United Scenic Artists, Local 829, Broth. of Painters and Allied Trades, AFL-CIO v. N.L.R.B.

• Decision Date: 24 May 1985
• Docket Number: No. 83-2135,AFL-CI,P,83-2135
• Citation: 762 F.2d 1027,246 U.S. App. D.C. 48
• Parties: 119 L.R.R.M. (BNA) 2675, 246 U.S.App.D.C. 48, 53 USLW 2606, 103 Lab.Cas. P 11,490 UNITED SCENIC ARTISTS, LOCAL 829, BROTHERHOOD OF PAINTERS AND ALLIED TRADES,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1027

762 F.2d 1027

119 L.R.R.M. (BNA) 2675, 246 U.S.App.D.C.

48, 53 USLW 2606,

103 Lab.Cas. P 11,490

UNITED SCENIC ARTISTS, LOCAL 829, BROTHERHOOD OF PAINTERS AND ALLIED TRADES, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 83-2135.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 3, 1984.

Decided May 24, 1985.

Petition for Review of an Order of the National Labor Relations board.

Keith E. Secular, New York City, with whom Sally M. Armstrong, Washington, D.C., was on brief, for petitioner.

Lawrence E. Blatnik, Atty., N.L.R.B., with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on brief, for respondent.

Before MIKVA and BORK, Circuit Judges, and HAROLD H. GREENE, ^* District Judge.

Opinion for the Court filed by District Judge HAROLD H. GREENE.

HAROLD H. GREENE, District Judge.

This case is before the Court for a second time on review from a decision of the National Labor Relations Board (the Board or NLRB) that the United Scenic Artists Local 829 of the Brotherhood of Painter and Allied Trades, AFL-CIO (Local 829) violated section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(4)(ii)(B), the "secondary boycott" provision. ¹ In the first review proceeding, this Court, in an opinion authored by Judge Tamm, reversed the Board's decision and remanded, holding that the agency decision could be sustained only on the basis of new evidence or a new, valid legal theory. United Scenic Artists, Local 829 v. NLRB, 655 F.2d 1267 (D.C.Cir.1981). Finding that no additional evidence was adduced and that the Board's new theory is legally flawed, we reverse once again.

I

The underlying facts are as follows. ² Theatre Techniques, Inc. (TTI), a general contractor that supplies theatrical settings, frequently subcontracted with Nolan Scenery Studios, Inc. (Nolan) for the painting of scenery and props provided by TTI. Nolan, but not TTI, was a party to a collective bargaining agreement with Local 829 which gave the union jurisdiction over both the painting and sculpturing of props. ³

Specifically involved here is a 1978 contract between TTI and Nolan for the painting of scenery for a Broadway show. This scenery included several props which required both sculpture and painting. When the props arrived at the Nolan studios, it became apparent that some of them had already been sculpted by TTI personnel. Relying upon their collective bargaining agreement with Nolan, some of Nolan's employees refused to paint the props that had previously been sculpted. Shortly thereafter, Domingo Rodriguez, the union's business agent, spoke about the dispute with Nolan's president. ⁴ While giving permission for the painting of the props by the Nolan employees, Rodriguez informed Nolan that it had violated the collective bargaining agreement, and that it would accordingly be assessed a monetary amount for the time it would have taken Nolan employees to fabricate the props. ⁵ No one from Nolan advised Local 829 that Nolan had a contract with TTI which gave the latter the right to control the sculpturing work.

TTI filed secondary boycott charges, which were upheld both by an administrative law judge and by the Board. ⁶ The Board found unlawful coercion within the meaning of section 8(b)(4)(ii)(B) in the union's demand that Nolan stop painting scenery and props not fabricated by Nolan employees and its request for an estimate of hours for the purpose of calculating a monetary assessment against Nolan. The Board further found that the union's request for "premium pay" was made in order to force Nolan to stop painting prefabricated props supplied to it by TTI and thereby to force TTI, a neutral employer, to change its manner of doing business. On the basis of these findings, the Board concluded that Local 829 had violated the Act in that its action was "tactically calculated to satisfy union objectives elsewhere, and was, therefore, secondary and unlawful." ⁷

Local 829 petitioned for review of this decision and order, and the Board cross-petitioned for enforcement. Upon its examination of the administrative record, this Court determined that the evidence did not support the Board's apparent assumption that Local 829 knew that TTI, rather than the immediate employer Nolan, possessed contractual control over the disputed work. More specifically, we noted that "much of the evidence on this point suggests that the Union did not know the provisions of the contract." 655 F.2d at 1270. In fact, Rodriguez, the only union representative to have made any kind of demand upon Nolan testified that he had no knowledge of TTI's contractual control, that he believed that Nolan, which had the painting contract, also controlled whatever sculpting was to be done, and that Local 829 believed that Nolan had permitted the sculpturing to be done by TTI in violation of the collective bargaining agreement. ⁸

Nevertheless, relying upon credibility determinations made by the ALJ, the Board decided to ignore the Rodriguez testimony ⁹ and to assume that the union knew the terms of the contractual relationship between TTI and Nolan and therefore knew the locus of the "right of control." We concluded that the record did not contain substantial evidence to support such an assumption, and on that basis we remanded the case to the Board for further proceedings. In so doing, we directed the Board either to develop adequate evidentiary support for its assumption or to explicate what, if any, alternative rationale supported its decision. ¹⁰

Following the remand, on August 26, 1983, the Board, without having reopened the proceeding to take additional evidence, issued a Supplemental Decision and Order in which it reaffirmed its earlier finding that Local 829 had engaged in unlawful secondary conduct. Having failed to take new evidence, the Board cannot, in the face of this Court's previous determination to the contrary, justify its decision on the basis of its earlier theory and the existing evidence, ¹¹ but it must rely on the alternative the Court offered--a new rationale.

The Board has adopted and proffers for our consideration a new rationale for its decision. Under the Board's test, in order to make out a prima facie case under section 8(b)(4)(ii)(B), the general counsel is not required to establish that a union knew when it exerted pressure on an employer that he lacked control over the disputed work. Rather, in the view of the Board, when a union coerces a neutral employer it must be presumed to have knowledge of that employer's neutral status. It follows, according to the Board, that once the neutrality of an affected employer has been established by the general counsel, the burden shifts to the union to demonstrate that it possessed a reasonable good-faith belief that the primary employer had control over the disputed work. Moreover, that burden would be "high" and could only be met in "extraordinary circumstances," i.e., by evidence establishing that, before the union exerted pressure, it was either denied access to information of the employer's neutrality or deliberately misled. Finally, the Board noted that it "[did] not envision that the instances in which this defense will be found meritorious will be many." Board Decision on August 26, 1983 at 14, J.A. at 17a.

Applying this standard to the instant case, the Board found that Local 829 had failed to rebut the general counsel's prima facie showing because it had not shown that it had been denied access to information concerning Nolan's lack of contractual control or that it had been affirmatively misled in that regard. The Board therefore concluded that "an object of [Local 829's] conduct must have been the unlawful one of influencing TTI." ¹²

II

It is clear from this history that the basic issue before the Court is whether the Board may, consistently with the Act, impose upon a labor union the burden of ascertaining, before engaging in coercive activity, whether the immediate employer with whom it has a labor dispute is, in fact, neutral. In our view, the Board's approach cannot be squared with the language of the statute, its purposes, or the precedents.

Section 8(b)(4)(ii)(B) provides ¹³ that two requirements must be satisfied before the Board may find that a union has engaged in an unfair labor practice: (1) it must have been an object of the challenged union conduct to require a neutral employer to cease doing business with the employer with whom the union is engaged in a dispute, and (2) the union must have pursued this object by threatening, coercing, or restraining the neutral employer. Soft Drink Workers Union Local 812 v. NLRB, 657 F.2d 1252, 1261 (D.C.Cir.1980); see generally, R. Gorman, LABOR LAW, Chap. XII, Sec. 1 (1976).

We will assume for purposes of this opinion that the activities of Local 829 satisfied the second part of the test, although that issue is hotly disputed. ¹⁴ The question here, then, is how the secondary object element of the statute may properly be established.

The language of section 8(b)(4)(ii)(B) is plain. It does not permit the Board to find that a labor organization is guilty of a secondary boycott unless it is an "object" of the union activity to pressure a neutral employer. In other words, as the Supreme Court has explained, this provision does not proscribe all union activities which may be designed to cause a cessation of business: it prohibits only those activities which have a "secondary objective"--that is, activities which are "tactically calculated to satisfy union objectives elsewhere." National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 644, 87 S.Ct. 1250, 1268, 18 L.Ed.2d 357 (1967).

The term "object" as it is found in the statute, ¹⁵ or the words "tactically calculated ... objectives" as the Supreme Court paraphrased it in National Woodwork Manufacturers, ¹⁶ are generally taken as synonyms for "purpose." ¹⁷ On that...