Painters Local 829 (Theatre Techniques)

PAINTERS LOCAL 829 (THEATRE TECHNIQUES) United Scenic Artists, Local 829, Brotherhood of Painters and Allied Trades , AFL-CIO and The- atre Techniques,, Inc. Case 2-CC-1553 31 January 1986 SECOND SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 25 June 1979 the National Labor Relations Board issued its original Decision and Order in this proceeding,' finding that, the Respondent Union violated Section 8(b)(4)(ii)(B) of the Act, and or- dering the Respondent Union to cease and desist therefrom and take certain affirmative action. Thereafter, the United States Court of Appeals for the District of Columbia Circuit denied enforce- ment of the Board's Order and remanded the case to the Board for further consideration consistent with the court's opinion.2 On 26. August 1983 the Board issued its Supplemental Decision and Order reaffirming its finding that the Respondent violated Section 8(b)(4)(ii)(B) of the Act.3 Upon a petition for review and cross-application for enforcement, the court declined to enforce the Supplemental Order and again remanded the case to the Board for further proceedings consistent with the court's opinion.4 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. In its supplemental Decision and Order, the Board held that the General Counsel makes out a prima facie showing of a violation of Section 8(b)(4)(ii)(B) of the Act by demonstrating that a union has exerted coercive pressure on a neutral employer which lacks control over the disputed work. It further held that if the union fails to rebut the prima facie showing "by establishing that it made reasonable good-faith efforts to ascertain whether the employer on which it exerted pressure 1 243 NLRB 27 2 United Scenic Artists Local 829 v. NLRB, 655 F 2d 1267 (1981) 2 267 NLRB 858. 4 762 F.2d 1027 (D.C. Cir 1985). 319 was a neutral employer and that it was denied access to this information or deliberately misled,"5 a violation of the Act is established. The Board found that the Respondent Union had not rebutted the General Counsel's prima facie case and, there- fore, concluded that the Respondent Union had violated Section 8(b)(4)(ii)(B). The court, in its opinion of 24 May 1985, con- cluded that the Board had attempted to establish the "object" element of Section 8(b)(4) by means of a presumption and held that the creation of such a presumption is beyond the Board's statutory au- thority.6 The court further stated: Upon remand, the Board must either explic- itly find that Local 829 had a forbidden sec- ondary object or it must dismiss the proceed- ing. In order to find that the union had a sec- ondary object, the Board must have before it new, credible evidence to support its inference that the union knew that TTI [Theatre Tech- niques, Inc.] possessed absolute contractual control over the disputed work. Absent such evidence, the Board-may not find a violation of section 8(b)(4)(ii)(B).7 Following the acceptance of the court's remand, the Board afforded the parties an opportunity to submit statements of position as to the existence of such "new, credible evidence." Thereafter, the Re- spondent Union submitted a statement of position in which it asserted that there is no additional evi- dence which could be adduced to demonstrate that it had knowledge of TTI's control over the disput- ed work. No other party filed a statement of posi- tion. Accordingly, in the absence of any .contention that such additional evidence exists, and applying the court's opinion as the law of the case, 8 we shall dismiss the complaint. ORDER The complaint is dismissed. 5 267 NLRB at 861. 6 762 F 2d at 1033 Id. at 1037. s Member Babson, in accepting the court's opinion as the law of the case, finds it unnecessary to express a view with respect to the Board's original and supplemental decisions. 278 NLRB No. 46