NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
International Brotherhood of Electrical Workers, Local
Union No. 98 and TRI-M Group,
LLC. Case
4–CB–9713
August 31, 2007
DECISION AND ORDER
By Chairman Battista and Members
Kirsanow and Walsh
On April 10, 2007, Administrative Law Judge Paul Buxbaum issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief, and the General Counsel and Charging Party filed answering briefs.
The National Labor Relations Board has delegated 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,1 and conclusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent,
International Brotherhood of Electrical Workers, Local Union No. 98,
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter N. Kirsanow, Member
______________________________________
Dennis P. Walsh, Member
(Seal)
National Labor Relations Board
Bruce G. Conley, Esq., for the General Counsel.
William T. Josem, Esq., of
Stephen J. Sundheim, Esq., of
DECISION
Statement of the Case
Paul Buxbaum, Administrative Law Judge. This case was tried in
The
complaint alleges that the
As
described in detail in the decision that follows, I find that on June 16 the
Union, through its agents, Raymond Della Vella, Craig Cummings, and Mike Quinn,
blocked an employee of the Company, Sean Muth, from accessing a portion of a
worksite and prevented that employee from performing a work task. The
On
the entire record,3 including my observation
of the demeanor of the witnesses, and after considering the briefs filed by the
General Counsel, the Company, and the
Findings of Fact
i. jurisdiction
The
Charging Party, a
ii. alleged unfair
labor practices
A. The Facts
This
case involves an incident occurring at the Genesis Health Care facility, a
nursing home located on
Beginning
in early April, the
Because
it is important to an assessment of one of the key issues in this case, it is
necessary to describe the location, manner, and purpose of the
Of
the two entrances to the facility, it is the eastern one that is involved in
this case. That entrance has a wide
section of concrete connecting
Della
Vella testified about the manner and purpose of the
On
Friday, June 16, the
Della
Vella testified that pickets were placed “at both entrances” to the Genesis
facility. (Tr. 111.) The two pickets at the east entrance were
union members Cummings and Quinn. Della
Vella was stationed across the street.
As he described it, “I was keeping an eye on both picket signs and I was
taking care of . . . general things I had to do.” (Tr. 111.)
Sean
Muth testified that he is a longtime employee of the Company. He is not a supervisor, nor is he a member of
any labor organization. He works as an
electrician and sometimes operates a backhoe.
At approximately 1 p.m. on June 16, Muth placed a load of construction
debris in the bucket of a backhoe. He
planned to drive the backhoe out onto
Muth
testified that he had a coworker stop traffic on
Counsel: Before
the incident started when you got in the backhoe with the debris, where were
the pickets standing and perhaps you can show us on the General Counsel’s Exhibit
GC-8?
Muth: More towards this end of the dumpster.
Counsel: In other words[,] towards the driveway?
Muth: Yes.
Judge:
So[,] as we’re looking at it, that’s towards the right of the dumpster?
Muth: Yes.
Counsel: [T]hen
a[s] you went into the street to approach the dumpster to make the dump, did
the pickets then move in front of the backhoe so that they were between—so that
they were now between the backhoe and the dumpster?
Muth: Yes,
they walked down from there to that point.
Counsel: They
walked from the original position which was to the right of the dumpster so
that they were no[w] positioned directly in front of the dumpsters so that you
could not make the dump?
Muth: That’s
correct, in front of the machine. [Tr.
101–102.]
On
this point, Della Vella’s testimony stands in sharp contrast to that of
Muth. I asked him, “[w]hat about immediately
prior to when the backhoe first came out onto the street, where were [the
pickets] then?” He responded that,
“[t]hey were in front of the dumpster.”
(Tr. 126.) This assertion forms
the basis for Della Vella’s explanation for what occurred next. He concedes that he instructed the pickets to
maintain a position in front of the dumpster.
He described his reasoning as follows:
I felt that
the backhoe was interfering with us. We
had been on that sidewalk standing in that very position for months and we
thought we were being interfered with, that we weren’t interfering with
anybody, we just thought we were being harassed. [Tr. 116.]
In
other words, the
There
are a number of reasons why I credit Muth’s account and discredit that of Della
Vella. First and foremost, Muth
testified in an impressively calm, dispassionate manner that left me with a
sense of his fundamental neutrality in this dispute. Second, although Della Vella claims that the
pickets were standing in front of the dumpster when Muth arrived, he earlier testified
that, in the phrasing of counsel, the two pickets were “picketing at that east
entrance.” (Tr. 111.) In other words, they would have been standing
at some distance from the dumpster.
Furthermore, the placement of the pickets at the entrance comports with
logic and common sense. The purpose of
the picketing was to alert the public about the terms of the
I
also note that the precise location of the two pickets as of the commencement
of this incident is key to the
In
sum, my finding that Muth’s account is credible is based on my assessment of
his demeanor and motivation as reinforced by the contradiction in Della Vella’s
testimony, the unexplained absence of other pertinent testimony, and the inherent
logic of the situation. I conclude that,
on observing Muth’s approach in the backhoe, the pickets moved from their prior
station at the east entrance and assumed a new position directly in front of
the dumpster.
General
Counsel’s Exhibits 7 and 12 clearly illustrate the situation as it existed once
the pickets moved into place in front of the dumpster. In these photos, union members Cummings and
Quinn, accompanied by Della Vella, are shown standing directly between the
backhoe’s bucket and the dumpster.11 There is no dispute regarding the remaining
events. Muth testified that he waited in
his machine. After 5 to 10 minutes, his
foreman, Prego, arrived. Prego
instructed him to return the backhoe to the facility’s parking lot. He complied. At this juncture, Herman also arrived on the
scene. He told the police officers that
Muth needed to dump the debris. Officer
Watterson told him to proceed. He
instructed Muth to start the backhoe.
Prego stopped the traffic on
According
to Herman, at this point Della Vella approached and told the police to instruct
Herman to “shut up.” (Tr. 69.) He then joined the other pickets in front of
the dumpster. Officer Watterson told
Herman he was going to instruct the pickets to move. He had a conversation with Della Vella that
lasted “a few minutes.” (Tr. 71.) Watterson directed Muth to move the backhoe
forward. Muth complied, but was again
required to stop because the pickets did not step out of the way. The officer again instructed Muth to move
forward. Muth inched another foot or so
closer to the dumpster. After some
minutes, Della Vella “directed his guys to move away.” (Tr. 73.)
Watterson instructed Muth to make his dump and Muth complied. There were no further problems at the site on
that day.
As
may be anticipated whenever multiple witnesses provide estimates of elapsed
time, there was some variance in the description of how long the incident
lasted. Prego estimated that 15 to 20
minutes elapsed between the time he first observed the pickets blocking the dumpster
and the end of the episode. Herman
reported that “about 20 minutes elapsed.”
(Tr. 80.) Muth testified that it
was between 30 to 35 minutes from his first attempt to dump until he was able
to accomplish his mission. Della Vella
estimated that the entire incident took “no more than ten minutes.” (Tr. 119.)
Under questioning by counsel for the Company, Della Vella was asked
whether “you and the other two pickets refused to move from your position in
front of the dumpster for at least, you said five to ten minutes, so that the
dumpster could not be reached or gotten to by the backhoe, correct?” He responded, “[t]hat’s correct.” (Tr. 127.)
Ultimately, it must be recalled that only two individuals who testified
were present throughout the events, Della Vella and Muth. For reasons already discussed, I credit
Muth’s account and find that the incident, in its entirety, last approximately
one-half an hour.
To
summarize, I have found that an employee of the Company, Muth, was engaged in a
work task requiring that he bring his backhoe into position to dump debris into
a dumpster. The
B.
Legal Analysis
The
General Counsel contends that the Union violated Section 8(b)(1)(A) of the Act
when its pickets, in the words of counsel’s opening statement, “moved and stationed
themselves on the public sidewalk running parallel to the dumpster directly in
front of the path of the backhoe.” (Tr.
11.) The pertinent portion of the
statute makes it an unfair labor practice for a labor organization or its
agents “to restrain or coerce employees in the exercise of the rights
guaranteed in Section 7.”13 The Board’s venerable test for application of
this standard is whether the conduct in question is “reasonably calculated to
coerce anti-union or non-union [employees] in the exercise of their right,
under the amended Act, to refrain from joining the
Over
the years, the Board has consistently found that the blocking of access to an
employee’s workplace constitutes unlawful restraint and coercion. Early on, it held that pickets who placed
themselves in the path of employees’ vehicles attempting to enter an employer’s
plant violated Section 8(b)(1)(A). Longshoremen ILWU Local 6 (Sunset Line &
Twine Co.), 79 NLRB 1487, 1506 (1948).
Similarly, blocking the door of a facility so as to prevent an employee
from entering was also found to violate that Section. Metal
Polishers, Local 67, 200 NLRB 335 (1972).
Much more recently, this principle was again upheld by the Board while affirming
a judge’s observation that “efforts to prevent employees from reporting to work
by impeding access to an employer’s facility [are] proscribed by this
Section.” Service Employees Local 525, 329 NLRB 638, 685 (1999), affd. 52
Fed. Appx. 357 (9th Cir. 2002). Furthermore,
the prohibition against blocking access is not limited to conduct directed
against employees who are arriving for, or departing from, work. The Board has also found it unlawful for
pickets to block “employees from entering the [employer’s] facility to perform
assigned tasks.” Mine Workers District 17 (Dehue Coal), 275 NLRB 715 (1985).
In
applying these principles, the Board has been clear that the mere absence of
violence is not a defense. Thus, in Carpenters (
The absence of
physical violence does not lessen the restraining effect of Respondent’s
conduct. Here . . . [t]he car drivers
were faced with the choice of running down the pickets, at the risk of
inflicting serious injury, or driving away.
This interposition of passive force to prevent employees from going to
work is, we believe, a form of restraint proscribed by Section 8(b)(1)(A).
Metal Polishers, Buffers, Intl. Local 67, 200 NLRB 335 (1972), at fn. 10. See
also Service Employees Local 525,
supra at 685 (nonviolent conduct that includes prevention of access to employer’s
facility violates the Act).
The
Board has also held that the short duration of prohibited conduct of the type
at issue in this case is not a defense.
See Longshoremen ILWU Local 6
(Sunset Line & Twine Co.), supra at 1506 (preventing nonstriker’s cars
from entering parking lot “for only a short period of time” constituted
restraint and coercion within the meaning of Section 8(b)(1)(A)). Indeed, the Board has reversed a conclusion
that “a delay of one to five minutes under peaceful circumstances hardly
constitutes blocking or barring ingress so as to constitute a violation of the
Act.” Instead, the Board held that,
“[s]uch a construction is at variance with established Board law.” Metal
Polishers, supra at 336. Counsel for
the
Finally,
the Board has declined to withhold administrative action simply because the
conduct at issue implicated the interests of state or local law
enforcement. In Service Employees District 1199 (
With
this background in mind, it is readily apparent that the Union’s conduct in
moving from a position by the entrance to the Genesis facility to a location
clearly intended to preclude Muth from accessing his worksite to complete a job
task and in maintaining that blocking position for approximately 30 minutes
constituted the sort of restraint and coercion made unlawful by Section
8(b)(1)(A). Muth was presented with
precisely the type of situation discussed by the Board in Sunset Line & Twine Co., supra.
He could either take the risk of inflicting serious bodily injury on the
pickets or refrain from accessing the dumpster to complete his task. The imposition of such a dilemma on a
nonunion employee is the sort of restraint and coercion prohibited by the Act.15
Conclusion of Law
By moving its pickets into a position designed to preclude
an employee of the Company from accessing his worksite in order to complete a
work assignment and by maintaining that blocking position for approximately 30
minutes, the Union has engaged in an unfair labor practice affecting commerce
within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act.
Remedy
Having
found that the
In
his complaint, the General Counsel served notice that he would be seeking a
broad order requiring the Union to cease and desist from blocking employees’
ingress and egress to jobsites, impeding employees from performing services at
their jobsites, or, in any other manner restraining or coercing employees in
the exercise of their rights guaranteed by Section 7 of the Act. Because it both broadens the types of
misconduct enjoined and the scope of coverage to include employees of all employers,
this proposed remedy goes beyond the relief that is typically granted.
The
Board’s power to impose a remedy for unfair labor practices stems from the language
of Section 10(c) of the Act, which provides that, upon a finding that a
respondent has committed an unfair labor practice, it shall issue “an order requiring
such person to cease and desist from such unfair labor practice, and to take
such affirmative action . . . as will effectuate the policies of this
Act.” The Supreme Court has observed that
this is a Congressional grant of authority that is broad and yet rather
vague. The Court held that, “at a
minimum it encompasses the requirement that a proposed remedy be tailored to
the unfair labor practice it is intended to redress.” Sure-Tan
v. NLRB, 467
The
Supreme Court has also addressed the standards for imposition of the precise
type of relief being sought in this proceeding.
In NLRB v. Express Publishing Co.,
312 U.S. 426, 437 (1941), it held that the justification for a broad order
must be that its provisions “bear some resemblance to that which the
[respondent] has committed or that danger of their commission in the future is
to be anticipated from the course of his conduct in the past.”
Applying
the Court’s teachings, the Board has developed a test for gauging the
appropriateness of any request for a broad order. In Hickmott
Foods, 242 NLRB 1357 (1979), a case involving violations of the same section
of the Act as found here, the Board held that:
[A
broad] order is warranted
only when a respondent is shown to have a proclivity to violate the Act or has
engaged in such egregious or widespread misconduct as to demonstrate a general
disregard for the employees’ fundamental statutory rights. Accordingly, each case will be analyzed to
determine the nature and extent of the violations committed by a respondent so
that the Board may tailor an appropriate order.
[Footnote omitted.] [
It concisely
summarized its test by noting that “repeat offenders and egregious violators”
would be subject to imposition of a broad cease-and-desist order. 242 NLRB at 1357. Very recently, the Board has provided an additional
commentary on its Hickmott Foods
standard. In Five Star Mfg., 348 NLRB No. 94, slip op. at 1 (2006), it noted
that, while considering imposition of a broad order under Hickmott, “the totality of circumstances” must be examined to
determine whether the respondent’s behavior manifests, “an attitude of opposition
to the purposes of the Act to protect the rights of employees generally, which
would provide an objective basis for enjoining a reasonably anticipated future
threat to any of those Section 7 rights.”
(Internal quotation marks and citation omitted.)
Turning
to the application of these principles, I begin by noting that the General
Counsel and the Company do not contend, and the evidence does not establish,
that the violation committed in this case, standing alone, was of such an egregious
nature as to justify imposition of a broad order. In fact, the violation, while clearly
implicating important Section 7 rights, was confined to a single episode and
employed passive force rather than any form of overt threat or violence. Furthermore, following intervention by local
law enforcement authorities, the
The
record contains the following undisputed documentation regarding the
On
July 7, 1998, an administrative law judge issued a decision finding that, in
March 1997, the Union, through its agents, violated Section 8(b)(1)(A) of the
Act by physically assaulting employers and destroying their property in the
presence of employees and by pushing an employee against a wall. The judge also found other violations of
Section 8(b) involving threats and inducements to an employer to cease doing
business with another entity and unlawful picketing activities designed to accomplish
the same objective. Many of these
additional unlawful acts were found to have occurred in October 1997, just 3
months after the Board had entered its order in the previously cited case. In her decision, the judge also granted the
General Counsel’s request for a recommendation of a broad cease-and-desist
order as to future violations of Section 8(b)(4)(i)(B) and (ii)(B). She explained her reasoning as follows, Electrical Workers Local 98 (Telephone
Man), 327 NLRB 593, 602 (1999):
Respondent’s
unlawful actions toward 10 separate neutral employers in a 19-month period,
involving picketing, threats to picket, and work stoppages at six locations in
the Philadelphia area, demonstrates Respondent’s proclivity for violating the
Act and its general disregard for the fundamental rights of employees and
neutral employers. A narrow order,
confined to the instant case, would not sufficiently deter further misconduct. I therefore recommend that the Board issue a
broad order requiring the Respondent to cease and desist from infringing in any
other manner on rights guaranteed employees by Section 7 of the Act. [Citations omitted.]
The
judge’s proposed broad order enjoined the
Just
months after the Board issued its decision in Electrical Workers Local 98 (Telephone Man), above, the
In
January 2000, the
In this regard, we note not only that the record in this
case supports the conclusion that Local 98 has a proclivity to engage in
wrongful conduct in order to obtain disputed work, but also that the record in
other recent cases before the Board underscores this as well. See, e.g., Electrical Workers Local 98 (Total Cabling Specialists), 337 NLRB
1275 (2002); Electrical Workers Local 98
(NFF Construction, Inc.), 332 NLRB 1262 (2000); Electrical Workers Local 98 (Honeywell, Inc.), 332 NLRB 526 (2000);
Electrical Workers Local 98 (AIMM, Inc.),
331 NLRB 1075 (2000); Electrical
Workers Local 98 (Kastle Security), 324 NLRB 728 (1997); Electrical Workers Local 98 (LaSalle
University), 324 NLRB 540 (1997); Electrical
Workers Local 98 (Lucent Technologies), 324 NLRB 226 (1997) (Board issues
broad areawide award against Local 98 because of likelihood of dispute’s
recurrence and union’s proclivity to violate the Act); and Electrical Workers Local 98 (Lucent Technologies), 324 NLRB 230
(1997) (Board issues broad areawide award against Local 98 because of
likelihood of dispute’s recurrence and union’s proclivity to violate the Act).
[
This
case is also significant because the
Approximately
a year later, on September 16, 2003, the Third Circuit entered a consent order
implementing the parties’ stipulation resolving the contempt proceedings
against Local 98 and Della Vella. As
part of that order, Della Vella was required to pay to the Board the sum of
$5000 “representing a compromised amount of fines, compensatory damages and/or
attorneys’ fees caused by Della Vella’s failure to comply with the picketing
and other provisions of the Court’s prior order.” (C.P. Exh. 1, consent order, p. 1.) The Court further directed that the amount
paid by Della Vella could not be reimbursed to him by the
While
all this litigation was underway, the General Counsel was also prosecuting another
highly relevant case against Local 98.
On June 23, 2000, an administrative law judge issued a decision in Electrical Workers Local 98 (MCF Services), 342
NLRB 740 (2004). The judge’s detailed
description of the
[He] testified
that as he drove his forklift to the dumpster [Local 98 Organizer] Browne drove
his vehicle, a black Lincoln Continental, between the forklift and the dumpster
. . . Browne kept his car in the same blocking position for about 15–30
minutes, thus preventing him from completing his chore, after which he drove
away. [
The
judge credited this testimony and found a violation of Section 8(b)(1)(A).20 He
also found additional violations based on misconduct that was similar in nature
to the events that transpired here, including blocking activity by pickets that
prevented an employee from “reentering the jobsite after he had exited
momentarily to retrieve something from his truck” and preventing employees from
driving their vehicles into the entrance to a worksite. 342 NLRB at 757 and 758.
The
second reason that MCF Services is of
significance to the issue under consideration by me is that, once again, one of
the Local 98 officials involved in unlawful picketing activities was Della
Vella. As the judge described an employer’s representative:
McGlure asked
if Della Vella was going to let any of UPS’ vehicles in or out of the
. . .
Consistent with Della Vella’s remarks, certain vehicles
seeking to enter and leave the
The
judge found this conduct to be unlawful and formally concluded that, “Local 98
has further violated Section 8(b)(1)(A) of the Act by blocking the egress and
ingress of employees and vehicles at the UPS and PPH jobsites.”
As
in Telephone Man, the General Counsel
requested that the judge recommend a broad order directed at potential future
violations of Section 8(b)(4)(i) and (ii)(B) of the Act, but did not seek such
relief as to possible misconduct in violation of Section 8(b)(1)(A). The judge, citing the
As evident by
its conduct here, Local 98 has not changed its ways. Indeed, Local 98 has, by its conduct herein,
demonstrated a deliberate and near contemptuous disregard for the Board’s
processes and remedial orders, and has again shown its proclivity to violate
the Act a well as a general disregard for the fundamental rights of employees
and neutral employers. In these
circumstances, a broad order is both appropriate and necessary. [Footnote omitted.] [342 NLRB at 763.]
On
July 30, 2004, the Board affirmed, in pertinent part, the judge’s findings and
conclusions, including the finding that “Browne used his vehicle to block [an
employee] from operating a forklift for about 15–30 minutes.” [Footnote omitted.] 342 NLRB at 741. In addition, the Board adopted the judge’s
proposed order. That order required that
Local 98 cease and desist from:
Interfering with, restraining, or coercing employees of
employers performing work at the Cheltenham, PPH, and UPS jobsites, or of any
other employer, by threatening them with physical harm, photographing them as they enter and leave their workplace, and blocking
them and their vehicles from entering or leaving their jobsites or, in any
other manner interfering with the rights guaranteed to employees by Section 7
of the Act. [342 NLRB at 763.]
On September
14, 2006, the Board petitioned the Third Circuit for enforcement of this
order. (GC Exh. 5.) That matter is pending.21
With
this dismal record of misconduct as background, I must now determine whether
the
In
response, counsel for the
In
the case before me, the misconduct occurred on June 16, 2006. The most recent related prior misconduct by
both the
I,
nevertheless, conclude that it is necessary and appropriate to recommend the imposition
of a broad order in the unique circumstances of this case. I do so for two reasons. First, I take note that labor organizations,
just as corporations, are not independent actors possessed of their own free
will. Rather, they operate in the world
through the decisions of the human beings who hold the power to direct and
control them.23 I have considered this reality in assessing
the proper remedy for this violation. I
recognize that it would be unfair to overemphasize the meaning of old
violations by such an organization in the absence of indications that the
attitudes underlying such violations persist among the persons who currently manage
their affairs. The converse of such a
recognition also applies with equal force.
It is particularly appropriate to hold such an organization to account
for the harmful attitudes of its officials where the evidence shows continuity
of tenure and behavior by those same individuals. Thus, it is of particular probative weight
that the “boss” of the pickets who directed and controlled the activities that
prevented Muth from performing his job was the same person who has a
substantial prior history of violations of the Act. (Tr. 69.)
The record demonstrates that the Board’s remedial measures have not led
to a change of attitude on the part of Della Vella. Nor have they resulted in a change in the
In
addition, I find it highly significant that Della Vella’s recidivist conduct
occurred less than 3 years after the Third Circuit’s entry of a consent order
against him. That judgment provided a
broad range of rather inventive remedies designed to achieve future compliance
with the law. In addition to the punitive
sanction, it included strong remedial measures intended to educate the
Respondent and
Della Vella were also on notice as a result of the Consent Order issued in
2003, even though the conduct underlying that matter did not involve issues of
Section 8(b)(1)(A) of the Act, that they still [had] to take precautions in
conducting any future picketing.
(GC Br. at p.
20.) Alas, these measures appear to have
been less than fully effective.
As
I have noted earlier, the Board has very recently stressed the need for a
comprehensive assessment of the totality of circumstances when deciding whether
a respondent’s attitude of hostility to the purposes of the Act provides a
proper basis for imposition of broad relief.
Five Star Mfg., supra. In my view, the passage of less than 3 years
since the imposition of a contempt judgment against the
In
concluding that the broadest form of relief consistent with the Act’s remedial
purposes is necessary and appropriate in this case, I have placed particular
emphasis on the
We further
find that the Respondent’s violations in this case, considered against the
background of similar events in [the prior case] and giving particular emphasis
to the behavior of the Respondent’s business agent
In
my view, it is equally likely that Local 98 and its agent, Della Vella, may
engage in various types of misconduct against employees of this employer and
other employers in violation of Section 8(b)(1)(A) of the Act and in
contravention of the Section 7 rights of employees of this employer and other
employers.
Finally,
in reaching this conclusion, I have weighed the limited nature of the violation
in this case and the evidence showing that the conduct, standing alone, was not
violent or otherwise egregious. While
significant, this cannot override the compelling weight of the evidence
demonstrating an extensive history of misconduct, an ingrained hostility to the
Act’s purposes, and a persistent disregard of the remedial measures previously
imposed by the Board and the court of appeals.
It is those considerations which impel me to recommend imposition of the
relief requested by the General Counsel.
On
these findings of fact and conclusions of law and on the entire record, I issue
the following recommended24.
ORDER
The
Respondent, International Brotherhood of Electrical Workers, Local Union No.
98,
1.
Cease and desist from
(a)
Restraining or coercing employees of Tri-M Group, LLC, or any other employer,
by blocking them from entering a jobsite or performing a work task.
(b)
In any other manner restraining or coercing employees of Tri-M Group, LLC, or
any other employer, in the exercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a)
Within 14 days after service by the Region, post at its union office in
(b)
Sign and return to the Regional Director sufficient copies of the notice for
posting by Tri-M Group, LLC, if willing, at all places where notices to
employees are customarily posted.
(c)
Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not restrain or
coerce employees of Tri-M Group, LLC, or any other employer, by blocking them
from entering a jobsite or performing a work task.
We will not in any other
manner, restrain, or coerce employees of Tri-M Group, LLC, or any other
employer, in the exercise of the rights guaranteed to them by Federal labor
law.
International
Brotherhood of Electrical Workers, Local Union No. 98
1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
2 In affirming the judge’s granting of a broad cease-and-desist order, we do not rely on his conclusion that conduct occurring 4 or more years prior to the violation at issue cannot be considered in determining whether a party is a recidivist offender of the Act. Rather, we will assess the totality of the circumstances in each case, including the applicable dates of misconduct and prior Board and court orders, to determine whether a broad order is warranted. See generally Five Star Mfg., 348 NLRB No. 94 (2006). Under these circumstances, we find that the record sufficiently establishes that the Respondent has a proclivity to violate the Act, and thus warrants our adoption of the judge’s broad order.
2 At trial, counsel for the General Counsel moved to amend the complaint to reflect the Charging Party’s correct name and form of organization under Pennsylvania law. This motion was unopposed, and I granted it.
3 Counsel for the General Counsel has filed a motion to correct the transcript. His page reference numbers differ from those in the official transcript furnished to the Board by the reporting service. As a result, I am unable to verify his suggested corrections. Fortunately, as is apparent from the brevity of his motion, there are