Elevator Costructors (Long Elevator)

ELEVATOR CONSTRUCTORS (LONG ELEVATOR) 1095 International Union of Elevator Constructors, AFL- CIO, and Local Union 3, International Union of Elevator Constructors, AFL-CIO and Long El- evator and Machine Co., Inc. Case 14-CC-1878 July 28, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On March 30, 1987, Administrative Law Judge Hubuert E. Lott issued the attached decision. The Respondents filed exceptions and supporting briefs. The General Counsel filed cross-exceptions and a supporting 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. We agree with the judge that the Respondent violated Section 8(bX4)(ii)(A) by filing a grievance on behalf of employee Ritz that is predicated on a reading of article 14 of the collective-bargaining agreement that would convert it into a de facto hot cargo provision, in violation of Section 8(e). Al- though only one employee is involved in this case, the theory of Ritz' grievance would require neutral employer Long to permit all of its employees to refuse to work at the construction site because of the IBEW picket line, notwithstanding the exist- ence of a reserve gate through which employees other than those of the primary employer, Soper, could enter. It is true that the picket line clauses found unlawful under Section 8(e) in Bricklayers Local 2 (Gunnar I. Johnson), 224 NLRB 1021 (1976), enfd. 562 F.2d 775 (D.C. Cir. 1977), were phrased differently from the clause by which the Respondent sought here to immunize Ritz' refusal to work, but the essence is the same . Like the union in Gunnar L Johnson, the Respondent seeks a construction of the clause that would require Long to acquiesce in a work stoppage by its employees in support of the IBEW's dispute with Soper-i.e., a construction that would involve Long in a dis- pute "not [its] own." National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 626 (1967).2 The 1 The General Counsel excepts to the judge's failure to include in the Order a visitatorial clause authorizing the Board , for compliance pur- poses, to obtain discovery from the Respondents under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order. In the circumstances of this case , we find it unnecessary to include such a clause. 3 Our finding in this regard is not at odds with the judge's observation that the "General Counsel does not contend that the clause at issue (Art - Union clearly could not lawfully encourage em- ployees of Long to walk out in support of the IBEW's dispute with Soper, and we see it as equal- ly unlawful for the Union to ratify such employee action by seeking to compel, through the griev- ance-arbitration procedure, Long's acquiescence in an employee's work stoppage for such an objec- tive. Because we have concluded that the contract clause as construed by the Respondent would vio- late Section 8(e), we may properly find the pursuit of the grievance coercive, notwithstanding the Su- preme Court's decision in Bill Johnson 's Restaurants v. NLRB, 461 U.S. 731 (1983). Although holding that the Board could not enjoin , as an unfair labor practice, the lawsuit at issue in that case, the Court expressly noted that it was not dealing with a "suit that has an objective that is illegal under federal law." 461 U.S. at 737 fn. 5. See also Teamsters Local 705 v. NLRB (Emery Air Freight), 820 F.2d 448 (D.C. Cir. 1987) (distinguishing between having an unlawful motive in bringing a lawsuit and seeking to enforce an unlawful contract provi- sion).3 Finally, we do not agree with the Respondent that either Newberry Energy Corp., 227 NLRB 436 (1976), or Congoleum Industries, 197 NLRB 534 (1972), requires dismissal of the complaint here. In those cases the Board held that the respondent em- ployers violated either Section 8(a)(1) or both Sec- tion 8(a)(1) and (3) by discharging employees be- cause, in order to honor a picket line set up by a union involved in a dispute with a different em- ployer, the employees refused to come to work. In Newberry there was no evidence that a reserve gate system had been set up; the decision speaks of a single "access gate" at which the primary picket line was set up. 227 NLRB at 440. Thus, the effect on the business of the neutral was merely incidental to the honoring of the primary picket line. See Electrical Workers IUE Local 761 (General Electric cle 14, Paragraph 2) is a violation of Section 8(e) of the Act." We under- stand this to mean that the General Counsel does not contend either that the clause is unambiguously unlawful on its face or that Long originally agreed with the Respondent on the unlawful significance that the Re- spondent now seeks to incorporate into the clause through the arbitral process. Thus, the provision may be entirely susceptible of a lawful meaning, but we agree with the judge and the General Counsel that, given the theory of the Respondent's grievance, the Respondent is seek- mg to enforce an unlawful provision i Member Babson agrees with his colleagues that the Respondent en- gaged in coercive conduct by pursuing the grievance seeking to enforce a contract clause which, as construed by the Respondent, would violate Sec. 8(e). In so doing, however, Member Babson finds it unnecessary to pass on any suggestion by his colleagues that the pursuit of a grievance cannot constitute coercion under Sec. 8(bX4) absent a determination that the contract clause sought to be enforced through the grievance would violate the Act either on its face or as sought to be construed by the Union 289 NLRB No. 132 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Co.), 366 U.S. 667, 679-681 (1961), and cases there cited. In Congoleum, there was a reserved gate system, but the Board majority expressly noted that the issue whether the employees' refusal to enter the neutral gate might violate Section 8(b)(4) or Section 8(e) had not been alleged, litigated, or even argued. Thus, it concluded that the possible illegal- ity of the employees' actions "cannot be deter- mined here." 197 NLRB at 534 fn. 1. In the present case the issue is before us, and we find, for the rea- sons stated above, that the Respondent violated Section 8(b)(4)(ii)(A) by prosecuting a grievance aimed at immunizing a work stoppage by an em- ployee of a neutral employer, notwithstanding the availability of a neutral gate. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Internation- al Union of Elevator Constructors, AFL-CIO, and Local Union 3, International Union of Elevator Constructors, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in the Order. Steven D. Smith, Esq., for the General Counsel. Jeffrey E. Hartnett, Esq., of Clayton, Missouri, and Fran- cis J. Martorana, Esq. (ODonoghue & O'Donoghue), of Washington, D.C., for the Respondent. Fred M Reichman, Esq., of St. Louis, Missouri , for the Charging Party. DECISION STATEMENT OF THE CASE HUBUERT E. LoTT, Administrative Law Judge. This case was heard at St. Louis, Missouri, on 26 September 1986,1 on an unfair labor practice charge filed on 10 July by Long Elevator and Machine Co., Inc. (the Charging Party or Long) against International Union of Elevator Constructors, AFL-CIO and Local Union 3, Internation- al Union of Elevator Constructors, AFL-CIO (Respond- ents or Unions) and on a complaint issued 23 July alleg- ing violations of Section 8(b)(4)(ii)(A) of the Act. The issue in this case is whether the Unions by filing a grievance on behalf of its member who was disciplined for refusing to enter a reserve neutral gate are attempting to illegally enforce the "picketing clause" in the collec- tive-bargaining agreement. The parties were affored an opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of hearing, briefs have been received from the parties in this case. On the entire record,2 including my observation of the witnesses, and in consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Charging Party Long, a corporation with an office and place of business in St. Louis, Missouri, is engaged in the business of installing and repairing elevators. During a 12-month period ending 30 June, the Charging Party, in the course and conduct of its business operations, pur- chased and received at various jobsites located within the State of Missouri products, goods, and materials valued in excess of $50,000 directly from points outside the State of Missouri. Soper Electric Co. (Soper), a corporation with an office and place of business in St. Louis, Missouri, is en- gaged in business as an electrical contractor. During the 12-month period ending 30 June, Soper purchased and received at its jobsites located within the State of Mis- souri products, goods, and materials valued in excess of $50,000 directly from points outside the State of Missou- ri. Mead-McClellan, Inc. (Mead-McClellan), a corpora- tion with an office and place of business in St. Louis, Missouri, is engaged in business as a general contractor in the construction industry. During the 12-month period ending 30 June, Mead-McClellan purchased and received at its jobsites located within the State of Missouri goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Missouri. National Elevator Industry Inc. (NEII), at the times material, has been an organization composed of employ- ers engaged in the elevator construction and repair in- dustry, and which exist for the purpose, inter alia, of rep- resenting its employer-members in negotiating and ad- ministering collective-bargaining agreeemnts with vari- ous labor organizations, including Respondent Interna- tional. At all times prior to September 1984, Long has been an employer-member of NEII. Respondent admits and I find that Long, Soper, Mead- McClellan, and NEII are now and have been employers in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4) and Section 8(e) of the Act. It further admits and I find that the Unions and Local 1, Interna- tional Brotherhood of Electrical Workers (IBEW) are labor oranizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES In October 1985, Mead-McClellan, a general contrac- tor, began a renovation project at the Monticello Apart- ments in St. Louis, Missouri. Mead-McClellan awarded work on this project to several subcontractors, but the two that are involved in this case are Long and Soper. I All dates herein refer to 1986 unless otherwise indicated 2 The General Counsel's motion to correct the record, which is unop- posed, is granted ELEVATOR CONSTRUCTORS (LONG ELEVATOR) 1097 The employees of Soper are represented by the Congress of Independent Unions (CIU), which is not affiliated with the AFL-CIO. The employees of Long are repre- sented by the Unions who are jointly named as Respond- ents. Long has 17 employees in the St. Louis area who are covered by a collective-bargaining agreement effec- tive from 9 July 1982 to 8 July 1987. The collective-bar- gaining agreement is actually between multiemployer bargaining association NEII and the International Union. Long was a member of NEII and, although they discon- tinued membership in the association 2 years ago, they are still bound by the terms of the agreement. Soper employees began working at the Monticello Apartment project on 15 October 1985 and remained on the project until its completion on 15 May. On 6 Janu- ary, Local 1 IBEW commenced picketing at the Monti- cello project. The IBEW engaged in lawful information- al picketing concerning the wages and working condi- tions provided by Soper to its employees. This picketing took place from 6 January until the completion of the project on 15 May. In anticipation of the picketing , Mead-McClellan es- tablished reserve gates on 4 January. The west gate was reserved for neutral employers. A sign was posted at this entrance, which read, "This entrance is for employees of the following contractors only." Eight subcontractors were listed by name, including Long. Suppliers were not mentioned. The east gate was reserved for Soper, al- though no sign was posted at this entrance . Two picket or snow fences were erected from the Monticello build- ing to the sidewalk in front of the building. The first snow fence was erected to the west of the east or pri- mary entrance. The second fence was erected to the east of the west or neutral gate. The IBEW pickets walked back and forth on the sidewalk between the fences that demarcated the east gate. There was no picketing of the west or neutral gate and no evidence was offered that either reserve gate was compromised by the general sub- contractors or their suppliers. Long began assigning employees to work at the Mon- ticello jobsite on 15 January. On 21 January, Ray Ritz, a member of Local 3, and one of the employees assigned by Long to work at the jobsite, reported to the Compa- ny's office. Patrick Long, the Charging Party's vice president, had a conversation with Ritz concerning Ritz' refusal to enter the neutral gate or work on the project so long as a picket line existed on the site. Ritz told Long that his decision not to work behind a picket line was his personal decision and a matter of conscience. Long responded by suspending Ritz. On 25 January, Local 3 Business Representative, Schergen contacted Patrick Long and asked him whether the Company would reinstate Ritz if Ritz agreed to work at the Monti- cello project. Long agreed to reinstate Ritz and on 27 January he returned to work. The suspension lasted 3- 1/2 days, during which time Long was unable to per- form any services on the job, although no attempt was apparently made to seek a replacement of Ritz. On 6 February, the Unions, on behalf of Ray Ritz, filed a grievance alleging that Long violated article 14 entitled "Strikes and Lockout," specifically paragraph 2, which reads: No strike will be called against the Employer by the Union unless the strike is approved by the Inter- national Office of the International Union of Eleva- tor Constructors. Sufficient notice shall be given to the Employer before a strike shall become effective. Except in the case of contract service work as spec- ified in Article IX of this agreement, work stop- pages brought about by lawful picketing or strikers by building trades local unions affiliated with Build- ing Trades Councils shall not constitute a strike within the meaning of this Article. The Unions contend in their grievance that the above provision allowed Ritz to refuse work under the circum- stances in this case without being disciplined by Long. The grievance is pending before the National Arbitration Committee, which is set forth in step 2 of the grievance procedure. Step 3 of the grievance procedure calls for binding arbitration. III. ANALYSIS AND CONCLUSIONS No one contends that IBEW was engaged in anything but lawful primary picketing of Soper. Furthermore, the General Counsel does not contend that the clause (art. 14, par. 2) is a violation of Section 8(e) of the Act. Nor does anyone claim exemption under the construction in- dustry proviso to Section 8(e). The General Counsel does contend that the object of the union grievance is unlawful and that by pursuing their grievance, the Unions are forcing Long to enter into a hot cargo clause in violation of Section 8(bX4XA). The General Counsel argues that if the Unions' position in support of their grievance is adopted, Long would be required to permit its employees to refuse to work when- ever those employees refuse to enter a neutral reserve gate. He asserts that this would be true even though the picketing union could not lawfully induce such a work stoppage, citing Bricklayers Local 2 (Gunnar I. Johnson), 224 NLRB 1021 (1976). I agree with the General Counsel's argument and his interpretation of the Bricklayers case. In that case, al- though three of the picket line clauses were overly broad and therefore violative of Section 8(e), the Plumbers clause was very similar to the clause at issue here. The Board held in the Bricklayers case that construing the Plumbers picket line clause as permitting the employees to refuse to pass through a neutral reserve gate would have the same effect as permitting employees to respect a secondary picket line stationed at that gate . The arbi- trator's interpretation in the Bricklayers case is the same as the Unions' position in this case . Both have an illegal object as their purpose and would only defeat the pur- pose of reserve gates. Moreover, for reasons stated above, deferral would not be appropriate. Respondents attempt to distinguish between "lawfully permitted picket line" in the Bricklayers case and "lawful picket" in this case, but I see no distinction as far as the end result is concerned. Respondents emphasize that they had nothing to do with Ray Ritz' decision not to work and that Ritz has a right protected by Section 7 of the Act to observe lawful 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picket lines. I agree that the Unions did not influence Ritz' decision, but I find that irrelevant in this case. The Board in the Bricklayers case answered Respondents' second argument by stating that the employees' response (in refusing to enter a neutral gate) does not comport with what has been traditionally deemed to be primary activity. The Board further stated that in cases like this it has never been held to be pnmary activity when employ- ees refuse to work for their employer who is a neutral in the dispute because picketing of another employer is taking place nearby on the common situs. Respondents also contend that Mead-McClellan failed to establish a proper reserve gate by neglecting to use the word "suppliers" on the neutral reserve gate sign and by failing to put any sign at the pnmary reserve gate. This, according to Respondents, had the effect of making the entire project subject to primary picketing. Thus, Ray Ritz was disciplined in violation of his contractual and Section 7 rights for observing a primary picket line. I find that although the neutral sign did not mention "suppliers" and there was no sign at the primary gate all the participants recognized the two-gate system. The IBEW pickets patrolled only the primary gate and did not picket the neutral gate. Likewise, there was no evi- dence that either gate was compromised by any contrac- tor, subcontractor, or their suppliers. Therefore, I con- clude that the reserve gate system established by Mead- McClellan was valid. Electrical Workers IBEW Local 332 (Lockheed Missiles), 241 NLRB 674 (1979). Furthermore, I find that Respondents never advanced this argument in support of their grievance. Respondents relied solely on their interpretation of article 14, para- graph 2 to justify Ray Ritz' action, which I find in viola- tion of Section 8(b)(4)(ii)(A) of the Act. Finally, Respondents contend that the General Coun- sel's complaint is premature because the instant grievance may be disposed of informally, which would obviate the necessity for arbitration. This argument is spurious be- cause Long would be put in the position of settling a case in order to neutralize an illegal result. If Respond- ents believed this argument, they would simply with- draw their grievance. The Charging Party should not be put to the expense of arbitration where the object of the grievant is illegal. See Teamsters Local 705 (Emery Air Freight), 278 NLRB 1303 (1986). CONCLUSIONS OF LAW 1. Long Elevator and Machine Co., Inc., Sopher Elec- tric Co., Mead-McClellan Inc., and the National Eleva- tor Industry Inc. are engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Unions and Local 1 IBEW are labor organizations within the meaning of Section 2(5) of the Act. 3. By attempting to enforce a picket line clause in their contract that would, in effect, protect employees from discipline for refusing for refusing to enter a neutral re- serve gate, Respondents have violated Section 8(b)(4)(ii)(A) of the Act. 4. By attempting to enforce, through the grievance procedure, a picket line clause in their contract, which Respondents interpret as protecting employees from dis- cipline for refusing to pass through a neutral reserved gate because a primary picket line was stationed else- where on the common work situs, Respondents are at- tempting to force the Charging Party to enter into an agreement in violation of Section 8(e) of the Act. The above unfair labor practies are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I recommend that they be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act and that they post an appropriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondents, International Union of Elevators Constructors, AFL-CIO, and Local Union 3, Interna- tional Union of Elevator Constructors, AFL-CIO, its of- ficers, agents, and representatives, shall 1. Cease and desist from entering into, enforcing, or giving effect to picket line clauses in their contracts that result in permitting employees to refuse to pass through a netural gate under circumstances where there is a pri- mary picket line stationed elsewhere on the jobsite or any other contract or agreement, express or implied, whereby employers agree to cease and refrain from han- dling, using, selling, transporting, or otherwise dealing in any of the products of any other employers, or from doing business with any other person in violation of Sec- tion 8(e) of the Act or agree that employees will not be required to, or will not be disciplined for failing to, per- form services for another person, in violation of Section 8(e) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw the Ray Ritz grievance, which is the bass for the violation of Section 8(b)(4)(ii)(A) of the Act. (b) Post at its St. Louis, Missouri facility copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondents' au- thorized representative, shall be posted by the Respond- ents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to 8 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and reconunended 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 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 United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ELEVATOR CONSTRUCTORS (LONG ELEVATOR) 1099 ensure that the notices are not altered , defaced , or cov- ered by any other material. (c) Sign and mail sufficient copies of the notices to the Regional Director for Region 14 for forwarding to Long, Soper, Mead-McClellan, and NEII. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES AND 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 enforce the picket line clause in our contract with Long Elevator and Machine Co., Inc. in such a way as to pemrit employees to refuse to pass through a neutral gate under circumstances where there is a lawful primary picket line stationed elsewhere on the jobsite. WE WILL NOT force Long Elevator and Machine Co., Inc. to agree that employees will not be disciplined for refusing to pass through a neutral reserve gate where there is a lawful primary picket line stationed elsewhere on the jobsite. WE WILL withdraw the Ray Ritz grievance because our position in support of his grievance violates the Na- tional Labor Relations Act. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, AFL-CIO, AND LOCAL UNION 3, INTERNATIONAL UNION OF ELE- VATOR CONSTRUCTORS , AFL-CIO