Iron Workers Local 433 (United Steel)

IRON WORKERS LOCAL 433 (UNITED STEEL) 621 Iron Workers Local 433, affiliated with the Interna- tional Association of Bridge, Structural and Or- namental Iron Workers, AFL-CIO and United Steel and Aram Kazazian Construction, Inc and Carlson Southwest Corp Cases 31-CC- 1761, 31-CC-1777, 31-CC-1770, and 31-CC- 1801-1 On August 2, 1988, the Board notified the parties that it had accepted the remand from the Ninth Circuit and invited the parties to submit statements of position regarding the remanded issues Thereaf- ter, the Respondent and the General Counsel filed statements of position April 10, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 31, 1986, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding adopting the administrative law judge's finding that in four separate instances the Respondent, Ironworkers Local 433, attempted by unlawful means to induce neutral parties to cease doing business with employers with which the Re- spondent had a labor dispute and thereby violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act 1 Thereafter, the Board filed a peti- tion for enforcement with the United States Court of Appeals for the Ninth Circuit Although the Re- spondent conceded two of the violations, it con- tested the Board's finding that it violated Section 8(b)(4)(ii)(B) by threatening Vegas Steel, a neutral contractor, that it would picket the Circus jobsite if United Steel performed steel erection there, with an object of forcing Vegas to cease doing business with United Steel, and the finding that it violated Section 8(b)(4)(i) and (n)(B) by picketing a gate re- served for neutral contractors at the Carlson con struction site with signs that did not name the em- ployer with which the Union had its primary dis- pute The Respondent also contested the appropri ateness of the Board's broad cease-and desist order, which was based on the Respondent's repeated vio- lations of Section 8(b)(4)(B) in this and other cases 2 On June 27, 1988, the court denied enforce- ment of the Board's Order, finding that the Re- spondent did not unlawfully threaten to picket the Circus jobsite and remanding to the Board, for fur- ther consideration, the violation found at the Carl- son jobsite and the appropriateness of the Board's broad orders 1 280 NLRB 1325 Subsequent to the Boards decision the Respondent filed a motion for reconsideration which was denied by unpublished order 2 As the Respondent did not contest the Board s finding of violations regarding its conduct at the Hollywood jobsite and at the McCarren Air port jobsite our Decision and Order reported at 280 NLRB 1325 per taming to those violations is final and binding 2 NLRB v Iron Workers Local 433 850 F 2d 551 (9th Cir 1988) I THE EVIDENCE In November 1984, Southland Corporation re- tained Carlson Southwest Corp (Carlson) as the general contractor for the construction of a large warehouse facility and a vehicle maintenance facili- ty in San Bernardino, California Carlson subcon- tracted to Warehouse Equipment, Inc (Ware- house), a nonunion company, the work of installing metal racks ii1 the warehouse A business agent for the Respondent asked Carlson who would be in stalling the racks and was notified that Warehouse would be doing the work Subsequently, Carlson heard rumors that the Respondent was upset that the installation work was being done by a non- union company As a result, Carlson sent the Re- spondent a telegram stating that Carlson would set up a reserve gate system at the jobsite and that Warehouse was being assigned to gate 1 When the pickets arrived at gate 1, however, they found a sign stating that certain specified employers were assigned to use that gate, while all other employers were directed to use gate 2 Warehouse was not one of the employers specified as being assigned to gate I Two picketers then picketed both gates at the jobsite with signs stating Work Being Performed Below Standards Established By Iron Workers Local 433 Authorized By San Bernardino Bldg & Construction Trades Council AFL-CIO Ironworkers employed by two other subcontrac- tors on the site, Cal Erectors and Ben F Smith, re- fused to work on the days that the project was picketed II DISCUSSION 1 In finding in our previous decision that the Respondent had engaged in unlawful secondary ac tivity, we relied on the fact that the Respondent picketed gate 1, a gate that we found to have been reserved for neutral contractors, with picket signs that did not name Warehouse as the employer with which the Respondent had a dispute The Ninth Circuit disagreed with our finding that gate 1 had been reserved for neutral contractors, reasoning 293 NLRB No 74 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that, in light of Carlson's telegram to the Respond ent stating that gate 1 would be reserved for Ware- house employees, the general notice posted at the gate identifying the gate as reserved for various neutral contractors was insufficient to overcome the specific written notice given to the Respondent and thus did not properly establish a reserved gate The court, however, left to our determination on remand whether the Respondent's failure to identi- fy on its picket signs the employer with which it had a dispute would support a finding that the Re spondent had an illegal secondary objective Having considered the court's opinion, and the par- ties' positions on remand, we find that the Re spondent did violate Section 8(b)(4)(i) and (ii)(B) at the Carlson jobsite Section 8(b)(4) reflects Congress' desire to "preserv[e] the right of labor organizations to bung pressure to bear on offending employers in primary labor disputes" while "shielding unoffending em- ployers and others from pressures in controversies not their own " NLRB v Denver Building Trades Council, 341 U S 675, 692 (1951) Thus, although a union may use economic pressure against a primary employer, a union cannot use, or threaten to use, economic pressure against a "secondary employer," that is, one with which the union does not have a dispute, for the purpose of forcing the secondary employer to stop doing business with the primary employer When, however, a primary employer is engaged in work at the situs under the control of a secondary employer, a union may picket the situs provided the picketing is primary in nature In considering whether common situs picketing is primary in nature, the Board is assisted by exami- nation of the guidelines set forth in Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950) (a) the picketing is strictly limited to times when the situs of the dispute is located on the secondary em- ployer's premises, (b) at the time of the picketing, the primary employer is engaged in its normal busi ness at the situs, (c) the picketing is limited to places reasonably close to the location of the situs, and (d) the picketing discloses clearly that the dis- pute is with the primary employer Furthermore, the burden is on the union "to convince the trier of fact that [its] picketing was conducted in a manner least likely to encourage secondary effects " Iron Workers Local 433 v NLRB, 598 F 2d 1154, 1159 (9th Cir 1979) (quoting Ramey Construction Co v Painters Local 544, 472 F 2d 1127, 1131 (5th Cir 1973)) Although the failure to comply with any one of the Moore Dry Dock criteria does not constitute a per se violation of the Act, the failure does create a presumption that the picketing had an unlawful secondary purpose Electrical Workers IBEW Local 332 (WS B Electric), 269 NLRB 417, 421 (1984), Electrical Workers IBEW Local 861 (Plauche Elec- tric), 135 NLRB 250, 255 (1962) It is a simple matter for a union to identify the primary employer on its signs Thus, it is reasonable to presume that picketing a common situs with signs that fail to identify the primary employer has as an object en meshing neutrals, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act Laborers Local 389 (Calcon Construction), 287 NLRB 570 (1987) The Respondent picketed at gates 1 and 2 with signs that did not identify the employer with which the Respondent had a dispute That conduct raises a presumption that an object of the picketing was to enmesh neutrals, shifting to the Respondent the burden of showing that the picketing did not have an unlawful secondary objective The Respondent has not done so Rather, the Respondent argues that because Carlson, by its telegram to the Re- spondent, established gate 1 as a reserved gate solely for Warehouse, gate 1 was no longer a common situs, but, rather, the situs of the primary dispute Without a common situs, the Moore Dry Dock criteria would not apply, and the Respondent would not have an obligation to identify the em- ployer with whom it had a dispute 4 The Respondent's assertion, however, totally ig- nores the fact that the Respondent did not limit its picketing to the gate that it asserts was reserved solely for Warehouse Rather, the Respondent picketed both gates at the Carlson jobsite As evi- denced by the sign posted at gate 1, other employ ers on the construction site clearly were using the gates at which the Respondent was picketing Thus, we find no merit in the Respondent's asser- tion that its picketing was not conducted at a common jobsite and that Moore Dry Dock does not apply The Respondent had an obligation to identi- fy Warehouse as the employer with which it had a dispute Its failure to do so indicates that the pick- eting had unlawful secondary objectives As the Respondent offered no evidence to show other- wise, we find that the Respondent picketed the Carlson jobsite with an unlawful secondary objec tive and therefore violated Section 8(b)(4)(1) and (u)(B) of the Act 2 The Ninth Circuit also directed the Board to reconsider its broad cease-and-desist order because * The Respondent also argues that it was not responsible for the pick etmg and that the judge erroneously concluded that the Respondent pick eted gates I and 2 We have not considered these arguments because the Ninth Circuit accepted the Board s findings that the Respondent was re sponsible for the picketing and that the picketing took place at both gates Therefore these issues were not included in the scope of the remand IRON WORKERS LOCAL 433 (UNITED STEEL) 623 the court had reversed one violation and remanded a second For the reasons stated below, we find that a broad remedial order remains appropriate We originally adopted the judge's broad remedi- al order based on her findings of 8(b)(4) violations at four worksites in the instant case as well as two earlier cases in which the Respondent was found to have violated Section 8(b)(4)(i) and (ii)(B) of the Act 5 As set forth above, we have affirmed our original finding that the Respondent's picketing of the Carlson jobsite violated Section 8(b)(4)(i) and (ii)(B) This conduct, together with the violations found at the Hollywood and McCarren Airport jobsites that the Ninth Circuit left undisturbed and the Respondent's history of 8(b)(4)(B) violations, establishes a pattern of conduct by the Respondent indicating a proclivity to violate the secondary boycott provisions of the Act 6 Accordingly, a broad remedial order remains appropriate ORDER The Respondent, Iron Workers Local 433, affili- ated with the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, its officers, agents, and representatives, shall 1 Cease and desist from (a) In any manner inducing and encouraging em ployees of Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person engaged in com merce or in an industry affecting commerce, to refuse in the course of their employment to per- form any services where an object thereof is to force or require Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person to cease doing business with Warehouse Equipment, Inc, with each other, or with any other person (b) In any manner threatening, coercing, or re- straining Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person engaged in com- merce or in an industry affecting commerce, where an object thereof is to force or require Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person, to cease doing business with one another, Warehouse Equipment, Inc , or any other person 2 Take the following affirmative action neces- sary to effectuate the policies of the Act 5 Iron Workers Local 433 (Oltmans Construction) 272 NLRB 1182 (1984) Iron Workers Local 433 (V Systems) JD-(SF)-163-84 (not report ed) 9 The Respondent asserts that because we did not issue a broad order in a recent case Iron Workers Local 433 (Crane Co) 288 NLRB 717 (1988) the Board is precluded from granting a broad order in this case relying on unlawful activity that occurred prior to the issuance of Crane Co We find no ment in the Respondent s position Crane Co is distin guishable from the instant case because Crane Co involved only one in stance of unlawful picketing Here the Respondent has engaged in un lawful activity at three separate worksites (a) Post at its business offices and all meeting halls located in the State of California copies of the attached notice marked "Appendix "v Copies of the notice, on forms provided by the Regional Di- rector for Region 31, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (b) Furnish the Regional Director with a suffi- cient number of signed copies of the notice for posting by Carlson Southwest Corp, Cal Erectors, and Ben F Smith, provided those employers are willing, at all places where notices to employees are customarily posted (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply r 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 APPENDIX A 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 ordered us to post and abide by this notice WE WILL NOT in any manner induce or encour- age employees of Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person en- gaged in commerce or in an industry affecting commerce, to refuse in the course of their employ- ment to perform any service where an object there- of is to force or require Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person to cease doing business with Warehouse Equipment, Inc, with one another, or with any other person WE WILL NOT in any manner threaten, coerce, or restrain Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person engaged in com- merce or in an industry affecting commerce, where an object thereof is to force or require Carlson Southwest Corp, Cal Erectors, Ben F Smith, or any other person to cease doing business with each 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other, Warehouse Equipment, Inc , or any other person IRON WORKERS LOCAL 433, AFFILI ATED WITH THE INTERNATIONAL AS- SOCIATION OF BRIDGE , STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO