Local No. 441, Intern. Broth. of Elec. Workers, AFL-CIO v. N.L.R.B.

• Decision Date: 04 April 1975
• Docket Number: P,AFL-CI,No. 74--1259,74--1259
• Parties: 88 L.R.R.M. (BNA) 3438, 167 U.S.App.D.C. 53, 76 Lab.Cas. P 10,762 LOCAL NO. 441, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1274

510 F.2d 1274

88 L.R.R.M. (BNA) 3438, 167 U.S.App.D.C. 53,

76 Lab.Cas. P 10,762

LOCAL NO. 441, INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 74--1259.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 25, 1975.

Decided April 4, 1975.

George A. Pappy, Los Angeles, Cal., for petitioner. Eugene Miller was on the brief for petitioner.

William Wachter, Washington, D.C., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice by special leave of court, with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., were on the brief for respondent. John D. Burgoyne, Atty., N.L.R.B., also entered an appearance for respondent.

Before LEVENTHAL and ROBINSON, Circuit Judges, and MILLER, ^* Judge, United States Court of Customs and Patent Appeals.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

The issue presented in this case is whether the union violated § 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(B) (1970), by picketing for the proscribed objective of forcing a neutral general contractor to cease doing business with the subcontractor with whom the union had a labor dispute.

Carter, the neutral or secondary employer, was engaged in the construction of an inn in Orange, California. Carter contracted with Rollins Communication Inc. (Rollins) to install communications equipment at the inn. Addington, an IBEW representative, had Rollins picketed at the common job site because Rollins was not paying its employees the prevailing area wages and benefits. The picketing complied with the standards of presumptive validity set forth in the Board's decision in Sailors' Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950).

The crucial incident upon which the Board relied for its finding of an unfair labor practice was a conversation between Carter and Addington which took place after the picketing of Rollins had commenced. Conflicting accounts of the conversation were presented in testimony before the Administrative Law Judge (ALJ). Carter testified that he asked Addington what he could do to get the job at the inn going. He stated that Addington replied that the pickets would be removed if Carter would give him a letter assuring that Rollins' men would not go back to work until they received prevailing wages and benefits. (App. 66). Addington testified that Carter approached him and inquired whether he would take down the pickets if Carter had Rollins' workers removed from the job. Addington then asked for a letter to that effect. (App. 67). The ALJ credited Addington's account, concluding that 'Carter rather than Addington' was 'the first to mention getting Rollins' employees off the job as the quid pro quo for removal of the picket line.' (App. 67). ¹

The ALJ found no unfair labor practice. His decision was based in part on his reading of the Board's decision in Sheet Metal Workers Int'l Ass'n (Quality Roofing Co.), 169 N.L.R.B. 1014 (1968), and the predicament facing a union agent where, 'as here, (the general contractor) asks if removal of the primary employer will make (the picket line) go away.' (App. 68).

The Board reversed the ALJ's decision. It adopted Carter's version of his crucial conversation with Addington. After surveying 'the entire course of conduct engaged in by the Respondent,' the Board concluded that the union 'would not have been satisfied with anything less than the removal of Rollins from the jobsite, and that this unlawful object, as well as the lawful object of maintaining area standards, was reflected in the picketing.' (App. 83).

We have concluded that the record in this case must be remanded to the Board for clarification for the following reasons:

1. The Board's recital of the facts reflects Carter's version of the conversation with Addington even though the ALJ had accepted Addington's account. In so far as there is a direct conflict in testimony between witnesses, a normal trier of fact can have recourse to demeanor evidence. Here it was the ALJ who observed the demeanor of the witnesses, and he credited Addington, not Carter. Assuming, for discussion, that the Board intended to differ with the ALJ--which it may do, for example, on a determination that Carter's version was more in accord with its assessment of the probabilities of the situation--it was incumbent upon the Board first to identify expressly an awareness that it was disagreeing with the ALJ, especially on a point where he had credited one witness over another, and second, to set forth the basis of disagreement with the ALJ ² so that we may determine whether the Board's finding is supported by substantial evidence in the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 493--97, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

2. Board counsel in his brief says that the same result would have been reached by the Board even assuming that Addington's version of events was correct. (Brief at 10 n. 7). But we do not know whether this would have been the view of the Board. As the Supreme Court recently noted, problems concerning the classification of disputed conduct as 'primary' or 'secondary' are 'among the labor law's most...