Operating Engineers Local 77 (Potts & Callahan)

National Labor Relations Board - Board Decisions

Mar 30, 1990

298 N.L.R.B. 8 (N.L.R.B. 1990)

8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
77-77R-77B-77C-77D-77RA, AFL-CIO and
Potts & Callahan, Inc. Case 5-CB-5860
March 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by Potts & Callahan, Inc.,
the General Counsel of the National Labor Rela-
tions Board issued an amended complaint and
notice of hearing dated May 12, 1988. The amend-
ed complaint alleges that the Respondent Union en-
gaged in certain unfair labor practices within the
meaning of Section 8(b)(1)(A) of the National
Labor Relations Act, in essence, by charging,
trying, fining, and attempting to collect fines from
Potts & Callahan employees because the employees
refused to engage in an unlawful work stoppage.
On October 6, 1988, the parties jointly filed a
motion to transfer the proceeding directly to the
Board and a stipulation of facts. The parties waived
a hearing before an administrative law judge, the
making of findings of fact and conclusions of law
by an administrative law judge, and the issuance of
an administrative law judge's decision and recom-
mended Order. The parties agreed that the charge,
complaint, the Respondent's answer, the amended
complaint, and the stipulation of facts with the ex-
hibits attached shall constitute the entire record in
this case and that no oral testimony is necessary or
desired by any of the parties. The parties submitted
this case for findings of facts, conclusions of law,
and order directly by the Board.
On January 6, 1989, the Board issued its Order
approving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel, the Charging Party, and the Respondent
filed briefs in support of their respective positions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the stipulation, the
briefs, and the entire record in this proceeding and
makes the following
FINDINGS OF FACT
I. JURISDICTION
Potts & Callahan, the Employer, is a Maryland
corporation with an office and principal place of
business in Baltimore, Maryland, and is engaged in
construction, excavation, demolition, and road-
building operations in Maryland, Virginia, and the
District of Columbia. During the 12-month period
ending September 30, 1987, the Employer, in the
course of its business operations, purchased and re-
ceived at its Maryland jobsites products, goods,
and materials valued in excess of $50,000 directly
from points outside the State of Maryland. The
parties stipulated, and we find, that the Employer
is now, and at all times material has been, an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The parties stipulated, and we find, that the Re-
spondent Union is now, and at all times material
has been, a labor organization within the meaning
of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Moseman Construction Company was the gener-
al contractor for the construction of a subway sta-
tion at the Prince George's Plaza jobsite in Prince
George's County, Maryland, within the geographi-
cal jurisdiction of Respondent Operating Engineers
Local 77 and outside the geographical jurisdiction
of Operating Engineers Local 37. Moseman con-
tracted with Eric Excavation Enterprises to per-
form the excavation work on the jobsite. Eric, in
turn, contracted with Potts & Callahan to furnish
the equipment and operating engineers necessary to
perform the excavation work on the jobsite.
On June 3, 1987,1 Potts & Callahan commenced
work on the jobsite. During July, August, and Sep-
tember, Potts & Callahan gradually increased the
number of operating engineers on the jobsite. By
September 26, it had 14 pieces of equipment and 14
operating engineers, all of whom were either mem-
bers of, or were working through, Local 37 on the
jobsite. At the time, Potts & Callahan was signato-
ry to a collective-bargaining agreement with Local
37 that covered all of its operating engineers within
Local 37's geographical jurisdiction. Potts & Calla-
han did not have a contractual relationship with
Local 77.
From September 28 until sometime after Novem-
ber 3, Local 77 established a picket line at the job-
site, which did not have a valid "reserved gate"
system in effect. The picket signs stated: "Moseman
Unfair to Local 77." The picketing was in further-
ance of a labor dispute with Moseman. The Re-
spondent had no labor dispute with Potts & Calla-
han. The parties further stipulated that on Septem-
ber 28, 29, and 30 and October 1, Local 77 agents
induced and encouraged Potts & Callahan's em-
ployees to observe the picket line and not to work.
Although they were scheduled to work each day,
' All dates are in 1987 unless otherwise indicated.
298 NLRB No. 2
OPERATING ENGINEERS LOCAL 77 (POTTS & CALLAHAN) 9
none of Potts & Callahan's employees worked on
September 28, 29, and 30 and the morning of Octo-
ber 1. Eight of the employees crossed the picket
line and returned to work at 1 p.m. on October 1
with the rest returning to work the next day.
In October and November, Local 77 brought in-
ternal union charges against eight Potts & Callahan
employees who crossed its picket lines. Specifical-
ly, Roland, who was the Respondent's recording-
corresponding secretary, business representative,
and organizer, initially sent seven of the employees
letters informing them that they had been charged
with violating article XXIV, subdivision 7, section
(e), of the International Union's constitution "by
working contrary to a picket line established by
Local 77 at the Moseman Construction Company
project site" and article XV, section 3(a), by being
"employed in the geographic jurisdiction of Local
77 without the consent of said Local 77." Subse-
quently, after the 8(b)(1)(A) charges were filed
with the Board, Roland notified the employees of
the withdrawal of the charges involving working
"contrary to a picket line," but confirmed the
charges premised on a violation of article XV. He
also charged an additional employee with violating
that latter article.
At its January 15 and February 12, 1988 meet-
ings, Local 77 tried 11 employees of Potts & Calla-
han who crossed its picket line and fined them
$2000 each for assertedly violating article XV, sec-
tion 3(a), of the International Union's constitution.
Thereafter, Local 77 requested Local 37 to collect
the fines from these individuals.
The parties stipulated that Potts & Callahan usu-
ally, but not always, seeks permission or "clear-
ance" from the Respondent before assigning its op-
erating engineers to work in Local 77's jurisdiction.
Members of Local 37 are generally unaware of
whether Potts & Callahan has sought or received
clearance from the Respondent. The parties further
stipulated that the Respondent's practice is to deny
clearance to Local 37 members to work in its juris-
diction only when the Respondent's members are
available to perform the work sought for the Local
37 members. During the time period material here,
the Respondent informed Potts & Callahan that
there were not sufficient members of Local 77
available to work at the Prince George's Plaza job-
site. Finally, the parties stipulated that the Re-
spondent has not filed charges under article XV,
section 3(a), against Locall 37 members who work
in its jurisdiction without clearance other than
those that are the subject of this case. Other locals
have filed charges under that article regarding fail-
ure to secure clearance. The Respondent has on at
least one previous occasion filed charges under ar-
ticle XV against members of other locals who
worked in its jurisdiction without clearance, the
last such occasion being in or about 1985.
B. Contentions of the Parties
The General Counsel and Potts & Callahan con-
tend that the - Respondent's conduct against the
Potts & Callahan employees in question, specifical-
ly in charging, trying, and fining the employees,
and attempting to collect the fines it imposed, vio-
lated Section 8(b)(1)(A).2 They argue that it is
clear that the Respondent took these actions be-
cause the employees crossed its picket line and per-
formed services for Potts & Callahan, a neutral em-
ployer, at the Prince George's Plaza jobsite.
The Respondent contends that its conduct was
protected by the proviso to Section 8(b)(1)(A)
which permits a union to prescribe lawful member-
ship rules. It argues that the rule that the members
were disciplined for violating is a legitimate one
forbidding members of any local from working
within the territorial jurisdiction of another local
without obtaining clearance. It disputes that the
Potts & Callahan employees at issue were disci-
plined because they worked behind the picket line,
because that portion of the internal union charges
was promptly withdrawn without any action by it.
The Respondent further asserts that Local 77 could
not have had as an object of its actions inducing
Potts & Callahan to cease doing business with Mo-
seman because Potts & Callahan had no relation-
ship with Moseman that it could terminate.
C. Discussion
The issue here is whether the Respondent disci-
plined the Potts & Callahan employees for crossing
the Local 77 picket line, as alleged by the General
Counsel and Potts & Callahan and disputed by the
Respondent. If the Respondent disciplined the em-
ployees for this reason, its actions would be viola-
tive of Section 8(b)(1)(A) as they would constitute
restraint or coercion of 1 employees of a neutral em-
ployer because those employees refused to engage
in a work stoppage that had an object proscribed
by Section 8(b)(4)(B), i.e., to cause Potts & Calla-
han to cease doing business with primary employer
Moseman and its subcontractor Eric Excavation.3
2 There is no allegation that the Respondent's conduct on September
28 through October 1 , i.e., inducing and encouraging Potts & Callahan
employees to observe the Local 77 picket line and not work, was itself
violative of the Act
3 See Plumbers (Hanson Plumbing), 277 NLRB 1231 ( 1985), in which
the Board held that a respondent union 's directing fines exclusively at
employees of an undisputedly neutral employer for failing to honor a
stranger picket line on a common situs that does not have a valid re-
served gate system clearly discloses an objective proscribed by Sec.
Continued
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For the reasons stated below, we find that because
the General Counsel has established a prima facie
case of unlawful motivation that the Respondent-
has failed to rebut, the Respondent's conduct vio-
lated Section 8(b)(1)(A).4
With regard to the General Counsel's prima facie
case, we initially note that the Respondent stipulat-
ed to the fact that between September 28 through
October 1 it induced and encouraged the Potts &
Callahan employees to observe Local 77's picket
line against Moseman. Although this conduct was
not alleged as an independent violation of the Act,
it demonstrates that the Respondent's motivation at
this time was directed toward the employees' con-
duct with respect to the picket line. This conclu-
sion is reinforced by the language of the first letters
informing seven of the employees of the charges
filed against them, reflecting, at the least, the Re-
spondent's dual motivation. As indicated previous-
ly, the employees were notified that they were
charged with both crossing an authorized picket
line and working without clearance. Further, the
stipulated facts reveal that Potts & Callahan had
operating engineers at the Prince George's Plaza
jobsite before the picketing and that these employ-
ees were not charged with violating article XV
until the events at issue. Thus, it was only after the
employees failed to honor the picket line, and ini-
tially in conjunction with the internal union charge
for failing to honor that picket line, that the em-
ployees were charged with working in Local 77's
jurisdiction without obtaining clearance.
In rebuttal the Respondent contends that it was
solely motivated by the employees' failure to
obtain clearance. Assuming, without deciding, the
lawfulness of the Respondent's asserted motivation,
however, the Respondent's deviation from its usual
practices belies its stated motivation for disciplining
the employees at issue. Thus, the parties stipulated
that their practice is that Potts & Callahan, not its
employees, seeks clearance from the Respondent
before assigning its operating engineers to work in
the Respondent's jurisdiction. This practice is con-
sistent with the fact that Local 37 members them-
selves are generally unaware of whether Potts &
Callahan has sought or received clearance. Further,
8(b)(4)(B). Contrary to the Respondent 's argument , we do not find that,
because Potts & Callahan had a relationship with Moseman merely
through Eric Excavation , the Respondent's conduct cannot be found to
disclose this unlawful objective . See, e.g, Carpenters (Commercial Indus-
trial Constructors), 259 NLRB 541 (1981 ), in which the Board found a re-
spondent union to have violated Sec. 8(b)(1)(A) and (4) by fining employ-
ees of one subcontractor for working behind a picket line directed at an-
other subcontractor
4 See Toledo World Terminals, 289 NLRB 670 (1988), and Iron Workers
(Walker Construction), 285 NLRB 770 (1987), in which the Board has
analyzed dual-motive issues in cases involving 8(b)(1)(A) allegations
under Wright Line, 241 NLRB 1083 (1980).
it has been the Respondent's practice to deny clear-
ance to Local 37 members only when the Respond-
ent has sufficient Local 77 members available to
perform the work sought. In this regard, the Re-
spondent stipulated that it informed Potts & Calla-
han that it did not have such members available.
Thus, even assuming that, as the Respondent con-
tends, no request for clearance was made, the Re-
spondent has, in effect, admitted that under its
usual practice it would have granted clearance to
Potts & Callahan's Local 37 operating engineers
had a request been made. Additionally, Local 77's
action, at least with respect to Local 37, appears to
be unprecedented.
In sum, we find, based on the foregoing, that the
General Counsel has established that the Respond-
ent was motivated, at least in part, by the employ-
ees' crossing its picket line when it took the actions
in question against them. Further, we find that the
Respondent has not demonstrated that it would
have taken these actions in the absence of the em-
ployees' failure to honor the Local 77 picket line.
Thus, we conclude that the Respondent's discipline
of the Potts & Callahan employees violated Section
8(b)(1)(A)•
REMEDY
Having found that the Respondent has, engaged
in certain unfair labor practices, we shall order that
it cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the
Act. We shall, among other things , order that the
Respondent rescind the charges and fines assessed
against the employees and that it refund to them
any moneys held on account of charges and fines
assessed, with interest in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
CONCLUSIONS OF LAW
1. Potts & Callahan, Inc. is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent, International Union of Oper-
ating Engineers, Local 77-77R-77B-77C-77D-77RA,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By charging Roy Burns, Edward Christie,
Richard Nicholes, Lee F. Rider, Talbert Swift,
Gary Ward, John Werner, and Vaughn Worsell; by
trying and fining these individuals as well as Ernest
Phelps, Edward Raab, and Kenneth Shipley; and
by attempting to collect the fines it imposed, as de-
scribed herein, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) of the Act.
OPERATING ENGINEERS LOCAL 77 (POTTS & CALLAHAN) 11
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, International Union of Operating
Engineers, Local 77-77R-77B-77C-77D-77RA,
AFL-CIO, Prince George's County, Maryland, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Charging, trying, fining, or otherwise disci-
plining union members in order to induce or en-
courage them to withhold their services from a
neutral employer with an object of forcing or re-
quiring the neutral employer to cease doing busi-
ness with a primary employer.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the disciplinary actions taken against
Roy Burns, Edward Christie, Richard Nicholes,
Ernest Phelps, Edward Raab, Lee F. Rider, Ken-
neth Shipley, Talbert Swift, Gary Ward, John
Werner, and Vaughn Worsell in order to induce or
encourage them to withhold their services from a
neutral employer with an object of forcing or re-
quiring the neutral employer to cease doing busi-
ness with a primary employer, and remove from
their records any reference to that discipline.
(b) Refund to the above employees any moneys
held on account of fines assessed them in connec-
tion with the aforesaid disciplinary action, with in-
terest, as set forth in the remedy section of this de-
cision.
(c) Post at its offices and meeting hall all copies
of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional, Director for Region 5, after being signed by
the Respondent'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
notice to members are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notice, is not altered, defaced, or
covered by any other material.
(d) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by Potts & Callahan, Inc., if
willing, in conspicuous places including all places
where notices to employees are customarily posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
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 charge, try,' fine, or otherwise dis-
cipline union members in order to induce or en-
courage them to withhold their services from a
neutral employer with an object of forcing or re-
quiring the neutral employer to cease doing busi-
ness with a primary employer.
WE WILL NOT in any like , or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the disciplinary action taken by
us against Roy Bums, Edward Christie , Richard
Nicholes, Ernest Phelps , Edward Raab, Lee F.
Rider, Kenneth Shipley , Talbert Swift , Gary Ward,
John Werner, and Vaughn Worsell in order to
induce or encourage them to withhold their serv-
ices from a neutral employer with an object of
forcing or requiring the neutral employer to cease
doing business with a primary employer, and WE
WILL remove from our records any reference to
that discipline.
WE WILL refund to the above -named employees
any moneys held on account of fines assessed
against them in connection with the aforesaid disci-
plinary action , with interest.
8 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."
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS , LOCAL 77-77R-77B-
77C-77D-77RA, AFL-CIO