NLRB Finds Carpenters Engaged in Unlawful Secondary Activity
The National Labor Relations Board has affirmed an administrative law judge’s finding that the Metropolitan Regional Council of Carpenters violated the secondary boycott provisions of the National Labor Relations Act (NLRA) when it threatened two neutral employers with the object of forcing them to cease doing business with certain nonunion subcontractors and suppliers.
The case involves two separate construction projects in Philadelphia in 2006. The first project included the conversion of the upper floors of an old bank building into residential condominium units. The developer, 421 Chestut Partners LP (CPLP), hired two firms to perform infrastructure work, Cyma and Aloia, which employed “98 percent…union labor.” Development beyond the basic infrastructure was left to the individual condominium owners, who could select any company they wished to develop the “raw space” into living quarters. Open shop contractor Adams-Bickel was hired for that purpose by two condominium owners. During the course of an Elevator Constructors picket of the site, Carpenters representative Bruce Jones spoke with CPLP partner Todd Strine. Jones stated that he thought Adams-Bickel used “unfair contractors” and that this would cause the building “to have a problem,” including “protests, work stoppages, and problems with deliveries.” Strine said he did not understand why Jones was discussing this with him, since CPLP had no contractual relationship with Adams-Bickel and since CPLP’s own contractors were using union labor. Eventually, Jones told Strine that the union wanted Strine to “use some of your juice to convince Adams-Bickel to use fair contractors.” Two days later, Adams-Bickel filed unfair labor practice charges against the Carpenters.
The second project involved the conversion of a building into a microbrewery and residential condominium units. The general contractor, Penn Valley, subcontracted all of the construction at the site to subcontractors employing union labor. However, Penn Valley hired a nonunion firm, American Millwork, to manufacture the brewery’s cabinetry, bars, and wall panels. American Millwork hired PA Fly, a union subcontractor, to deliver and install the woodwork it manufactured. Carpenters representatives contacted American Millwork owner George Reitz in late 2005 and again in late 2006, requesting that American Millwork enter into a relationship with the union and inquiring about who would be performing installation of the woodwork in the brewery. Reitz told them that the company could not commit to an agreement with the union because its finances were adversely affected by a plant fire and other factors but they were considering two subcontractors, both of which used union labor. In a third conversation, Jones called Reitz and said that if the woodwork was not made by union labor, then he would instruct his carpenters not to unload the material from the trucks and that there would be pickets. Jones also spoke with Penn Valley’s field superintendent, George McCardle, and asked him to call Reitz to see if he could “do something” about the situation. Soon after, Penn Valley filed an unfair labor practice charge against the union. Not long after that, PA Fly attempted to deliver American Millwork’s products to the brewery and encountered two union representatives with picket signs stating that “American Millwork is unfair to local…Carptenters Council.” PA Fly’s employees refused to cross the picket line.
The judge found that, in both cases, the union violated the secondary boycott provisions in § 8(b)4(ii)(B) of the Act. Such a finding requires: (1) that a labor organization threatened, coerced, or restrained someone; and (2) that an object of this conduct was to force one person to cease doing business with another person. Unqualified threats directed at a secondary or neutral party violate the Act, regardless of whether the threats are carried out. The Board in such cases assesses the words on a case-by-case basis, taking into account the entire nature of the conversation at issue.
In examining the facts in the first case, the judge explained that a union’s promise to refrain from future picketing that is conditioned upon some action to be taken by a neutral employer constitutes “a deliberate entanglement of a neutral person in a dispute not his own and is violative of the secondary boycott provision.” He found that “Jones’ warning of protests and delivery interruptions, coupled with his demand that Strine use his influence against the offending contractor hired by the condominium owners, constituted a blatant example of restraint and coercion of a neutral party in a labor dispute. While the Union did not execute the threat by engaging in picketing or other tactics to fulfill its prediction of problems at the worksite, this does not insulate it from responsibility for making the threat.”
The judge further found that “it is apparent from the words chosen that Jones’ objective was to force CPLP to apply pressure to the condominium owners to cease using Adams-Bickel or other ‘unfair’ contractors....This constitutes an illegal objective rendering the conduct unlawful.” The judge found that one of Jones’ objectives was the lawful objective of preservation of area wage standards, but this does not make the conduct lawful if the union also had an unlawful objective.
In the second case, the judge noted that a union’s attempt to attain a bargaining relationship with a primary employer by applying pressure to a secondary employer to enlist its assistance constitutes a violation of § 8(b)(4)(ii)(B). “A threat to shut down a general contractor’s job in order to pressure a subcontractor to sign an agreement with a union covering the uncertified employees of the subcontractor is improper secondary conduct prohibited by the Act.” Here, the judge found, the evidence clearly establishes that the union threatened to prevent delivery of millwork to Penn Valley’s project and demanded that Penn Valley intercede with its subcontractor to resolve the union’s issues with American Millwork. The union’s subsequent disruption of work at the secondary employer’s worksite demonstrates the union’s unlawful objective. “Jones’ statements to McCardle constituted threats directed against Penn Valley with the objectives of forcing Penn Valley and PA Fly to cease doing business with American Millwork, and of forcing Penn Valley to require American Millwork to recognize and bargain with the Union despite the Union’s lack of certification as representative of American Millwork’s labor force,” concluded the judge. “This conduct violated Section 8(b)(4)(ii)(B) of the Act.”
Finally, based on a review of all of the circumstances, the judge determined that the union has a proclivity to violate the Act and that a broad cease-and-desist order – considered an extreme remedy – is appropriate.
Metropolitan Regional Council of Carpenters, 351 NLRB No. 51 (10/18/07).
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