Building & Construction Trades Council Of Philadelphia & Vicinity

National Labor Relations Board - Board Decisions

May 30, 1986

279 N.L.R.B. 1242 (N.L.R.B. 1986)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building & Construction Trades Council of Philadel-
phia & Vicinity and Wohlsen Construction
Company Southeastern Pennsylvania Chapter,
Associated Builders & Contractors , Inc. Cases
4-CC-1568 and 4-CC-1574
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 4 March 1985 Building & Construction
Trades Council of Philadelphia & Vicinity (the Re-
spondent); Wohlsen Construction Company (Wohl-
sen); Southeastern Pennsylvania Chapter, Associat-
ed Builders & Contractors, Inc. (ABC); and the
General Counsel of the National Labor Relations
Board entered into a Settlement Stipulation, subject
to the Board's approval, providing for the entry of
a consent order by the Board and a consent judg-
ment by any appropriate United States court of ap-
peals . The parties waived all further and other pro-
cedure before the Board to which they may be en-
titled under the National Labor Relations Act and
the Board's Rules and Regulations, and the Re-
spondent waived its right to contest the entry of a
consent judgment or to receive further notice of
the application therefor.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Settlement Stipulation is approved and made
a part of the record, and the proceeding is trans-
ferred to and continued before the Board in Wash-
ington, D.C., for the entry of a Decision and Order
pursuant to the provisions of the Settlement Stipu-
lation. I
I Contrary to our dissenting colleague, we do not find that it will ef-
fectuate the administration and policies of the Act to reject the parties'
formal settlement stipulation and to reopen the record for a hearing on
the merits or, in lieu thereof, for an admission of guilt by the Respondent
In allowing this stipulation , we do not mean to suggest that we have
overlooked the Respondent 's past history of secondary boycott activity,
which is meticulously detailed by the dissent Rather, like our dissenting
colleague, we also are troubled by the apparent ineffectiveness of past
Board and court orders to deter such 8(b)(4)(B) conduct by the Respond-
ent However , on balance , we believe that the remedy provided by the
stipulation far outweighs any possible additional salutary benefits derived
from the deletion of the nonadmissions clause from the stipulation
In this regard , we note that the formal settlement stipulation in the in-
stant case provides, inter alia, for a broad cease-and -desist order , the pub-
lication of the Board notice in the local newspaper , the distribution of the
Board notice to all local unions affiliated with the Respondent at its ex-
pense , and the entry of a court decree We also note that on record is the
formal settlement agreement executed by the Respondent in 1973, which
did not contain a nonadmissions clause Furthermore , currently outstand-
ing against the Respondent are two broad contempt orders issued by the
United States Court of Appeals for the Third Circuit Given these cir-
cumstances , and cognizant of the Board 's general policy in favor of set-
tlements, we have accepted the stipulation , noting that all parties in this
case have executed it and seek the Board 's approval of it
On the basis of the Settlement Stipulation and
the entire record, the Board makes the following
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS
Wohlsen is, and has been at all times material, a
corporation organized under , and existing by virtue
of, the laws of the Commonwealth of Pennsylva-
nia, and engaged in the construction business as a
general contractor having its principal office and
place of business located at 548 Steel Way, Lancas-
ter, Pennsylvania.
During the past year, in the course and conduct
of its business operations described above, Wohlsen
performed services valued in excess of $50,000 out-
side the Commonwealth of Pennsylvania.
The Respondent admits, and we find, that Wohl-
sen is , and has been at all times material, an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
ABC is, and has been at all times material, an as-
sociation representing employer members engaged
in the building and construction industry.
II. THE LABOR ORGANIZATION INVOLVED
Building & Construction Trades Council of
Philadelphia & Vicinity is, and has been at all times
material , an unincorporated association, composed
of affiliated labor organizations in the building and
construction industry.
Building & Construction Trades Council of
Philadelphia & Vicinity is, and has been at all times
material , a labor organization within the meaning
of Section 2(5) of the Act
Building & Construction Trades Council of
Philadelphia & Vicinity is, and has been at all times
material , an agent of its affiliated labor organiza-
tions within the meaning of Sections 2(13) and 8(b)
of the Act.
Building & Construction Trades Council of
Philadelphia & Vicinity's affiliated labor organiza-
tions are, and have been at all times material,
agents of the Respondent within the meaning of
Sections 2(13) and 8(b) of the Act.
ORDER
On the basis of the above findings of fact, the
Settlement Stipulations, and the entire record, the
National Labor Relations Board orders that
The Respondent, Building & Construction
Trades Council of Philadelphia & Vicinity, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Engaging in a mass march at or near the fa-
cility of, or picketing, Abington Memorial Hospital
279 NLRB No. 157
PHILADELPHIA BUILDING TRADES COUNCIL (WOHLSEN CONSTRUCTION) 1243
or any other person engaged in commerce or in an
industry affecting commerce where in either case
an object is to force or require Abington Memorial
Hospital or any other person to cease using, selling,
handling, transporting or otherwise dealing in the
products of Wohlsen Construction Company or
any other person, or to cease doing business with
Wohlsen Construction Company or any other
person.
(b) In any other manner, or by any other means,
threatening, coercing, or restraining Abington Me-
morial Memorial Hosptial, or any other person en-
gaged in commerce or in an industry affecting
commerce, where in either case an object thereof is
to force or require Abington Memorial Hospital or
any other person to cease using, selling, handling,
transporting, or otherwise dealing in the products
of Wohlsen Construction Company, or any other
person, or to cease doing business with Wohlsen
Construction Company or any other person.
Provided, that for the purposes of these subpara-
graphs (a) and (b), nothing contained in such sub-
paragraphs shall be construed to prohibit publicity,
other than picketing, for the purpose of truthfully
advising the public, including consumers and mem-
bers of a labor organization, that a product or
products are produced by an employer with whom
the labor organization has a primary dispute and
are distributed by another employer, as long as
such publicity does not have an effect of inducing
any individual employed by any person other than
the primary employer in the course of his employ-
ment to refuse to pick up, deliver, or transport any
goods, or not to perform any services, at the estab-
lishment of the employer engaged in such distribu-
tion.
2. Take the following affirmative action necces-
sary to effectuate the policies of the Act.
(a) Post at its business office copies of the at-
tached notice marked "Appendix." Copies of the
notices, on forms provided by the Regional Direc-
tor for Region 4, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for Region 4
signed copies of the notices for posting, if Wohlsen
Construction Company is willing, in the plant of
Wohlsen Construction Company, in places where
notices to employees are customarily posted.
Copies of the notices, on forms provided by the
Regional Director for Region 4, after having been
signed by an authorized representative of the Re-
spondent, shall be forthwith returned to the Re-
gional Director for such posting by Wohlsen Con-
struction Company.
(c) Publish, at its expense, the terms of the at-
tached notices in a form and size approved by the
Regional Director for Region 4 in the Philadelphia
Inquirer and in the Montgomery County Times
Chronicle. Publication is to bey made on 3 separate
days within a 3-week period at ' a time designated
by the Regional Director for Region 4.
(d) Sign; duplicate, and mail, at its own expense,
copies of the attached notices to all local unions af-
filiated with the Building & Construction Trades
Council of Philadelphia Vicinity, and submit a list
of such local affiliates and their addresses to the
Regional Director for Region 4 together with
proof of mailing.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
Unlike my colleagues, I would not approve the
formal settlement stipulation recommended by the
General Counsel in this case. To remedy the viola-
tions of Section 8(b)(4)(ii)(B) alleged in the com-
plaint issued by the Regional Director on 12 Octo-
ber 1984, the Respondent agrees to cease and desist
from such conduct and agrees to the imposition of
broad injunctive relief. The stipulation, however,
also contains a nonadmissions clause whereby the
Respondent does not admit it violated the Act and
provides that the stipulation cannot serve as an ad-
mission of liability nor as evidence of an admission
of a violation of the Act.
Despite the parties' willingness to settle this case
with the inclusion of a nonadmissions clause, in my
opinion the Board should refuse to do so. The Re-
spondent has been a frequent and serious violator
of the Act for many years.
On 20 December 1973 and again on 8 July 1980
the Board issued Decisions and Orders, based on
formal settlement agreements, finding that the Re-
spondent had engaged in unlawful secondary pick-
eting. These Board Orders were enforced by the
Third Circuit on 4 March 1974 and 28 November
1980, respectively.
On 8 September 1981 the Board instituted con-
tempt proceedings in the Third Circuit against the
Respondent for further instances of picketing in
violation of Section 8(b)(4)(i) and (ii)(B). On 24
May 1982 the court entered a judgment based on a
consent contempt adjudication providing, inter alia,
for a broad order against any further unlawful sec-
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ondary activity and prospective fines of $6500 for
each further violation and $500 per day for each
day that such violation continues.
This contempt adjudication, however, in no way
curtailed the Respondent's unlawful activities. On
22 February 1983 the Board issued a Decision and
Order , based on a formal settlement stipulation,
finding that the Respondent had engaged unlawful
secondary picketing, threats, and violence. On 10
June 1983 the Third Circuit entered a consent
judgment enforcing the Board's Order.
On 28 September 1983 the Board instituted an-
other contempt proceeding in the Third Circuit
based on instances of unlawful secondary conduct
occurring between October 1981 and June 1983.
The Respondent again consented to a contempt ad-
judication, which resulted in a judgment by the
court on 31 January 1984. As part of the remedy,
the court ordered broad injunctive relief, the pay-
ment of a $3000 fine, and imposed prospective non-
compliance fines of $13,000 for each and every
future violation and $1000 per day for each day the
violation continues.
The Respondent has flouted this contempt adju-
dication as well. On 24 December 1984 the Board
issued a Decision and Order finding further viola-
tions of Section 8(b)(4) committed by the Respond-
ent. And on 1 August 1985 the Board filed with
the Third Circuit a third petition for contempt.
The petition alleges that the Respondent engaged
in unlawful secondary activity on four separate
jobsites in 1984 and 1985.
It is within this context of recidivism that the
Respondent has asked the Board to approve a set-
tlement agreement without the Respondent's admis-
sion that it has engaged in the unlawful conduct al-
leged. I will not accede to such a request. For a
Board Order in this case to have any meaning or
chance of deterring future violations by the Re-
spondent the Respondent must admit that it com-
mitted these violations or it must participate in a
hearing before an administrative law judge. To
allow the Respondent any other option is unwar-
ranted and unjustifiable. Accordingly, I dissent.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Posted Pursuant to a Stipulation Providing for a
Consent Judgment of any Appropriate United
States Court of Appeals
WE WILL NOT engage in a mass march at or near
the facility of, or picket, Abington Memorial Hosp-
tial or any other person engaged in commerce or in
an industry affecting commerce where in either
case an object is to force or require Abington Me-
morial Hosptial or other persons to cease using,
selling , handling, transporting, or otherwise dealing
in the products of Wohlsen Construction Company
or any other person, or to cease doing business
with Wohlsen Construction Company or any other
person.
WE WILL NOT in any other manner , or by any
other means, threaten, coerce, or restrain Abington
Memorial Hospital, or any other person engaged in
commerce or in an industry affecting commerce,
where in either case an object thereof is to force or
require Abington Memorial Hospital or any other
person to cease using , selling , handling, or trans-
porting, or otherwise dealing in the products of
Wohlsen Construction Company or any other
person, or to cease doing business with Wohlsen
Construction Company or any other person.
BUILDING & CONSTRUCTION TRADES
COUNCIL OF PHILADELPHIA & VICIN-
ITY