Sheet Metal Workers International Association, Afl-Cio

National Labor Relations Board - Board Decisions

Feb 13, 1989

292 N.L.R.B. 1046 (N.L.R.B. 1989)

1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers, Local 27, a/w Sheet Metal
Workers International Association , AFL-CIO
and Cahill Monmouth Contracting , Inc., t/a
Camcon . Case 22-CC-1047
February 13, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On June 20, 1988, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
the General Counsel filed an answering brief, and
the Charging Party filed a response in support of
the General Counsel's position.
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 and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
We agree with the judge that the Respondent
violated Section 8(b)(4)(ii)(B) of the Act by threat-
ening representatives of the Hahn Company,
Nuhahn Construction Co., and Begg and Daigle,
Inc. The Respondent has urged that we reverse the
administrative law judge based on NLRB v. Iron
Workers Local 433, 850 F.2d 551 (9th Cir. 1988),'
which issued after the judge's decision here. There,
a respondent union had a dispute with a primary
employer at a common situs and threatened a sec-
ondary employer that it would picket "the job,"
without qualifying the threats by clearly indicating
that the picketing would conform with the lawful
restrictions imposed on such picketing. The court,
in finding no violation of the Act, concluded from
the context of the entire conversation that a reason-
able employer would have understood that "the
job" referred to the work the primary employer
was performing, and the union's failure to give as-
surances that its picketing would conform to the
restrictions did not render the threats a per se vio-
lation. Even applying this reasonable-interpretation
standard, however, we find the Respondent's
threats violated Section 8(b)(4)(ii)(B) of the Act.
Members of Local 27 were not employed by
Hahn, Nuhahn, or Begg and Daigle, but were per-
forming work for other sheet metal contractors at
the mall. Among the statements made by the Re-
spondent's agents, Business Agent Michael Ryan
' Member Cracraft did not participate in the underlying decision Iron
Workers Local 433 (United Steel), 280 NLRB 1325 ( 1986), on which the
Ninth Circuit decision is based.
told the Nuhahn project administrator that if the
problem of Camcon's use of Local 22 men could
not be resolved, not only would he put up pickets,
but he was "not going to man the job." Further-
more, Ryan told Begg's project manager, Ramos,
that if Ramos did not get the Camcon employees
off the job, he would "organize his union workers
and form up possibly a picket and strike the mall."
In light of the number, breadth, and nature (i.e., to
picket and to strike) of the threats, the Respondent
clearly conveyed the message that it intended to
take action against the entire jobsite-not merely
against the primary employer. Such threats to
engage in a work stoppage aimed at secondary em-
ployers clearly violate the Act.
We do not agree, however, with the judge's rec-
ommended imposition of a broad cease-and-desist
order. The judge reasoned that such an order was
appropriate in light of the longstanding animosity
between the Respondent and Local 22, as well as
the Respondent's intent to prevent members of
Local 22-from working in its jurisdiction. In
Teamsters Local 70 (C&T Trucking Co.), 191 NLRB
11 (1971), the Board stated:
. . . we have long held, with court approval,
that a broad remedial order is appropriate
whenever a proclivity to violate the Act is es-
tablished, either by the facts within a particu-
lar case, or by prior Board decisions against
the respondent at bar based upon similar un-
lawful conduct in the past.
The General Counsel submits that the Respond-
ent's conduct, taken together with the history of
the dispute between it and Local 22, requires a
broad order. Neither the judge nor the General
Counsel cites any prior Board decisions against the
Respondent based on similar conduct. Further-
more, the alleged longstanding animosity between
the Respondent and Local 22 does not, in itself, es-
tablish a proclivity for unlawful conduct; nor does
the Respondent's conduct here. Accordingly, we
shall modify the recommended Order to use
narrow injunctive language.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sheet Metal Workers, Local 27, a/w
Sheet Metal Workers International Association,
2 In his recommended Order, the judge inadvertently included the
names Bridgewater Commons Associates and Protective Ceiling, Inc.,
d/b/a Tony Crawford Construction , even though the Respondent was
not found to have threatened any representative of these companies. We
shall, accordingly , delete these names from the Order.
292 NLRB No. 121
SHEET METAL WORKERS LOCAL 27 (CAMCON) 1047
AFL-CIO, Bridgewater, New Jersey, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified
1 Substitute the following for paragraph 1
"1 Cease and desist from threatening, coercing,
or restraining the Hahn Company, Nuhahn Con-
struction Co, and Begg and Daigle, Inc, where an
object is to force or require Hahn, Nuhahn, and
Begg and Daigle to cease doing business with
Cahill Monmouth Contracting, Inc , t/a Camcon "
2 Substitute the following for paragraph 2(b)
"(b) Sign and mail copies of the notice to the
Regional Director for posting by Hahn, Nuhahn,
Begg and Daigle, and Camcon, if willing, at loca-
tions where notices to their employees are custom
arily posted "
3 Substitute the attached notice for that of the
administrative law judge
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 the National Labor Relations Act
and we have been ordered to post and abide by
this notice
WE WILL NOT threaten, coerce, or restrain the
Hahn Company, Nuhahn Construction Co, or
Begg and Daigle, Inc, where an object is to force
or require Hahn, Nuhahn, or Begg and Daigle to
cease doing business with Cahill Monmouth Con-
tracting, Inc, t/a Camcon
SHEET METAL WORKERS, LOCAL 27,
A/W SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION, AFL-
CIO
complaint was issued on February 11 alleging that Sheet
Metal Workers Local 27, a/w Sheet Metal Workers
International Association AFL-CIO (Respondent or
Local 27) violated Section 8(b)(4)(u)(B) of the National
Labor Relations Act (Act) Respondent filed an answer
denying the commission of the alleged unfair labor prac
tices
The parties were given full opportunity to participate,
produce evidence , examine and cross examine witnesses,
argue orally and file briefs Briefs were filed by all the
parties on May 13
On the entire record of the case ,2 including my obser
vation of the demeanor of the witnesses , 3 I make the fol
lowing
FINDINGS OF FACT
I JURISDICTION
Cahill Monmouth Contracting, Inc, t/a Camcon
(Charging Party), a corporation with an office and place
of business in South Plainfield, New Jersey, has been en
gaged as a sheet metal contractor in the construction in
dustry, constructing commercial facilities including work
on the Bridgewater Commons Mall in Bridgewater, New
Jersey (the Mall) Respondent admits that Camcon is en
gaged in commerce within the meaning of Section 2(6)
and (7) and Section 8(b)(4) of the Act and I so find
Bridgewater Commons Associates (Bridgewater) is a
partnership with an office and place of business in
Bridgewater New Jersey, and has been engaged as a de
veloper of the Mall The partnership consists of the Pru
dential Insurance Company and the Hahn Company
(Hahn) Respondent admits, and I so find that Bridge
water is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and Section 8(b)(4) of the
Act Nuhahn Construction Co (Nuhahn), Protective
Ceiling Inc d/b/a Tony Crawford Construction (Craw
ford) and Begg and Daigle Inc (Begg) are general con
tractors Respondent admits and I so find that they are
engaged in commerce within the meaning of Sections
2(6) and (7) and 8(b)(4) of the Act In addition Respond
ent admits, and I so find, that it is a labor organization
within the meaning of Section 2(5) and Section 8(b)(4) of
the Act
Mitchell A Schley Esq for the General Counsel
Robert F 0 Brien Esq (Tomar Seliger Simonoff Adour
ian & 0 Brien), Haddonfield New Jersey for the Re
spondent
John A Craner Esq (Craner Nelson Satkin & Scheer)
Scotch Plains, New Jersey for the Charging Party
DECISION
STATEMENT OF THE CASE
D BARRY MORRIS, Administrative Law Judge This
case was heard before me in Newark New Jersey, on
March 23 1988 1 On a charge filed on January 26 a
i All dates refer to 1988 unless otherwise specified
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Issue
The issue in this proceeding is whether Respondent
threatened Bridgewater, Nuhahn and Begg with picket
ing and work stoppages in order to force them to cease
dealing with Camcon, in violation of Section
8(b)(4)(u)(B) of the Act
2 General Counsels motion to correct transcript is granted
S The witnesses called by the General Counsel appeared credible Re
spondent called no witnesses to rebut their testimony
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B The Facts
I Background
Bridgewater was formed for the purpose of building a
165 store indoor shopping mall in Bridgewater, New
Jersey Construction began in the early fall of 1986 and
the Mall was scheduled to open and did open on Febru
ary 24, 1988 Bridgewater contracted with Nuhahn to act
as the general contractor for the construction of the
Mall s shell and common areas Each tenant shop hired
its own individual general contractor for the construc
tion of its own interior
Crawford was engaged as the general contractor for
the construction of three of the Mall s stores, namely,
Wilson s Suede and Leather, This End Up, and Prints
Plus Crawford subcontracted with Camcon to do the
sheet metal work for these stores In addition, two other
stores, The Bombay Company and Deck the Walls, hired
Begg as the general contractor for the construction of
those stores Begg also subcontracted with Camcon to do
the sheet metal work for those two stores
2 Events of January 21
Camcon s regular employees are not represented by a
union However Camcon decided to use union labor for
its work at the Mall Local 27 business agent, Michael
Ryan, was contacted and was requested to furnish two
sheet metal workers After Camcon s president William
Cahill was informed that Ryan would not send Camcon
any men, Cahill contacted Ryan on January 21 Ryan
told him that he would supply Camcon with men 'if the
entire job was his " He wanted the fabrication and the
installation " Cahill informed Ryan that that was unac
ceptable and that he would turn to Sheet Metal Workers
Local Union 22 of New Jersey (Local 22) for his labor
needs Cahill obtained employees from Local 22 for the
mall job and Camcon signed a collective bargaining
agreement with Local 22 for that job
On January 21 Ryan telephoned Nuhahn project ad
ministrator, Anne Bass He told her that we might have
a problem because one of the shops, Wilson s House of
Suede, their sheet metal subcontractor possibly was
going to sign with Local 22 Ryan told Bass that if the
matter could be resolved quickly we would have no
problem Bass reported her conversation to Kuhn the
Hahn Company tenant coordinator When Kuhn arrived
at Bass trailer to investigate the matter, he saw a
Camcon truck with some men packing it up and getting
ready to leave Local 27 shop steward, David DeLuca
was standing there Kuhn asked him if everything was
alright and DeLuca replied 'Yes, their leaving '
3 Events of January 25
On January 25 Camcon sent four Local 22 employees
to the Mall to work at the Wilson store On the same
day Nuhahn s Anne Bass received another call from
Ryan Bass told Ryan, I thought wed have no prob
lem ' Ryan replied that "it seems that we did be
cause Camcon had signed with Local 22 Ryan told
Bass that if the matter could not be resolved he was not
going to man the job or put up pickets He explained
that creating a work stoppage is what would happen
Bass then called Kuhn and told him to come to Wilson s
and straighten out the matter because Ryan wanted to
put up a picket line Kuhn arrived at the Wilson store
and saw several members of Local 22 and DeLuca
DeLuca told Kuhn that if the Local 22 employees did
not leave we 11 probably put up a picket line'
Kuhn then telephoned Jim Nolan vice president of
Melville Realty Corporation the parent company which
owned Wilson s House of Suede Kuhn explained to
Nolan that there was a dispute involving Local 27 and
that the dispute was such that the ultimate outcome
would be that they would put up a picket line and that if
they did that, it would shut down the entire job because
none of the other trades would cross the line" Kuhn
also told Rich Hall, project manager for Crawford,
which was the general contractor for Wilson s that he
had better solve this problem Hall in the presence of
DeLuca, wrote out a cancellation of Camcon s contract
and the Local 22 employees left the store
4 Events of February 2 and 3
On February 2 DeLuca visited Kuhn s office and told
him that the Camcon men were back the men from
Local 22 were working in the Bombay store and it was
the intention of Local 27 to put a picket line at the
mall' Kuhn then contacted Begg the general contractor
for the Bombay store He spoke to Angelo Ramos
Begg s project manager , and told him that because
Camcon was working in the store and because there was
a dispute with Local 27 it was Local 27 s intention to
put up a picket line around the mall Ramos replied to
Kuhn that Local 22 s men would not be on the job the
following day Kuhn then telephoned Ryan and advised
him of his conversation with Ramos Ryan told Kuhn
,as long as the union 22 guys aren t there your words
[are] good enough for me There won't be a picket line
around the shopping center
On February 3 Local 22 men were back at the
Bombay store Ryan met Ramos at the store and told
him that if Ramos did not get the Camcon employees off
of the job he would organize his union workers and
form up possibly a picket and strike the mall After
meeting with Hahn and Nuhahn officials, Ramos can
celed Camcon s contract
C Discussion
The Hahn Company, Nuhahn, and the various store
general contractors were under great pressure to com
plete all the work in order to meet the Mall's opening
date of February 24 In the last remaining weeks ap
proximately 1200 construction workers were working at
the Mall with employees working there almost around
the clock In addition, Hahn s profits were dependent
on there not being a delay in the Mall stores opening be
cause the rents paid to the developer were based in part
on the gross sales of each store Kuhn testified that if a
picket line were set up it would create a problem in
terms of meeting the opening deadline
On January 25, when Local 22 men appeared at Wil
son s Ryan threatened Anne Bass, Nuhahn s project ad
SHEET METAL WORKERS LOCAL 27 (CAMCON)
ministrator , with picketing and a work stoppage if the
Local 22 employees continued at the site On the same
day Shop Steward DeLuca told Kuhn that Local 27
would probably put up a picket line if the Local 22
employees did not leave Kuhn instructed the store s gen
eral contractor to take action to avert the walkout and
Rich Hall canceled Camcon s contract
On February 2, after Camcon returned to the Mall to
fulfill its contract with Begg , DeLuca advised Kuhn that
Local 27 was going to picket the Mall The next day,
when Camcon continued its work on the Bombay store,
Ryan threatened Ramos that Local 27 would strike and
picket the Mall if Local 22 employees were not removed
from the job Ramos subsequently canceled Camcon s
contract
Ryan's threats to Bass, Kuhn, and Ramos and DeLu
ca s threats to Kuhn constitute unlawful labor practices
Local 27 did not have a primary dispute with Hahn,
Nuhahn, or Begg Yet, Local 27 put pressure on these
neutral employers to cease doing business with Camcon
I find that Ryan's and DeLuca s threats to represents
tives of Hahn, Nuhahn, and Begg , in order to cause them
to seek and obtain the termination of Camcon's contract,
constitute violations of Section 8(b)(4)(ii)(B) of the Act
See Tn State Building Trades Council (Backman Sheet
Metal) 272 NLRB 8 (1984)
CONCLUSIONS OF LAW
1 Camcon, Bndgewater, Nuhahn Crawford and
Begg are each engaged in commerce within the meaning
of Sections 2(6) and (7) and 8(b)(4) of the Act
2 Respondent is a labor organization within the mean
ing of Section 2(5) of the Act
3 By threatening representatives of Hahn Nuhahn
and Begg , in order to cause them to seek and obtain the
termination of Camcon s contract, Respondent violated
Section 8(b)(4)(ii)(B) of the Act
4 The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
5 Respondent did not violate the Act in any other
manner alleged in the complaint
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re
spondent to cease and desist therefrom and to take cer
tam affirmative action designed to effectuate the policies
of the Act
The General Counsel has requested that a broad order
be issued against Respondent This case cannot be
viewed as involving only an isolated act against one pn
mary employer, Camcon Local 27's dispute was not
principally aimed at Camcon In view of the longstand
ing animosity between Local 27 and Local 22, it was
Local 27's intention to prevent members of Local 22
from working in its jurisdiction If the Order were re
stricted solely to Camcon and the secondary companies
1049
involved in this proceeding, it would leave employers
who hire Local 22 members exposed to the same type
of pressure through other comparable channels ' Electra
cal Workers Local 501 v NLRB 341 US 694 706
(1951) Unless other employers are covered by the
Order all employers may be targets of Local 27 Ac
cordingly I will recommend that a broad order be
issued See Electrical Workers Local 501 supra
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed4
ORDER
The Respondent Sheet Metal Workers, Local 27, a/w
Sheet Metal Workers International Association, AFL-
CIO, its officers, agents, and representatives, shall
1 Cease and desist from threatening, coercing or re
straining Bridgewater Commons Associates, Nuhahn
Construction Co Protective Ceiling, Inc, d/b/a Tony
Crawford Construction, Begg and Daigle, Inc, or any
other person engaged in commerce or in an industry of
fecting commerce, where an object thereof is to force or
require Bridgewater, Nuhahn, Crawford Begg, or any
other person, to cease doing business with Cahill Mon
mouth Contracting, Inc, t/a Camcon, or any other
person
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its business offices and meeting halls copies
of the attached notice marked Appendix 5 Copies of
the notice on forms provided by the Regional Director
for Region 22, after being signed by the Respondent s
authorized representative shall be posted by the Re
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced or cov
ered by any other material
(b) Sign and mail copies of said notice to the Regional
Director for posting by Bndgewater Nuhahn Crawford
Begg and Camcon if willing at locations where notices
to their employees are customarily posted
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that those allegations of the
complaint as to which no violations have been found are
dismissed
4If 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 put
poses
5 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