National Labor Relations Board v. Local 825,a,b,c,d, International Union of Operating Engineers

659 F.2d 379

• Court: Court of Appeals for the Third Circuit
• Decided: December 18, 1981
• Docket: 80-1334
• Status: Published

Opinions

OPINION OF THE COURT

SEITZ, Chief Judge.

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.¹ 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.² 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 job-site, several hundred feet behind the jug-handle 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 jug-handle 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, 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.’ ” OCA W, 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. § 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.

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 the primary dispute from the 8:00 a. m. figures and an object to inform the primary employer’s employees from the 6:00 a. m. figures.

Furthermore, the fact that Drukker was not working on the Red Lobster jobsite during the picketing is not determinative of object. Red Lobster and Drukker remained under contract throughout the period at issue. Drukker had completed an initial phase of work immediately before the picketing, and it had another phase scheduled within a month. On the first day of picketing, Drukker still had equipment on the Red Lobster jobsite. Goyette had indicated to Jones on July 19 that he would produce a letter confirming his assertion that Drukker was no longer working for Red Lobster, but no letter was produced. Moreover, even when we review the master’s finding as a legal conclusion and not as a factual determination, we do not believe that the Board has satisfied its burden of proving by “clear and convincing proof” that Local 825 was motivated by an unlawful object in picketing the Red Lobster jobsite.

We also are unable to disagree with the master’s conclusion that Local 825’s conduct was not “threatening” or “coercing”. The master found both that the pickets did not interfere with the installation of Red Lobster’s electrical service on July 26 and that there was insufficient evidence to show that the pickets were responsible for turning away Denny’s suppliers. The statutory words “induce or encourage” include every form of influence and persuasion. See IBEW v. NLRB, 341 U.S. 694, 701-02, 71 S.Ct. 954, 958, 95 L.Ed. 1299 (1951). Thus, the convergence of the pickets on the utility trucks might support an inference that the truck drivers were restrained or threatened. An equally permissible inference that the drivers simply asked the pickets what was going on and decided to support the union’s efforts, however, can be drawn from the fact that the truck drivers pulled onto the shoulder and talked to the pickets. There was testimony that most of the truck drivers did not stop and converse with the pickets, but instead slowed down, saw the picket line, and kept on going. We do not believe on this record that the master clearly erred in drawing the inference that the drivers were neither threatened nor coerced, and certainly the evidence is not clear and convincing proof that the pickets actually coerced the drivers.

Finally, the Board argues that the direct threats made by Jones to Denny’s and Red Lobster support a finding of coercion. Jones cautioned Goyette that he would “throw the picket [line] up” if “any nonunion people” returned to work, but he agreed to remove the pickets if Red Lobster used union personnel on the job. Goyette testified, however, that he understood that Local 825 would have to picket Drukker wherever Drukker worked, even if Drukker worked on the Red Lobster jobsite. He also admitted that neither Jones nor Local 825 ever “threatened” him. Indeed, to say that the union threatened Goyette seems to penalize Local 825 for attempting to comply with the Moore Dry Dock standards for primary picketing. See 92 N.L.R.B. at 549. Jones’ statements to Castongue are more difficult to justify: Drukker had not worked for or had any contract with Denny’s, and Jones’ statements might be seen as a warning to avoid Drukker. It is not clear, however, that the statements made by Jones were anything other than indications of what the union would do if Drukker came onto the Denny’s jobsite. Because Castongue initiated the conversation, we are not convinced that the master erred when he refused to find that these conversations constituted “threats” within the meaning of section 8(b)(4)(ii).³

In sum, we do not think that the Board proved clearly and convincingly that Local 825 had a secondary boycott as an object of its picketing, that it coerced employees or suppliers of neutral employers not to cross its picket line, or that Jones threatened either Denny’s or Red Lobster with an object of preventing their contracting with Drukker. The master made the findings of fact that are essential to support his conclusions, and the Board’s evidence does not “leave us with the definite and firm conviction” that the master’s findings were wrong.

The Board challenges both the master’s conclusion that the picketing of Leeds by Local 825 constituted lawful area standards picketing and the master’s factual findings supporting that conclusion. Analysis of this challenge also breaks down into three issues: (1) whether the master correctly concluded that Leeds failed to establish and post a reserved gate by the time the picketing began; (2) whether the master correctly determined that the union did not hinder secondary employees from entering the common jobsite; and (3) whether the master erred when he refused to find that the union’s posting of observers after September 5 indicates that the picketing had a secondary object.

It is well established that a general contractor may, “by the use of separate gates for the purpose of ingress to and egress from the jobsite, lawfully force the union to picket only those ‘separate gates.’ ” Local 519, United Association of Journeymen v. NLRB, 416 F.2d 1120, 1125 (D.C.Cir.1969). The master, however, found (a) that the sign posted at the neutral gate was confusing and that a neutral gate was not established; (b) that Leeds may have continued to use the “neutral” gate; and (c) that the record did not prove that the sign identifying the neutral gate was posted on September 5 or 6 when the picketing commenced.

It does not appear that the misleading signs actually confused anyone, but as David Leeds, who posted the signs, admitted, the sign at the neutral gate did not authorize anyone to use the gate. Moreover, it is not clear that the sign at the neutral gate was posted when Local 825 commenced picketing at the Jackson Township jobsite. The sign identifying the neutral gate was torn down on September 4. There is evidence in Cox’s log, although its meaning is disputed, indicating that no sign was posted on the morning of September 5 when Local 825 started picketing. Cox testified that he was “99.9 percent” certain that the sign was up when he arrived for work at 7:45, but because the picket line was already up by that time, his testimony would not necessarily indicate that the sign was posted when the picketing commenced. Some of the Board’s evidence indicates that the sign was not posted until 7:15 a. m., well after the picketing had begun. In light of this evidence, we cannot say that the master clearly erred in concluding that the gate was not established and that the sign was not up at the critical time.

There was conflicting testimony whether Local 825 picketed on September 6. At one point in his testimony Cox stated that he saw Local 825 picketing at the neutral gate only on September 5, but he elsewhere said that he went through a picket line on September 6 to get his tools. One Local 9 member testified that September 6 was the only time that he saw Local 825 picket at the neutral gate. Thus, it is not clear that Local 825 picketed on more than one day, and it was not unreasonable for the master to refuse to find that picketing began on that day after the sign was reposted.

We agree that the absence of the primary employer’s employees at the gate picketed is evidence of a secondary object. See NLRB v. Local 254, Building Service Employees, 359 F.2d 289, 292 (1st Cir. 1966). In Brown Transport Corp. v. NLRB, 334 F.2d 30 (5th Cir. 1964), in which the picket signs made clear that picketing was directed only to the employees of the primary employer and no one else, see id. at 31, the court held that “[t]here is simply no excuse for picketing where the message is seen by neutral employees of neutral employers but is not seen at all by the employees of the primary employer,” id. at 39. That, however, is not the situation here. The picketing in this ease was aimed at informing both the public and Leeds’ employees of the wages and benefits received by the employees. Although Leeds argues that it did not use the neutral gate, there is some suggestion in Hagenbarth’s testimony that Leeds’ “people were using [the] main gate during the time [the] project was shut down by picketing.” Thus, we do not think that the Board has shown by clear and convincing evidence that Local 825’s picketing was motivated by a secondary object.

The master found that no one was prevented from entering the jobsite. This finding is fully supported by the record. For example, there is evidence indicating that Local 825 pickets merely informed Cox that he was crossing a picket line. As to Hagenbarth, it is true that when he turned into the site “he could not continue without running [the pickets] over.” On the other hand, after talking to the pickets and learning that Cox was not there, Hagenbarth admits that he “just backed out because there was no reason for [him] to be there,” not because he was prevented from entering. The Board fails to show that the master clearly erred when he found that Ogren’s employees were not restrained from entering the jobsite. While a picket line certainly “induces” employees not to cross, informational picketing is permissible. We do not believe that the Board has proved by clear and convincing evidence that this informational picketing was somehow more coercive than other area standards picketing.

Finally, the Board offers as further proof of Local 825’s unlawful object its patrolling without signs across the street from the neutral gate for several weeks after the picketing. There is no requirement that pickets carry signs. The Board argues that “signal picketing,” that is, activity that acts as a signal to neutrals that sympathetic action on their part is desired, is unlawful. See Bridge Workers Local 433 v. NLRB, 598 F.2d 1154, 1158 and n.6, 1159 (9th Cir. 1979). It is not clear, however, that the observers here were doing anything other than ensuring that Leeds did not use the neutral gate. The observers were not wearing picket signs; they did not identify themselves as Local 825 members; they did not stop anyone from entering the jobsite; they did not talk to anyone; and they were across the street, at least thirty to thirty-five feet away from the main gate.

Although some of the Board’s many objections to the master’s findings of fact may be meritorious, we believe that the master made the findings that are essential to uphold his conclusions and that those findings are not clearly wrong. As with the East Brunswick jobsite, we do not believe that the Board has shown error in the master’s conclusion that the evidence failed to prove clearly and convincingly that Local 825 has violated the underlying decrees. Thus, we adopt the master’s report with its recommendation that Local 825 not be adjudged guilty of civil contempt.

III.

The Board’s motion for sanctions will be denied.

1 . Unless otherwise indicated, the facts set forth in this opinion either were found by the master or are supported by uncontradicted documentary and testimonial evidence.

2 . The Board did not except to the master’s reference to Lehmann as “developer and owner” of the East Brunswick jobsite. Indeed, the Board’s brief also refers to Lehmann as “owner of the site,” citing the master’s finding for that point. We see no reason to question this statement of fact if the parties do not.

3 . The Board suggests that Local 825 violated this court’s decrees and established an unlawful picket line as evidenced by conversations between Rhine Drukker and Jones. In these conversations, Jones allegedly indicated that “there would be trouble” for Drukker if he did not sign a contract with Local 825. The union also allegedly undertook this picketing with only a minimal investigation of Drukker’s wage and benefit schedule. The Board further argues that police assistance was necessary to enable Drukker representatives and owner Robert Lehmann to enter the jobsite. Whether these incidents constitute illegal conduct need not concern us here. The Board admits that Local 825 had a primary dispute with Drukker, and this conduct certainly does not violate this court’s injunctions against secondary boycotting. Nor do we believe that the incidents with Drukker indicate that Local 825 had a secondary object. The fact that Lehmann was also hindered in entering the jobsite may be evidence of a secondary object, but given the evidence indicating solely a primary object, we do not think this evidence is determinative of the issue.