N.L.R.B. v. International Broth. of Elec. Workers, Local 265

• Decision Date: 20 August 1979
• Docket Number: No. 78-1662,78-1662
• Citation: 604 F.2d 1091
• Parties: 102 L.R.R.M. (BNA) 2001, 86 Lab.Cas. P 11,503 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 265, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1091

604 F.2d 1091

102 L.R.R.M. (BNA) 2001, 86 Lab.Cas. P 11,503

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 265,

Respondent.

No. 78-1662.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 14, 1979.

Decided Aug. 20, 1979.

Andrew F. Tranovich, Atty., N. L. R. B., Washington, D. C., for petitioner; John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Sandra Shands Elligers, Atty., Washington, D. C., on brief.

David D. Weinberg, of Weinberg & Weinberg, Omaha, Neb., for respondent.

Before HEANEY and McMILLIAN, Circuit Judges, and BENSON, ^* Chief Judge.

McMILLIAN, Circuit Judge.

The National Labor Relations Board (Board) petitions this court, pursuant to § 10(e) of the National Labor Relations Act (Act), as amended, 29 U.S.C. § 151 Et seq., for enforcement of its order finding that the International Brotherhood of Electrical Workers, Local 265 (the Union), violated § 8(b)(7)(C) of the Act by unlawfully picketing for recognitional and organizational purposes.

The Board concluded that the Union violated § 8(b)(7)(C) by picketing R P & M Electric (the Company), an electrical contractor in the construction industry, with an object of forcing or requiring the Company to recognize or bargain with the Union when the Union was not the certified bargaining representative of the Company's employees and had not filed an election petition within thirty days after commencement of the picketing. We grant enforcement of the Board's order.

The facts as found by the Board are not in dispute. Briefly, they are as follows: In August, 1974, Arlie Heald, the Union's business manager, asked R P & M's president, Roger Trautwein, if he would sign a collective-bargaining agreement. Trautwein indicated that at an unspecified time in the future he would be amenable to such an agreement. About a month later, Heald asked Trautwein whether he was now ready and Trautwein said no. In July, 1976, Heald spoke with Bruce Trautwein (Roger's brother and a member of the Union) regarding the matter. Heald sent Bruce Trautwein to his brother to see if Roger Trautwein was now willing to sign. Bruce Trautwein reported back that Roger Trautwein was not interested.

Thereafter, on August 9, 1976, Heald sent the following letter to R P & M:

Gentlemen:

Your company has been and is engaged in electrical construction work in Lincoln and we note that you apparently have the electrical work for some of the Safeway Stores in Lincoln. This organization has investigated the conditions under which your employees perform their work. We have found that your total labor cost on the above work is below that which has been negotiated with contractors in the area. In addition, we have found that you are free to underbid fair contractors on work of this sort because of the substandard wages and benefits that you pay on other work.

As a matter of simple economics, therefore, the conditions under which your employees perform their work adversely affect other employees and limit employment opportunities for workers who regularly receive fair wages and benefits.

We wish to inform you that this organization does not intend to interfere with the rights of your employees to work without becoming members of the Union, nor does it make any demand upon you to sign a contract with our Union.

The purpose of this communication is to Request your company to pay your employees who will be employed by you in Local 265's area performing work in the electrical field, the Minimum standards of wages, hours and working conditions established by our Union. Our sole and only interest in this request is to Maintain minimum standards of wages, hours and working conditions for electrical employees who will be employed by you in this area regardless of their Union or non-union affiliation. We want this specifically understood by your Company.

Our only object throughout the course of this dispute is to inform the public and the citizens in this area that your employees work under substandard conditions. We shall do so by means of peaceful primary picketing and other lawful forms of publicity at job sites and other locations where you are engaged in your normal business.

If you are desirous of complying with our request, We will furnish your company with a statement of minimum standards of wages, hours and working conditions that have been established by our union for electricians. However, If you request such a statement from us and in the event we can not reach a mutual agreement relative to the union's request within a period of three days following receipt of this letter, our union and your company will be in dispute concerning Minimum standards established by our organization as to wages, hours and working conditions for workmen who will be employed by you doing electrical work in this area.

On the other hand, if you do not contact us at all within the period of three days after receipt of this letter in answer to our request, our union and your company will be in dispute concerning minimum standards established by our organization as to wages, hours and working conditions for workmen who will be employed by you doing electrical work in this area.

We are Ready, willing and able to meet with your company at a reasonable and convenient time, within the time limits expressed above for the purpose of discussion concerning the matters contained in this letter. (Emphasis supplied.)

By letter dated August 11, Roger Trautwein advised the Union that the work on the Safeway job had been completed. However, on two subsequent dates, October 11, 1976, and November 23-24, 1976, the Union picketed R P & M jobsites with a sign which read: "R P & M Elect. does not pay union wages & conditions. I.B.E.W. Local 265. This dispute with the above-named employer only." In each instance of picketing, the Union removed the picket after receiving a telegram from the general contractor on the project stating that R P & M had either been removed or would not be on the project during certain hours. Three carpenters and a laborer refused to cross the picket line on November 23.

It is also agreed that the Union never filed an election petition under § 9(c) of the Act, seeking certification by the Board as the bargaining representative of the Company's employees.

At the outset we are reminded of the very narrow standard of review in Board decisions. This court must affirm any Board decision to the extent that it rests on findings of fact for which there is substantial evidence in the record. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343, 1347 (9th Cir. 1978); NLRB v. Wal-Mart Stores, Inc., 488 F.2d 114, 116-17 (8th Cir. 1973).

The Union contends that there is not substantial evidence in support of the Board's findings. The Union also contends that the attempts at attaining recognition by the Company of the Union had been abandoned prior to the sending of the August 9, 1976, letter. It argues that both the Administrative Law Judge (ALJ) and the Board presumed a continuation of a recognitional and an organizational objective because of the events that occurred in August, 1974. Granted, the August, 1974, attempts were well beyond the six-month period provided in § 10(b) of the Act, 29 U.S.C. § 160(b). This in no way detracts from the Board's finding that the Union's picketing had a recognitional object. In our view, the earlier events of August, 1974, while remote, at least shed some light upon the specific conduct beginning with Heald's conversation with Bruce Trautwein in July, 1976, Bruce's report back as to his brother Roger's position, and the subsequent August 9, 1976, letter. See NLRB v. Carpenters Local 745, 450 F.2d 1255, 1258 (9th Cir. 1971). In any event, neither the Board nor the ALJ purported to rest their decisions entirely upon the 1974 conduct, but instead rested upon their interpretation of the July, 1976, conversation and the subsequent August 9 letter for their finding of a § 8(b)(7)(C) violation.

The Union argues that the August 9, 1976, letter not only disavowed any interest in organizing the Company's employees or negotiating a contract on their behalf, but also was a mere "area standards" letter and thus had a nonorganizational purpose. In support of these arguments, the Union claims that the ALJ and the Board ignored Heald's uncontradicted testimony that the purpose of the letter was to attempt to maintain the hourly rates of wages and monetary benefits for Department of Labor purposes and that it was not the purpose of the Union to include all portions of the labor agreement in the request contained in the August 9 letter.

Section 8(b)(7), enacted as part of the 1959 Landrum-Griffin amendment to the Act, establishes a comprehensive code governing recognitional and organizational picketing. NLRB v. Drivers Local 639 (Curtis Bros.), 362 U.S. 274, 291, 80 S.Ct. 706, 4 L.Ed.2d 710 (1960). The application of § 8(b)(7) is limited to picketing by unions, not currently certified, where an object thereof is either forcing or requiring an employer to recognize or bargain with it or forcing or requiring employees to select it as their bargaining representative. Houston Building & Construction Trade Council, (Claude Everett Construction Co.), 136 NLRB 321, 49 LRRM 1757 (1962).

Congress enacted § 8(b)(7) as a corollary to the federal policy of ensuring employees a free choice in the selection of a bargaining representative. Dayton Typographical Union No. 57 v. NLRB, 117 U.S.App.D.C. 91, 94, 103-106, 326 F.2d 634, 637, 646-649 (D.C.Cir. 1963); Local 542, Operating Engineers (R. S. Noonan, Inc.), 142 NLRB 1132, 53 LRRM 1205 (1963), enf'd, 331 F.2d 99, 107 (3d Cir.), Cert. denied, 379 U.S. 889, 85 S.Ct. 161, 13...