and by J. A. Stewart Construction Co. on June 12 in Case 21-CB-6536, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued an order consolidating cases, a consolidated complaint, and a notice of hearing on June 27, alleging that Respon- dents Orange County District Council of Carpenters and Carpenters Local 2361 had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the National Labor Relations Act, as amended.2 Respondents timely filed an answer to the consolidated complaint, denying the commission of unfair labor practices. Between September I and 20 the parties entered into a stipulation in which they agreed that the for- mal papers filed in this proceeding and the facts con- tained in the stipulation, together with the exhibits attached thereto, constitute the entire record in this case. The parties further stipulated that they waived their right to a hearing before an administrative law judge and the issuance of an administrative law judge's Decision and recommended Order. On Sep- tember 25, based upon the foregoing stipulation, the parties filed a motion to transfer the proceeding di- rectly to the Board for decision. On October 20 the Board issued an order approv- ing the stipulation and transferring the proceeding to the Board. Subsequently, the General Counsel and Respondents filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Having accepted transfer of this proceeding to it, the Board makes the following: I All dates herein are in 1978. unless otherwise indicated. I The consolidated complaint also alleged that Respondents had violated Sec. 8(bX4XiXB) of the Act, based upon a charge filed by J. A Stewart Construction Co. on June 19 in Case 21-CC-2063 Subsequently. on August 16. the allegations of the complaint relating to Case 21 CC-2063 were sev- ered, and that case was resolved by an informal settlement agreement ap- proved by the Regional Director on September 18. FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS J. A. Stewart Construction Co., herein called Stew- art, is a general contractor which, at all times material herein, has been engaged in business in the construc- tion industry in the States of California and Arizona and has maintained an office in Westminster, Califor- nia. Stewart annually performs construction services for customers located outside the State of California in an amount in excess of $50,000. Menne Builders, herein called Menne, is a framing subcontractor which, at all times material herein, has been engaged in business in the construction industry in the State of California and has maintained an of- fice in Orange, California. Menne annually purchases and receives goods and products valued in excess of $50,000 from suppliers located within the State of California, each of which, in turn, purchases these same goods and products directly from suppliers lo- cated outside the State of California. We find that both Stewart and Menne are, and have been at all times material herein, employers en- gaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATIONS INVOLVED Respondents Orange County District Council of Carpenters and Carpenters Local 2361 are each, and have been at all times material herein, labor organiza- tions within the meaning of Section 2(5) of the Act. I11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Facts At all times material herein Stewart was engaged, as general contractor, in the construction of an indus- trial building at a site in Anaheim, California, herein called the Dart jobsite. During the same period, Menne performed work as a framing subcontractor on the jobsite, and South Coast Acoustic and Dry- wall, Inc., herein called South Coast, was engaged in installing drywall as a subcontractor at the Dart job- site. Respondent Local was engaged in a labor dis- pute with South Coast from on or about March 15 through April, but neither Respondent had a labor dispute with either Stewart or Menne during this pe- riod or at any time material herein. In furtherance and support of its labor dispute with South Coast, Respondent Local, on or about March 16, began picketing South Coast at the Dart jobsite and continued picketing until mid-April. On March 242 NLRB No. 75 585 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 16 a separate entrance to the jobsite was established for ingress and egress of the employees and suppliers of all contractors, including Stewart and Menne, other than South Coast, and a sign was posted at such entrance reading: STOP-READ Gate #2 This gate is reserved for the exlusive use of the employees and suppliers of all contractors other than those listed below: South Coast Acoustic and Drywall. Inc. All employees and suppliers of' the contractors listed above must use Gate 1. Also on March 16, Bill Perry, business representative and agent of Respondents, received a hand-delivered letter at the jobsite informing Respondent Local of the establishment of the foregoing separate gates. After the designation of gate 2 as a reserve en- trance for neutral employers and the posting of' the sign indicated above, this gate was used exclusively by employees and suppliers of Stewart, Menne, and other contractors which did not have a labor dispute with Respondent Local. Since March 16, and specifi- cally on March 22, Moses Perez, an employee of Stewart and a member of Carpenters Local 710, was employed on the Dart jobsite as a carpenter. Since on or about March 22 and 23, and specifically on March 22, Wabbel and Tim Funke, employees of' Menne and members of Carpenters Local 1453, were employed on the Dart jobsite as carpenters. Neither Perez, nor Funke at any time was employed by South Coast, nor did they perform any work for South Coast. In the course of their employment at the jobsite, Perez, Wabbel, and Funke utilized gate 2 for ingress and egress. On or about May 5 Respondent Local, by its busi- ness representative, Perry, preferred internal union charges against Perez, Wabbel, and Funke, alleging that they had violated the Carpenters general consti- tution by "working behind a duly authorized picket line" at the Dart jobsite on March 22. Respondent Council thereafter processed the charges filed by Perry, resulting in Perez being cited to appear before Respondent Council to select a trial committee and in Wabbel and Funke being assessed fines of $250 and $125, respectively. On July 10 the United States Dis- trict Court enjoined and restrained Respondents from further processing of the charges against Perez, Wah- bel, and Funke. B. Contentions of the Parties The General Counsel asserts that the disciplinary actions taken by Respondents against Perez, Wabbel, and Funke, because they worked for neutral employ- ers at the Dart jobsite on March 22, violated Section 8(b)(l)(A) of the Act. The General Counsel's reason- ing is essentially as follows: (1) Stewart and Menne were neutral employers at the jobsite; (2) an impor- tant policy of the Act is to insulate neutral employers and their employees, who possess a Section 7 right to refrain from engaging in protected concerted activity, from entanglement in primary disputes: (3) the inter- nal union discipline imposed upon Perez, Wabbel, and Funke was thus "a clear attempt to penetrate the insulation afforded neutral persons and their employ- ees, and violates the Section 7 rights" of those em- ployees. In support of his argument, the General Counsel cites Local Union o. 153. International Brotherhood of Electrical Workers, A FL- CIO (Belle- ville Electric & Heating, Inc.).3 in which the Board found unlawful respondent union's disciplining of members who worked for a neutral employer while there was a primary dispute with another employer at a common situs. General Counsel also relies upon Carpenter's District Council of Southern Colorado and its Local Union 362 (Pace Cons.truction Compan}).4 To the contrary, Respondents contend that Perez, Wabbel, and Funke were lawfully disciplined, citing N. L. R. B. v. A l//is-Chalhners Manuficturing Co.5 for the proposition that a union does not violate the Act by punishing its members for working behind a picket line authorized by the union. Respondents distinguish Belleville on the ground that the respondent union there threatened members with discipline while pick- eting was still continuing at the site, unlike the instant situation, in which charges were preferred after pick- eting had ended. Respondents also suggest that both Belleville and Pace are inconsistent with the Supreme Court decision in Alis-Chalmers. C. Discussion and (onchsione We agree with the General Counsel that Respon- dents illegally disciplined Perez, Wabbel, and Funke for working for neutral employers at a common situs on March 22. Respondents' reliance upon Allis-Chalmers is mis- placed. In that case the Court decided only that two local unions did not violate Section 8(b)( I )(A) of the Act when they imposed reasonable fines upon mem- bers who crossed picket lines and worked during the unions' lawful economic strike against the employer. The Court certainly did not embrace the broad prin- ciple ftor which it is cited by Respondents. namely, that unions may lawfully discipline members who cross picket lines so long as the lines have been "duly authorized." Any doubt on this score was removed in Scofield, et al. v. N. LR.B.. 6 decided subsequently to 1221 N.RB 345 (1975). '222 NLRB 613 (1976), enfd. 560 F.2d 015 (10th (Orr 1977) 5388 tI.S 175 (1967). 6 394 .S. 423. 430 (1969) 586 ORANGE COUNTY DISTRICT COUNCIL OF CARPENTERS A li.s-Chalmners and not mentioned by Respondents. in which the Court emphasized that an internal union rule may not be enforced by fine or expulsion without violating Section 8(b)(1) where the rule "invades or frustrates an overriding policy of the labor laws" and held that "Section 8(h)(l) leaves a union free to en- force a properly adopted rule which reflects a legiti- mate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably en- forced against union members who are free to leave the union and escape the rule." We need not review here the various cases in which the Board has found lawful or unlawful enforcement of one union rule or another measured against the Scofield criteria. Rather, our inquiry may be immedi- ately directed toward determining whether, as alleged by the General Counsel. the disciplinary action taken against Perez. Wabbel, and Funke contravenes a pol- icy imbedded in the labor laws. We have no trouble in finding that such discipline not only frustrates the policy reflected in the secondary boycott provisions of the Act, which forbids labor organizations from en- meshing neutral employers in primary labor disputes, but as alleged, would also require a finding of unlaw- ful secondary boycott activity. We are guided to this conclusion by Board precedent. In Belleville, supra, as pointed out by General Counsel, the Board found that a union violated Sec- tion 8(b)(I)(A). as well as Section 8(b)(4)(i)(B). by fin- ing and threatening with internal union discipline members who worked for a neutral employer during a labor dispute involving another employer at a con- struction site. The Board assumed, without deciding, that the picket line aimed at the primary employer by another union was lawful and concluded:7 While it is true that a union may lawfully impose internal union discipline on an employee for re- fraining from certain kinds of activity from which he has a Section 7 right to refrain (for example, making a delivery across a primary picket line or working during a primary eco- nomic strike against his own employer), a union may not lawfully impose such discipline on a member for working for a secondary employer at a common situs where an employer other than his own is being subjected to a primary (or, a fortiori, a secondary) picket line. The rationale supporting this result is that such disci- pline induces or encourages employees of a neutral employer to refuse to perform services, within the meaning of Section 8(b)(4)(i)(B) a natural and appar- ent object of which is to cause the neutral employer to '221 NlRB at 53. cease doing business with the primary employer.8 Ac- cordingly, in Pace, the Board decided that there was no basis for union discipline in such circumstances unless it was "to induce the Prestress [neutral em- ployer] personnel to cease work to force Prestress to cease dealing with Pace [primary employerl."9 Stated another way. such union discipline of neutral employ- ees has the same "induce or encourage" effect upon them as a picket line in front of a gate reserved for their ingress and egress and involves the same pro- scribed object.?I The stipulated facts presented to us fall squarely within the fbregoing legal principles and require that we find the discipline imposed by Respondents upon Perez. Wabbel, and Funke violative of Section 8(b)(1)(A). It is uncontested that Stewart and Menne were neutral employers in the dispute between Re- spondent Local and South Coast at the Dart jobsite, that the three employees in question performi ed work only for neutrals during the dispute. and that they were disciplined for that reason. We may assume. r- gultndo, that Respondent l.ocal's picket line directed against South Coast was lawful and that Respondent Local picketed only the gate used by South Coast employees. Nevertheless, Respondents' disciplining of Perez, Wabbel, and Funke plainly induced or encour- aged them not to perform services fior their neutral employers. in order to force those employers to cease doing business with South Coast or not to do business with primary employers in the future. f This was a Pae. u lprll. 222 NRB ait s18, see Lca 2 52 .hr tfctal liJorkcr Internatilonll .4Aslialti,,on .41. ('10 I. t11lr. Inc I. 166 Nl.RB 2 2 (1967). entd. 429 2d 1244 (9th (ir 1971)) '222 NI RB at 613 It does nt matter that union dscipline max he m- posed upoin neutral enrploees onl aftter he neutral employer has completed its Twork tn the clinliOn stus or after the primanr dispute has been resolsed Thus, in P, here the respondent union initiated disciplinarN action against an emplo ee for working for a neutral emploer after the emploer had tulfilled it, coinlrai in the project, he Board ruled that "[t]he 'cease doing business' element of Section )bXh4¶B) embraces prospectixe as .ell as existing business relalltionship,, and does notl requre that the cinmpan-partl. to the primar' dispute een he known at the time of the union conduct in question." 222 NLRB at 618 I See Inernatiional Brotherhooi /o tiectirlail lforker. ,ocl 5iil , al /.Stlucl Langer r/ \ I R R. 41 1 S 694. 702 l191). in hich the (ourt held that peaceful picketing fr the purpose of bringing ahbout a ecindar 'i.colt constitutes unlawful inducement or encouragemente or neutr.al cm- plo)ees to refuse to work and stated that [tlhe .ords 'induc e or enicourage' are hroad enough to include In them eers form (f influence or persuasion Also see Bulinig and ( oritmctlon Tracit' ( ltncli of i,' f,)rll'an -i IL ('10 tluarkai iln lart, irrl , 1 55 NRB 319. 327 (1965), enfd 387 F 2d 79 (5th ( r 1967). in hich the Board decided that picketing n front of . gate reser.ed for neutral subcontractors at a colimon situs as an unlawful attempt "to disrupt the perations f the neutral subcontractors and their emploiees and toi enmesh them in the priniarN dispute .";nd thus tiolated Sec. 8(h)(4)(i)(B) Without doubt, union disciplile of members emplosed hb neutrail for passing through such a reserke gate likewise discloses an unlaw- ful secindar iobjecli.e II he stipulation ot facts recites th.lt Respondent I oc.al had a labor dis- pute with South (oast from March IS "though April 1978" and that charges "ere filed against rerez. i\abhel. and Funke on Ma) S Ito the exteut that the dispute beteen Repondeinl I tcil itid South Coast mali he ended the time charges .ere preferred .Ig.ainsl the empl,sees. the Board. ts ex- plained in fn 9. upra, holds that the cease ldoing hbusiness" object oI ec 8(h)41 encompasses prospectlse as ell as current business relalionships 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secondary boycott no different than if Responent Lo- cal had picketed the reserve gate at the Dart jobsite and had thus induced or encouraged neutral employ- ees to withhold their services from the employers by that method rather than by union discipline. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the opera- tions described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and that they take certain affirmative action to effectuate the policies of the Act. We shall, among other things, order that the Respon- dents rescind the disciplinary action taken against Moses Perez, John Wabbel, and Tim Funke and that they refund to them any moneys held on account of fines assessed, with interest, in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).'2 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. J. A. Stewart Construction Co. and Menne Builders are engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Respondents Orange County District Council of Carpenters and Carpenters Local 2361 are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. By imposing internal union discipline upon Moses Perez, John Wabbel, and Tim Funke, as de- scribed herein, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(l)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondents, Orange County District Council of Carpenters Local 2361, Orange, California, their officers, agents, and repre- sentatives, shall: I. Cease and desist from: (a) Charging, trying, fining, or otherwise disciplin- ing Moses Perez, John Wabbel, Tim Funke, or any of its members in order to induce or encourage them to withhold their services from a neutral employer with an object of forcing or requiring the neutral employer to cease doing business with a primary employer. (b) In any like or related manner restraining or co- ercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Rescind the disciplinary action taken against Moses Perez, John Wabbel, and Tim Funke in order to induce or encourage them to withhold their ser- vices from a neutral employer with an object of forc- ing or requiring the neutral employer to cease doing business with a primary employer, and expunge from their records any reference to that discipline. (b) Refund to Moses Perez, John Wabbel, and Tim Funke any moneys held on account of fines assessed them in connection with the aforesaid disciplinary ac- tion, with interest, as set forth in the section of the Decision herein entitled "The Remedy." (c) Post at their offices and meeting halls copies of the attached notice marked "Appendix."' 3 Copies of said notice, on forms provided by the Regional Direc- tor for Region 21, after being duly signed by Respon- dents' authorized representatives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and return to said Regional Director suffi- cient copies of the attached notice marked "Appen- dix" for posting by J. A. Stewart Corporation Co. and by Menne Builders, if willing, in conspicuous places, including all places where notices to employees are customarily posted. ) In the event hat this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United Stales Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 588 ORANGE COUNTY DISTRICT COUNCIL OF CARPENTERS (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply here- with. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT charge, try, fine, or otherwise discipline Moses Perez, John Wabbel, Tim Funke, or any of our members in order to induce or encourage them to withhold their services from a neutral employer with an object of forc- ing or requiring the neutral employer to cease doing business with a primary employer. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL rescind the disciplinary action taken by us against Moses Perez, John Wabbel, and Tim Funke in order to induce or encourage them to withhold their services from a neutral em- ployer with an object of forcing or requiring the neutral employer to cease doing business with a primary employer, and WE WILL expunge from our records any reference to that discipline. WE WILL refund to Moses Perez, John Wab- bel, and Tim Funke any moneys held on account of fines assessed against them in connection with the aforesaid disciplinary action, with interest. ORANGE COUNTY DISTRICT COUNCIL OF CARPENTERS CARPENTERS LOCAL 2361 589