National Labor Relations Board v. International Union of Elevator Constructors

902 F.2d 1297
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 27, 1990
DocketNo. 88-2354
StatusPublished
Cited by1 cases

This text of 902 F.2d 1297 (National Labor Relations Board v. International Union of Elevator Constructors) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. International Union of Elevator Constructors, 902 F.2d 1297 (8th Cir. 1990).

Opinions

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. § 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 AU 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 con[1300]*1300tended that, since the provision authorized Ritz’s refusal to work, Long had committed an unfair labor practice by disciplining Ritz.

Long then filed a complaint with the National Labor Relations Board. The AU found that the Unions had not influenced Ritz’s decision, but concluded that this fact was irrelevant. Relying on Bricklayers, the AU held that Ritz’s refusal to enter a neutral gate did “not comport with what has been traditionally deemed to be. primary activity,” AU 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.

The AU 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 AU’s decision with the Board, and the General Counsel filed a cross-exception. A panel of three Board members agreed with the AU 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.

[1301]*1301The AU 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. § 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 AU’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 AU 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.

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902 F.2d 1297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-international-union-of-elevator-ca8-1990.