United Brotherhood Of Carpenters And Joiners Of America, Carpenters' District Council

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of West- ern Pennsylvania, AFL-CIO and Bridges and Co., Inc. Case 6-CC-1668 11 December 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 2 October 1986 Administrative Law Judge Bernard Ries issued the attached decision. The Re- spondent filed exceptions and a supporting brief and the Charging Party 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 conclusions and to adopt the recommended Order as modified.' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Delete paragraph 2(b). 2. Substitute the following for paragraph 2(c) and reletter it as new paragraph 2(b). "(b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 1 The judge granted the General Counsel's request that the Order in- clude a visitatorial clause authorizing the Board , for compliance pur- poses, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the order We have concluded that under the circum- stances of this case such a clause is not warranted. Further, contrary to the judge, we do not find that the litigation-costs- remedy of Tiidee Products, 194 NLRB 1234 (1972), is appropriate in this case. We shall modify the recommended Order accordingly. Michael Poprik, Esq., for the General Counsel. Ronald L. Gilardi, Esq. (Gilardi & Cooper), of Pittsburgh, Pennsylvania, for the Respondent. Deborah M. Brodsky, Esq. (Eckert Seamans, Cherin & Mellott), of Pittsburgh, Pennsylvania, for the Charging Party. DECISION BERNARD RTES, Administrative Law Judge. This case was heard in Pittsburgh, Pennsylvania, on 13 August 1986.1 The complaint alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by its picketing on 29 April through 2 May and 29 May through 6 June. Briefs have been received from all the parties. After considering the testimony2 of the sole witness and re- viewing the briefs, I reach the following conclusions. 1. FACTS Ronald Wagner is a general superintendent for Bridges and Co., Inc., whose duties include supervision of the construction of the Greentree Commons office building in Greentree, Pennsylvania. Bridges, which is not union- ized, has some of its own employees on the site, includ- ing carpenters and laborers, and has subcontracted some work to various other firms whose employees are repre- sented by labor organizations, among them Moore and Morford, Inc., a structural steel erector; Ferry Electric Co., an electrical contractor; Marshall Elevator, Inc., an elevator installer; and M. C. Poynter, Inc., a waterproof- ing contractor. The building site, surrounded on three sides by fences, has two gates about 60-feet apart for purposes of enter- ing and exiting. Bridges moved onto the site in Decem- ber 1985. On 9 April pickets appeared at the two gates, bearing signs stating , "We Want The Public To Know That Bridges and Company Are [sic] Undermining Wages" and carrying the name "Carpenters District Council." The complaint avers and the answer admits that at all material times the Respondent has been en- gaged in a labor dispute with Bridges but not with any of its subcontractors. Officials of the District Council were seen directing the picketing, which continued throughout April. Until 29 April, the two gates had no posted signs or other markings; on that date, at 7 a.m., Bridges erected a sign at each gate. At one gate, the sign read: STOP-READ This gate is reserved for all personnel, visitors and suppliers of the contractors [sic] listed below: BRIDGES & CO. All others must use gate #2. At gate 2, the sign read: STOP-READ This gate is to be used by personnel, visitors or sup- pliers of the contractors [sic] listed below: MOORE-MORFORD All others must use gate #1. 1 The underlying charge was filed on 30 May and the complaint issued on 3 July. All dates herein refer to 1986, except as indicated. 2 The General Counsel has filed a motion to correct certain errors in the transcript The motion is unopposed, the errors are obvious, and the motion is granted. 282 NLRB No. 56 CARPENTERS (BRIDGES & CO.) In addition to Moore-Morford, as various unionized sub- contractors began working-on the project, their names were added to the sign at gate 2. On the morning of 29 April, Bridges also sent a tele- gram to the District Council (which received the mes- sage that morning) advising in detail that "separate en- trances have been established" at the site, gate I being for "personnel visitors and suppliers of Bridges & Com- pany Inc" and ' gate 2 "for all others." The telegram ended, "If you wish to picket Bridges & Company Inc. while they are working on this project do so only at gate #1. Picketing any other location at this jobsite will be considered secondary and all other appropriate legal action will be taken." Letters were also sent to all sub- contractors to advise them which gate to use. Despite the foregoing, the picketing continued at gate 2 on and after 29 April. On 11 May, the Charging Party filed a charge with the Region 'alleging that the Union was violating Section 8(b)(4)(i) and (ii)(B). The following clay, the pickets disappeared from gate 2 and remained at gate 1, and on 12 May Bridges withdrew the charge. Ap- parently, the pickets continued to appear only at gate 1 from 2 until 28 May. - On 29 May four or five pickets appeared at both gates 1 and 2, carrying signs with' the same legend,as set out before. On that day, when the unionized employees of Ferry Electric and Poynter did not show up to work, Wagner was told that the employees would not "cross the picket line." Other union employees did, however, cross the line. When Bridges established 'a new starting time for the employees of the, subcontractors so that they would not have to actually cross the picket line to get on the site, the Poynter and Ferry employees returned to work, probably on 1 or 2 June.3 On 30 May, Bridges filed another charge, but picket- ing at gate 2 "continued for a few days after that, as I recollect." Superintendent Wagner observed a' union business representative at gate 2 during this period, sometimes himself carrying a sign. When, on one occa- sion, Superintendent Wagner said to the business agent that the picketing was "supposed to be at gate one," he replied, "Well, were picketing this gate now." After the two gates were' first established, "[b]asically all non-union contractors" used gate 1; Wagner testified that these firms ("the heating man," "the plumber," the "concrete people") were considered to be "suppliers" of Bridges. Some of these subcontractors brought identifia- ble trucks onto the site, some came in personal cars through this gate. Wagner testified that since the gates were first established the, employees and suppliers of and visitors to Bridges have been "using, gate one." He fur- ther said that "gate watchers" were assigned at the gates to make sure that the right people entered the right gate; "if they happened to approach the wrong gate, we just sent them to the other one." S Respondent's brief errs in stating that "[o]nly one contractor's em- ployees stayed off the project and then only for several days." 423 11. DISCUSSION In J. F. Hoff Electric Co. v NLRB, 642 F.2d 1266 (1980), the Court of Appeals for the District of Columbia laid out the principles, applicable here (at 1269-1271): It is settled that a union may picket a primary em- ployer with which it has a labor dispute; indeed, such picketing is expressly exempted from the pro- hibitions contained in, section 8(b)(4). The Union may not, however, picket a 'neutral employer in order to force that employer to cease doing business with the primary employer, Such picketing is "sec- ondary" in that it constitutes an attempt to draw a neutral party into the dispute between the union and the primary employer, 'a dispute in which the secondary employer has no direct interest, and which it is powerless to resolve. On construction sites, where many subcontractors work side by side and are dependent upon each other, the attempt to reconcile these principles and to accommodate both the legitimate interest of the union in bringing eco- nomic pressure to bear on the primary employer through picketing, and the interests of neutral em- ployers who wish not to be involved in the dispute, has proved- especially difficult. In an attempt to strike a reasonable balance among the competing in- terests in this situation, certain rules and practices have been evolved by the Board and approved by the courts. In [Sailors Union (Moore Dry Dock), 92 NLRB 547], the Board announced several criteria which, if met, raise a presumption that common situs picketing is directed against the primary and not a secondary employer. Those rules are: [P]icketing of the premises of a secondary em- ployer is primary if it meets-the following condi- tions: (a) The picketing is strictly limited to times when the sites of dispute is located on the sec- ondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the sites; (c) the picketing -is limited to places reasonably close to the location of the sites; and (d) the picketing discloses clearly that the dispute is with the primary employer. Id., at 549 (footnotes omitted). It has also been decided by the Board and the courts that in order to isolate a labor dispute and to minimize disruption of the entire work force in common work situs situations, special gates may be reserved for the subcontractor who is the object of picketing. So long as the employees and suppliers of that subcontractor are limited to that gate, the union may not picket the "neutral gate" used by others not involved in the dispute. A case involving picketing at a plant owned by the primary employ- er, Local 761, Int'1 Union of Electrical Workers v. NLRB (General Electric), 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961), established the legitima- cy of a limitation of picketing to specially designat- ed gates used by the primary object of the picket- 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing. At the same time, the Court cautioned against any "mechanically applied" tests that disregard the fundamental criteria: the object of the picketing, if it is to be legitimate, must be limited to disruption of the primary employer's business. If, from all the circumstances it can be determined that the object of ' the picketing is inducement of secondary em- ployees to strike, thus forcing their employer to cease doing business with the primary employer, the picketing is unlawful secondary activity. Thus, so long as the Moore Dry Dock limitations are met, a union may legitimately picket at a common work situs in such a way that all employ- ees, suppliers, and customers of the primary em- ployer are reached by the pickets; neutral employ- ers may insulate themselves from the picketing only if the reserved gate practice is faithfully observed. I draw from all the facts the inescapable inference that Respondent's picketing of the designated neutral gate be- tween 29 April and 2 May and again between 29 May and the early part of June was designed to ensnare in Respondent's controversy with Bridges the neutral con- tractors who used that gate. The posted signs were un- mistakably clear; so was Bridges' telegram of 29 April ("If you wish to picket Bridges & Company Inc. while they are working on this project do so at gate # 1. Pick- eting any other location at this project will be considered secondary. . . ."). Despite this well-articulated dichoto- my, the Union continued to picket at the secondary gate on 29 and 30 April and 1 May, and only after the Com- pany had filed a charge did the picketing come into com- pliance with the signs and the telegram. This detente ap- parently continued until 29 May when picketing was re- sumed at the neutral gate; this renewal continued for "a few days" even after Superintendent Wagner had re- minded a union representative that he was supposed to be picketing at gate 1 and even after the Charging Party had filed another charge. Respondent advances no meritorious rebuttal to this strong inference of unlawful intent. The first substantive argument in Respondent's brief is that it was "difficult, if not impossible, to distinguish the employees of the vari- ous contractors"; something like this testimony was given by Wagner when he was asked if "the contractors who used Gate One, other than yourself, other than Bridges, were . . . easily identifiable." This fact, howev- er, has nothing to do with the right of the Union to picket the neutral gate. And although it is then argued that "further confusing the situation . . . a number of contractors, not identified on any reserved gate signs, routinely used the Bridges gate," that fact is also plainly irrelevant to the issue.4 The inference of unlawful intent is not dissipated simply because some neutral employees enter through a primary reserve gate; it is only when pri- mary employees or their allies use a neutral reserve gate that a union may be in a position to argue that the re- 4 I put aside the points that the Union offered no evidence whatsoever to confirm that anyone was "confused " about anything or that the Union had any basis for believing that individuals entering the neutral gate were Bridges' employees or allies. serve gate system has broken down, thus possibly permit- ting a union to picket, without raising an adverse infer- ence, at the no-longer-neutral "reserve gate." Electrical Workers IBEW Local 369 (Kelley Electric), 216 NLRB 141, 143 (1975), enfd. 528 F.2d 317 (6th Cir. 1976). Car- penters Local 639 (American Modulars), 203 NLRB 1112, 1118 (1973). [E]ven if neutral employers and their employees had used [the primary employer's reserved gate] during the picketing, that would not have excused any violations of the `reserve' gate status of gates 1 and 2 of the neutral employers. Finally, Respondent argues that "the picketing, even when present at both gates, had little or no impact on the job." Not only is this erroneous as a matter of fact, but it is also immaterial; the statute does not require a showing of actual impact. For our purposes, it is enough for Respondent to "induce or encourage [employees] to engage in a strike ..." or to "threaten, coerce, or re- strain" persons engaged in commerce, and picketing may, as many cases have held, satisfy these statutory re- quirements even absent the failure of the picketing to ac- complish its intended objective. Electrical Workers IBEW Local 501 v. NLRB, 756 F.2d 888, 892 (D.C. Cir. 1985); Service Employees Local 254 (Janitronic, Inc.), 271 NLRB 750, 752 (1984); Teamsters Local 85 (Graybar Electric), 243 NLRB 665, 666 (1979). I conclude, therefore, that Respondent's deliberate and repeated violations- of the reserve gate system established by the Charging Party prove the charged violations of Section 8(b)(4)(i) and (ii)(B) of the Act. CONCLUSIONS OF LAW 1. Bridges and Co., Inc. is an employer engaged in commerce within the meaning of the Act, and Moore and Morford, Inc., Marshall Elevator, Inc., Ferry Elec- tric Co., and M.C. Poynter, Inc. are persons within the meaning of the Act. 2. Respondent United Brotherhood of Carpenters and Joiners of America, Carpenters, District Council of Western Pennsylvania, AFL-CIO is a labor organization within the meaning of the Act. 3. By, from 29 April to 1-29 May 1986 to the first few days in June 1986, inducing and encouraging employees of the above-named persons to engage in a refusal in the course of their employment to perform services, and by threatening the above-named persons, with an object of forcing or requiring the above-named persons to cease doing business with Bridges and Co., Inc ., Respondent has engaged in unfair labor practices proscribed by Sec- tion 8(b)(4)(i) and (ii)(B) of the Act. 4. The foregoing unfair labor practices affect com- merce within the meaning of the Act. THE REMEDY I shall recommend that Respondent be required to cease and desist from the unfair labor practices found and to take certain affirmative action necessary to effec- tuate the policies of the Act . I further recommend that CARPENTERS (BRIDGES & CO.) 425 the "visitatorial clause" requested by the General Coun- sel be incorporated into the Order, so that the General Counsel may have a tool for determining whether Re- spondent has complied with the notice provision of this Order. Finally, I recommend that Respondent be taxed with the costs incurred by the Board and the Charging Party in conducting this litigation. Tiidee Products, 194 NLRB 1234 (1972); Heck's Inc.; 215 NLRB 765 (1974). There were no "debatable" facts involved or defenses advanced here. Respondent offered no evidence, and its few con- tentions made on brief based on the uncontroverted testi- mony of the single witness are easily classifiable as "friv- olous." It appears to me that this is precisely the sort of base- less litigation, unnecessarily burdening the purses of the Board and the Charging' Party, which is contemplated by Tiidee'and Heck's. On facts uncontested by Respondent, and under a body of law that afforded Respondent no conceivable chance for exculpation, Respondent insisted on a "day in ' court" that could have yielded only one result. I would, accordingly, require Respondent to make the Board and the Charging Party whole for the ex- penses that they have been forced to incur in litigating this case. Tiidee, supra at 1236-1237.5 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, United Brotherhood of Carpenters and Joiners of America,' Carpenters' District Council of Western Pennsylvania, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from engaging in, inducing, or en- couraging individuals employed by Moore and Morford, Inc., Marshall Elevator, Inc.,, Ferry Electric Co., M.C. Poynter, Inc., and any person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, 'material, or commodities, or to perform any services, and from threatening, coercing, or restraining the above-named Employers when in either case an object thereof is to force or require any such neutral employer to cease and desist doing business with Bridges and Co., Inc. 2. Take the following affirmative action necessary to effectuate'the policies of the Act. (a) Post, at its business offices and meeting halls copies of 'the attached notice marked "Appendix."T Copies of 8 The Board might wish, however, to reconsider the Tiidee remedy of "investigation" expense reimbursement, because that expense seemingly cannot bg charged to "frivolous litigation." 6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the finding, 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 7 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the-notice, on forms provided by the Regional Director for Region 6, after being signed by Respondent's author- ized representative, shall be posted by Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (b) Make whole the Board and the Charging Party for the reasonable expenses incurred by them in the investi- gation, preparation, presentation, and conduct of this proceeding before the Board, including reasonable coun- sel fees, salaries, witness fees, transcript costs, printing and stenographic costs, travel expenses, per diem ex- penditures, and other reasonable costs and expenses. (c) Notify the Regional Director in writing within, 20 days from the date of this Order what steps Respondent has taken to comply. For the purpose of determining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discov- ery from Respondent, its officers, agents,, and representa- tives, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure: Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had on any matter reasonably ' related to compliance with this Order, as enforced by the court. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the, United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten or coerce Moore and Morford, Inc., Ferry Electric Co., Marshall Elevator, Inc., M.C. Poynter, Inc., or any other neutral employer, and WE WILL NOT encourage employees of such employers, to engage in a strike, work stoppage, slowdown, or other such job action, where the purpose of any such conduct is to disrupt the business relationships between Bridges and Co., Inc. and such neutral employers or in order to cause such neutral employers to cease doing business with Bridges and Co., Inc. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, CARPENTERS' DISTRICT COUNCIL OF WESTERN PENNSYL- VANIA, AFL-CIO