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,
Metropolitan Regional Council of Carpenters, Southeastern
Pennsylvania, State of Delaware and Eastern Shore of Maryland, United Brotherhood
of Carpenters and Joiners of America and
Adams-Bickel Associates, Inc. and
Penn Valley Constructors, Inc. Cases 4–CC–2463
and 4–CC–2482
October 18, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and Walsh
On June 1, 2007, Administrative Law Judge Paul Buxbaum issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Parties filed an answering brief.
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.
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Metropolitan Regional Council of Carpenters, Southeastern Pennsylvania, State of Delaware and Eastern Shore of Maryland, United Brotherhood of Carpenters and Joiners of America,
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Donna D. Brown, Esq., for the General Counsel.
Stephen J. Holroyd, Esq., of
Stephen J. Sundheim, Esq., of
DECISION
Statement of the Case
Paul Buxbaum, Administrative Law Judge. This case was tried
in
The first
complaint alleges that the Union, through its agent, threatened a
representative of 421 Chestnut Partners LP (CPLP) that the
The second
complaint alleges that the Union, through its agent, threatened a representative
of Penn Valley by telling him that the Union would cause those of its members
who are employed by a subcontractor, P.A. Fly Contracting, Inc. (PA Fly), at
the site of one of Penn Valley’s projects to refuse to unload and install
cabinetry manufactured by American Millwork Cabinetry, Inc. (American Millwork)
that was to be delivered to that site unless American Millwork and the Union
reached an agreement prior to the delivery.
It is further alleged that an object of the Union’s conduct was to force
In both
complaints, the General Counsel served notice that it would be seeking the imposition
of a broad cease-and-desist order against the
As described in
detail in the decision that follows, I find that 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 Companies, and the
Findings of Fact
i. jurisdiction
The Charging
Party, Adams-Bickel, a
ii. alleged unfair labor practices
A. The Facts
Involving Adams-Bickel
The General
Counsel alleges that, on May 3, an agent of the
Strine reported
that the
By 2006,
development of the building had progressed to the point that individual
condominium owners were completing the work on their units. Adams-Bickel had been hired to perform this
work for two of those units. In late
April, members of a union representing employees involved in the field of elevator
construction picketed the
Strine testified
that he had received several telephone messages from Jones. On May 3, he returned the calls. Strine asked the reason for the contact and
Jones informed him that he was an official of the
After some
discussion about the concept of unfair wages, Jones told Strine that he had
formed the impression that Adams-Bickel was using unfair contractors and added,
“If that’s the way that it’s going to go[,] the building is going to have a
problem.” (Tr. 24.) This caused Strine to inquire as to the meaning
of “problem.” Jones explained that this
meant, “[p]rotests, work stoppages and problems with deliveries.” (Tr. 24.)
Strine asked what could be done to avoid such problems. Jones appeared to sidestep a direct response,
instead making reference to other potential difficulties involving other labor
unions.
At this point in
their conversation, Strine opined that he did not understand why Jones was
discussing these issues with him. He
noted that CPLP did not have any contractual relationship with Adams-Bickel and
suggested that Jones approach Gus Perea, a principal of that firm. Jones advised that he had talked to
Perea. As Strine put it, “[a]nd he added
that he wanted to talk to me because he didn’t have to be as careful about what
he said, when he talked to Gus Perea he had to watch what he said.”[7] (Tr. 25.)
The conversation then returned to the situation involving Aloia and the
elevator union.
Strine testified
that Jones, “then turned the subject back to Adams-Bickel and the idea of the
unfair contractors.” (Tr. 26.) He warned Strine that, “[l]ook, if
Adams-Bickel is in there and there’s going to be a fight, its going to go one
way and it’s not going to be a good way.”
(Tr. 26.) Strine expressed his puzzlement
over this threat since he had no relationship with Adams-Bickel and his own
contractors employed union labor. He
noted that he had no control over the choices made by individual unit
owners. Jones expressed some sympathy
for this argument, agreeing that, “[w]e know that initially you did the right
thing.” (Tr. 26.) At this juncture, Jones finally got to his
point, explaining that, “we just want you to use some of your juice[8] to
convince Adams-Bickel to use fair contractors.”
(Tr. 26.)
Strine expressed
surprise that the
B. The Facts
Involving
Regarding
The testimony
revealed that
Reitz presented
testimony that serves as background and context for the conversation between
Jones and McCardle that is the subject matter of this complaint allegation. He reported that he was first approached by a
representative of the
Approximately 1 year
later, Reitz received a telephone call from another person acting on behalf of
the
Reitz was again
contacted by the
[t]here was also further conversation
that basically if—since we were an open shop[,] he was going to instruct his
carpenters not to unload the custom case work from our truck and he repeated
that statement again[,] saying that if it wasn’t made union it was not going to
be unloaded.
(Tr. 54.)
Reitz testified that Jones ended their conversation by asserting that,
“if the cabinets were not union made[,] the[y] would not be unloaded.” (Tr. 55.)
Under cross-examination, he reiterated that Jones warned him that, “no
millwork was going to be unloaded unless it was from a union shop.” (Tr. 59.)
I asked Reitz to
amplify his explanation of what Jones was telling him in this conversation. He explained that Jones had told him that,
“[t]here was going to be a picket line, that cabinets would not be—he was going
to instruct his—the Carpenters, meaning I guess under his jurisdiction, that
they were not going to unload any millwork from American Millwork.” (Tr. 63.)
Reitz concluded that this would be an effective threat because he
inferred that the union members employed by his delivery and installation
subcontractor, PA Fly, would refuse to cross such a picket line.
Later that same
day, Reitz received another telephone call made jointly by Jones and
Johnson. The purpose was to discuss,
“unionizing my shop.” (Tr. 55.) Reitz explained that, due to the fire and
other factors, he was not ready to make any commitments. Jones responded that, “this phone conversation’s
not going in the right direction.” (Tr.
55.) With that, Jones’ participation in
the call terminated.
On the same day
that Reitz reported he had the conversations with Jones, McCardle also
indicated that Jones approached him.
They spoke at the brewery worksite.
Jones told McCardle that Reitz was “jerking them around.” (Tr. 69.)
McCardle asked what he meant and Jones explained:
Let me put it this way, . . . I just want
to give you a heads up, . . . and frankly I shouldn’t even be saying
this to you[13] but if an agreement isn’t worked out
between American Millwork and the Union[,] the truck’s not getting unloaded . .
. Let me put it this way, if—my men are not going to unload that truck if
something’s not worked out between American Millwork and the Union.
(Tr. 69–70.) McCardle testified that Jones went on to “ask
me to call George Reitz and see if there was something I could do about
it.” (Tr. 70.) McCardle reported that he did make such a
call to Reitz.
On the next day,
Johnson again phoned Reitz to discuss unionizing American Millwork. Reitz “laid out a three-point plan” to
address the topic and said he would get back to Johnson in a couple of
weeks. (Tr. 61.) One day later,
In order to
complete the picture surrounding these events, Reitz and McCardle testified
that the millwork was to have been delivered on December 11. This was postponed until early January. McCardle reported that the delay was,
[b]ecause of the threats of a picket
line. We didn’t want a picket line
because everybody was on—union and if there’s a picket line every—we lose
everybody. . . . They won’t cross the picket line, all the other trades.
(Tr. 70.)
In addition, McCardle testified that he knew that PA Fly would not
unload American Millwork’s product because the subcontractor’s owner, “didn’t
want to jeopardize his standing with the
On December 26,
the Regional Director filed the complaint, alleging that Jones’ conversation
with McCardle on December 5 constituted unlawful secondary activity. The
Five days later,
PA Fly attempted to make the delivery of American Millwork’s products to the
microbrewery. McCardle testified that on
that day, January 3, 2007, he was waiting for the delivery truck outside the
jobsite early in the morning. After the
truck arrived, two men stationed themselves in front of the door to the brewery
with picket signs stating that, “American Millwork is unfair to local . . .
Carpenters Council.”[14] (Tr. 71.)
All of the employees of the other subcontractors on the site refused to
cross this picket line. As a result,
McCardle sent the delivery truck away.
Reitz and McCardle reported that the delivery was accomplished several
days later, after Reitz had threatened PA Fly with a breach of contract
action. There were no pickets at the
site on the day of the successful delivery.
C. Legal Analysis
The General
Counsel contends that the Union has twice violated Section 8(b)(4)(ii)(B) of
the Act through statements made by its agent to Strine and McCardle, representatives
of CPLP and
It shall be an unfair labor practice for
a labor organization or its agents . . . to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is . . . forcing or requiring any person to cease
using, selling, handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease doing business with
any other person, or forcing or requiring any other employer to recognize or
bargain with a labor organization as the representative of his employees unless
such labor organization has been certified as the representative of such
employees under the provisions of Section 9.[15]
This language forms a portion of an
overall legislative plan designed,
with the dual congressional objectives of
preserving the right of labor organizations to bring pressure to bear on
offending employers in primary labor disputes and of shielding unoffending
employers and others from pressures in controversies not their own.
NLRB v.
[t]he two prerequisites for the finding
of an 8(b)(4)(ii)(B) violation are: (1)
that a labor organization threaten, coerce or restrain any person; and (2) that
an object of this conduct be to force one person to cease doing business with
another person.” [Internal quotation marks
and citations omitted.]
Sheet Metal Workers Local
27, 321 NLRB 540, 547
(1996). Another of my colleagues has
noted that the definition of coercion under the statute is “broad” and
“pragmatic” and the Board “has not hesitated to include varied forms of
economic pressure within the conceptual ambit.”
(Internal quotation marks omitted.)
Carpenters (
Long ago, the
Board pointed out that, “in any of these secondary boycott situations the
ultimate determination depends upon the
Finally, in
laying the foundation for analysis of the issues in this case, it is worth
citing the summary provided in a recent treatise on the Act’s secondary boycott
provisions, where it was concluded that,
[m]ost common in this area are threats to
picket, shutdown or strike. The Board
has routinely held that unqualified threats[16] of this nature directed at a secondary
or neutral party violate section 8(b)(4)(ii)(B). Failure to carry through the threat does not
provide a defense to the assertion that the threat, itself, rises to the level
of section 8(b)(4)(ii) . . . . The Board has also held that threats of economic
pressure against neutral persons constitute section 8(b)(4)(ii) conduct. In this regard, even unspecified threats of
“trouble” have been found to be violative.
Again, as in other areas of Board law, subjective interpretations of the
listener are irrelevant to the analysis; instead, the focal point for
consideration is the specific language used.
The Board assesses those words on a case-by-case basis, taking into account
the entire nature of the conversation at issue.
[Footnotes omitted.]
Richard A. Bock, Secondary Boycotts:
Understanding NLRB Interpretation of Section 8(b)(4)(B) of the National
Labor Relations Act, 7 U. Pa. Lab. & Emp. L. 905, 932, summer 2005.
With these
principles as background, I will now assess the
The case law is
replete with interesting discussions of whether vague threats about future
“problems” or “troubles” violate the Act.
See, for example, Lafayette
Building & Construction Trades Council (Southern Construction Corp.), 132
NLRB 673 (1961) (“trouble”); Carpenters
(Apollo Dry Wall), 211 NLRB 291 (1974) (“trouble” and “problems”); United Mine Workers District 12 (Old Ben
Coal Co.), 239 NLRB 800 (1978) (“problems”); Laborers Local 1030 (Exxon Chemical Co.), 308 NLRB 706 (1992)
(“problems”); and Carpenters (Society
Hill Towers Owners’ Assn.), supra (“trouble” and “problems”). Fortunately, I do not need to determine where
the Board’s proverbial chips would fall regarding Jones’ prediction of a
problem in this case. Not being content
with such a vague formulation of his intentions, Jones provided a crystal clear
warning that what he was predicting and threatening were protests, work
stoppages, and interruptions of deliveries.
In response to
an inquiry from a circuit court, the Board explained that when a union’s
promise to refrain from future picketing,
is conditioned upon some action to be
taken by the neutral general or prime contractor, such conduct constitutes a deliberate
entanglement of a neutral person in a dispute not his own and is violative of
the secondary boycott provision of the Act.
Electrical Workers Local
441, , 222 NLRB 99, 101
(1976), affd. 569 F.2d 160 (DC Cir. 1977).
Thus, Jones’ warning of protests and delivery interruptions, coupled
with his demand that Strine use his influence against the offending contractor
hired by the condominium owners, constituted a blatant example of restraint and
coercion of a neutral party in a labor dispute.
While the
In his brief,
counsel for the
Turning now to
the allegation of misconduct directed against Penn Valley, the uncontroverted
evidence showed that Jones told the Company’s superintendent at the Chestnut
Street worksite that, “if an agreement isn’t worked out between American
Millwork and the Union[,] the truck’s not getting unloaded . . . my men are not
going to unload that truck.” (Tr. 69–70.) After posing this as the dilemma facing
The General
Counsel presented significant additional evidence regarding the context in
which Jones’ conversation with McCardle occurred. Reitz testified that, earlier on the same
day,[18]
Jones warned him that, if he did not come to terms with the
The Board’s
precedents reveal that a union’s attempt to attain a bargaining relationship
with a primary employer by applying pressure to a secondary target in order to
enlist that firm’s assistance in achieving the desired objective constitutes a
violation of Section 8(b)(4)(ii)(B). As
the administrative law judge put it in Operating
Engineers Union 3, 340 NLRB 1053, 1056 (2003), “the Act makes clear, a
threat to shut down a general contractor’s job in order to pressure a
subcontractor to sign an agreement with a union covering the uncertified employees
of the subcontractor is improper secondary conduct prohibited by the Act.” See also Sheet
Metal Workers Local 104 (Losli International), 297 NLRB 1078, 1083 (1990)
(union’s threat that it “would not allow equipment to go in” and that the primary
“would have no cooperation from the other trades” at the worksite violated the
Act).[20]
It is clear to
me that Jones was threatening McCardle that if he did not either dispense with
American Millwork as his subcontractor or apply pressure to Reitz to reach
agreement with the Union, the Union would picket Penn Valley’s jobsite and that
one of the consequences of this activity would be to cause those members of
various other unions employed at that jobsite to withhold their services to
their respective employers. While Jones
may not have spelled out his intent in exactly these terms, I conclude from
consideration of the entire context that this was his plain meaning.[21]
As the Board has
noted, “[v]ague or guarded threats” must be given meaning by the “surrounding
conduct and events.” Laborers Local 1030 (Exxon Chemical Co.), 308
NLRB 706, 708 (1992). That the
objectives of the threat were unlawful was demonstrated by the
The essence of
this matter may be highlighted by noting that counsel for the
Conclusions of Law
1. By
threatening to cause protests, work stoppages, and delivery problems for CPLP
with the objective of forcing CPLP to pressure other persons with whom it had
contractual relationships to cease doing business with Adams-Bickel, the Union
has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.
2. By
threatening to cause employees that it represents at Penn Valley’s worksite to
refuse to unload and install products manufactured by American Millwork with
the objectives of forcing Penn Valley and PA Fly to cease doing business with
American Millwork and to force Penn Valley to pressure American Millwork to
recognize and bargain with the Union despite the Union’s lack of certification
as representative of American Millwork’s labor force, the Union has engaged in
unfair labor practices affecting commerce within the meaning of Section
8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The appropriate relief includes the imposition of a cease-and-desist
order and the requirement for the posting of a notice.
In each of the
complaints filed in this case, the General Counsel served notice that he would
be seeking a broad order requiring the
cease and desist from any conduct prohibited
by Section 8(b)(4)(ii) of the Act where an object is to force or require any
person to cease using, selling, handling, transporting or otherwise dealing in
the products of any other person, or to cease doing business with any other
person.
(GC Exhs. 1(j) and (o).) Because it both broadens the types of misconduct
enjoined and the scope of coverage to include all potential secondary parties,
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), 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 . . . 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.]
242 NLRB at 1357. 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., Inc., 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 . . . which
would provide an objective basis for enjoining a reasonably anticipated future
threat.” (Internal quotation marks and
citation omitted.)[23]
In her opening
statement, counsel for the General Counsel explained that the request for a
broad order was premised on the Union’s “demonstrated proclivity to violate
Section 8(b)(4)(ii)(B) of the Act, its general disregard for the right of
[neutral] employe[r]s and blatant disrespect for the Board and its
processes.” (Tr. 14.) In order to evaluate the appropriateness of
this request for relief, the starting point must be an examination of the
The earliest
instances of unlawful activity cited by the General Counsel occurred during the
summer of 1999. This involved secondary
activity at the Society Hill Towers Owners’ Association construction project
designed to force Society Hill to cease doing business with the Smucker
Company. The specific form of misconduct
involved the use of a sound amplification system at excessive volume levels to
coerce compliance with the
During
approximately the same period in the summer of 1999, the
On September 14,
1999, the General Counsel issued the complaint in the case arising from the
Union’s conduct at
While the Society Hill Towers litigation was
continuing before the Board, the
On August 27,
2001, the Board issued its decision in Carpenters
(
Barely more than
2 months later, on November 2, 2001, an agent of the Union threatened a general
contractor, Cutler Associates, Inc., that it would picket the company’s jobsite
with the objective of forcing Cutler to cease doing business with one of its
subcontractors, Vision Contract Flooring, Inc.
On the 3 days immediately following this conversation, the
The complaint
involving the
Just a month
after these events, on February 8 and 11, 2002, the Union engaged in secondary
picketing at a jobsite involving the renovation of a United States Army Reserve
Center with objectives of forcing Harkins & Harkins Mechanical Services,
Inc., to cease doing business with USA Environmental Management, Inc., and
forcing USA Environmental to cease doing business with Boncouer Construction Company. A complaint alleging this misconduct was
issued February 27, 2002. (Complaint in
Cases 4–CC–2350-1 and 4–CC–2350–2, GC Exh. 3.)
A week after the
issuance of this complaint, on March 7, 2002, the
The General
Counsel issued complaints against the
The flurry of
litigation spawned by the
From July 2002
through September 2004, the
Approximately 6
months after entering into the formal settlement stipulation discussed above,
the
I certainly
realize that this long and melancholy recitation of dates and documents must
cause even an interested reader’s eyes to glaze over. Thus, it is particularly important that I
urge that reader to take heed of the temporal relationship between this past
history and the events of the current case.
It will be recalled that the Regional Director filed the complaint in
Case 4–CC–2450 on February 16, 2006.
While this was pending, Jones unlawfully threatened Strine on May
3. Little more than a week later, the
parties’ settlement of the earlier case was signed by the Regional Director. Only slightly more than a month after that,
on June 19, the Regional Director issued the charge in this case arising from
Jones’ threats to Strine. On October 31,
2006, the Third Circuit entered not one, but two, separate judgments enforcing
Board orders against the
On the next day,
the Regional Director amended her complaint in the Adams-Bickel case to notify
the