Carpenters Local 1098 (Womack, Inc.)

CARPENTERS LOCAL 1098 (WOMACK, INC.) 875 United Brotherhood of Carpenters and Joiners of America, Local 1098 and Milton J. Womack, Inc. Case 15-CB-2976 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS, DENNIS AND JOHANSEN On 6 August 1985 Administrative Law Judge J. Pargen Robertson issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. CHAIRMAN DOTSON, dissenting. The Respondent Union was charged with violat- ing Section 8(b)(1)(B) by picketing the home of Henry Nevin Bretz, the Employer's vice president, general manager, and chief collective-bargaining negotiator. The administrative law judge dismissed the complaint and my colleagues affirm his deci- sion. I disagree. The facts of the case are straightforward. As in- dicated above, Bretz is a high-level managerial em- ployee. On the Employer's behalf he engaged in 1 As found by the judge, for a period of about 2 months, the Respond- ent picketed, among other locations, the home of Womack Vice Presi- dent and chief negotiator Henry Nevin Bretz In his analysis, the judge examined the wording of the picket signs supporting a lawful economic objective, the timing of the picketing in relation to impasse in negotia- tions, and the peaceful and restrained nature of the demonstration Con- trary to the dissent, we do not consider these facts to bear solely on the immaterial question of the Respondent 's "motive." Rather, we find that they bear materially on our conclusion that peaceful picketing in these circumstances does not constitute restraint or coercion within the mean- ing of the Act Cf United Mechanics' Union Local 150-F (American Photo- copy), 151 NLRB 386 (1965 ) In view of this conclusion , we find it unnec- essary to pass on the judge's finding that Bretz was "the employer for all practical purposes " 2 The judge inadvertently stated in par. 8 of his "Conclusions " that the Union's picketing was not aimed at the "Respondent's" selection of bar- gaining representative rather than the "Charging Party's" selection of such representative. In agreeing with the judge's conclusion that the Respondent did not violate Sec 8(b)(IXB), we do not adopt the judge's reliance on NLRB v. Electrical Workers IBEW Local 323, 703 F 2d 501 (11th Cir 1983), as sup- port for the preceding discussion contract negotiations with the Respondent for ap- proximately 5 months without success; the last bar- gaining session took place on 10 September 1984. In the first week of October 1984 the Respondent began picketing at Bretz' home, as well as at sever- al of the Employer's work locations and at the resi- dence of the Employer's majority stockholder. The picket signs at Bretz' home protested the absence of a collective-bargaining agreement between the Employer and the Respondent. With a few excep- tions the picketing occurred on a daily basis during normal working hours; it continued for, over 2 months. The judge dismissed the complaint on two grounds. First, he found that in picketing Bretz' home the Respondent did not intend to coerce or restrain the Employer in the selection of its collec- tive-bargaining representative. Second, the judge concluded based on Bretz' various managerial duties that he was for all practical purposes the Employer himself, and thus that the picketing ac- tivity did not come within the proscription of Sec- tion 8(b)(1)(B). This second fording was made in spite of the fact that Bretz and members of his family hold less than 3 percent of the Company's stock. The judge's decision is plainly wrong on both counts. As to the first, the Respondent's intent-or motive or objective-in engaging in the picketing is immaterial in an 8(b)(1)(B) analysis. The proper test is whether the Respondent's conduct may affect adversely the Employer's collective-bargain- ing representative in the performance of his duties. See, e.g., NLRB v. Electrical Workers IBEW Local 323, 703 F.2d 501 (11th Cir. 1983); Electrical Work- ers IBEW Local 46 (PAC Inc.), 273 NLRB 1357 (1985); Teamsters Local 856. (Industrial Employers), 195 NLRB 967 (1972). Contrary to my colleagues, I find it clear that the daily picketing of Bretz' resi- dence, notwithstanding the ostensibly "peaceful" nature of the picketing, carried the foreseeable, likely effect of interfering with his duties as the Employer's collective-bargaining representative. With respect to the judge's second ground, for a managerial employee to be considered the employ- er himself rather than the employer's representative under Section 8(b)(1)(B), the individual must hold a substantial financial interest in the company. See, e.g., NLRB v. Electrical Workers, above; Electrical Workers IBEW Local 46, above; Glaziers & Glass- workers Local 1621 (Glass Management), 221 NLRB 509 (1975). Bretz' financial interest in Milton J. Womack, Inc. is miniscule. His managerial duties, while extensive, are not sufficient standing alone to show that he had the kind of personal stake in the Company which would give him employer status 280 NLRB No. 102 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and negate the applicability of Section 8(b)(1)(B). NLRB v. Electrical Workers, above at 507. I would find that the Respondent violated Sec- tion 8(b)(1)(B) by picketing the home of the Em- ployer's chief collective-bargaining negotiator. The judge's decision in my view is legally insupport- able. Thus I dissent from my colleagues' adoption of his dismissal of the complaint. Charlotte N. White, Esq., for the General Counsel. Jerry L. Gardner, Esq. (Gardner, Robein & Healey), of Metairie, Louisiana, for the Respondent. Michael Garrard, Esq. (Kean, Miller, Hawthorne, D'Ar- mond, McGowan & Jarman), of Baton Rouge, Louisi- ana, for the Charging Party. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON , Administrative Law Judge. This matter was heard in Baton Rouge, Louisiana, on 6 June 1985. The charge was filed on 5 October 1984. The complaint issued on 19 April 1985. On the entire record, including briefs filed by attor- neys representing the General Counsel, Respondent, and the Charging Party, I find the following Facts i From 1956, Milton J. Womack, Inc. (Womack) has been a member of Associated General Contractors (AGC). Until recently, AGC negotiated with Respond- ent on Womack's behalf. The last contract between Re- spondent and Womack expired on 30 April 1984. AGC negotiated that contract. During 1982, Womack withdrew its authorization for AGC to negotiate on its behalf. Subsequently, in January 1984, Womack notified Respondent that it had with- drawn authorization for AGC to bargain on its behalf and that it desired to terminate its contract with Re- spondent at the conclusion of the contract term (30 April 1984). Womack and Respondent commenced contract negoti- ations on 28 March 1984. Some 15 negotiation sessions were held. The last session occurred on 10 September 1984. Womack is not currently party to a collective-bar- gaining agreement with Respondent or any other labor organization. For a period in excess of 6 or 8 years, Womack's chief management official has been its vice president and gen- eral manager, Henry Nevin Bretz. As part of his duties, Bretz is in charge of labor relations for Womack. Bretz testified that he assumed the role of chief negotiator for Womack during the 1984 negotiations with Respondent. i The commerce facts and conclusions are not at issue Respondent ad- mitted that the Charging Party (Womack) is a Louisiana corporation with a place of business in Baton Rouge, Louisiana, where it is engaged in the commercial construction business , and is, and has been at all times material, an employer within the meaning of Sec 2 (2) of the Act engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act Re- spondent also admitted that it is a labor organization within the meaning of Sec 2(5) of the Act On 1 October 1984 Respondent began picketing sever- al of Womack's jobs. On 3 October 1984 Respondent began picketing the home of Henry Nevin Bretz. On 4 October 1984 Respondent began picketing the home of Milton J. Womack, the majority stockholder of the Charging Party. The General Counsel alleges that the picketing of Bretz' home from 3 October 1984 through 21 December 19842 violated Section 8(b)(1)(B). The picket signs read: Carpenters LU #1098 No Contract No Work Milton J. Womack No Dispute with any other Employer The picketing did not include any misconduct. There were no threats or violence . The picketing occurred during normal work hours. Henry Nevin Bretz is not, and has never been, a member of Respondent. Conclusions Section 8(b)(1)(B) prohibits unions from restraining or coercing "an employer in the selection of his representa- tives for the purposes of collective bargaining or the ad- justment of grievances." Unlike the situation in a number of prior cases, the evi- dence herein shows that it was never an objective of Re- spondent, during its picketing, to interfere with Wo- mack's selection of its representatives. (See e.g., Masters, Mates, & Pilots (Newport Tankers), 240 NLRB 1240 (1979); Hotel & Restaurant Employees Local 2 (Zum's Restaurants), 240 NLRB 757, 761 (1979). There was no showing that the Union sought to re- quire Womack to continue in a multiemployer relation- ship such as the one it held previously in the AGC, and there was no showing that the Union sought to have Womack select another chief negotiator other than Henry Nevin Bretz. The Union's sole objective, as far as the record shows, was the one expressed on its picket signs, i.e., to obtain a contract. Moreover, Respondent took no personal action against Bretz. Unlike situations when unions have been found in violation of Section 8(b)(1)(B) because the union imposed internal union discipline against the supervisor-member, no such action was alleged herein. See, e.g., American Broadcasting Co. v. Writers' Guild, 437 U.S. 411 (1978). The General Counsel cited several cases to show that a violation must be found "where the necessary result of violence or threats involving management representatives would limit the ability of such representatives to per- form." However, those cases are not applicable in the in- stant situation. Respondent did not engage in violence, 2 After 3 October, the picketing occurred on a daily basis during each workweek except no picketing occurred on Thanksgiving , the day after Thanksgiving, and on one rainy day Additionally , on another occasion, Bretz asked the pickets to leave because of a death in his family and the pickets left I I CARPENTERS LOCAL 1098 (WOMACK, INC.) threats, or any misconduct. Nor did Respondent engage in vulgar or threatening remarks as was the case in Broadway Hospital, 244 NLRB 341, 345 (1979), which was cited by the General Counsel. Moreover, there was no effort to hold up Bretz to ridicule or public condem- nation as was the case in United Mechanics Union Local 150-F (American Photocopy), 151 NLRB 386 (1965), cited by the General Counsel. Here, the pickets were polite. The pickets frequently exchanged daily greetings with Bretz and on the one occasion when Bretz asked them to leave because of a funeral the pickets left. Despite the excellent arguments advanced by counsels for the General Counsel and Charging Party, neither was able to cite a single case in which peaceful picketing against a primary employer for an accepted economic object was found to be illegal. In the instant case, Henry Nevin Bretz was the em- ployer for all practical purposes. Even though the Gen- eral Counsel found nothing illegal in Respondent's pick- eting of the home of majority stockholder Milton J. Womack, it was Bretz, not Womack, who actually man- aged the employer. Bretz had the final say in contract negotiations and it was for that reason, and not because of Bretz' authority to select himself as chief negotiator, that the Union picketed his home. In the instant case, the following factors are significant in consideration of whether Respondent violated Section 8(b)(1)(B): (1) The Union's picketing did not involve ef- forts to adversely affect Respondent's selection of Bretz as its chief collective-bargaining negotiator. In fact, had Bretz been removed from that position, Respondent's de- mands would have remained the same, i.e., "No Contract No Work." Furthermore, the picketing did not have the reasonably foreseeable consequence of adversely affect- ing Bretz' selection because the plain language of the picket signs concerned a totally different object, i.e., a collective-bargaining agreement. See, e.g., Florida Power & Light Co. v. Electrical Workers IBEW, 417 U.S. 790, (1974). (2) Even though Bretz was only a minority stock- holder, he was, for all operational and labor relation pur- poses, the employer. For over 6 years Bretz had been the final authority in Womack's operations. He was the gen- eral manager with final authority to sign or refuse to sign proposed collective-bargaining agreements. Therefore, from the standpoint of Respondent's announced objective 877 of gaining an agreement, Bretz was the employer. Cases have held that it is not illegal to impose sanctions against owners or employers: There is no restraint or coercion against the em- ployer in the selection of his representatives for the prohibited objects where the employer himself is acting as the representative for these purposes. [Gla- ziers & Glassworkers Local 1621 (Glass Management), 221 NLRB 509, 512 (1975).] Here, Bretz was both the final authority in his role as employer representative, and he was the labor relations representative, a role which he testified that he "as- sumed." See also NLRB v. Electrical Workers IBEW Local 323, 703 F.2d 501 (11th Cir. 1983). CONCLUSIONS OF LAW 1. Respondent, United Brotherhood of Carpenters and Joiners of America, Local 1098, is a labor organization within the meaning of Section 2(5) of the Act. 2. Milton J. Womack, Inc. is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 3. Respondent did not engage in any activity violative of Section 8(b)(1)(B) by picketing the home of Henry Nevin Bretz during 1984. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The complaint is dismissed in its entirety.4 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 4 In its brief, Respondent requests sanctions against the General Coun- sel under the provisions of Rule 11 of the Rules of Civil Procedure of the United States District Courts on the allegation that the instant complaint is frivolous. Additionally, Respondent asks for an award of attorney's fees, expenses, and other relief under the Equal Access to Justice Act I deny Respondent's requests I find that its requests are without support in law, the General Counsel's complaint is not frivolous; and the cited legal authority does not authorize an award to Respondent of attorney fees, expenses, or other relief at this time