United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 1622 (Specialty Building Company)

National Labor Relations Board - Board Decisions

Jul 23, 1982

262 N.L.R.B. 1244 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local Union No. 1622 and
Specialty Building Company. Case 32-CC-528
July 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On February 26, 1982, Administrative Law
Judge Richard J. Boyce issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. 1
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local Union No. 1622,
Haywood, California, its officers, agents, and rep-
resentatives, shall take the action set forth in the
said recommended Order, as so modified:
1. Delete paragraph 1(c).
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting:
For the reasons stated in my dissents in and since
Markwell and Hartz,3 I find that Respondent's pick-
The General Counsel filed a motion to consolidate this case with
Carpenters Union Local No. 1622. United Brotherhood of Carpenters and
Joiners of America. AFL-CIO (Robert Wood & Associates. Inc., 262 NLRB
No. 138, issued today, which involves similar violations by the same Re-
spondent. The General Counsel argued that Respondent's conduct in
Wood, viewed together with the violations found herein, requires the issu-
ance of a broad remedial order. However, we find it unnecessary to con-
solidate the two cases, as Respondent's actions in each case independent-
ly warrant the issuance of broad remedial orders.
2 We shall delete par. I(c) from the Administrative Law Judge's rec-
ommended Order, inasmuch as such a provision is inappropriate in a case
involving a violation of Sec. 8(bX4) of the Act.
3 Building and Construction Trades Council of New Orleans. AFL-CIO
(Markwell and Hartz. Inc.), 155 NLRB 319 (1965). See also Construction
d General Laborers Union. Local 304. Laborers International Union of
North America (Athejen Corporation), 260 NLRB 1311 (1982), and cases
cited herein.
eting here is primary in nature and protected by
the proviso to Section 8(b)(4)(B) of the Act. Ac-
cordingly, I would dismiss the complaint.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in, or induce or en-
courage any individual employed by any
person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a
refusal in the course of his employment to use,
manufacture, process, transport, or otherwise
handle or work on any articles, materials, or
commodities, or to refuse to perform any other
services, where an object thereof is to force or
require that person to cease using, handling, or
otherwise dealing in the products of any other
producer, processor, or manufacturer, or to
cease doing business with Specialty Building
Company or any other person.
WE WILL NOT threaten, coerce, or restrain
any person engaged in commerce or in an in-
dustry affecting commerce, where an object
thereof is to force or to require that person to
cease doing business with Specialty Building
Company or any other person.
UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA,
AFL-CIO, LOCAL UNION No. 1622
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Oakland, California, on
October 15 and 30, 1981. The charge was filed by Spe-
cialty Building Company, herein Specialty, on July 29,
1981. The complaint issued on August 7, and alleges that
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, Local Union No. 1622, herein Respond-
ent, violated Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act, as amended, on and after July 23,
1981, by picketing gates at a construction site, which
gates had been reserved for the sole use of neutral sub-
contractors, in furtherance of a dispute with Specialty,
the general contractor.
I. JURISDICTION
Specialty, a proprietorship headquartered in Oakland,
within the past year has taken delivery at the project in
question, directly from outside California, of goods and
materials valued in excess of $50,000.
262 NLRB No. 162
1244
CARPENTERS LOCAL 1622
Specialty is a person within Section 2(1) of the Act
and an employer within Section 2(2), engaged in and af-
fecting commerce within the meaning of Section 2(6)
and (7).
II. LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED MISCONDUCT
A. Facts
The project in question is the $3.5 million, 58-unit La
Solana townhouse development in Hayward, California.
Work began on October 13, 1980, and was underway at
the time of the hearing. Specialty, the general contractor,
is nonunion. It is performing carpentry, electrical, paint-
ing, and some concrete work. Subcontractors include
Bettencourt Plumbing Company, Kynell Concrete Com-
pany, Eastbay Excavators, and Roberson Construction
Company. '
The jobsite consists of two fenced enclosures, separat-
ed by a public thoroughfare known as Harvey Avenue.
Sometime before June 8, 1981, Respondent began picket-
ing the site with signs stating:
SPFCI .LTY BUILDERS
FAILS TO PAY CARPENTERS
WAGES & BENEFITS.
Conditions on this job are
below standards established
by Carpenters in this Area.
For information call 581-1421.
Specialty responded on June 8 by establishing two
gates to each enclosure and installing signs stating
"Union Gate" at one gate to each and "Non-Union
Gate" at the other gates to each. The so-called union or
neutral gates were and are numbered 2 and 4; the non-
union or primary gates, I and 3. Like gates were and are
across Harvey Avenue from one another; opposites,
about 100 feet down the road from each other.
On June 11, the original signs were supplanted by
signs stating:
Stop-Do Not Enter-This gate for Union Trades
ONLY.
Suppliers and Visitors Wait for Instructions.
Stop-Do Not Enter-This gate for employees of
Specialty Building Company ONLY-Suppliers and
Visitors Wait for Instructions.
On June 25, these signs in turn were replaced by signs
stating:
Stop-Do Not Enter-This gate is reserved for the
exclusive use of all contractors, subcontractors,
their employees and suppliers, except Specialty
Each of which is a "person engaged in commerce or in an industry
affecting commerce' for purpose, of Sec. 8(b)(4)(i) and (ii)B).
Building Company, its employees and suppliers,
who must use Gates 1 and 3. All others call 783-
4899.
Stop-Do Not Enter-This gate is reserved for the
exclusive use of Specialty Building Company, its
employees and suppliers, only. All others call 783-
4899.
These last signs were amended as of 7 a.m. on July 23 to
place Stanford Solar Systems, Inc., and Jita Drywall
Company in the category with Specialty. There have
been no changes in the signs since.
On July 22, in anticipation of the last sign change,
Specialty's owner, Luckham, sent a mailgram to Re-
spondent stating that "effective 7 AM, 7/23/81," Special-
ty was "re-establishing reserved gates." The mailgram
also set forth the language to be on the signs, and con-
cluded:
Use of all gates is restricted as designated by the
sign. In view of this notification of the reserved
gates I ask that you terminate picketing of gates 2
and 4 immediately. Your picketing of this project
has induced employees of neutrals to refuse to work
on this project. If you contend that you have right
to continue picketing at gates 2 and 4 I demand that
you tell me why. If you picket at gates 2 or 4 after
7 AM on 7/23/81 charges will be filed with the Na-
tional Labor Relations Board.
On July 22, as well, Specialty's job foreman, Richard
Steckler, attempted to hand a leaflet, with a message
identical to that in the mailgram, to one of the picketers.
The picketer, seated in a car, declined to accept it,
whereupon Steckler placed it beneath the car's wind-
shield wiper.
Starting July 23, Steckler was assigned full time to
police the gate system. The neutral gates remained
locked except when opened by him or John Dorrian, job
superintendent, to permit a specific entry or exit. The
primary gates, which received much greater use, were
kept closed but not locked when not in use.
Respondent's picketing nevertheless continued, with-
out regard for gates or signs, from its onset until legally
enjoined on August 20.
There is evidence of perhaps eight incidents, before
July 23, in which the integrity of the gate system argu-
ably was violated. There is no evidence of such incidents
on or after July 23.2
Specialty, as the general contractor, exercises project
oversight involving some measure of control over the
subcontractors. It passes on the acceptability of their
work, orchestrates the timing of their performances, me-
diates conflicts between them, and things of that sort.
Specialty, in addition, arranges and pays for the supply-
a Since July 23, a person has come on the site once a week, through
the neutral gates. to service the portable toilets, which are for the use of
everyone on the project. This happens in the early morning hours, before
the day's project work begins. Although this service was arranged and is
paid for by Specialty, it is deemed not to be a cognizable breach of the
system. See Local 18, International 1Union of Operating Engineers (Dodge-
Ireland. Incl,. 236 NLRB 1q9. 204 (l978)
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of certain equipment and services to the project, for
the use and benefit of all-water, electricity, telephones,
toilets, security fences, liability insurance (but not work-
men's compensation), scaffolding, forklifts, some cleanup,
etc. Luckham credibly testified that Specialty's relation-
ship with the subcontractors in these respects "is rela-
tively conventional" in the construction industry.
B. Conclusion
It is concluded that an object of all of Respondent's
picketing on and after July 23 was the improper one of
enmeshing the neutral subcontractors in a dispute not
their own, and that this conduct therefore violated Sec-
tion 8(b)(4)(i) and (ii)(B). The proscribed object-a sub-
jective determination-is inferable from the picketing of
the neutral gates on and after July 23, and there is no
reason to suppose that the same state of mind did not
carry over to the picketing of the primary gates. See
Local Union 323 International Brotherhood of Electrical
Workers (J. F. Hoff Electric Co.). 241 NLRB 694, 697
(1979); Local Freight Drivers Local No. 208, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (DeAnza Delivery System, Inc.), 224
NLRB 1116, 1119 (1976); General Teamster, Warehouse
and Dairy Employees Union Local 126, IBT (Ready Mixed
Concrete, Inc.), 200 NLRB 253, 254-255 (1972).
Respondent's contention is rejected that "pollution of
the reserved gates prior to July 23 justifies . . . contin-
ued picketing." Assuming without deciding that pollu-
tion of the gates before July 23 was sufficient to justify
indiscriminate picketing until then,3 Specialty effectively
rehabilitated the gate system by the July 22 mailgram to
Respondent, by the tender to the picketer of a corre-
sponding leaflet on July 22, and by subsequent policing
which apparently prevented further pollution. As the
Board observed in Carpenters Local 470 (Mueller-Ander-
son, Inc.), 224 NLRB 315, 316 (1976):
[I]f a reserved gate system initially breaks down, an
employer should be allowed to establish a revised
reserve gate system and still be protected from sec-
ondary picketing so long as the revised system is
honored and the labor organization involved is noti-
fied of the revision.
Also rejected is Respondent's argument that the gate
signs on and after July 23 (actually, June 25) were inad-
equate because of their "failure to identify precisely
where visitors ... were to enter or leave." The signs in-
structed those not specified-"all others"-to call a cer-
tain telephone number, and there is no indication that the
nonmention of visitors caused any confusion on and after
July 23. Plumbers Local 48 (Calvert General Contractors),
supra at 249 NLRB 1186; International Association of
Bridge, Structural and Ornamental Ironworkers, Local No.
s Given the limited extent of pollution before July 23, this assumption
is of questionable validity. Extracting from United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Local 48 (Calvert General Contractors), 249
NLRB 1183, in. 2 (1980), "isolated occurrences" not establishing "a pat-
tern of destruction of the reserve gate system" do not justify picketing at
the neutral gates. See also Local 18. Operating Engineers (Dodge-Ireland
Inc.), supra, 236 NLRB 199 at in. I.
433, AFL-CIO (Robert E. McKee, Inc.), 233 NLRB 283,
287 (1977).
Rejected, as well, is Respondent's contention that,
since Specialty arranges and pays for the supplying of
certain equipment and services to the project in general,
and thus to the neutral subcontractors, the signs at the
neutral gates "mandated the use of those gates by [its]
employees," thereby licensing Respondent "to attempt to
interdict efforts to supply the neutral employers by Spe-
cialty." This ignores not only the text of the signs at the
neutral gates, which expressly exclude Specialty from
use of those gates, but the reality that none of the equip-
ment and services arranged for by Specialty- except for
the once-a-week visit by the toilet man-entailed use of
the neutral gates on or after July 23. Respondent's reli-
ance upon Electrical Workers Local 323 (J. F. Hoff Elec-
tric Co.), supra, and Intl Union of Operating Engineers,
Local Union No. 450, AFL-CIO (Linbeck Construction
Corporation), 219 NLRB 997 (1975), is misplaced. As
those decisions clearly reveal, "any gate used to deliver
materials essential to the primary employer's normal op-
erations"-as opposed to the neutral gates in the present
case on and after July 23-"is subject to lawful picket-
ing." J. F. HoffElectric Co., 241 NLRB at 694, fn. 1.
Rejected, finally, is Respondent's argument that Spe-
cialty's relationship with its subcontractors warrants ap-
plication of the "related-work" doctrine, as enunciated in
United Steelworkers of America [Carrier Corporation] v.
N.L.R.B., 376 U.S. 492 (1964), and Local 761, Interna-
tional Union of Electrical, Radio & Machine Workers,
AFL-CIO [General Electric Company] v. N.L.R.B., 366
U.S. 667 (1961), enabling lawful picketing of one and all.
The Board time and again has declined to apply the re-
lated-work doctrine to situations, such as the present, in-
volving common situs picketing in the construction in-
dustry. E.g., Sacramento Area District Council of Carpen-
ters (Malek Construction Co.), 244 NLRB 890 (1979);
Carpenters District Council of Local 470 (Mueller-Ander-
son, Inc.), supra Building and Construction Trades Council
of New Orleans (Markwell and Hartz; Inc.), 155 NLRB
319 (1965). Moreover, the Supreme Court stated in
N.LR.B. v. Denver Building & Construction Trades Coun-
cil [Gould & Preisner], 341 U.S. 675, 689-690 (1951):
[Tlhe fact that the contractor and subcontractor
were engaged on the same construction project, and
that the contractor had some supervision over the
subcontractor's work, did not eliminate the status of
each as an independent contractor or make the em-
ployees of one the employees of the other. The
business relationship between independent contrac-
tors is too well established in the law to be overrid-
den without clear language doing so.
CONCLUSION OF LAW
By picketing the La Solana townhouse development
on and after July 23, 1981, with an object of forcing neu-
tral subcontractors to cease doing business with Special-
ty, as found herein, Respondent has engaged in an unfair
labor practice within Section 8(b)(4)(i) and (ii)B) of the
Act.
1246
CARPENTERS LOCAL 1622
THE REMEDY
The General Counsel seeks a broad remedial order,
citing these circumstances:
(a) On August 22 and 28 and September 10, 1980, the
General Counsel issued complaints against Respondent
alleging picketing at three separate jobsites in violation
of Section 8(b)(4)(i) and (ii)(B).
(b) On April 14. 1981, Respondent entered into a set-
tlement stipulation in which it agreed to the entry of an
order that it cease and desist from further engagement in
the picketing alleged in the three complaints to be un-
lawful. The stipulation provides that it
. . . may be considered as though it were an adjudi-
cated determination of the Board, enforced by an
appropriate United States Court of Appeals, that
Respondent has engaged in the conduct alleged in
the Complaints ....
(c) On July 6, 1981, the Board issued its Decision and
Order approving the settlement stipulation.
(d) On October 6, 1981, the United States Court of
Appeals for the 9th Circuit entered its judgment enforc-
ing the Board's order.
It is concluded that Respondent, by its present picket-
ing misconduct in combination with that which was the
subject of the settlement stipulation, Board order, and
court judgment, has shown a proclivity to violate the
Act, and that a broad order therefore is warranted. Cf
Tri-State Building and Construction Trades Council (Struc-
tures, Inc.), 257 NLRB 295, fn. I (1981). 4
ORDER 5
The Respondent, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, Local Union No.
The General Counsel also notes the Decision of Administrative Law
Judge Burton Litvack, dated October 26, 1981, in which it is concluded
that Respondent's picketing at yet another jobsite violated Sec. 8(bX4Xi)
and (ii)(B). Carpenters Local 1622 (Robert Wood & Asrciates. Inc), 262
NLRB 1211 (1982). The General Counsel concedes that this Decision
cannot support a broad order unless and until affirmed by the Board, a
development yet to materialize.
s All outstanding motions inconsistent with this Order hereby are
denied. In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1622, Haywood, California, its officers, agents, and rep-
resentatives, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging any indi-
vidual employed by any person engaged in commerce or
in an industry affecting commerce, to engage in a strike
or refusal in the course of his employment, to use, manu-
facture, process, transport, or otherwise handle or work
on any articles, materials, or commodities, or to refuse to
perform any other services where an object thereof is to
force or require that person to cease using, handling, or
otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business
with Specialty Building Company or any other person.
(b) Threatening, coercing, or restraining any person
engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or to require
that person to cease doing business with Specialty Build-
ing Company or any other person.
(c) Engaging in any like or related unfair labor prac-
tices.
2. Take this affirmative action:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members customarily are
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Sign and mail sufficient copies of the notice to the
Regional Director for Region 32 for posting by Specialty
Building Company and its subcontractors on the La
Solana project, should they wish to do so, at all locations
where notices to employees customarily are posted.
(c) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
* In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1247