Sheet Metal Workers International Association, Afl-Cio

1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers, Local 27, a/w Sheet Metal Workers International Association , AFL-CIO and Cahill Monmouth Contracting, Inc., t/a Camcon. Case 22-CC-1047 February 13, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On June 20, 1988, Administrative Law Judge D. Barry Morris issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Charging Party filed a response in support of the General Counsel's position. 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. We agree with the judge that the Respondent violated Section 8(b)(4)(ii)(B) of the Act by threat- ening representatives of the Hahn Company, Nuhahn Construction Co., and Begg and Daigle, Inc. The Respondent has urged that we reverse the administrative law judge based on NLRB v. Iron Workers Local 433, 850 F.2d 551 (9th Cir. 1988),' which issued after the judge's decision here. There, a respondent union had a dispute with a primary employer at a common situs and threatened a sec- ondary employer that it would picket "the job," without qualifying the threats by clearly indicating that the picketing would conform with the lawful restrictions imposed on such picketing. The court, in finding no violation of the Act, concluded from the context of the entire conversation that a reason- able employer would have understood that "the job" referred to the work the primary employer was performing, and the union's failure to give as- surances that its picketing would conform to the restrictions did not render the threats a per se vio- lation. Even applying this reasonable-interpretation standard, however, we find the Respondent's threats violated Section 8(b)(4)(ii)(B) of the Act. Members of Local 27 were not employed by Hahn, Nuhahn, or Begg and Daigle, but were per- forming work for other sheet metal contractors at the mall. Among the statements made by the Re- spondent's agents, Business Agent Michael Ryan ' Member Cracraft did not participate in the underlying decision Iron Workers Local 433 (United Steel), 280 NLRB 1325 ( 1986), on which the Ninth Circuit decision is based. told the Nuhahn project administrator that if the problem of Camcon's use of Local 22 men could not be resolved, not only would he put up pickets, but he was "not going to man the job." Further- more, Ryan told Begg's project manager, Ramos, that if Ramos did not get the Camcon employees off the job, he would "organize his union workers and form up possibly a picket and strike the mall." In light of the number, breadth, and nature (i.e., to picket and to strike) of the threats, the Respondent clearly conveyed the message that it intended to take action against the entire jobsite-not merely against the primary employer. Such threats to engage in a work stoppage aimed at secondary em- ployers clearly violate the Act. We do not agree, however, with the judge's rec- ommended imposition of a broad cease-and-desist order. The judge reasoned that such an order was appropriate in light of the longstanding animosity between the Respondent and Local 22, as well as the Respondent's intent to prevent members of Local 22-from working in its jurisdiction. In Teamsters Local 70 (C&T Trucking Co.), 191 NLRB 11 (1971), the Board stated: . . . we have long held, with court approval, that a broad remedial order is appropriate whenever a proclivity to violate the Act is es- tablished, either by the facts within a particu- lar case, or by prior Board decisions against the respondent at bar based upon similar un- lawful conduct in the past. The General Counsel submits that the Respond- ent's conduct, taken together with the history of the dispute between it and Local 22, requires a broad order. Neither the judge nor the General Counsel cites any prior Board decisions against the Respondent based on similar conduct. Further- more, the alleged longstanding animosity between the Respondent and Local 22 does not, in itself, es- tablish a proclivity for unlawful conduct; nor does the Respondent's conduct here. Accordingly, we shall modify the recommended Order to use narrow injunctive language.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Sheet Metal Workers, Local 27, a/w Sheet Metal Workers International Association, 2 In his recommended Order, the judge inadvertently included the names Bridgewater Commons Associates and Protective Ceiling, Inc., d/b/a Tony Crawford Construction , even though the Respondent was not found to have threatened any representative of these companies. We shall, accordingly , delete these names from the Order. 292 NLRB No. 121 SHEET METAL WORKERS LOCAL 27 (CAMCON) 1047 AFL-CIO, Bridgewater, New Jersey, its officers, agents, and representatives, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1 "1 Cease and desist from threatening, coercing, or restraining the Hahn Company, Nuhahn Con- struction Co, and Begg and Daigle, Inc, where an object is to force or require Hahn, Nuhahn, and Begg and Daigle to cease doing business with Cahill Monmouth Contracting, Inc , t/a Camcon " 2 Substitute the following for paragraph 2(b) "(b) Sign and mail copies of the notice to the Regional Director for posting by Hahn, Nuhahn, Begg and Daigle, and Camcon, if willing, at loca- tions where notices to their employees are custom arily posted " 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES 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 we have been ordered to post and abide by this notice WE WILL NOT threaten, coerce, or restrain the Hahn Company, Nuhahn Construction Co, or Begg and Daigle, Inc, where an object is to force or require Hahn, Nuhahn, or Begg and Daigle to cease doing business with Cahill Monmouth Con- tracting, Inc, t/a Camcon SHEET METAL WORKERS, LOCAL 27, A/W SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL- CIO complaint was issued on February 11 alleging that Sheet Metal Workers Local 27, a/w Sheet Metal Workers International Association AFL-CIO (Respondent or Local 27) violated Section 8(b)(4)(u)(B) of the National Labor Relations Act (Act) Respondent filed an answer denying the commission of the alleged unfair labor prac tices The parties were given full opportunity to participate, produce evidence, examine and cross examine witnesses, argue orally and file briefs Briefs were filed by all the parties on May 13 On the entire record of the case,2 including my obser vation of the demeanor of the witnesses,3 I make the fol lowing FINDINGS OF FACT I JURISDICTION Cahill Monmouth Contracting, Inc, t/a Camcon (Charging Party), a corporation with an office and place of business in South Plainfield, New Jersey, has been en gaged as a sheet metal contractor in the construction in dustry, constructing commercial facilities including work on the Bridgewater Commons Mall in Bridgewater, New Jersey (the Mall) Respondent admits that Camcon is en gaged in commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act and I so find Bridgewater Commons Associates (Bridgewater) is a partnership with an office and place of business in Bridgewater New Jersey, and has been engaged as a de veloper of the Mall The partnership consists of the Pru dential Insurance Company and the Hahn Company (Hahn) Respondent admits, and I so find that Bridge water is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and Section 8(b)(4) of the Act Nuhahn Construction Co (Nuhahn), Protective Ceiling Inc d/b/a Tony Crawford Construction (Craw ford) and Begg and Daigle Inc (Begg) are general con tractors Respondent admits and I so find that they are engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act In addition Respond ent admits, and I so find, that it is a labor organization within the meaning of Section 2(5) and Section 8(b)(4) of the Act Mitchell A Schley Esq for the General Counsel Robert F 0 Brien Esq (Tomar Seliger Simonoff Adour ian & 0 Brien), Haddonfield New Jersey for the Re spondent John A Craner Esq (Craner Nelson Satkin & Scheer) Scotch Plains, New Jersey for the Charging Party DECISION STATEMENT OF THE CASE D BARRY MORRIS, Administrative Law Judge This case was heard before me in Newark New Jersey, on March 23 1988 1 On a charge filed on January 26 a i All dates refer to 1988 unless otherwise specified II THE ALLEGED UNFAIR LABOR PRACTICES A The Issue The issue in this proceeding is whether Respondent threatened Bridgewater, Nuhahn and Begg with picket ing and work stoppages in order to force them to cease dealing with Camcon, in violation of Section 8(b)(4)(u)(B) of the Act 2 General Counsels motion to correct transcript is granted S The witnesses called by the General Counsel appeared credible Re spondent called no witnesses to rebut their testimony 1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B The Facts I Background Bridgewater was formed for the purpose of building a 165 store indoor shopping mall in Bridgewater, New Jersey Construction began in the early fall of 1986 and the Mall was scheduled to open and did open on Febru ary 24, 1988 Bridgewater contracted with Nuhahn to act as the general contractor for the construction of the Mall s shell and common areas Each tenant shop hired its own individual general contractor for the construc tion of its own interior Crawford was engaged as the general contractor for the construction of three of the Mall s stores, namely, Wilson s Suede and Leather, This End Up, and Prints Plus Crawford subcontracted with Camcon to do the sheet metal work for these stores In addition, two other stores, The Bombay Company and Deck the Walls, hired Begg as the general contractor for the construction of those stores Begg also subcontracted with Camcon to do the sheet metal work for those two stores 2 Events of January 21 Camcon s regular employees are not represented by a union However Camcon decided to use union labor for its work at the Mall Local 27 business agent, Michael Ryan, was contacted and was requested to furnish two sheet metal workers After Camcon s president William Cahill was informed that Ryan would not send Camcon any men, Cahill contacted Ryan on January 21 Ryan told him that he would supply Camcon with men 'if the entire job was his " He wanted the fabrication and the installation " Cahill informed Ryan that that was unac ceptable and that he would turn to Sheet Metal Workers Local Union 22 of New Jersey (Local 22) for his labor needs Cahill obtained employees from Local 22 for the mall job and Camcon signed a collective bargaining agreement with Local 22 for that job On January 21 Ryan telephoned Nuhahn project ad ministrator, Anne Bass He told her that we might have a problem because one of the shops, Wilson s House of Suede, their sheet metal subcontractor possibly was going to sign with Local 22 Ryan told Bass that if the matter could be resolved quickly we would have no problem Bass reported her conversation to Kuhn the Hahn Company tenant coordinator When Kuhn arrived at Bass trailer to investigate the matter, he saw a Camcon truck with some men packing it up and getting ready to leave Local 27 shop steward, David DeLuca was standing there Kuhn asked him if everything was alright and DeLuca replied 'Yes, their leaving ' 3 Events of January 25 On January 25 Camcon sent four Local 22 employees to the Mall to work at the Wilson store On the same day Nuhahn s Anne Bass received another call from Ryan Bass told Ryan, I thought wed have no prob lem ' Ryan replied that "it seems that we did be cause Camcon had signed with Local 22 Ryan told Bass that if the matter could not be resolved he was not going to man the job or put up pickets He explained that creating a work stoppage is what would happen Bass then called Kuhn and told him to come to Wilson s and straighten out the matter because Ryan wanted to put up a picket line Kuhn arrived at the Wilson store and saw several members of Local 22 and DeLuca DeLuca told Kuhn that if the Local 22 employees did not leave we 11 probably put up a picket line' Kuhn then telephoned Jim Nolan vice president of Melville Realty Corporation the parent company which owned Wilson s House of Suede Kuhn explained to Nolan that there was a dispute involving Local 27 and that the dispute was such that the ultimate outcome would be that they would put up a picket line and that if they did that, it would shut down the entire job because none of the other trades would cross the line" Kuhn also told Rich Hall, project manager for Crawford, which was the general contractor for Wilson s that he had better solve this problem Hall in the presence of DeLuca, wrote out a cancellation of Camcon s contract and the Local 22 employees left the store 4 Events of February 2 and 3 On February 2 DeLuca visited Kuhn s office and told him that the Camcon men were back the men from Local 22 were working in the Bombay store and it was the intention of Local 27 to put a picket line at the mall' Kuhn then contacted Begg the general contractor for the Bombay store He spoke to Angelo Ramos Begg s project manager, and told him that because Camcon was working in the store and because there was a dispute with Local 27 it was Local 27 s intention to put up a picket line around the mall Ramos replied to Kuhn that Local 22 s men would not be on the job the following day Kuhn then telephoned Ryan and advised him of his conversation with Ramos Ryan told Kuhn ,as long as the union 22 guys aren t there your words [are] good enough for me There won't be a picket line around the shopping center On February 3 Local 22 men were back at the Bombay store Ryan met Ramos at the store and told him that if Ramos did not get the Camcon employees off of the job he would organize his union workers and form up possibly a picket and strike the mall After meeting with Hahn and Nuhahn officials, Ramos can celed Camcon s contract C Discussion The Hahn Company, Nuhahn, and the various store general contractors were under great pressure to com plete all the work in order to meet the Mall's opening date of February 24 In the last remaining weeks ap proximately 1200 construction workers were working at the Mall with employees working there almost around the clock In addition, Hahn s profits were dependent on there not being a delay in the Mall stores opening be cause the rents paid to the developer were based in part on the gross sales of each store Kuhn testified that if a picket line were set up it would create a problem in terms of meeting the opening deadline On January 25, when Local 22 men appeared at Wil son s Ryan threatened Anne Bass, Nuhahn s project ad SHEET METAL WORKERS LOCAL 27 (CAMCON) ministrator, with picketing and a work stoppage if the Local 22 employees continued at the site On the same day Shop Steward DeLuca told Kuhn that Local 27 would probably put up a picket line if the Local 22 employees did not leave Kuhn instructed the store s gen eral contractor to take action to avert the walkout and Rich Hall canceled Camcon s contract On February 2, after Camcon returned to the Mall to fulfill its contract with Begg, DeLuca advised Kuhn that Local 27 was going to picket the Mall The next day, when Camcon continued its work on the Bombay store, Ryan threatened Ramos that Local 27 would strike and picket the Mall if Local 22 employees were not removed from the job Ramos subsequently canceled Camcon s contract Ryan's threats to Bass, Kuhn, and Ramos and DeLu ca s threats to Kuhn constitute unlawful labor practices Local 27 did not have a primary dispute with Hahn, Nuhahn, or Begg Yet, Local 27 put pressure on these neutral employers to cease doing business with Camcon I find that Ryan's and DeLuca s threats to represents tives of Hahn, Nuhahn, and Begg, in order to cause them to seek and obtain the termination of Camcon's contract, constitute violations of Section 8(b)(4)(ii)(B) of the Act See Tn State Building Trades Council (Backman Sheet Metal) 272 NLRB 8 (1984) CONCLUSIONS OF LAW 1 Camcon, Bndgewater, Nuhahn Crawford and Begg are each engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act 2 Respondent is a labor organization within the mean ing of Section 2(5) of the Act 3 By threatening representatives of Hahn Nuhahn and Begg, in order to cause them to seek and obtain the termination of Camcon s contract, Respondent violated Section 8(b)(4)(ii)(B) of the Act 4 The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 5 Respondent did not violate the Act in any other manner alleged in the complaint THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re spondent to cease and desist therefrom and to take cer tam affirmative action designed to effectuate the policies of the Act The General Counsel has requested that a broad order be issued against Respondent This case cannot be viewed as involving only an isolated act against one pn mary employer, Camcon Local 27's dispute was not principally aimed at Camcon In view of the longstand ing animosity between Local 27 and Local 22, it was Local 27's intention to prevent members of Local 22 from working in its jurisdiction If the Order were re stricted solely to Camcon and the secondary companies 1049 involved in this proceeding, it would leave employers who hire Local 22 members exposed to the same type of pressure through other comparable channels ' Electra cal Workers Local 501 v NLRB 341 US 694 706 (1951) Unless other employers are covered by the Order all employers may be targets of Local 27 Ac cordingly I will recommend that a broad order be issued See Electrical Workers Local 501 supra On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed4 ORDER The Respondent Sheet Metal Workers, Local 27, a/w Sheet Metal Workers International Association, AFL- CIO, its officers, agents, and representatives, shall 1 Cease and desist from threatening, coercing or re straining Bridgewater Commons Associates, Nuhahn Construction Co Protective Ceiling, Inc, d/b/a Tony Crawford Construction, Begg and Daigle, Inc, or any other person engaged in commerce or in an industry of fecting commerce, where an object thereof is to force or require Bridgewater, Nuhahn, Crawford Begg, or any other person, to cease doing business with Cahill Mon mouth Contracting, Inc, t/a Camcon, or any other person 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 5 Copies of the notice on forms provided by the Regional Director for Region 22, after being signed by the Respondent s authorized representative shall be posted by the Re spondent immediately on 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 Respondent to ensure that the notices are not altered, defaced or cov ered by any other material (b) Sign and mail copies of said notice to the Regional Director for posting by Bndgewater Nuhahn Crawford Begg and Camcon if willing at locations where notices to their employees are customarily posted (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER ORDERED that those allegations of the complaint as to which no violations have been found are dismissed 4If 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 put poses 5 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