Plumbers Local 32 (Ramada, Inc)

PLUMBERS LOCAL 32 (RAMADA, INC) United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada,,Local 32, AFL- CIO and Ramada, Inc. Case 28-CC-784-1 DECISION AND ORDER May 31, 1989 BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On May 18, 1988, Administrative Law Judge David G. Heilbrun issued the attached decision. The Respondent filed exceptions, a supporting brief, and supplements, and the General Counsel and Charging Party filed answering briefs. 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, briefs, and supple- ments and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United As- sociation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , Local 32, AFL-CIO, Seattle, Washington, its officers, agents, and representa- tives, shall take the action set forth in the Order. i In agreeing with the judge that the Respondent violated Sec 8(b)(4)(u)(13) of the Act, we find that the Respondent's letter constituted an unlawful threat because it contained an unqualified threat to engage in secondary picketing "I [Respondent's Business Agent, Floyd A Sexton] will establish an agressive and continuing picketing program for the job site and will do everything necessary to organize the Seattle building trades' support for our picketing program" See, e g , Retail Wholesale Union District 65 (Eastern Camera), 141 NLRB 991, 996-997 (1963) We do not pass on the judge's findings concerning the threats to handbill and organize a boycott or on his analysis of DeBartolo Corp v Florida Gulf Coast Building & Construction Trades Council, 485 U S 568 (1988) This case is distinguishable from NLRB v Iron Workers Local 433, 850 F 2d 551 (9th Cir 1988) In Iron Workers, unlike here, the neutral em- ployer at the Circus Circus jobsite specifically testified that he under- stood the union's threat to picket "the job" to be confined to picketing the primary employer's steel erection work Michael J. Karlson, for the General Counsel. Hugh Hafer, Esq. (Hafer, Price, Rinehart & Schwerin), of Seattle, Washington , for the Respondent. Gerald Morales and Tibor Nagy, Esqs. (Snell & Wilmer), of Phoenix, Arizona, for the Charging Party. ' DECISION STATEMENT OF THE CASE 501 DAVID G. HEILBRUN, Administrative Law Judge. This case was tried at Phoenix, Arizona, on January 26, 1988. The charge was filed by Ramada, Inc (Ramada), on Oc- tober 30, 1987, and the complaint was issued November 13, 1987. The primary issues are whether United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 32, AFL-CIO (Respondent), threatened, coerced, or restrained Ramada and other persons en- gaged in commerce, or in an industry affecting com- merce, by letter and "other means" with the object of forcing or requiring a cessation of business dealings, in violation of Section 8(b)(4)(ii )(B) of the National Labor Relations Act. On the entire record, i including my observation of the demeanor of witnesses, and after consideration of briefs filed by the , General Counsel, the Charging Party, and the Respondent Union , I make the following FINDINGS OF FACT 1. JURISDICTION The Charging Party, a Delaware corporation, main- tains its principal office and place of business in Phoenix, Arizona, where it is engaged as an operator of hotels and motels in virtually every State of the United States. During a recent representative 12-month period it had a gross volume of business in excess of $500,000 in the course and conduct of its business operations, while pur- chasing goods and materials valued in excess of $50,000 which it received directly from suppliers outside Arizo- na. Respondent admits and I find that the Charging Party is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act As also ad- mitted, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II ALLEGED UNFAIR LABOR PRACTICES A Basis of Analysis One of Ramada's business divisions is its hotel group. This entity owns, operates, franchises, and constructs fa- cilities under the names Ramada Inns, Ramada Hotels, Ramada Renaissance Hotels, and Rodeway Inns. John Kelly is Ramada's Phoenix-based vice president for design and construction, and currently involved in a 5- year expansion program contemplating 8 to 10 new hotels. Kelly reports to a senior vice president of devel- opment, and directly supervises other executives includ- ing Vice President of Construction Bill Noble. Presently a 204-room, full service Ramada Inn is under construction at Sea-Tac Airport, located between the cities of Seattle and Tacoma, Washington.2 On May 18 i The General Counsel's unopposed motion to correct record, dated March 9, 1988, is granted and received in evidence as G C Exh 5 2 All dates and named months hereafter are in 1987 unless indicated otherwise 294 NLRB No. 39 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ramada chose Baugh Construction Company as general contractor for the job. However, this selection was sub- ject to successfully achieving a lower projected job cost by "value engineering" changes in design and featuring as negotiated between the owner and proposed general contractor This process spanned several months until Ramada issued Baugh a formal notice to proceed in early October. Over this 'same -general timespan Baugh was in the process of selecting subcontractors for the various spe- cialty phases of the job. After considering several me- chanical, subcontractors it awarded this work to Chap- man Mechanical, Inc., a nonunion firm operating. from Tacoma. In keeping with general job progress Chapman has by now completed about 20 percent of the overall mechanical work that will be required. Pete Hollen, a Phoenix-based project engineer for Ramada, monitors the Sea-Tac job along with several others This responsibility results in his travel to the job- site for direct observation an average of 2-3 days per month. The regular onsite representative of Ramada is resident engineer Phil Nield, who facilitates construction progress by a constant source of dealings with Baugh, the architects, and his superiors in Phoenix. Respondent has general trade jurisdiction within King County, Washington. In connection with Ramada's hotel job at Sea-Tac, Respondent's business manager, Floyd (Al) Sexton, negotiated a labor cost reduction package for journeymen and helpers with union contractors of his vicinity with the purpose of making them competitive as mechanical subcontractors on this project Sexton learned in late July that his efforts had been unavailing by reason of Chapman's selection, and he wrote to Baugh at that time expressing definite disappointment and adding that counteractions by the Union would be undertaken. On July 31 Sexton wrote to Richard Snell, Ramada's president and board chairman located in Phoe- nix, with copies to officials of Baugh Sexton's letter read: It is my understanding that Baugh Construction Company, your general contractor for the Sea-Tac Airport Ramada Inn scheduled to begin soon in Se- attle, Washington, will be subcontracting the plumbing work to Chapman Plumbing Company from Tacoma, Washington This is to advise you that Chapman Plumbing is a nonunion contractor. The wages paid by Chapman to his nonunion workers constitute a serious threat to the standard of living enjoyed by our members. I will establish an aggressive and continuing pick- eting program for the job site and will do every- thing necessary to organize the Seattle building trades' support for our picketing program We will also ask all of our affiliate groups to join with us in not patronizing the Ramada Inns We will establish a handbilling program to notify prospective customers of problems with the Ramada Inn. Chapman Plumbing has just started doing busi- ness in King County. This will be their first' major job that we know about. We would prefer to work with you and with Baugh Construction but so far all of our requests to meet with Baugh have been turned down. We will not sit by and let Chapman Plumbing steal work in King County with substandard rates and' poor workmanship. It looks like the beginning of a full scale war with the Ramada Inn as the battlefield. Respondent has not at any material times maintained an organizational or representational interest as to employ- ees of Ramada or Baugh. Further, Respondent has not shown that it has any labor dispute with either of these entities. Its labor dispute, as relevant to issues of this case and as referred to in the direct written communications of late July, is with Chapman. In keeping with the general contract let by Ramada to Baugh, Chapman was one of several subcontractors ap- proved for selection by Ramada within the scope of its power to extend or deny such approval. In the written approval given Baugh for its selection of Chapman, evi- denced by Hollen's letter dated September 29, such ap- proval was expressly recited to be based on an assurance that the chosen subcontractor was (1) financially stable, (2) had adequate manpower and equipment for the project, and (3) had no known "difficulties" relative to taxes Kelly testified that beyond these factors Ramada typically considered whether a proposed subcontractor enjoyed a reputation for satisfactory work in the vicinity or whether Ramada had experienced any substandard performance from it in the past. B. Analysis The complaint in this case expressly and exclusively invokes Section 8(b)(4)(li)(B) of the Act as that statutory provision which Respondent allegedly violated. In rele- vant part the statute thus provides. (b) . . . It shall be an unfair labor practice for a labor organization or its agents- (4) . . . (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry af- fecting commerce, where in either case an object thereof is- (B) forcing or requiring any person to cease doing business with any other person . . . . Provid- ed, That nothing contained in this clause (B) shall be construed to make unlawful, where not other- wise unlawful, any primary strike or primary pick- eting; Provided further, That for the purposes of this para- graph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are pro- duced by an employer with whom the labor organi- zation has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual em- PLUMBERS LOCAL 32 (RAMADA, INC) ployed by any person other than the' primary em- ployer in'the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution. . Here, as the General Counsel contends, there are several bases upon which to conclude that Respondent has en- gaged in proscribed conduct Sexton's written statement that his organization would establish a vigorous picket- ing program at the active jobsite is plain evidence that an objective of forcing a cessation of business dealings which include Chapman has been embarked upon. NLRB v Denver Building Trades Council, 341 U.S. 675 (1951); San Francisco Labor Council, 191 NLRB 261 (1971), enfd. 475 F.2d 1125 (9th Cir 1973). There is an absence of any assurance of legitimacy to such action, and insofar as common situs conditions might obtain on the project there is comparable absence of any assurance that the picketing standards of Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950), would be respected. See also Meat Cutters Local 248 (Service Food Stores), 230 NLRB 189 (1977); cf Teamsters Local 592 (Estes Express Lines), 181 NLRB 790 (1970). Further, a statement of this type is viewed to be an unqualified threat of pro- spective unlawful picketing action when general picket- ing of a secondary employer's place of business is an- nounced. Teamsters Local 886 (Stephens Co.), 133 NLRB 1393 (1961), see also Carpenters Local 639, 203 NLRB 1112 (1973). Secondly, Sexton's letter directly warns that labor groups affiliated with Respondent will be requested to join in a boycott of Ramada Inns. This broad sanction is clearly outside any legitimate tactics available to Re- spondent, and can only have the consequence of pressur- ing Ramada to reverse the routine contractual commit- ments that led to Chapman's presence as a contributing builder on the project. Food & Commercial Workers Local 506 (Coors Distributing), 268 NLRB 475 (1983). A final component of Sexton's letter is that it advises how a handbilling program directed to prospective future customers will be established because of Respond- ent's "problems" with Ramada. Here a vivid departure from permissible conduct by a labor organization is shown, for no labor dispute exists between Respondent and Ramada, -nor are any ingredients present from which one would likely arise. See Boxhorn's Big Muskego Gun Club v. Electrical Workers Local 494, 798 F.2d 1016 (7th Cir 1986). In Central Indiana Building, 257 NLRB 86 (1981), the Board dismissed a complaint based on hand- billing of K-Mart stores in furtherance of a labor organi- zation's dispute with a nonunion contractor. In its opin- ion the Board stated Only if the handbills had stated or reasonably im- plied that K-Mart,-rather than a contractor, was di- rectly responsible for hiring the nonunion workers themselves could the General Counsel successfully claim that the handbills left the misimpression that Respondent's primary labor dispute was with K- Mart itself. But it is clear that the instant handbills did not make such a statement or create such an im- 503 plication To the contrary, the handbills clearly state the nature of the dispute-the use of nonunion labor on the construction project-and they clearly reveal that Frash, not K-Mart, was the employer di- rectly responsible for the hiring of that nonunion labor. [Central Indiana Building, supra at 89] Here the envisioned handbilling would, by Sexton's ac- count, root itself in claimed "problems" with Ramada; an assertion that is without support from fact or context. Respondent advances several contentions in its defense to the complaint. It first claims that Ramada has "direct and ultimate control" over plumbing work at the project, and for this reason brings itself into a "focus of the dis- pute." I reject this argument that Ramada is other than a secondary party, and believe instead that its highlighted right of approving subcontractors is nothing more than typical positioning in the construction industry between owners and those undertaking building projects on behalf of owners NLRB v. Enterprises Assn, 429 US. 507 (1977), is distinguishable for that case dealt with broader statutory questions that have little application here. Respondent also contends that the General Counsel engages in mere speculation in alleging that stated future picketing action carried the probability of violating the Act. Here, however, the analogous case is Teamsters Local 126 (Ready Mixed Concrete), 200 NLRB 253 (1972), in the sense that a nonunion supplier was the only entity with whom the Union had a labor dispute and yet this configuration resulted in an attempted enmeshing of the neutral secondary property owner. Respondent observes that in NLRB v. Servette Inc, 377 U S. 46 (1964), the Supreme Court stated Finally, the warnings that handbills would be dis- tributed in front of noncooperating stores are not prohibited as "threats" within subsection (u). The statutory protection for the distribution of handbills would be undermined if a threat to engage in pro- tected conduct were not itself protected. [Servette, above at 57] The United States Supreme Court recently decided the tortuous litigation originating with the Board's holding in Florida Gulf Coast Building. Trades Council, 252 NLRB 702 (1980) In DeBartolo Corp. v Florida Gulf Coast Building & Trades Council, 108 S.Ct. 1392, decided April 20, 1988, the Supreme Court affirmed denial of enforce- ment of a later Board Order by the Court of Appeals for the Eleventh Circuit Fundamentally, the Supreme Court was not inclined to agree with the Board's interpretation of Section 8(b)(4) upon earlier remand, and notwith- standing the ordinary deference given to the Board's ap- plication of the statute believed that a different result was mandated The Supreme Court invoked NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1978), as a con- trolling proposition that where an otherwise acceptable construction of a statute would raise serious constitution- al questions, such construction should be avoided unless this would be plainly contrary to the intent of Congress. Tracing this rule to early 19th century holdings, the court rejected the Board's construction of the statute be- 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause as a Catholic Bishop matter this would pose "seri- ous questions of the validity of Section 8(b)(4) under the First Amendment." This near-contemporaneous decision by the Supreme Court does not, however, profit Respondent as a general matter in terms of the instant proceeding. Notably, the Court in DeBartolo Corp, supra, 108 S Ct. 1392, was ex- ceedingly influenced by the utter absence of any conduct by the labor organization other than "peaceful" handbill- ing. The Court went to considerable lengths to contrast this with hypothetical scenarios, and it also engaged in a meticulous analysis of legislative history in concluding that such "peaceful persuasion" was not forbidden. Given the unqualified pugnatiousness of Sexton's com- munication, Respondent's conduct here is not legitima- tized by DeBartolo Corp., in which a distinctly different fact situation was obtained. CONCLUSIONS OF LAW 1 Ramada, Inc., Baugh Construction Company and Chapman Mechanical are employers and persons en- gaged in commerce and in an industry affecting com- merce within the meaning of Section 2(2), (6), and (7) and Section 8(b)(4)(ii)(B) of the Act. 2. Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 32, AFL-CIO, is a labor organization within the meaning of Section 2(5) and Section 8(b)(4)(ii)(B) of the Act. 3 By threatening, coercing, or restraining Ramada, Inc. with an object of forcing or requiring Ramada, Inc to cease doing business with Baugh Construction Com- pany, or forcing or requiring Baugh Construction to cease doing business with Chapman Mechanical, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ORDER The Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, Local' 32, AFL- CIO, its officers, agents, and representatives, shall 1. Cease and desist from threatening, coercing, or re- straining Ramada, Inc., where an object thereof is to force or require it to cease doing business with Baugh Construction Company, or forcing or requiring Baugh Construction Company to cease doing business with Chapman Mechanical. 2. Take the following affirmative action is necessary to effectuate policies of the Act. (a) Post at Respondent's business office, meeting halls, and other places where notices to members are custom- arily posted copies of the attached notice marked "Ap- pendix."' Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by, the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Sign and mail sufficient copies of this notice to the Regional Director for posting by Ramada Inn, Baugh Construction Company, and Chapman Mechanical, if they are willing, at places where notices to their employ- ees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 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 " APPENDIX THE REMEDY Having found that Respondent has engaged in unfair labor practices prohibited under Section 8(b)(4)(ii)(B) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action designed to remedy these unfair labor practices and to effectuate policies of the Act. Disposition On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed3 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, restrain, or coerce Ramada Inn with an object of forcing or requiring it to cease doing business with Baugh Construction Company, or with the object of forcing or requiring Baugh Construc- 3 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 PLUMBERS ,LOCAL 32 (RAMADA, INC) tion Company to cease doing business with Chapman Mechanical at the Sea-Tac Airport job. ,UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING . INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 32, AFL- CIO 505