Iron Workers Local 433 (United Steel)

National Labor Relations Board - Board Decisions

Apr 10, 1989

293 N.L.R.B. 621 (N.L.R.B. 1989)

IRON WORKERS LOCAL 433 (UNITED STEEL) 621
Iron Workers Local 433 , affiliated with the Interna-
tional Association of Bridge , Structural and Or-
namental Iron Workers, AFL-CIO and United
Steel and Aram Kazazian Construction, Inc
and Carlson Southwest Corp Cases 31-CC-
1761, 31-CC-1777, 31-CC-1770, and 31-CC-
1801-1
On August 2, 1988, the Board notified the parties
that it had accepted the remand from the Ninth
Circuit and invited the parties to submit statements
of position regarding the remanded issues Thereaf-
ter, the Respondent and the General Counsel filed
statements of position
April 10, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 31, 1986, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding adopting the administrative law
judge's finding that in four separate instances the
Respondent, Ironworkers Local 433, attempted by
unlawful means to induce neutral parties to cease
doing business with employers with which the Re-
spondent had a labor dispute and thereby violated
Section 8(b)(4)(i) and (ii)(B) of the National Labor
Relations Act 1 Thereafter, the Board filed a peti-
tion for enforcement with the United States Court
of Appeals for the Ninth Circuit Although the Re-
spondent conceded two of the violations, it con-
tested the Board's finding that it violated Section
8(b)(4)(ii)(B) by threatening Vegas Steel, a neutral
contractor, that it would picket the Circus jobsite if
United Steel performed steel erection there, with
an object of forcing Vegas to cease doing business
with United Steel, and the finding that it violated
Section 8(b)(4)(i) and (n)(B) by picketing a gate re-
served for neutral contractors at the Carlson con
struction site with signs that did not name the em-
ployer with which the Union had its primary dis-
pute The Respondent also contested the appropri
ateness of the Board's broad cease-and desist order,
which was based on the Respondent's repeated vio-
lations of Section 8(b)(4)(B) in this and other
cases 2 On June 27, 1988, the court denied enforce-
ment of the Board's Order, finding that the Re-
spondent did not unlawfully threaten to picket the
Circus jobsite and remanding to the Board, for fur-
ther consideration, the violation found at the Carl-
son jobsite and the appropriateness of the Board's
broad orders
1 280 NLRB 1325 Subsequent to the Boards decision the Respondent
filed a motion for reconsideration which was denied by unpublished
order
2 As the Respondent did not contest the Board s finding of violations
regarding its conduct at the Hollywood jobsite and at the McCarren Air
port jobsite our Decision and Order reported at 280 NLRB 1325 per
taming to those violations is final and binding
2 NLRB v Iron Workers Local 433 850 F 2d 551 (9th Cir 1988)
I THE EVIDENCE
In November 1984, Southland Corporation re-
tained Carlson Southwest Corp (Carlson) as the
general contractor for the construction of a large
warehouse facility and a vehicle maintenance facili-
ty in San Bernardino, California Carlson subcon-
tracted to Warehouse Equipment, Inc (Ware-
house), a nonunion company, the work of installing
metal racks ii1 the warehouse A business agent for
the Respondent asked Carlson who would be in
stalling the racks and was notified that Warehouse
would be doing the work Subsequently, Carlson
heard rumors that the Respondent was upset that
the installation work was being done by a non-
union company As a result, Carlson sent the Re-
spondent a telegram stating that Carlson would set
up a reserve gate system at the jobsite and that
Warehouse was being assigned to gate 1 When the
pickets arrived at gate 1, however, they found a
sign stating that certain specified employers were
assigned to use that gate, while all other employers
were directed to use gate 2 Warehouse was not
one of the employers specified as being assigned to
gate I Two picketers then picketed both gates at
the jobsite with signs stating
Work Being Performed
Below Standards Established By
Iron Workers Local 433
Authorized By
San Bernardino Bldg & Construction
Trades Council AFL-CIO
Ironworkers employed by two other subcontrac-
tors on the site, Cal Erectors and Ben F Smith, re-
fused to work on the days that the project was
picketed
II DISCUSSION
1 In finding in our previous decision that the
Respondent had engaged in unlawful secondary ac
tivity, we relied on the fact that the Respondent
picketed gate 1, a gate that we found to have been
reserved for neutral contractors, with picket signs
that did not name Warehouse as the employer with
which the Respondent had a dispute The Ninth
Circuit disagreed with our finding that gate 1 had
been reserved for neutral contractors, reasoning
293 NLRB No 74
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that, in light of Carlson's telegram to the Respond
ent stating that gate 1 would be reserved for Ware-
house employees, the general notice posted at the
gate identifying the gate as reserved for various
neutral contractors was insufficient to overcome
the specific written notice given to the Respondent
and thus did not properly establish a reserved gate
The court, however, left to our determination on
remand whether the Respondent's failure to identi-
fy on its picket signs the employer with which it
had a dispute would support a finding that the Re
spondent had an illegal secondary objective
Having considered the court's opinion, and the par-
ties' positions on remand, we find that the Re
spondent did violate Section 8(b)(4)(i) and (ii)(B) at
the Carlson jobsite
Section 8(b)(4) reflects Congress' desire to
"preserv[e] the right of labor organizations to bung
pressure to bear on offending employers in primary
labor disputes" while "shielding unoffending em-
ployers and others from pressures in controversies
not their own " NLRB v Denver Building Trades
Council, 341 U S 675, 692 (1951) Thus, although a
union may use economic pressure against a primary
employer, a union cannot use, or threaten to use,
economic pressure against a "secondary employer,"
that is, one with which the union does not have a
dispute, for the purpose of forcing the secondary
employer to stop doing business with the primary
employer When, however, a primary employer is
engaged in work at the situs under the control of a
secondary employer, a union may picket the situs
provided the picketing is primary in nature
In considering whether common situs picketing
is primary in nature, the Board is assisted by exami-
nation of the guidelines set forth in Sailors Union
(Moore Dry Dock), 92 NLRB 547, 549 (1950) (a)
the picketing is strictly limited to times when the
situs of the dispute is located on the secondary em-
ployer's premises, (b) at the time of the picketing,
the primary employer is engaged in its normal busi
ness at the situs, (c) the picketing is limited to
places reasonably close to the location of the situs,
and (d) the picketing discloses clearly that the dis-
pute is with the primary employer Furthermore,
the burden is on the union "to convince the trier of
fact that [its] picketing was conducted in a manner
least likely to encourage secondary effects " Iron
Workers Local 433 v NLRB, 598 F 2d 1154, 1159
(9th Cir 1979) (quoting Ramey Construction Co v
Painters Local 544, 472 F 2d 1127, 1131 (5th Cir
1973))
Although the failure to comply with any one of
the Moore Dry Dock criteria does not constitute a
per se violation of the Act, the failure does create a
presumption that the picketing had an unlawful
secondary purpose Electrical Workers IBEW Local
332 (WS B Electric), 269 NLRB 417, 421 (1984),
Electrical Workers IBEW Local 861 (Plauche Elec-
tric), 135 NLRB 250, 255 (1962) It is a simple
matter for a union to identify the primary employer
on its signs Thus, it is reasonable to presume that
picketing a common situs with signs that fail to
identify the primary employer has as an object en
meshing neutrals, in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act Laborers Local 389 (Calcon
Construction), 287 NLRB 570 (1987)
The Respondent picketed at gates 1 and 2 with
signs that did not identify the employer with which
the Respondent had a dispute That conduct raises
a presumption that an object of the picketing was
to enmesh neutrals, shifting to the Respondent the
burden of showing that the picketing did not have
an unlawful secondary objective The Respondent
has not done so Rather, the Respondent argues
that because Carlson, by its telegram to the Re-
spondent, established gate 1 as a reserved gate
solely for Warehouse, gate 1 was no longer a
common situs, but, rather, the situs of the primary
dispute Without a common situs, the Moore Dry
Dock criteria would not apply, and the Respondent
would not have an obligation to identify the em-
ployer with whom it had a dispute 4
The Respondent's assertion, however, totally ig-
nores the fact that the Respondent did not limit its
picketing to the gate that it asserts was reserved
solely for Warehouse Rather, the Respondent
picketed both gates at the Carlson jobsite As evi-
denced by the sign posted at gate 1, other employ
ers on the construction site clearly were using the
gates at which the Respondent was picketing
Thus, we find no merit in the Respondent's asser-
tion that its picketing was not conducted at a
common jobsite and that Moore Dry Dock does not
apply The Respondent had an obligation to identi-
fy Warehouse as the employer with which it had a
dispute Its failure to do so indicates that the pick-
eting had unlawful secondary objectives As the
Respondent offered no evidence to show other-
wise, we find that the Respondent picketed the
Carlson jobsite with an unlawful secondary objec
tive and therefore violated Section 8(b)(4)(1) and
(u)(B) of the Act
2 The Ninth Circuit also directed the Board to
reconsider its broad cease-and-desist order because
* The Respondent also argues that it was not responsible for the pick
etmg and that the judge erroneously concluded that the Respondent pick
eted gates I and 2 We have not considered these arguments because the
Ninth Circuit accepted the Board s findings that the Respondent was re
sponsible for the picketing and that the picketing took place at both
gates Therefore these issues were not included in the scope of the
remand
IRON WORKERS LOCAL 433 (UNITED STEEL) 623
the court had reversed one violation and remanded
a second For the reasons stated below, we find
that a broad remedial order remains appropriate
We originally adopted the judge's broad remedi-
al order based on her findings of 8(b)(4) violations
at four worksites in the instant case as well as two
earlier cases in which the Respondent was found to
have violated Section 8(b)(4)(i) and (ii)(B) of the
Act 5 As set forth above, we have affirmed our
original finding that the Respondent's picketing of
the Carlson jobsite violated Section 8(b)(4)(i) and
(ii)(B) This conduct, together with the violations
found at the Hollywood and McCarren Airport
jobsites that the Ninth Circuit left undisturbed and
the Respondent's history of 8(b)(4)(B) violations,
establishes a pattern of conduct by the Respondent
indicating a proclivity to violate the secondary
boycott provisions of the Act 6 Accordingly, a
broad remedial order remains appropriate
ORDER
The Respondent, Iron Workers Local 433, affili-
ated with the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, its officers, agents, and representatives, shall
1 Cease and desist from
(a) In any manner inducing and encouraging em
ployees of Carlson Southwest Corp, Cal Erectors,
Ben F Smith, or any other person engaged in com
merce or in an industry affecting commerce, to
refuse in the course of their employment to per-
form any services where an object thereof is to
force or require Carlson Southwest Corp, Cal
Erectors, Ben F Smith, or any other person to
cease doing business with Warehouse Equipment,
Inc, with each other, or with any other person
(b) In any manner threatening, coercing, or re-
straining Carlson Southwest Corp, Cal Erectors,
Ben F Smith, or any other person engaged in com-
merce or in an industry affecting commerce, where
an object thereof is to force or require Carlson
Southwest Corp, Cal Erectors, Ben F Smith, or
any other person, to cease doing business with one
another, Warehouse Equipment, Inc , or any other
person
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
5 Iron Workers Local 433 (Oltmans Construction) 272 NLRB 1182
(1984) Iron Workers Local 433 (V Systems) JD-(SF)-163-84 (not report
ed)
9 The Respondent asserts that because we did not issue a broad order
in a recent case Iron Workers Local 433 (Crane Co) 288 NLRB 717
(1988) the Board is precluded from granting a broad order in this case
relying on unlawful activity that occurred prior to the issuance of Crane
Co We find no ment in the Respondent s position Crane Co is distin
guishable from the instant case because Crane Co involved only one in
stance of unlawful picketing Here the Respondent has engaged in un
lawful activity at three separate worksites
(a) Post at its business offices and all meeting
halls located in the State of California copies of the
attached notice marked "Appendix "v Copies of
the notice, on forms provided by the Regional Di-
rector for Region 31, 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) Furnish the Regional Director with a suffi-
cient number of signed copies of the notice for
posting by Carlson Southwest Corp, Cal Erectors,
and Ben F Smith, provided those employers are
willing, at all places where notices to employees
are customarily posted
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
r 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 Nation
al 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
APPENDIX A
NOTICE To EMPLOYEES AND MEMBERS
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 ordered us to post and abide by this notice
WE WILL NOT in any manner induce or encour-
age employees of Carlson Southwest Corp, Cal
Erectors, Ben F Smith, or any other person en-
gaged in commerce or in an industry affecting
commerce, to refuse in the course of their employ-
ment to perform any service where an object there-
of is to force or require Carlson Southwest Corp,
Cal Erectors, Ben F Smith, or any other person to
cease doing business with Warehouse Equipment,
Inc, with one another, or with any other person
WE WILL NOT in any manner threaten, coerce,
or restrain Carlson Southwest Corp, Cal Erectors,
Ben F Smith, or any other person engaged in com-
merce or in an industry affecting commerce, where
an object thereof is to force or require Carlson
Southwest Corp, Cal Erectors, Ben F Smith, or
any other person to cease doing business with each
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other, Warehouse Equipment, Inc , or any other
person
IRON WORKERS LOCAL 433, AFFILI
ATED WITH THE INTERNATIONAL AS-
SOCIATION OF BRIDGE , STRUCTURAL
AND ORNAMENTAL IRON WORKERS,
AFL-CIO