C.E. Wylie Construction Co.

National Labor Relations Board - Board Decisions

Mar 16, 1993

310 N.L.R.B. 721 (N.L.R.B. 1993)

721
310 NLRB No. 123
C.E. WYLIE CONSTRUCTION CO.
1 295 NLRB 1050.
2 934 F.2d 234 (9th Cir. 1991).
3 Id. at 2541.
4 While this case was pending before the Board the Supreme Court
issued its decision in Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992).
Following a request by the Respondent, the Board issued a notice
to parties of opportunity to submit statment of position.
In its supplemental statement of postion, the Respondent urges,
inter alia, that the Board should reconsider its decision and order of
July 31, 1989, and dismiss the complaint because of the Supreme
Court’s holding in Lechmere. In support of its position, the Respond-
ent relies on Dean v. TWA, 924 F.2d 805, 810 (9th Cir. 1991); Tous-
saint v. McCarthy, 801 F.2d 1080, 1092 (9th Cir. 1986); and NLRB
v. Robin American Corp., 667 F.2d 1170 (5th Cir. 1982).
We note that in each of these cases relied on by the Respondent,
the court was reconsidering one of its own decisions. None involved
a situation, as here, where the circuit court remanded a case to the
Board for a specific purpose. In order to vacate the finding of a vio-
lation, the Respondent would have to petition the court of appeals
for recall of its mandate on the basis of an intervening Supreme
Court decision. See Union Nacional de Trabajadores, 527 F.2d 602
(1st Cir. 1975).
With respect to the issue concerning which the Respondent seeks
review on the merits, we invite attention to the Board’s recent deci-
sion in CDK Contracting Co., 308 NLRB 1117 (1992).
Finally, the General Counsel has filed a motion to strike pp. 9 and
10 of the Respondent’s supplemental statement of position. The Gen-
eral Counsel asserts that those pages are in the nature of an answer
to the General Counsel’s earlier remand statement and that they are
beyond the scope of the Board’s above notice. The Respondent op-
poses the General Counsel’s motion, claiming, inter alia, that the
General Counsel misrepresented the record in its remand statement.
We find merit in the General Counsel’s motion and hereby strike pp.
9 and 10 from the Respondent’s supplemental statement.
C.E. Wylie Construction Co. and Local Union No.
441, International Brotherhood of Electrical
Workers, AFL–CIO, CLC and Sheet Metal
Workers Local Union No. 420, Sheet Metal
Workers International Association, AFL–CIO
and Sheet Metal Workers Local Union No. 206,
Sheet Metal Workers International Association,
AFL–CIO. Cases 21–CA–25857, 21–CA–25948,
and 21–CA–26019
March 16, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 31, 1989, the National Labor Relations
Board issued a Decision and Order1 in this proceeding,
finding that the Respondent violated Section 8(a)(1) of
the Act by interfering with the Section 7 right of em-
ployees to have union business representatives enter
the Tustin construction jobsite for the purpose of en-
gaging in activities relevant to the representation of
employees working there for subcontractors under col-
lective-bargaining agreements.
On June 3, 1991, the United States Court of Appeals
for the Ninth Circuit issued an opinion2 enforcing in
part and remanding in part the Board’s application for
enforcement of its order. In so doing, the court noted
that the Respondent did not challenge the Board’s
finding that it committed unfair labor practices but that
it contested the breadth of the Board’s cease-and-desist
order to the extent that the Order, inter alia, forbade
the Respondent from denying jobsite access to ‘‘any
other labor organization,’’ and was not limited to the
jobsite at which the unfair labor practices occurred.3
The court’s remand, which the Board has accepted,
directs the Board to determine (1) whether the Re-
spondent has demonstrated a proclivity to deny jobsite
access to other unions, and (2) whether there is a basis
for finding that the Respondent is likely to commit
violations similar to those found at the Tustin jobsite
at other jobsites. In the event proclivity cannot be
shown and the Board deems it unlikely that the Re-
spondent will similarly violate the Act elsewhere, the
court directs that the Order be modified by new terms
confining it to the Tustin jobsite.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Having accepted the remand as the law of the case,
we are bound by the court’s standard for determining
the breadth of the Order. For reasons described below,
we find that the Order must be limited to the Charging
Party Unions and to the Tustin jobsite.4
A. Jobsite Access to ‘‘Any Other Labor
Organization’’
The court cited Communications Workers v. NLRB,
362 U.S. 479 (1960), and subsequent Ninth Circuit de-
cisions, for the proposition that the Board may include
‘‘any other labor organization’’ in an order ‘‘only
when there is a showing that the NLRA violator is
likely to harm others.’’ The court held that if no pro-
clivity to deny jobsite access to other unions is dem-
onstrated in the trial record in this case, the Board
must modify its order to delete the language ‘‘any
other labor organization.’’
Applying this standard here, as the law of the case
and noting that the factual findings made or adopted
by the Board in the original proceeding evidently did
not persuade the court that the Respondent had dem-
onstrated a proclivity to deny jobsite access to other
unions, we find that the record is insufficient to show
such a proclivity. The Respondent had, on several oc-
casions, denied access to representatives of two dif-
ferent unions who represented employees of the Re-
spondent’s subcontractors, but the unlawful denials all
concerned access to the same jobsite and the same
construction project. These denials, as well as hostile
statements made by the Respondent’s project manager
in denying access, were all the subjects of specific fac-
tual findings in the decision that was before the court
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
National 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.’’
on review. We are unable to find any other evidence
in the record bearing on this issue.
Accordingly, because we find the record insufficient,
under the standard applied by the court of appeals, to
establish that other unions might suffer similar denials
of access at future jobsites of the Respondent, we shall
modify our Order by deleting the language ‘‘any other
labor organizations.’’
B. Scope of the Order with Respect to Jobsites
The court’s opinion recognized that [case] prece-
dents relating to fixed jobsites are not necessarily ap-
plicable to an employer engaged in the building and
construction industry, who typically moves from place
to place. It went on to hold, however, that a Board
order extending to jobsites other than those where the
violations at issue were found must be supported by a
finding that the offending party is likely to commit
similar violations at other sites.
The reasons given above for finding that the record
evidence is insufficient to establish that the Respond-
ent has a proclivity to deny jobsite access, also weigh
in favor of finding that an insufficient basis exists for
concluding that the Respondent is likely, at future
jobsites, to engage in denials of access to union rep-
resentatives similar to its unlawful denials at Tustin.
As noted above, the court already had before it factual
findings concerning the nature and number of the Re-
spondent’s violations in this case. We also note in par-
ticular the absence of any evidence that the project
manager who denied access was acting pursuant to in-
structions from a higher authority or on the basis of
any centralized policy maintained by the Respondent
governing jobsite access by union representatives. Nor
is there evidence of any continuing dispute between
the Respondent and the Unions involved here which
would be likely to erupt at another site. Further the
Respondent itself did not have a contractual relation-
ship with the Unions.
In sum, applying the court of appeals’ standard, we
find insufficient evidence to support a finding that the
Respondent is likely to commit violations at other
jobsites similar to those it committed at Tustin. Ac-
cordingly, the Order will be limited to the Tustin job-
site.
ORDER
The Respondent, C.E. Wylie Construction Co., San
Diego, California, its officers, agents, successors, and
assigns, shall
l. Cease and desist from
(a) Interfering with the rights of business representa-
tives from IBEW 44l, Sheet Metal Workers Local 420,
and Sheet Metal Workers Local 206, to enter the
Tustin Marine Corps Air Base in Tustin, California,
for the purpose of engaging in lawful union activity re-
lated to the servicing of bargaining unit members,
making a safety check or otherwise policing or enforc-
ing a collective-bargaining agreement, while the union
signatory subcontractor is present and working on the
jobsite; provided however, that nothing here shall pro-
hibit Respondent from enforcing uniformly applied,
reasonable rules regarding safety, working time, and
security; provided further that the Unions are given
clear notice of such rules.
(b) In any like or related manner interfering with,
restraining, or coercing employees 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) Mail a copy of the attached notice marked ‘‘Ap-
pendix’’5 to each of the employees employed by the
Respondent and its subcontractors at the Tustin Marine
Corps Air Base in Tustin, California, in November
1987 through May 1988 and post copies of the notice
at its principal place of business wherever notices to
construction employees are customarily posted. Copies
of the notice, on forms provided by the Regional Di-
rector for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be mailed
immediately on receipt by the Respondent to all such
employees at their last known address, and additional
copies shall be maintained by it for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. Sufficient signed copies of the ap-
propriate notice shall be furnished to the Regional Di-
rector for posting by Shasta Electric, F.J. Lanthier Co.,
the three Unions affected, and the Naval Facilities En-
gineering Command, if the entities are willing.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps Re-
spondent has taken to comply.
APPENDIX
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
723C.E. WYLIE CONSTRUCTION CO.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with the rights of business
representatives from IBEW Local 441, Sheet Metal
Workers Local 420, and Sheet Metal Workers Local
206, to enter the Tustin Marine Corps Air Base in
Tustin, California, for the purpose of engaging in law-
ful union activity related to the servicing of bargaining
unit members, making a safety check or otherwise po-
licing or enforcing a collective-bargaining agreement,
while the union signatory subcontractor is present and
working on the jobsite; provided however, that nothing
here shall prohibit us from enforcing uniformly ap-
plied, reasonable rules regarding safety, working time
and security; provided further that the Unions are
given clear notice of such rules.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
C.E. WYLIE CONSTRUCTION CO.