National Labor Relations Board v. Metropolitan Regional Council of Carpenters

316 F. App'x 150
CourtCourt of Appeals for the Third Circuit
DecidedMarch 11, 2009
DocketNo. 07-4679
StatusPublished

This text of 316 F. App'x 150 (National Labor Relations Board v. Metropolitan Regional Council of Carpenters) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Metropolitan Regional Council of Carpenters, 316 F. App'x 150 (3d Cir. 2009).

Opinion

OPINION

IRENAS, Senior District Judge.

Before the Court is the application of the National Labor Relations Board (“Board”) for enforcement of a cease-and-desist Order issued against the Metropolitan Regional Council of Carpenters, Southeastern Pennsylvania, State of Delaware and Eastern Shore of Maryland, United Brotherhood of Carpenters and Joiners of America (“the Union”), on October 18, 2007. The Order adopted the administrative law judge’s (“ALJ”) determination that the Union had violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act (“Act”), 29 U.S.C. § 158(b)(4)(ii)(B), and his recommendation that a broad order be issued. The Union argues that there was insufficient evidence to support the Board’s finding that the Union had violated Section 8(b)(4)(ii)(B) and that the Board’s issuance of a broad order was an inappropriate remedy. For the reasons set forth below, the Board’s application for enforcement will be granted.1

I.

A.

Case 4-CC-2463 arises out of statements made by Bruce Jones (“Jones”), an official of the Union, to Todd Strine (“Strine”), a principal of 421 Chestnut Partners, LP (“CPLP”) on May 3, 2006. CPLP was the developer for a project involving the conversion of an old bank building at 421 Chestnut Street in Philadelphia into residential condominium units. (App.180.) While CPLP would be delivering “raw space” to the individual owners, they subcontracted out the work to be performed on the infrastructure to two [152]*152companies, Cyma Builders and Aloia Construction. (App.180-81.) Both of these contractors used “98% union labor.” (App. 182.) However, two of the individual condominium owners contracted with Adams-Bickel Associates, Inc. (“Adams-Bickel”) to do the work in their units. (App.182.)

In late April 2006, members of the union representing the employees working on the elevators picketed at the Chestnut Street site. (App.188.) Shortly thereafter, Strine received several telephone messages from Jones. (App.183.) On May 3, 2006, Strine returned Jones’s calls, at which point Jones identified himself as Union official and told Strine he wished to discuss the Chestnut Street project. (App. 183.) Jones noted the picketing by the elevator workers, and then switched topics, stating, “What if out of the blue, Adams-Bickel is going to be my [Jones’s] problem regardless[?]” (App.183-84.) When asked why, Jones explained that it was because Adams-Bickel used “unfair contractors” who did not pay “the prevailing wages.” (App.184.) After discussing the concept of unfair wages, Jones told Strine that he believed Adams-Bickel was using unfair contractors, and “[i]f that’s the way it’s going to go the building is going to have a problem.” (App.184-85.) When Strine asked what he meant, Jones explained that, “a problem” meant “[protests, work stoppages and problems with deliveries.” (App. 185.)

Strine asked how these “problems” could be avoided, and rather than directly answering, Jones indicated that the problems went beyond the Union, and that there were potential difficulties involving other unions as well. (App. 185.) Strine suggested that Jones speak to someone at Adams-Bickel about his concerns. (App. 185-86.) Jones responded that he had spoken to someone there, but that “he had to watch what he said” to the Adams-Bickel principal. (App.186.) Jones further stated, “if Adams-Bickel is in there and there’s going to be a fight, it’s going to go one way and it’s not going to be a good way.” (App.187.) Strine explained that he had nothing to do with Adams-Bickel and that his own contractors had used union employees. (App.187.) Jones responded that “We know that you initially did the right thing and we just want you to use some of your juice to convince Adams-Bickel to use fair contractors.” (App.187.)

Strine expressed confusion as to why the actions of individual owners were of such concern, given that the majority of the work had been done with union labor. (App.187.) Jones explained that, “It’s about upholding wages in the city of Philadelphia, which we set.” (App.188.) Finally, Strine told Jones, “I don’t understand where we’re going with this conversation or what you want me to do.” (App.188.) Jones then concluded the conversation by reiterating that, “I want you to think about using your juice and talking to Adams-Bickel.” (App.188.)

Strine and Jones had no further communications. Adams-Bickel filed a charge with the Board on May 5, 2006, alleging that Jones’s conversation with Strine constituted threats in violation of Section (8)(b)(4)(ii)(B). (App.23.) A complaint was issued on June 19, 2006, and amended on December 2, 2006. (App.23.)

B.

Case 4-CC-2482 arises out of statements made by Jones to George McCardle (“McCardle”), a field superintendent at Penn Valley Constructors, Inc. (“Penn Valley”), on December 5, 2006. Penn Valley was the general contractor for a brewery construction project at Second and Chestnut Streets in Philadelphia. (App.228-29.) Penn Valley subcontracted out all of the work, and all of the subcontractors working at the job site used union labor. (App. [153]*153229.) Penn Valley also subcontracted with American Millwork Cabinetry, Inc. (“American Millwork”), a non-union firm, to manufacture the cabinetry, bar tops and fronts, and wall panels for the brewery. (App.229.) American Millwork then subcontracted with P.A. Fly Contracting, Inc. (“PA Fly”), a union firm, for the delivery and installation of those items. (App.212-13.)

In late 2006, a Union representative contacted George Reitz (“Reitz”), the owner of American Millwork, to find out if American Millwork was doing work at the Penn Valley project. Reitz explained American Millwork was only providing woodwork for the microbrewery. (App.214.) Reitz was asked if American Millwork had a labor agreement, to which Reitz said no.2 (App. 214.) The Union representative also asked who would be doing the installation, and Reitz provided a list of potential subcontractors, all of whom were unionized. (App.214.)

On December 5, 2006, Jones contacted Reitz, on behalf of the Union. (App.215.) Jones accused Reitz of not paying his workers “fair wages,” and explained that “he was going to instruct his carpenters not to unload any millwork, because it was coming from an open shop and he repeated by saying that [no] millwork was going to be unloaded unless it was from a union.” (App.215.)

Later that day, Jones approached McCardle at Penn Valley’s work site. (App.230.) According to McCardle’s testimony,

[Jones] told me that ... he and another business agent who represents the Cabinet Makers, were in contact with George Reitz from American Millwork and that George was jerking them around.... I said, “What do you mean by ‘jerking him around — jerking you around?’ ” And he said, “Let me put it this way ... I just want to give you a heads up ... and frankly I shouldn’t even be saying this to you but if an agreement isn’t worked out between American Millwork and the Union the truck’s not getting unloaded.” And he said — then he said, “Let me put it this way, if — my men are not going to unload that truck if something’s not worked out between American Millwork and the Union.” Then he asked me to call George Reitz and see if there was something I could do about it.

(App.231.)

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316 F. App'x 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-metropolitan-regional-council-of-ca3-2009.