Painters Local 829 (Theatre Techniques)

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 319 (N.L.R.B. 1986)

PAINTERS LOCAL 829 (THEATRE TECHNIQUES)
United Scenic Artists , Local 829, Brotherhood of
Painters and Allied Trades , AFL-CIO and The-
atre Techniques ,, Inc. Case 2-CC-1553
31 January 1986
SECOND SUPPLEMENTAL DECISION
AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 25 June 1979 the National Labor Relations
Board issued its original Decision and Order in this
proceeding,' finding that, the Respondent Union
violated Section 8(b)(4)(ii)(B) of the Act, and or-
dering the Respondent Union to cease and desist
therefrom and take certain affirmative action.
Thereafter, the United States Court of Appeals for
the District of Columbia Circuit denied enforce-
ment of the Board's Order and remanded the case
to the Board for further consideration consistent
with the court's opinion.2 On 26. August 1983 the
Board issued its Supplemental Decision and Order
reaffirming its finding that the Respondent violated
Section 8(b)(4)(ii)(B) of the Act.3 Upon a petition
for review and cross-application for enforcement,
the court declined to enforce the Supplemental
Order and again remanded the case to the Board
for further proceedings consistent with the court's
opinion.4
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
In its supplemental Decision and Order, the
Board held that the General Counsel makes out a
prima facie showing of a violation of Section
8(b)(4)(ii)(B) of the Act by demonstrating that a
union has exerted coercive pressure on a neutral
employer which lacks control over the disputed
work. It further held that if the union fails to rebut
the prima facie showing "by establishing that it
made reasonable good-faith efforts to ascertain
whether the employer on which it exerted pressure
1 243 NLRB 27
2 United Scenic Artists Local 829 v. NLRB, 655 F 2d 1267 (1981)
2 267 NLRB 858.
4 762 F.2d 1027 (D.C. Cir 1985).
319
was a neutral employer and that it was denied
access to this information or deliberately misled,"5
a violation of the Act is established. The Board
found that the Respondent Union had not rebutted
the General Counsel's prima facie case and, there-
fore, concluded that the Respondent Union had
violated Section 8(b)(4)(ii)(B).
The court, in its opinion of 24 May 1985, con-
cluded that the Board had attempted to establish
the "object" element of Section 8(b)(4) by means of
a presumption and held that the creation of such a
presumption is beyond the Board's statutory au-
thority.6 The court further stated:
Upon remand, the Board must either explic-
itly find that Local 829 had a forbidden sec-
ondary object or it must dismiss the proceed-
ing. In order to find that the union had a sec-
ondary object, the Board must have before it
new, credible evidence to support its inference
that the union knew that TTI [Theatre Tech-
niques, Inc.] possessed absolute contractual
control over the disputed work. Absent such
evidence, the Board-may not find a violation
of section 8(b)(4)(ii)(B).7
Following the acceptance of the court's remand,
the Board afforded the parties an opportunity to
submit statements of position as to the existence of
such "new, credible evidence." Thereafter, the Re-
spondent Union submitted a statement of position
in which it asserted that there is no additional evi-
dence which could be adduced to demonstrate that
it had knowledge of TTI's control over the disput-
ed work. No other party filed a statement of posi-
tion. Accordingly, in the absence of any .contention
that such additional evidence exists, and applying
the court's opinion as the law of the case, 8 we shall
dismiss the complaint.
ORDER
The complaint is dismissed.
5 267 NLRB at 861.
6 762 F 2d at 1033
Id. at 1037.
s Member Babson, in accepting the court's opinion as the law of the
case, finds it unnecessary to express a view with respect to the Board's
original and supplemental decisions.
278 NLRB No. 46