N.L.R.B. v. International Union of Elevator Constructors, AFL-CIO, AFL-CIO

• Decision Date: 27 April 1990
• Docket Number: AFL-CIO,No. 88-2354,AFL-CI,R,88-2354
• Parties: 134 L.R.R.M. (BNA) 2137, 58 USLW 2692, 115 Lab.Cas. P 10,019 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS,, and Local Union 3, International Union of Elevator Constructors,, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1297

902 F.2d 1297

134 L.R.R.M. (BNA) 2137, 58 USLW 2692,

115 Lab.Cas. P 10,019

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, AFL-CIO, and Local Union 3, International Union of Elevator

Constructors, AFL-CIO, Respondents.

No. 88-2354.

United States Court of Appeals,

Eighth Circuit.

Submitted May 10, 1989.

Decided April 27, 1990.

Steven B. Goldstein, Washington, D.C., for petitioner.

Nicholas R. Femia, Washington, D.C., for respondents.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Ray Ritz, as a matter of conscience, refused to enter a neutral gate at a construction site and report for work with his employer, Long Elevator and Machine Company, Inc., because another gate at the construction site was being picketed as a result of a labor dispute involving another subcontractor. He was suspended for his refusal to work behind the gate, and his unions, the International Union of Elevator Constructors, AFL-CIO, and Local Union 3, International Union of Elevator Constructors, AFL-CIO (collectively the "Unions"), filed a grievance on his behalf. In response, Long brought charges before the National Labor Relations Board. The Board, relying on Bricklayers & Stone Masons Union, Local No. 2 (Gunnar I. Johnson), 224 NLRB 1021 (1976), enforced, Bricklayers & Stone Masons Union, Local No. 2 v. NLRB, 562 F.2d 775 (D.C.Cir.1977), held that the Unions had violated section 8(b)(4)(ii)(A) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(4)(ii)(A) (1982). On appeal, the Unions advance three basic arguments: (1) that Bricklayers is distinguishable from the present case; (2) that Bricklayers is wrong as a matter of law; and (3) that the Board improperly presumed that the Unions acted with a secondary objective. We affirm the Board's decision and enforce its order.

Mead-McClellan, Inc., was the general contractor on a project on which Long Elevator, Ritz's employer, was one of the subcontractors. The International Brotherhood of Electrical Workers (I.B.E.W.) picketed Soper Electric Company, another subcontractor at the site, regarding the wages and working conditions provided by Soper to its employees. In anticipation of the picketing, Mead-McClellan established a reserved gate system at the site; the west gate was reserved for neutral employers, and the east gate was reserved for Soper's use. A sign posted near the west gate stated that it was to be used by only certain contractors, including Long. The sign did not mention whether the suppliers of any contractor could use the gate. In contrast, no sign was posted indicating who could use the east entrance. Nevertheless, there was no picketing of the neutral west gate. The evidence indicates, and the ALJ found, that the reserved gate arrangement was observed by all of the parties.

Long sent Ritz to the site and instructed him to enter through the neutral gate. Ritz initially performed some tasks at the site. After he was at the site for several days, however, Ritz told Long's vice president, Patrick Long, that he refused to work at the site while a picket line existed in front of the east gate. Ritz said that his decision was a matter of conscience.

Long then suspended Ritz. The suspension ended three and one-half days later. Soon thereafter, the Unions filed a grievance alleging that Long had violated paragraph 2 of Article 14 of the collective bargaining agreement by disciplining Ritz. That provision of the agreement, entitled "Strikes and Lockouts," provided that work stoppages resulting from lawful picketing would not constitute a strike within the meaning of the article. ¹ The Unions contended Long then filed a complaint with the National Labor Relations Board. The ALJ found that the Unions had not influenced Ritz's decision, but concluded that this fact was irrelevant. Relying on Bricklayers, the ALJ held that Ritz's refusal to enter a neutral gate did "not comport with what has been traditionally deemed to be primary activity," ALJ Op. at 5, and that "it has never been held to be primary activity when employees refuse to work for their employer who is a neutral in the dispute because picketing of another employer is taking place nearby on the common situs," id.

that, since the provision authorized Ritz's refusal to work, Long had committed an unfair labor practice by disciplining Ritz.

The ALJ concluded that the Unions had violated section 8(b)(4)(ii)(A) ² of the National Labor Relations Act by attempting to enforce a contractual picket line clause protecting from discipline employees who refuse to enter a neutral gate. He also decided that, by attempting to enforce the contract clause through the grievance procedure, the Unions attempted to force Long to enter into an agreement in violation of section 8(e) ³ of the Act.

The Unions filed exceptions to the ALJ's decision with the Board, and the General Counsel filed a cross-exception. A panel of three Board members agreed with the ALJ that the Unions' interpretation of Article 14 of the collective bargaining agreement would violate section 8(e). 289 NLRB No. 132. The Board concluded that even though the grievance arose from the actions of only one employee, the theory behind the grievance would require Long to permit all of its employees to refuse to work at the site, notwithstanding the fact that they could enter through a neutral gate. Citing Bricklayers, the Board held that the Unions could neither encourage Long's employees to stop working nor seek to compel, through a grievance procedure, Long's acquiescence in a work stoppage by its employees. The Board also found the pursuit of the grievance to be coercive and rejected the Unions' arguments that the decisions in Newberry Energy Corp., 227 NLRB 436 (1976), and Congoleum Industries, 197 NLRB 534 (1972), compelled a contrary result.

I.

The pivotal issue in this appeal is the propriety of the Board's application of Bricklayers to this case. The Unions argue that Bricklayers is inapposite because Bricklayers, unlike this case, involved a properly established reserved gate system. According to the Unions, the reserved gate system in this case was deficient for two reasons: (1) the pickets did not limit themselves to the east gate; and (2) the gates were not properly marked. This effort to distinguish Bricklayers is unpersuasive.

The ALJ found that there were no pickets at the neutral west gate. This finding is controlling if it is "supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 160(e) (1982); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). The Unions have not identified any testimony indicating that the west gate was picketed. At most, they have cited disputed testimony stating that the pickets came within several feet of the west gate. ⁴ See Tr. at 104. We conclude that there is adequate support in the record for the ALJ's finding that the west gate was not subject to picketing, and we reject the Unions' argument to the contrary.

The Unions argue that this case does not involve a valid reserved gate system because the gates were not properly marked. However, the ALJ found that, although the neutral west gate did not mention suppliers and there was no sign at the primary gate:

all the participants recognized the two-gate system. The IBEW pickets patrolled only the primary gate and did not picket the neutral gate. Likewise, there was no evidence that either gate was compromised by any contractor, subcontractor, or their suppliers. Therefore, I conclude that the reserve gate system established by Mead-McClellan was valid.

ALJ Op. at 5-6. Our study of the record reveals adequate support for these findings. Regardless, even if neutral employees had gone through the unmarked primary gate, the reserved gate system would still have been valid because:

The reserved gate system is a "one-way street." The separate gate system is "tainted" only where employees or suppliers of the primary employer use the reserved, "neutral" gate; however, if neutral employees use the primary's gate, voluntarily subjecting themselves to the coercive power of the union's picketing, no "taint" occurs.

Mautz & Oren v. Teamsters Local No. 279, 882 F.2d 1117, 1122 n. 4 (7th Cir.1989) (emphasis in original).

Not only do we reject the Unions' attempts to distinguish Bricklayers, but we conclude that the facts in Bricklayers are, in all relevant respects, essentially identical to those of this case. Bricklayers involved a reserved gate system established at a construction site. 562 F.2d at 778. Despite the availability of the neutral gate, employees of a neutral subcontractor refused to work at the site because of pickets at the primary gate. Id. at 778-79. After the neutral employer attempted to obtain a temporary restraining order, and after the matter was submitted to an arbitrator, the case found its way to the NLRB. Id. at 779-80. The Board found that the picket line clauses violated section 8(e) "when they were construed by the arbitrator to protect employees from discipline for refusing to pass through a neutral gate when a primary picket line was stationed elsewhere on the common work situs." Id. at 780. In the court of appeals, the unions litigating the case argued that the work stoppage should have been treated as " 'a lawful response to primary activity' and as 'permissible secondary effects of lawful primary activity.' " Id. at 786 (quoting the brief of the Petitioners in that case) (footnote omitted) (emphasis in original).

The District of Columbia Circuit engaged in a thorough discussion of the various interests at stake in Bricklayers. The court first emphasized that it was reviewing only the employees' refusal to enter through the neutral gate, and not the picketing at the primary gate. Id. at 784. The court's analysis then began "with the well...