Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1989)

MEMORANDUM^*  AND ORDER

The National Labor Relations Board brought contempt proceedings against Local 162 and the Bay Counties District Council of the United Brotherhood of Carpenters and Joiners of America. We agree with the Special Master's recommendation and find both Local 162 and the District Council in contempt. We also agree with most of the relief recommended by the Master, and enter our order accordingly.

BACKGROUND AND PRIOR PROCEEDINGS

In April, 1986, this court entered judgment pursuant to a stipulation in settlement of various claims of illegal secondary boycotting by many locals and district councils of the United Brotherhood of Carpenters and Joiners of America. The judgment essentially prohibits any of the named parties, which included Local 162 and the Bay Counties District Council, from violating 29 U.S.C. § 158(b) (4)¹  with regard to any of the charging parties. Young America Builders, Inc., the primary employer involved here, was one of the charging parties.

H.R. Remington Properties was the developer and general contractor of "Antigua," a residential construction project. Remington hired Young America to perform the framing work on 79 homes in the project. On June 16, 1986, the collective bargaining agreement between Young America and the carpenters union expired. The carpenters union began to strike Young America, and picketed at least two job sites. The picketing at the Antigua job site, from June 16 through June 19, 1986, is at issue here. As a result of the picketing, Young America was terminated by Remington, and lost the contract worth at least $2 million.

Remington subsequently filed charges against Local 162 and the District Council, claiming that the picketing activity at the Antigua job site amounted to secondary boycotting. In October, 1986, the NLRB petitioned this court for a determination that Local 162 and the District Council had violated the court's previous order. We issued an order requiring Local 162 and the District Council to answer the allegations. We then referred the matter to a Special Master for the purpose of holding a hearing and recommending whether Local 162 and the District Council should be held in civil contempt for the picketing activity at the Antigua project.

The Special Master filed his report on May 17, 1988, and recommended that both Local 162 and the District Council be held in contempt. Local 162 and the District Council have filed objections to the recommendations, and requested a hearing. Both the union and the Board submitted briefs outlining their positions, and oral argument was heard May 11, 1989.

BURDEN OF PROOF; STANDARD OF REVIEW

The NLRB has the burden of establishing contumacious conduct by clear and convincing evidence. NLRB v. Sequoia Dist. Council of Carpenters, 568 F.2d 628, 631 (9th Cir. 1977). It does not have to prove willful violation of the court's order, however, because this was a proceeding for civil contempt, not criminal. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949).

This court reviews the Special Master's factual findings under the "clearly erroneous" standard, with particular deference to the superior position of the Master to consider credibility and to draw inferences from the testimonial evidence. Sequoia, 568 F.2d at 631. The Special Master's conclusions of law are entitled to no special weight, and are reviewed de novo. NLRB v. FMG Ind., 820 F.2d 289, 291 (9th Cir. 1987).

DISCUSSION

The Special Master found that Local 162's picketing June 16 through June 19, 1986, constituted an unfair labor practice because the union picketed with the objective of enmeshing neutral employers in its primary dispute with Young America. A secondary boycott is an unfair labor practice. 29 U.S.C. § 158(b) (4) (ii). A union cannot use, or threaten to use, economic pressure against a secondary employer for the purpose of getting that employer to stop doing business with the primary employer. NLRB v. Ironworkers Local 433, 850 F.2d 551, 554 (9th Cir. 1988). A union may, however, picket the primary employer at a situs under the control of the secondary employer, as long as the picketing is primary in nature. Id.

In determining whether picketing is primary in nature, this court has used the four criteria outlined in Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950). These include: 1) that the picketing be limited to times when the situs of the dispute was located on the secondary premises; 2) that the primary employer be engaged in its normal business at the situs; 3) that the picketing take place reasonably close to the situs; and 4) that the picketing clearly disclose that the dispute is only with the primary employer. Literal compliance, or failure to comply, with the Moore Dry Dock standard does not preclude, or establish, a Sec. 158(b) (4) violation. Constar, Inc. v. Plumbers Local 447, 748 F.2d 520, 522 (9th Cir. 1984). The inquiry is whether, under the totality of circumstances, the union had an unlawful secondary purpose in conducting its activity. Id. If one of the objectives of the union is to cause a neutral to stop doing business with a primary employer, the picketing violates the act. NLRB v. Denver Bldg. and Constr. Trades Council, 341 U.S. 675, 689 (1951).

Local 162 challenges the Special Master's finding that its picketing amounted to an unfair labor practice on several grounds relating to the Moore Dry Dock standards. First, Local 162 argues that it had no duty to honor a neutral gate until it received written notice of the establishment of the reserved gate system. As evidence, it points to the fact that once it received written notice, it immediately pulled the picketers off the neutral gate, and picketed only the gate reserved for Young America. The Special Master found that Local 162 had illegally picketed the neutral gate despite having received notice of the two-gate system as of June 17, 1986. Once the union had notice of the reserved gate system, it had a duty to picket only the gate reserved for Young America. See NLRB v. Carpenters Union Local No. 1622, 786 F.2d 903, 905 (9th Cir. 1986). Large signs indicating the reserved gate system were complete and posted by 7 a.m. on June 17, 1986. Dillon, a Local 162 official, was told several times, by several officials of both Young America and Remington, of the two-gate system.²  The Local's decision to ignore this notice is evidence of an intent to involve other businesses in their dispute with Young America.

Local 162 also argues that the picketing of the neutral gate does not imply an unlawful purpose because the neutral gate was polluted. Substantial mixed use of a gate can justify a union's picketing even if it has been designated as neutral. Local Union No. 76 v. NLRB, 742 F.2d 498, 501 (9th Cir. 1984). But isolated or de minimis use of the gate by primary employers is not sufficient pollution. See Local Union No. 761 v. NLRB, 366 U.S. 667, 682 (1961). The facts indicate that any pollution here was de minimis. Dillon, a representative of Local 162, testified that he saw a Young America foreman use the neutral gate on June 17th. He thought others had used it also, but he only saw the foreman actually use it. As the Board points out, the union's argument of pollution is undercut by the fact that the picketing of the neutral gate began before the foreman used it.

The Special Master also found that Young America was no longer present on the job site after approximately 11:00 a.m. on June 17, 1986, so any picketing done after that date implies an unlawful purpose under Moore Dry Dock. At that time, Young America had just received notice from Remington that it had 48 hours to clear up its labor problems, or it would be terminated from the project. Young America then pulled any remaining workers off the project and left the site. The Local argues that Young America was "present" on the job site throughout the picketing, because neither Remington nor Young America told the Local that they were leaving the site, Young America equipment was left on the site, and some Young America workers were sitting outside the site, across the street from the picketers, watching what was going on. Dillon knew Young America was leaving, however, as he expressed "sympathy" to Essary when Essary pulled the workers and left. Similarly, the Master's finding that Young America was not engaged in its normal business at the situs is fully supported by the evidence, and implies an illegal purpose to the picketing after the time Young America left the site.

We agree with the Special Master's findings regarding Local 162, and find the Local in contempt of the settlement order.

B. Liability of the Bay Counties District Council for Contempt

The Special Master found the District Council in contempt on two alternative grounds: 1) its agency relationship with Local 162 and ratification of the illegal boycotting; and 2) a threat by one of its representatives illegally to boycott Young America. To hold a union liable for actions of an affiliated local, there must be evidence that the union either "instigated, supported, ratified, or encouraged" the local's conduct, or that "what was done was done by the local in accordance with their fundamental agreement of association." Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 217-18 (1979).

Here, the evidence supports the conclusion that Local 162 was not sufficiently under the control of the District Council regarding striking and picketing to give rise to liability on that ground. The bylaws, rules, and testimony show that Local 162 was independent as to these activities. As a result, the Board must show that the District Council instigated, supported, ratified, or encouraged the illegal picketing activity.

The District Council and its local representatives met several times to discuss picketing the employers who did not sign the collective bargaining agreement. On the morning of June 16, 1986, the District Council called the offices of Local 162, and advised them that Young America had not re-signed the agreement, and that the Local should begin picketing Young America.

There is also evidence that Jim Green, executive officer of the Bay Counties District Council, ratified the illegal picketing at Antigua during a June 17, 1986, collective bargaining negotiation session. During the meeting, Mason, the attorney representing Young America, had discussed the illegal nature of the picketing. Towards the end of the meeting, Rogers, the attorney for the union, stated that the union would give Young America 48 hours to sign the collective bargaining agreement. Green then stated that he would not give them 48 hours, and that he was going to picket both gates now. Green's statements are evidence of the District Council's support and ratification of the illegal picketing, and although it is much closer case than Local 162's activities, we agree with the Special Master that the District Council should also be held in contempt.³ 

The Special Master's recommended order prohibits Local 162 and the District Council, on pain of substantial fines fixed in advance, from engaging in secondary activity intended to force persons not to do business with Young America or with any other person. The Special Master based this broad order, encompassing all impermissible secondary activity, on the "demonstrated proclivity" of Local 162 and the District Council to engage in secondary boycotts, as indicated by the events leading to the settlement and our stipulated order of April 1986.

Local 162 and the District Council contend that there has been no showing of recidivism sufficient to justify such a broad order. Local 162 contends that a non-admission clause in the settlement agreement precluded its use against the Local to show proclivity. The Board responds to the latter contention by insisting that the non-admission clause simply exempts Local 162 from having the settlement treated as a fully adjudicated final order, a treatment that several parties agreed to.

The Board has the better of this argument, but we nevertheless conclude that the purposes of civil contempt will be adequately served by confining our prospective prohibition, backed by fines set in advance, to secondary activity intended to coerce persons not to do business with Young America. The activities of Local 162 and the District Council which led to the prior settlement took place no later than 1983. The record reflects no instances of violations by Local 162 or the District Council since that time, with the exception of the incident under review.

It is true that the Board, in exercising its own discretion, may fashion broad cease and desist orders based on a few instances of repeated violations. See NLRB v. Carpenters Local 1622, 121 LRRM 3539, 3541 (9th Cir. 1986); NLRB v. Sequoia District Council of Carpenters, 499 F.2d 129 (9th Cir. 1974); NLRB v. Teamsters Local 70, 490 F.2d 87, 88 (9th Cir. 1973). But a broad order does not invariably follow from prior offenses. See Ironworkers Local 118 (Allen Bender, Inc.), 285 NLRB No. 23, 127 LRRM 1255, 1256 (1987). In the exercise of our own discretion, we confine the order to the violation before us.

CONCLUSION AND ORDER

WE THEREFORE ORDER that Local 162 and the Bay Counties District Council of the United Brotherhood of Carpenters and Joiners of America:

1. Fully comply with and obey the judgment of April 26, 1986, of this court;

2. Refrain from engaging in, or inducing, supporting, or encouraging any individual employed by any person engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any articles, materials or commodities, or to refuse to perform any services, where an object thereof is to force that person to cease doing business with Young America Builders, Inc.;

3. Refrain from threatening, restraining, or coercing any person engaged in commerce or an industry affecting commerce, where an object thereof is to force that person to cease doing business with Young America Builders, Inc.;

4. Duplicate, at their own expense, and post in conspicuous places where notices to employees and members are customarily posted, for a period of not less than sixty (60) consecutive days, copies of the contempt adjudication and an appropriate notice, in the form prescribed by the Board, signed by appropriate officers on behalf of Local 162 and the District Council, which states that Local 162 and the District Council have been adjudged in civil contempt of this court for violating the judgment of April 25, 1986, and that they will undertake the actions directed by this court. Local 162 and the District Council shall maintain such notices and copies of the contempt adjudication in clearly legible condition throughout the posting period and insure that they are not altered, defaced, or covered by any other material.

5. Sign, duplicate, and mail, at their own expense, sufficient copies of said notice and of the adjudication to all members of Local 162, and to all constituent unions of the District Council. The notice shall be read, by an appropriate officer, at the next regularly scheduled meeting of membership of Local 162 following the entry of the contempt adjudication. Local 162 and the District Council shall also submit a list of the members of Local 162 and of union constituents of the District Council, and their addresses to the Regional Director of the National Labor Relations Board, together with proof of mailing, at 901 Market Street, Suite 400, San Francisco, California 94103.

6. File separate sworn statements with the Clerk of this court within thirty (30) days after the order of adjudication and again upon termination of the posting period, showing what steps have been taken to comply with the court's directives. Copies of these filings shall be sent to the Regional Director of the Board at 901 Market Street, Suite 400, San Francisco, California 94103.

7. Pay to the Board, jointly and severally, all costs and expenses, including reasonable attorneys' salaries, incurred by the Board in the investigation, preparation, presentation and final disposition of this proceeding, including any costs relative to the Special Master. The amount, unless agreed to by the parties, shall be fixed by further order of this court upon submission by the Board, within sixty (60) days of the entry of the adjudication, of a certified statement of such costs and expenses. The Board shall serve a copy of such statement on both Local 162 and the District Council. The union may respond to the Board's statement of costs and expenses within thirty (30) days after service. If the court determines a hearing is necessary, it may, in its discretion, refer the matter to a Special Master for a report and recommendation.

In order to insure against further violations of the court's judgment and contempt order, separate prospective compliance fines, against both Local 162 and the District Council, in the amount of $10,000 each, shall be imposed for each and every further violation of this judgment and contempt order. If the violation is a continuing violation, an additional fine of $1,000 each for each and every day such violation continues shall be imposed. This court reserves jurisdiction to issue writs of body attachment against any officer or agent of Local 162 or the District Council responsible for noncompliance with the foregoing provisions.