Plumbers Local 32 (Ramada, Inc)

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 501 (N.L.R.B. 1989)

PLUMBERS LOCAL 32 (RAMADA, INC)
United Association of Journeyman and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada,,Local 32, AFL-
CIO and Ramada , Inc. Case 28-CC-784-1
DECISION AND ORDER
May 31, 1989
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On May 18, 1988, Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Respondent filed exceptions, a supporting
brief, and supplements, and the General Counsel
and Charging Party filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, briefs, and supple-
ments and has decided to affirm the judge's rulings,
findings,' and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , Local 32, AFL-CIO, Seattle,
Washington , its officers , agents, and representa-
tives, shall take the action set forth in the Order.
i In agreeing with the judge that the Respondent violated Sec
8(b)(4)(u)(13) of the Act, we find that the Respondent's letter constituted
an unlawful threat because it contained an unqualified threat to engage in
secondary picketing "I [Respondent's Business Agent, Floyd A Sexton]
will establish an agressive and continuing picketing program for the job
site and will do everything necessary to organize the Seattle building
trades' support for our picketing program" See, e g , Retail Wholesale
Union District 65 (Eastern Camera), 141 NLRB 991, 996-997 (1963) We
do not pass on the judge's findings concerning the threats to handbill and
organize a boycott or on his analysis of DeBartolo Corp v Florida Gulf
Coast Building & Construction Trades Council, 485 U S 568 (1988)
This case is distinguishable from NLRB v Iron Workers Local 433, 850
F 2d 551 (9th Cir 1988) In Iron Workers, unlike here, the neutral em-
ployer at the Circus Circus jobsite specifically testified that he under-
stood the union's threat to picket "the job" to be confined to picketing
the primary employer's steel erection work
Michael J. Karlson, for the General Counsel.
Hugh Hafer, Esq. (Hafer, Price, Rinehart & Schwerin), of
Seattle, Washington , for the Respondent.
Gerald Morales and Tibor Nagy, Esqs. (Snell & Wilmer),
of Phoenix , Arizona, for the Charging Party.
' DECISION
STATEMENT OF THE CASE
501
DAVID G . HEILBRUN , Administrative Law Judge. This
case was tried at Phoenix , Arizona, on January 26, 1988.
The charge was filed by Ramada, Inc (Ramada), on Oc-
tober 30, 1987, and the complaint was issued November
13, 1987. The primary issues are whether United Asso-
ciation of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada, Local 32, AFL-CIO (Respondent), threatened,
coerced , or restrained Ramada and other persons en-
gaged in commerce, or in an industry affecting com-
merce, by letter and "other means" with the object of
forcing or requiring a cessation of business dealings, in
violation of Section 8(b)(4)(ii )(B) of the National Labor
Relations Act.
On the entire record , i including my observation of the
demeanor of witnesses , and after consideration of briefs
filed by the , General Counsel , the Charging Party, and
the Respondent Union , I make the following
FINDINGS OF FACT
1. JURISDICTION
The Charging Party, a Delaware corporation, main-
tains its principal office and place of business in Phoenix,
Arizona, where it is engaged as an operator of hotels and
motels in virtually every State of the United States.
During a recent representative 12-month period it had a
gross volume of business in excess of $500,000 in the
course and conduct of its business operations, while pur-
chasing goods and materials valued in excess of $50,000
which it received directly from suppliers outside Arizo-
na. Respondent admits and I find that the Charging
Party is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act As also ad-
mitted, I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II ALLEGED UNFAIR LABOR PRACTICES
A Basis of Analysis
One of Ramada's business divisions is its hotel group.
This entity owns, operates, franchises, and constructs fa-
cilities under the names Ramada Inns, Ramada Hotels,
Ramada Renaissance Hotels, and Rodeway Inns. John
Kelly is Ramada's Phoenix-based vice president for
design and construction, and currently involved in a 5-
year expansion program contemplating 8 to 10 new
hotels. Kelly reports to a senior vice president of devel-
opment, and directly supervises other executives includ-
ing Vice President of Construction Bill Noble.
Presently a 204-room, full service Ramada Inn is under
construction at Sea-Tac Airport, located between the
cities of Seattle and Tacoma, Washington.2 On May 18
i The General Counsel's unopposed motion to correct record, dated
March 9, 1988, is granted and received in evidence as G C Exh 5
2 All dates and named months hereafter are in 1987 unless indicated
otherwise
294 NLRB No. 39
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ramada chose Baugh Construction Company as general
contractor for the job. However, this selection was sub-
ject to successfully achieving a lower projected job cost
by "value engineering" changes in design and featuring
as negotiated between the owner and proposed general
contractor This process spanned several months until
Ramada issued Baugh a formal notice to proceed in early
October.
Over this 'same -general timespan Baugh was in the
process of selecting subcontractors for the various spe-
cialty phases of the job. After considering several me-
chanical, subcontractors it awarded this work to Chap-
man Mechanical, Inc., a nonunion firm operating. from
Tacoma. In keeping with general job progress Chapman
has by now completed about 20 percent of the overall
mechanical work that will be required.
Pete Hollen, a Phoenix-based project engineer for
Ramada, monitors the Sea-Tac job along with several
others This responsibility results in his travel to the job-
site for direct observation an average of 2-3 days per
month. The regular onsite representative of Ramada is
resident engineer Phil Nield, who facilitates construction
progress by a constant source of dealings with Baugh,
the architects, and his superiors in Phoenix.
Respondent has general trade jurisdiction within King
County, Washington. In connection with Ramada's hotel
job at Sea-Tac, Respondent's business manager, Floyd
(Al) Sexton, negotiated a labor cost reduction package
for journeymen and helpers with union contractors of his
vicinity with the purpose of making them competitive as
mechanical subcontractors on this project Sexton
learned in late July that his efforts had been unavailing
by reason of Chapman's selection, and he wrote to
Baugh at that time expressing definite disappointment
and adding that counteractions by the Union would be
undertaken. On July 31 Sexton wrote to Richard Snell,
Ramada's president and board chairman located in Phoe-
nix, with copies to officials of Baugh Sexton's letter
read:
It is my understanding that Baugh Construction
Company, your general contractor for the Sea-Tac
Airport Ramada Inn scheduled to begin soon in Se-
attle, Washington, will be subcontracting the
plumbing work to Chapman Plumbing Company
from Tacoma, Washington
This is to advise you that Chapman Plumbing is a
nonunion contractor. The wages paid by Chapman
to his nonunion workers constitute a serious threat
to the standard of living enjoyed by our members.
I will establish an aggressive and continuing pick-
eting program for the job site and will do every-
thing necessary to organize the Seattle building
trades' support for our picketing program We will
also ask all of our affiliate groups to join with us in
not patronizing the Ramada Inns
We will establish a handbilling program to notify
prospective customers of problems with the
Ramada Inn.
Chapman Plumbing has just started doing busi-
ness in King County. This will be their first' major
job that we know about.
We would prefer to work with you and with
Baugh Construction but so far all of our requests to
meet with Baugh have been turned down. We will
not sit by and let Chapman Plumbing steal work in
King County with substandard rates and' poor
workmanship. It looks like the beginning of a full
scale war with the Ramada Inn as the battlefield.
Respondent has not at any material times maintained an
organizational or representational interest as to employ-
ees of Ramada or Baugh. Further, Respondent has not
shown that it has any labor dispute with either of these
entities. Its labor dispute, as relevant to issues of this case
and as referred to in the direct written communications
of late July, is with Chapman.
In keeping with the general contract let by Ramada to
Baugh, Chapman was one of several subcontractors ap-
proved for selection by Ramada within the scope of its
power to extend or deny such approval. In the written
approval given Baugh for its selection of Chapman, evi-
denced by Hollen's letter dated September 29, such ap-
proval was expressly recited to be based on an assurance
that the chosen subcontractor was (1) financially stable,
(2) had adequate manpower and equipment for the
project, and (3) had no known "difficulties" relative to
taxes Kelly testified that beyond these factors Ramada
typically considered whether a proposed subcontractor
enjoyed a reputation for satisfactory work in the vicinity
or whether Ramada had experienced any substandard
performance from it in the past.
B. Analysis
The complaint in this case expressly and exclusively
invokes Section 8(b)(4)(li)(B) of the Act as that statutory
provision which Respondent allegedly violated. In rele-
vant part the statute thus provides.
(b) . . . It shall be an unfair labor practice for a
labor organization or its agents-
(4) . . . (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
fecting commerce, where in either case an object
thereof is-
(B) forcing or requiring any person to cease
doing business with any other person . . . . Provid-
ed, That nothing contained in this clause (B) shall
be construed to make unlawful, where not other-
wise unlawful, any primary strike or primary pick-
eting;
Provided further, That for the purposes of this para-
graph (4) only, nothing contained in such paragraph
shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the
public, including consumers and members of a labor
organization, that a product or products are pro-
duced by an employer with whom the labor organi-
zation has a primary dispute and are distributed by
another employer, as long as such publicity does
not have an effect of inducing any individual em-
PLUMBERS LOCAL 32 (RAMADA, INC)
ployed by any person other than the' primary em-
ployer in'the course of his employment to refuse to
pick up, deliver, or transport any goods, or not to
perform any services, at the establishment of the
employer engaged in such distribution. .
Here, as the General Counsel contends, there are several
bases upon which to conclude that Respondent has en-
gaged in proscribed conduct Sexton's written statement
that his organization would establish a vigorous picket-
ing program at the active jobsite is plain evidence that an
objective of forcing a cessation of business dealings
which include Chapman has been embarked upon.
NLRB v Denver Building Trades Council, 341 U.S. 675
(1951); San Francisco Labor Council, 191 NLRB 261
(1971), enfd. 475 F.2d 1125 (9th Cir 1973). There is an
absence of any assurance of legitimacy to such action,
and insofar as common situs conditions might obtain on
the project there is comparable absence of any assurance
that the picketing standards of Sailors Union (Moore Dry
Dock), 92 NLRB 547 (1950), would be respected. See
also Meat Cutters Local 248 (Service Food Stores), 230
NLRB 189 (1977); cf Teamsters Local 592 (Estes Express
Lines), 181 NLRB 790 (1970). Further, a statement of
this type is viewed to be an unqualified threat of pro-
spective unlawful picketing action when general picket-
ing of a secondary employer's place of business is an-
nounced. Teamsters Local 886 (Stephens Co.), 133 NLRB
1393 (1961), see also Carpenters Local 639, 203 NLRB
1112 (1973).
Secondly, Sexton's letter directly warns that labor
groups affiliated with Respondent will be requested to
join in a boycott of Ramada Inns. This broad sanction is
clearly outside any legitimate tactics available to Re-
spondent, and can only have the consequence of pressur-
ing Ramada to reverse the routine contractual commit-
ments that led to Chapman's presence as a contributing
builder on the project. Food & Commercial Workers
Local 506 (Coors Distributing), 268 NLRB 475 (1983).
A final component of Sexton's letter is that it advises
how a handbilling program directed to prospective
future customers will be established because of Respond-
ent's "problems" with Ramada. Here a vivid departure
from permissible conduct by a labor organization is
shown, for no labor dispute exists between Respondent
and Ramada, -nor are any ingredients present from which
one would likely arise. See Boxhorn's Big Muskego Gun
Club v. Electrical Workers Local 494, 798 F.2d 1016 (7th
Cir 1986). In Central Indiana Building, 257 NLRB 86
(1981), the Board dismissed a complaint based on hand-
billing of K-Mart stores in furtherance of a labor organi-
zation's dispute with a nonunion contractor. In its opin-
ion the Board stated
Only if the handbills had stated or reasonably im-
plied that K-Mart,-rather than a contractor, was di-
rectly responsible for hiring the nonunion workers
themselves could the General Counsel successfully
claim that the handbills left the misimpression that
Respondent's primary labor dispute was with K-
Mart itself. But it is clear that the instant handbills
did not make such a statement or create such an im-
503
plication To the contrary, the handbills clearly
state the nature of the dispute-the use of nonunion
labor on the construction project-and they clearly
reveal that Frash, not K-Mart, was the employer di-
rectly responsible for the hiring of that nonunion
labor. [Central Indiana Building, supra at 89]
Here the envisioned handbilling would, by Sexton's ac-
count, root itself in claimed "problems" with Ramada; an
assertion that is without support from fact or context.
Respondent advances several contentions in its defense
to the complaint. It first claims that Ramada has "direct
and ultimate control" over plumbing work at the project,
and for this reason brings itself into a "focus of the dis-
pute." I reject this argument that Ramada is other than a
secondary party, and believe instead that its highlighted
right of approving subcontractors is nothing more than
typical positioning in the construction industry between
owners and those undertaking building projects on behalf
of owners NLRB v. Enterprises Assn, 429 US. 507
(1977), is distinguishable for that case dealt with broader
statutory questions that have little application here.
Respondent also contends that the General Counsel
engages in mere speculation in alleging that stated future
picketing action carried the probability of violating the
Act. Here, however, the analogous case is Teamsters
Local 126 (Ready Mixed Concrete), 200 NLRB 253
(1972), in the sense that a nonunion supplier was the only
entity with whom the Union had a labor dispute and yet
this configuration resulted in an attempted enmeshing of
the neutral secondary property owner.
Respondent observes that in NLRB v. Servette Inc, 377
U S. 46 (1964), the Supreme Court stated
Finally, the warnings that handbills would be dis-
tributed in front of noncooperating stores are not
prohibited as "threats" within subsection (u). The
statutory protection for the distribution of handbills
would be undermined if a threat to engage in pro-
tected conduct were not itself protected. [Servette,
above at 57]
The United States Supreme Court recently decided the
tortuous litigation originating with the Board's holding in
Florida Gulf Coast Building. Trades Council, 252 NLRB
702 (1980) In DeBartolo Corp. v Florida Gulf Coast
Building & Trades Council, 108 S.Ct. 1392, decided April
20, 1988, the Supreme Court affirmed denial of enforce-
ment of a later Board Order by the Court of Appeals for
the Eleventh Circuit Fundamentally, the Supreme Court
was not inclined to agree with the Board's interpretation
of Section 8(b)(4) upon earlier remand, and notwith-
standing the ordinary deference given to the Board's ap-
plication of the statute believed that a different result
was mandated The Supreme Court invoked NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490 (1978), as a con-
trolling proposition that where an otherwise acceptable
construction of a statute would raise serious constitution-
al questions, such construction should be avoided unless
this would be plainly contrary to the intent of Congress.
Tracing this rule to early 19th century holdings, the
court rejected the Board's construction of the statute be-
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause as a Catholic Bishop matter this would pose "seri-
ous questions of the validity of Section 8(b)(4) under the
First Amendment."
This near-contemporaneous decision by the Supreme
Court does not, however, profit Respondent as a general
matter in terms of the instant proceeding. Notably, the
Court in DeBartolo Corp, supra, 108 S Ct. 1392, was ex-
ceedingly influenced by the utter absence of any conduct
by the labor organization other than "peaceful" handbill-
ing. The Court went to considerable lengths to contrast
this with hypothetical scenarios, and it also engaged in a
meticulous analysis of legislative history in concluding
that such "peaceful persuasion" was not forbidden.
Given the unqualified pugnatiousness of Sexton's com-
munication, Respondent's conduct here is not legitima-
tized by DeBartolo Corp., in which a distinctly different
fact situation was obtained.
CONCLUSIONS OF LAW
1 Ramada , Inc., Baugh Construction Company and
Chapman Mechanical are employers and persons en-
gaged in commerce and in an industry affecting com-
merce within the meaning of Section 2(2), (6), and (7)
and Section 8(b)(4)(ii)(B) of the Act.
2. Respondent, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, Local 32, AFL-CIO, is
a labor organization within the meaning of Section 2(5)
and Section 8(b)(4)(ii)(B) of the Act.
3 By threatening, coercing, or restraining Ramada,
Inc. with an object of forcing or requiring Ramada, Inc
to cease doing business with Baugh Construction Com-
pany, or forcing or requiring Baugh Construction to
cease doing business with Chapman Mechanical, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ORDER
The Respondent, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, Local' 32, AFL-
CIO, its officers, agents, and representatives, shall
1. Cease and desist from threatening, coercing, or re-
straining Ramada , Inc., where an object thereof is to
force or require it to cease doing business with Baugh
Construction Company, or forcing or requiring Baugh
Construction Company to cease doing business with
Chapman Mechanical.
2. Take the following affirmative action is necessary to
effectuate policies of the Act.
(a) Post at Respondent's business office, meeting halls,
and other places where notices to members are custom-
arily posted copies of the attached notice marked "Ap-
pendix."' Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by,
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail sufficient copies of this notice to the
Regional Director for posting by Ramada Inn, Baugh
Construction Company, and Chapman Mechanical, if
they are willing, at places where notices to their employ-
ees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
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 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
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices prohibited under Section 8(b)(4)(ii)(B) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to
remedy these unfair labor practices and to effectuate
policies of the Act.
Disposition
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed3
NOTICE To 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 or-
dered us to post and abide by this notice
WE WILL NOT threaten, restrain , or coerce Ramada
Inn with an object of forcing or requiring it to cease
doing business with Baugh Construction Company, or
with the object of forcing or requiring Baugh Construc-
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
PLUMBERS ,LOCAL 32 (RAMADA, INC)
tion Company to cease doing business with Chapman
Mechanical at the Sea-Tac Airport job.
,UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND
PIPE FITTING . INDUSTRY OF THE UNITED
STATES AND CANADA , LOCAL 32, AFL-
CIO
505