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National Labor Relations Board v. Local 825

decided as amended november 18 1981.: September 18, 1981.

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
LOCAL 825, A,B,C,D, INTERNATIONAL UNION OF OPERATING ENGINEERS, RESPONDENT



ON MOTION FOR ASSESSMENT OF FINES AGAINST RESPONDENT FOR FAILING TO OBEY PURGATION ORDER IN CONTEMPT

Before Seitz, Chief Judge, and Rosenn and Higginbotham, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

The National Labor Relations Board (the Board) moves this court for an order assessing a fine against Local 825,A,B,C,D, International Union of Operating Engineers (Local 825). The Board alleges that Local 825 disobeyed judgments entered by this court in 1963, 1966, and 1971. The Board also contends that Local 825 failed to comply with a purgation order entered in 1970 after this court found Local 825 in contempt. After the Board filed its motion, this court appointed a master to hear evidence and make recommended findings of fact and conclusions of law. The master found that Local 825 had not disobeyed this court's judgments and purgation order, and he therefore recommended that the Board's motion be denied. The Board filed exceptions to the master's report which we now address.

I. FACTS

The Board's orders, as enforced by this court, direct that Local 825 cease and desist from coercing neutral employers, or from restraining neutral employees, with an objective of causing any neutral employer to cease doing business with a party to a labor dispute. See, e. g., Local 825, International Union of Operating Engineers, 138 N.L.R.B. 279 (1962), enforced, 322 F.2d 478 (3d Cir. 1963). In 1970, this court found Local 825 in contempt for having violated the court's 1963 and 1966 decrees. See NLRB v. Local 825, International Union of Operating Engineers, 430 F.2d 1225 (3d Cir. 1970), cert. denied, 401 U.S. 976, 91 S. Ct. 1200, 28 L. Ed. 2d 326 (1971). The court directed that Local 825 purge itself of its contempt by, inter alia, complying with the decrees. The order also provided that Local 825's failure to purge itself of contempt would result in compliance fines of $10,000 for each violation of the decrees and of $1,000 for each day that such violation continued. See NLRB v. Local 825, 430 F.2d at 1229-30. The Board alleges that Local 825 violated this court's judgments and purgation order by engaging in secondary boycott activity at an East Brunswick, New Jersey jobsite during the period from July 19 to July 30, 1979, and at a Jackson Township, New Jersey jobsite on September 5 and 6, 1979.

A. East Brunswick Jobsite

The East Brunswick jobsite is a twenty-five acre commercial development located on Route 18 in northern New Jersey.*fn1 The rectangular-shaped development runs along Route 18 for approximately 2,000 feet, with the main entrance in the middle of the development. A turn on Route 18 (the "jughandle") is located a short distance to the east of the main entrance.

R. H. Drukker & Co. (Drukker), a nonunion general contractor, had a contract with Sigmacon Corp. (Red Lobster) and the Hartford Company (Hartford) to do site development work in East Brunswick on land owned by Robert Lehmann.*fn2 Red Lobster's property ran along Route 18 approximately 400 feet from the western end of the jobsite to a point halfway to the jughandle. A sign facing Route 18 announced: "Red Lobster Restaurant coming soon."

Drukker completed the initial site preparation for Red Lobster during the week of July 15, 1979. By July 19 Red Lobster was ready to proceed with the construction of its building, and Drukker had moved to the Hartford section in the center of the jobsite, several hundred feet behind the jughandle and about 500 feet from the Red Lobster project. Although a part of the Red Lobster-Drukker contract was yet to be performed, Drukker did not expect to start this work for approximately a month. Therefore, it was not scheduled to perform any work for Red Lobster during the period between July 19 and July 30.

The Board claims that, at 6:30 a. m. on July 19, Drukker's employees arrived for work at the Hartford jobsite and encountered between sixty and seventy-five Local 825 members picketing along Route 18. The picket signs carried by the Local 825 members stated that Drukker's employees were receiving "Less Than Local 825's Wages And Conditions(.) We Have No Dispute With Any Other Employer At This Site." Virtually all of the pickets were concentrated along Route 18 from the jughandle to the western end of the Red Lobster property. As a result, they covered the entire southern perimeter of the Red Lobster jobsite, including Red Lobster's entrance to its jobsite, which was located about 100 feet east of its western boundary off Route 18. When the pickets arrived, Drukker's equipment was parked along Route 18, but it was moved to the Hartford site that night and remained there for the rest of the period in issue. Picketing continued through July 30. As many as thirty pickets arrived at 6:00 a. m. each day, but by 8:00 a. m. only about fifteen pickets would remain along Route 18.

On the day the picketing began, Herve Goyette, job superintendent for Red Lobster, asked T. Allen Jones, a Local 825 business agent, why Local 825 was picketing along the perimeter of the Red Lobster jobsite. Jones replied that Drukker was working on the Red Lobster jobsite and had a large contract to do work for Red Lobster. Goyette then told Jones that Drukker's work was completed "at that time" and that Drukker was therefore no longer working on the Red Lobster jobsite. Goyette asked Jones whether he would remove the pickets if Goyette gave him a letter stating that Drukker was not working on the Red Lobster jobsite. Jones replied that if Goyette "could get a letter (Jones) would present it to his people and they would see what would happen." Goyette did not produce the letter.

On July 26, two public utility vehicles arrived at the Red Lobster jobsite to connect the electrical service for Red Lobster. An employee of Drukker testified that the pickets located along the Route 18 frontage "converged" on the trucks as they were turning into the Red Lobster jobsite. The trucks pulled onto the shoulder of Route 18 and left about one-half hour later without having entered the jobsite.

On July 30, Goyette asked Jones whether Red Lobster could proceed with the installation of the foundation for its building if it did not employ nonunion personnel. Jones stated that Red Lobster could proceed, but emphasized that he would extend the picket line back to the Red Lobster location as soon as he saw Drukker working on the Red Lobster jobsite. Jones then pulled the pickets away from the Red Lobster entrance, and work began on the restaurant for the first time since July 19.

A Denny's Restaurant (Denny's) was also being built on the East Brunswick jobsite, but Denny's did not have a contract with Drukker. When the picketing began, Denny's was ready to lay its foundation. Denny's jobsite was located in the middle of the project going from east to west. On July 27, William Castongue, job superintendent for Denny's, saw a truck with a delivery for Denny's drive to the entrance of the jobsite. Castongue saw the driver stop, get out of his truck, and speak to the pickets. Castongue explained that he was unable to hear the conversation between the driver and the pickets because his jobsite was located too far away from the roadway. The truck did not enter the jobsite, and the delivery was not made to Denny's.

On that same day, Castongue spoke to Jones and asked him "what it would take" for Denny's to be able to "proceed with the project." Jones told Castongue that Denny's could proceed only if it used union people on the job. In reply to Castongue's question whether Local 825 would let Denny's concrete and backhoe people through the picket line if they were union members, Jones replied in the affirmative. He added, however, that "the first time that Drukker put a piece of equipment on (Denny's) job site he'd throw pickets around it." After Castongue agreed to use only union personnel, Denny's masonry subcontractor began work on the Denny's jobsite.

B. Jackson Township Jobsite

D. T. Leeds, Inc. (Leeds), a nonunion plumbing and heating contractor, and Arthur J. Ogren, Inc. (Ogren), a general contractor, had separate contracts with the Board of Education of Jackson Township to do work at Goetz Elementary School. On August 27, 1979, pickets appeared at the jobsite carrying signs stating that Local 9 of the Plumbing and Fitters Union (Local 9) had a dispute with Leeds. As a result of this picketing, Leeds set up separate entrances: one was reserved for the employees and suppliers of Leeds; another was set up for the employees and suppliers of all other contractors and employers. The sign establishing the gate reserved for Leeds read: "Entrance No. 2. This entrance for employees, subcontractors, suppliers of D. T. Leeds, Inc. All others use Entrance No. 1." The sign for the neutral gate read: "This entrance not to be used by employees, subcontractors and suppliers of D. T. Leeds. All others use entrance 2." Leeds sent letters to the unions, including Local 825, and to the other contractors engaged on the job, advising them of the establishment of the separate gates and indicating their location. Leeds also informed all of its suppliers that a separate gate was being set up for their use.

On September 5, Local 825 members carrying signs indicating that Leeds did not pay Local 825's area standard wages and benefits picketed the neutral gate. Ogren job superintendent Charles Cox testified that when he arrived at the neutral gate a business agent for Local 825 told him that he would be crossing a picket line if he entered the jobsite. Cox saw the sign identifying the neutral gate behind the business agent, but he did not go to work that day. In the absence of Cox, no work was done on the Ogren job. Chester Hagenbarth, an Ogren officer, testified that he was unable to drive onto the jobsite because the pickets blocked his path. Hagenbarth testified that when he asked the pickets why Local 825 was present he was told that it was "supporting" the "plumbers' and pipe fitters' efforts to punish the owners for hiring a nonunion contractor." Hagenbarth left the jobsite without entering. Between four and six Local 825 members without picket signs were present across the street from the neutral gate on several occasions after September 5. At no time did Local 825 picket the reserved gate.

II. DISCUSSION

Rule 53(e)(2) of the Federal Rules of Civil Procedure provides that "the court shall accept master's findings of fact unless clearly erroneous." Although the rule literally applies solely to the district courts, we think it should be applied here by analogy. Accord, OCAW v. NLRB, 178 U.S. App. D.C. 278, 547 F.2d 575, 580 (D.C.Cir. 1976), cert. denied, 431 U.S. 966, 97 S. Ct. 2923, 53 L. Ed. 2d 1062 (1977); NLRB v. Remington Rand, Inc., 130 F.2d 919, 952 (2d Cir. 1942). Nevertheless, "the mere fact that a (master's) finding is supported by substantial evidence does not prevent its being overturned if the reviewing court, with due regard for the master's opportunity to judge credibility, "is left with the definite and firm conviction that a mistake has been committed.' " OCAW, 547 F.2d at 580 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 541, 92 L. Ed. 746 (1948)). Although the Board would have had to meet the easier burden of "preponderance of the evidence" if it had chosen to proceed against Local 825 in an administrative unfair labor practice proceeding, in this civil contempt proceeding the Board must establish by "clear and convincing proof" that Local 825 violated the underlying decrees. NLRB v. Local 825, 430 F.2d at 1230.

Local 825 was engaged in primary disputes with Drukker and Leeds. Accordingly, it was entitled to bring pressure to bear upon Drukker and Leeds, but not upon the secondary employers at the East Brunswick or the Jackson Township jobsite. See NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S. Ct. 943, 953, 95 L. Ed. 1284 (1951). To establish a violation of the decrees, the language of which tracks the wording of section 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. ยง 158(b)(4)(B) (1976), the Board must show that Local 825 induced or encouraged a cessation of work by employees or suppliers of a neutral employer with an object of forcing a neutral employer to cease doing business with another employer. See, e. g., Carrier Air Conditioning Co. v. NLRB, 547 F.2d 1178, 1188-89 (2d Cir. 1976), cert. denied, 431 U.S. 974, 97 S. Ct. 2940, 53 L. Ed. 2d 1072 (1977). To aid in discerning the fine line that often separates primary and secondary picketing, the Board in Sailor's Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950), established evidentiary standards that, while not absolute, are nevertheless helpful in determining whether an object of picketing at a common site was to induce a secondary boycott. Under these standards, picketing may be primary if it (1) is limited to times when the primary employer is present at the common site; (2) is limited to places reasonably close to the location of the primary's work; and (3) discloses clearly that the dispute is with the primary employer. See id. at 549.

A. East Brunswick Jobsite

The Board challenges the master's legal conclusion that Local 825 engaged in lawful picketing of Drukker from July 19 through July 30, 1979. The Board also specifically excepts to many of the factual findings made and inferences drawn by the master in support of his legal conclusion. We need not address the many exceptions individually, however, because the dispute appears to break down into three principal issues that we believe are determinative of this motion for contempt: (1) whether the master was justified in not finding Local 825's picketing in front of the Red Lobster jobsite to be unlawful; (2) whether the master erred in not finding that Local 825 interfered with the delivery of supplies and services to the secondary employers; and (3) whether the master correctly concluded that Jones' statements to Goyette and Castongue did not constitute threats and coercion within the meaning of the decrees.

Local 825's picketing in front of the Red Lobster jobsite was not unlawful, because it did not have a secondary boycott as an object of the picketing. The Board directs our attention to evidence in the record indicating that Local 825 intended not only to inform the public of its dispute with Drukker but also to enmesh neutral employers in the dispute. This evidence consists of (1) the physical blocking of the entrance to the jobsite; (2) the presence of pickets on July 27 despite July 26 telegrams informing Local 825 that Drukker would not be working on the 27th; (3) the intimidatingly large number of pickets early in the morning relative to the small number of neutral subcontractors; (4) the smaller number of pickets present during normal business hours when informational picketing would seem most effective; and (5) the continued presence of the pickets at Red Lobster even after Jones had been informed of what may have been an obvious fact that Drukker was not working there.

The master found that about fifteen pickets generally remained on Route 18 during business hours. We cannot find a record basis for disagreeing with the master's determination that this number was "not excessive or unreasonable" given the dimensions of the jobsite. Nor do we think that the master was clearly erroneous in using the number of pickets present at 8:00 a. m. rather than the number of those present at 6:00 a. m. in assessing Local 825's object. The master could reasonably infer an object to inform the public of ...


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