Iron Workers Local 416 (Pacific Reinforcing Steel)

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 108 (N.L.R.B. 2002)

IRON WORKERS LOCAL 416 (PACIFIC REINFORCING STEEL) 1
Iron Workers Local 416 and Pacific Reinforcing Steel,
Inc. and J.L. Davidson Company, Inc. Cases 31–
CE–00216 (formerly 21–CE–00364) and 31–CE–
00217 (formerly 21–CE–00365)
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On March 26, 2002, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in support of the judge’s deci-
sion.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions1 and to adopt the recommended Or-
der as modified.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders the Respondent Iron Workers Local 416,
its officers, agents, and representatives shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
“(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 attest-
ing to the steps that the Respondent has taken to comply.”

Anne J. White, Esq., for the General Counsel.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Respondent.
Robert W. Bell Jr., Esq. and Erin Downey, Esq. (Heller Ehrman
White & McAuliffe), of San Diego, California, for the Charg-
ing Parties.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. The origi-
nal charge and an amended charge in Case 31–CE–00216 (for-
merly Case 21–CE–00364) were filed by Pacific Reinforcing
Steel, Inc. on July 19 and September 6, 2001, respectively. The
original charge and an amended charge in Case 31–CE–00217
(formerly Case 21–CE–00365) was filed by J.L. Davidson Com-

1 The picket line clause at issue in this case is virtually indistinguish-
able from that found unlawful in Carpenters (Disney Roofing & Mate-
rial Co.), 154 NLRB 1598, 1602–1603 (1965) (“it is settled that when
such a clause is so broadly written that it extends immunity from dis-
charge to employees refusing to cross secondary picket lines, it is to
that extent rendered unlawful by Section 8(e) of the Act”), enfd. 382
F.2d 593 (9th Cir. 1967), cert. denied 389 U.S. 1037 (1968). See also
Service Employees Local 32B-32J (Pratt Towers, Inc.), 337 NLRB 317
(2001).
pany, Inc., on July 19 and September 6, 2001, respectively. On
October 26, 2001, the Regional Director for Region 31 of the
Board (Board) issued a consolidated complaint and notice of
hearing alleging a violation of Section 8(e) of the Act by Iron
Workers Local 416 (Respondent or Union). The Respondent, in
its answer to the complaint, duly filed, denies that it has violated
the Act as alleged.
The parties entered into a stipulation of facts dated January 25,
2002, and on the same date filed a joint motion to transfer pro-
ceedings to the Division of Judges for findings of fact, conclu-
sions of law, and recommended Order. The motion was granted
on February 1, 2002, by Associate Chief Administrative Law
Judge William L. Schmidt, together with an Order transferring
the cases to me and setting a date for the filing of briefs.
Thereafter, briefs have been received from counsel for the
General Counsel (General Counsel), counsel for the Respondent,
and counsel for the Charging Parties.1 Upon the entire record,
and consideration of the briefs submitted, I make the following.
FINDINGS OF FACT
I. JURISDICTION
Pacific Reinforcing Steel, Inc. is a California corporation with
an office and place of business located in Santee, California,
where it is engaged in the business of reinforcing steel fabrication
and erection. It annually purchases and receives goods or ser-
vices valued in excess of $50,000 directly from points outside the
State of California.
J.L. Davidson Company, Inc. is a California corporation with
an office and place of business located in San Diego, California,
where it is engaged in the business of reinforcing steel fabrication
and erection. It annually purchases and receives goods or ser-
vices valued in excess of $50,000 directly from points outside the
State of California.
It is admitted and I find that Pacific Reinforcing Steel, Inc. and
J.L. Davidson Company, Inc. are, and at all material times have
been, employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union is
and has been a labor organization within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding is whether the Union has
violated Section 8(e) of the Act by entering into, maintaining, and
giving effect to an agreement in which Pacific Reinforcing Steel,
Inc. and J.L. Davidson Company, Inc. have agreed not to handle
or otherwise deal in the products of, or do business with, another
employer or person.
B. Facts
On or about June 9, 1998, the California Ironworker Employ-
ers Council, Inc. and the District Council of Iron Workers of the
State of California and Vicinity and Local Unions 118, 155, 229,
377, 378, 416, and 433 entered into an agreement effective July
1 Over the Respondent’s objection, I hereby grant the Charging Par-
ties’ motion, supported by an appropriate affidavit submitted by Charg-
ing Parties’ attorney, that its brief, received 1 day following the briefing
date, be received and considered.
338 NLRB No. 15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
1, 1998, through June 30, 2001 (the 1998–2001 master agree-
ment).
On about June 12, 1998, Pacific Reinforcing Steel, Inc. and
J.L. Davidson Company, Inc. entered into an independent agree-
ment with the District Council of Iron Workers of the State of
California and Vicinity, for and on behalf of its affiliated Califor-
nia Field Iron Worker Local Unions (including Respondent Local
416), in which the employers agreed to be bound by the terms of
the 1998–2001 master agreement and to any modifications,
changes, extensions, or renewals.
The 1998–2001 master agreement includes a provision as fol-
lows:

Section 29. Strikes and Lockouts

A—It is agreed mutually there shall be no strikes authorized
by the Union and no lockouts authorized by the Employers,
or individual employer, except for the refusal of either party
to submit to arbitration, in accordance with Section 28, or
failure on the part of either party to carry out the award of
the Joint Adjustment Board.

B—Every facility of each of the parties hereto is hereby
pledged to overcome immediately any such situation; pro-
vided, however, it shall not be a violation of any provision
of this Agreement for any person covered by the Agreement
to refuse to cross or work behind any picket line established
by an International Union affiliated with the Building and
Construction Trades Department of the American Federa-
tion of Labor—Congress of Industrial Organizations or a
Local Union thereof, or the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America or a Local Union thereof, which picket line has
been authorized or sanctioned by the local Building and
Construction Trades Council having jurisdiction over the
area in which the job is located after the individual employer
involved has been notified and has had an opportunity to be
heard. Said notice shall be in writing and mailed to the in-
dividual employer involved at his last known address.

In about June 2001, District Council of Iron Workers of the
State of California, for and on behalf of its affiliated California
Field Workers Local Unions (including Respondent Local 416)
entered into an agreement to extend the terms of the 1998–2001
Master Agreement, with certain changes (primarily monetary in
nature) that are not relevant. The language in section 29 remains
the same as set forth above. By this conduct the District Council
of Iron Workers of the State of California, for and on behalf of its
affiliated California Field Workers Local Unions (including Re-
spondent Local 416) reentered into and/or affirmed section 29 of
the—master agreement.
C. Analysis and Conclusions
Each of the parties, in its brief, places primary reliance on
Bricklayers Local 2 (Gunnar I. Johnson & Son), 224 NLRB 1021
(1976). In that case the Board stated that Section 8(e) of the Act
prohibits picket line clauses that are “broad enough to apply to
secondary picketing having no connection with disputes concern-
ing jobsite contracting.”2 Thus, the Board found that the follow-
ing clause was impermissible:

Pickets, Banners and Strikes. The Employer may not re-
quest or instruct any Employee except Watchmen or Super-
visory personnel to go through a picket line except to protect
life or property. The Unions agree that there shall be no
cessation of work or any recognition of picket lines of any
union without first giving prior notice to the Employer or
his Association.

However, in that case the following picket line clause of another
union was not alleged to be unlawful on its face:

Refusal to pass through a lawfully permitted picket line will
not constitute a violation of the agreement. [Emphasis sup-
plied.]

The Respondent maintains that the picket line clause in section
29 of the 1998–2001 Master Agreement “is no different in mate-
rial respect” to the picket line clause directly above. I do not
agree. The operative language, “lawfully permitted,” does not
explicitly appear in section 29; nor may it be implied.
The Respondent further maintains that the finding of an 8(e)
violation in the Bricklayer’s case is dependent upon the fact that
the language found unlawful protects employees by specifically
exempting them from discipline should they refuse their em-
ployer’s request or instruction to cross a picket line, and that such
or similar specific language offering “affirmative protection” is
essential to establish a violation. I do not agree. The holding in
the Bricklayer’s case is simply dependent upon any broad lan-
guage that may reasonably be understood to permit employees of
a primary employer, individually or collectively, to honor secon-
dary picketing having no connection with disputes concerning
jobsite contracting. In the instant case, section 29(A) contains a
no-strike clause; therefore it would be a violation of the agree-
ment for the Union to initiate or support a primary strike by one
or more employees during the contract term. However, section
29(B) modifies the no-strike clause by exempting from its cover-
age and thereby permitting “any person covered by the Agree-
ment to refuse to cross or work behind any picket line.” As this
language, which must necessarily refer to secondary activity,
allows employees of a primary employer to strike in support of
secondary picket lines, it may be reasonably understood to permit
conduct that is violative of Section 8(e) of the Act. I so find. See
also General Truck Drivers Local 467 (Mike Sullivan), 265
NLRB 1679 (1982), and cases cited therein.
The Respondent also contends that the complaint should be
dismissed because, although the Respondent Union was served
with the charges, the charges filed by the Charging Parties are
defective as they do not name the Respondent Union as a charged
party. On the specific charge forms designed for 8(e) cases, there
is a box for “Name of Labor Organization.” In this box, com-
pletely filling a very confined space, the Charging Parties in-
serted “District Council of Ironworkers of the State of California
and vicinity,” a different entity than the Respondent. Immedi-

2 The first proviso to Sec. 8(e) provides that Sec. 8(e) shall not pro-
hibit “an agreement between a labor organization and an employer in
the construction.”
IRON WORKERS LOCAL 416 (PACIFIC REINFORCING STEEL) 3

ately below that box, in a much larger box entitled “Address,” the
Charging Parties inserted “Iron Workers Local #416, 13820 San
Antonio Drive, Norwalk, CA 90650,” the name and address of
the Respondent. In other appropriate boxes the Charging Parties
inserted the name of the Respondent’s business agent and the
Respondent’s phone number. The complaint caption contains the
name of the Respondent and the complaint language asserts that
the charges were filed by the Charging Parties and served upon
the Respondent.
It appears from the foregoing that the Charging Parties in-
tended to include the Respondent as a charged party, and that the
Regional Office issuing the complaint understood the charges to
be filed against the Respondent. Moreover, it appears that the
Respondent understood that it was a charged party as it filed an
answer to the complaint and at no time, insofar as the stipulated
record shows, maintained that it was not appropriately a charged
party or that the charges were deficient. Under these circum-
stances I find the Respondent’s contention to be without merit.
CONCLUSIONS OF LAW
1. The Respondent, Pacific Reinforcing Steel, Inc. and J.L.
Davidson Company, Inc. are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union has violated Section 8(e) of the Act by entering
into, maintaining, and giving effect to agreements with Pacific
Reinforcing Steel, Inc. and J.L. Davidson Company containing
picket line clauses which permit employees to refuse to cross any
picket line established by any union, and thereby have the effect
of causing these employers to agree not to handle or otherwise
deal in the products of, or do business with, another employer or
person.
THE REMEDY
Having found that the Respondent has violated and is violating
Section 8(e) of the Act, I recommend that it be required to cease
and desist therefrom and to notify the employers in writing that it
will not give force or effect to the unlawful contractual provision.
Further, I also recommend that the Respondent post an appropri-
ate notice to inform employees and members of this matter.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended3
ORDER
The Respondent, Iron Workers Local 416, its officers, agents,
and representatives, shall
1. Cease and desist from entering into, maintaining, and giv-
ing effect to agreements with Pacific Reinforcing Steel, Inc. and
J.L. Davidson Company containing picket line clauses which
permit their employees to refuse to cross any picket line estab-
lished by any union, and thereby have the effect of obtaining the
agreement of these Employers not to handle or otherwise deal in
the products of, or do business with, another employer or person.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Notify the Employers in writing that the Respondent will
not apply or seek to enforce the picket line clause found unlawful
herein in its dealings with the Employers.
(b) Within 14 days after service by the Region, post at its un-
ion offices and hiring halls copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees and members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
(c) Sign and return to the Regional Director of Region 31, suf-
ficient copies of the notice for posting by the Employers, if will-
ing, at all places where notices to employees are customarily
posted.
(d) Notify the Regional Director of Region 31 within 20 days
from the date of this Order what steps have been 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
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL cease and desist from entering into, maintaining, and
giving effect to agreements with Pacific Reinforcing Steel, Inc.
and J.L. Davidson Company containing picket line clauses which
permit employees to refuse to cross any picket line established by
any union, and thereby have the effect of obtaining the agreement
of these Employers not to handle or otherwise deal in the prod-
ucts of, or do business with, another employer or person.
WE WILL notify the Employers in writing that we will not ap-
ply or seek to enforce the picket line clause in the contract to the
extent that it permits their employees to cross picket lines estab-
lished by any union.

IRON WORKERS LOCAL 41
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.”