Associated Builders & Contractors

National Labor Relations Board - Board Decisions

Apr 12, 2001

333 N.L.R.B. 955 (N.L.R.B. 2001)

ASSOCIATED BUILDERS & CONTRACTORS 955

Associated Builders and Contractors, Inc., Golden
Gate Chapter and Locals 180, 302, 332, 340, 442,
551, 595, 617, and 684, International Brother-
hood of Electrical Workers. Case 32–CA–15647
April 12, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On May 16, 2000, the National Labor Relations Board
issued a Decision and Order in this case.1 The Board
adopted the administrative law judge’s decision finding
that the Respondent violated Section 8(a)(1) by filing and
maintaining a state court lawsuit seeking to stay the
Charging Parties’ job targeting programs. The Board
also adopted the judge’s remedy and recommended Or-
der.2 The Order included two parts. The first part (par.
A) directed the Respondent to cease and desist from
prosecuting and maintaining its lawsuit against the
Charging Parties and affirmatively ordered the Respon-
dent to withdraw the lawsuit and reimburse each of the
Charging Parties their reasonable expenses and legal fees
incurred in their defense of the lawsuit. The second part
(par. B) directed the Respondent and all its employer-
members doing business in Northern California to post
the Board’s notice at their Northern California business
offices. In the remedy portion of his decision, the judge
reasoned that extending the notice-posting requirement to
the Respondent’s employer-members was appropriate
because their employees would have been more directly
affected by the Respondent’s maintenance of its state
court lawsuit than the few employees of the Respondent
itself.
On June 12, 2000, the Respondent filed a motion for
reconsideration, and certain of its employer-members
filed a motion to intervene and for reconsideration. The
motions for reconsideration argue that the Board’s Order
erroneously imposes an unprecedented notice-posting
obligation on approximately 300 individual, separately-
owned and operated employer-members of the Respon-
dent, who were not named in the charge or complaint and
who were not found by the judge to be guilty of any
wrongdoing.
By letter dated October 11, 2000, as part of settlement
discussions between the parties, the Respondent and the
Charging Parties jointly submitted a request to modify
the Board’s previous Order in this case. The request
states that the Respondent and the Charging Parties have
engaged in settlement discussions, and that as part of a
proposed settlement, the parties have agreed to mutually
request that the Board modify its Order so that individual
employer-members of the Respondent need not post the
Board’s notice at their places of business in Northern
California. The parties state that if the Board will so
modify its Order and disavow that portion of the judge’s
remedy that requires the posting by employer-members,
the Respondent will fully comply with all other portions
of the Order, and the Respondent and Intervenors will
withdraw their motions for reconsideration and will not
seek review of the Board’s Decision and Order in a cir-
cuit court of appeals.

1 331 NLRB No. 5.
2 Although the Respondent excepted to the judge’s conclusions, it
did not specifically except to any portion of the judge’s remedy or
recommended Order.
The General Counsel does not oppose the request to
modify the Board’s Order.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We have decided to grant the parties’ joint request to
modify our previous Order pursuant to the parties’ set-
tlement of this case. We will therefore modify the Order
to vacate that portion of the Order requiring the Respon-
dent’s employer-members to post the Board’s notice to
employees. We also delete that portion of the remedy
section of the judge’s decision which states that the Re-
spondent’s employer-members are required to post the
remedial notice.3
Order Granting Joint Request to Modify
Upon consideration of the Joint Request of the Re-
spondent and the Charging Parties to modify the Board’s
original Order in this case:
IT IS HEREBY ORDERED that the Order in Case 32–
CA–15647 is modified to remove the requirement that
the Respondent’s employer-members post the Board’s
notice. The modified Order and notice to employees are
attached as Appendix A and Appendix B, respectively.
3 When the Board vacates a decision or portion of a decision pursu-
ant to a settlement, it is vacated only insofar as there is no longer a
court-enforceable order as to the vacated portion of the decision and the
vacated portion of the decision has no preclusive effect on the parties.
See Caterpillar, Inc., 332 NLRB No. 101 (2000). There will remain a
published decision in the case, and that decision may be cited as con-
trolling precedent with respect to the legal analysis therein. See Service
Employees Local 87 (Cresleigh Management), 324 NLRB 774, 775 fn.
3 (1997). Here, however, as noted above, no exceptions were filed to
the judge’s remedy or recommended Order.
Member Hurtgen notes that he disagreed with the majority in Cater-
pillar that Board decisions vacated pursuant to a settlement continue to
be controlling, rather than persuasive, precedential authority with re-
spect to the legal analysis therein. 332 NLRB No. 101 slip op. at fn. 4.
Nevertheless, he agrees that in this case, the vacated portions of the
decision have no precedential value because no exceptions were filed as
to those portions and the Board never addressed them.
333 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956
IT IS FURTHER ORDERED that if the parties fail to
execute and abide by the proposed settlement agreement,
the Board’s action in issuing this Order shall by re-
scinded and this Order shall be null, void, and of no ef-
fect.
APPENDIX A
ORDER
A. The Respondent, the Associated Builders and Con-
tractors Inc., Golden Gate Chapter, Dublin, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prosecuting and maintaining its lawsuit before any
court against any of the Charging Parties.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw, and if necessary, otherwise seek to dis-
miss its lawsuit in any and all courts where it is pending
or to which it has been remanded.
(b) In the manner set forth in the remedy portion of the
judge’s decision, reimburse each of the Charging Parties
for its reasonable expenses and legal fees incurred in its
defense of the lawsuit in the California State Superior
Court, the Federal District Court, and the Federal Circuit
Court of Appeals and subsequent courts to which the law-
suit has been removed or transferred, with interest.
(c) Within 14 days after service by the Region, post at
all of its Northern California business offices and other
places where notices to employees are customarily
posted, copies of the attached notice marked “Appendix
B.”4 Copies of the notice, on forms provided by the Re-
gional Director for Region 32, in English and such other
languages as the Regional Director determines are neces-
sary to fully communicate with the employees, after be-
ing signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Signed copies of the notice shall also be provided
to the Region for transmittal to, and posting by, each
willing contracting employer signatory to a contract with
any of the Charging Parties in sufficient number to allow
posting at all jobsites where the willing employers em-
ploy employees represented by any of the Charging Par-

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ties. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since March 3, 1996.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. The allegations of the complaint set forth in para-
graph 7 and its conclusionary paragraphs alleging that
the lawsuit in its entirety was baseless and without merit
and filed for retaliatory reasons will be deferred pending
the final resolution of the lawsuit. Upon such final reso-
lution, individual Charging Parties, the General Counsel,
and/or the Respondent may move the Board directly to
take such action concerning these deferred allegations as
is then deemed appropriate.

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Associated Builders and Contractors, Inc., Golden
Gate Chapter, is an association of nonunion employers in
the construction industry. The National Labor Relations
Board has determined that we have violated the National
Labor Relations Act and has ordered us to post and abide
by this notice, and to supply signed notices to willing
employers who are signatory to contracts with the fol-
lowing Northern California Local of the International
Brotherhood of Electrical Workers, AFL–CIO: Locals
180, 302, 332, 340, 442, 551, 595, 617, and 684 for post-
ing at their jobsites.
Federal labor law embodied in Section 7 of the Na-
tional Labor Relations Act gives employees the right to
form, join or assist any union, to act together for mutual
aid or protection, and to chose not to engage in any of
these protected concerted activities.
The National Labor Relations Board has determined
that the Job Targeting Programs established by the above
named Locals of the International Brotherhood of Elec-
ASSOCIATED BUILDERS & CONTRACTORS 957
trical Workers, AFL–CIO, are protected concerted activi-
ties under the National Labor Relations Act and Federal
law. The Board further found that Federal law preempts
state law concerning these IBEW Job Targeting Pro-
grams, and that the programs and the protected concerted
activities of the employees working under them may not
properly be challenged in state courts.
Given all of the above, and as required by the National
Labor Relations Board, we give our employees and the
employees of signatory contractors with the IBEW Lo-
cals noted above the following assurances:

WE WILL NOT challenge in state court the Job Tar-
geting Programs operated by the International Brother-
hood of Electrical Workers, AFL–CIO, Locals 180, 302,
332, 340, 442, 551, 595, 617, and 684.
WE WILL NOT continue to prosecute and maintain a
lawsuit filed by us or on behalf of our employer-
members in 1994 in the California Superior Court in and
for the city and county of San Francisco and litigated
thereafter in the Federal courts challenging the validity of
the IBEW Job Targeting Programs under state law.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the National Labor Relations Act.
WE WILL withdraw, and if necessary, otherwise seek
to dismiss or end the lawsuit described above.
WE WILL reimburse each of the IBEW Locals sued
by us in the noted lawsuit for its reasonable expenses and
legal fees incurred in its defense against our lawsuit, with
interest.

ASSOCIATED BUILDERS AND
CONTRACTORS, INC., GOLDEN GATE
CHAPTER