Unpublished Disposition, 930 F.2d 28 (9th Cir. 1989)

No. 89-70522.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and LEVI,^*  District Judge.

MEMORANDUM^** 

The National Labor Relations Board (the Board) petitions for enforcement of its order prohibiting Ironworkers Local 433 from engaging in secondary boycotting activities based on the Union's picketing at a multiemployer jobsite. We enforce the order.

* Carlson Southwest Corporation was the general contractor for construction of a warehouse facility in San Bernardino. It had several subcontractors working at the site, including Warehouse Equipment Company (Warehouse) which was non-union. Local 433 picketed the project to express its dissatisfaction with Warehouse's use of non-union employees. Carlson's project manager, Aronson, advised Local 433 by telegram that he was establishing a reserved gate system and that gate 1 was to be reserved for Warehouse. When the picketers arrived at gate 1, however, they found a sign stating that certain employers, not including Warehouse, were assigned to gate 1, and all others were to use gate 2. The union picketed at both gates for two days with signs that did not identify Warehouse as the picketed employer.

The Board initially concluded that Local 433 had violated the secondary boycotting prohibitions in the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (1973), by picketing at the Carlson jobsite, as well as at three other sites, and issued a broad remedial order. It petitioned this court for enforcement. Local 433 challenged only the Carlson decision and one other. We reversed the other violation and remanded the Carlson decision. NLRB v. Ironworkers Local 433, 850 F.2d 551 (9th Cir. 1988) (Ironworkers I) .

The Board issued a Supplemental Decision and Order on remand, again finding that Local 433 had engaged in illegal secondary boycotting at the Carlson site. It based its conclusion on the fact that the union had picketed at both gates with signs that did not identify Warehouse as the picketed employer. It also reentered a broad order, prohibiting the union from secondary boycotting against any employer.

II

The Board has jurisdiction over violations of the NLRA under 29 U.S.C. § 160(a). The Board is permitted to petition for enforcement in the Ninth Circuit under 29 U.S.C. § 160(e). We are to enforce the Board's order if its findings of fact are supported by substantial evidence and it has correctly applied the law. NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir. 1989).

The National Labor Relations Act prohibits secondary boycotting. It defines secondary boycotting as engaging in a strike or refusal with the object of

forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees.

29 U.S.C. § 158(b) (4) (B). A union, therefore, may not picket with the intent of pressuring secondary employers into not doing business with the primary employer. Ironworkers I, 850 F.2d at 554. However, a union may picket at a situs with multiple employers as long as the picketing remains primary. Id.

Courts apply four criteria to determine if picketing at a common situs is primary:

(a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer.

Sailors' Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950) (footnotes omitted); see also Ironworkers I, 850 F.2d at 554. A failure to comply with the Moore Dry Dock criteria is not a per se violation of the law; rather, courts must look to the totality of the circumstances to see whether secondary intent is shown. Constar, Inc. v. Plumbers Local 447, 748 F.2d 520, 522 (9th Cir. 1984).

The reserved gate system is a common way to apply the third Moore Dry Dock criterion. By limiting picketing to a gate used only by the primary employer and not secondary employers, the system minimizes the secondary effects of the picketing. As with all the Moore Dry Dock factors, failure to conform with a reserved gate system is not a per se violation of the law but is evidence of a secondary objective. Id.

Ironworkers I held that Local 433 did not fail to conform with a reserved gate system by picketing at gate 1. The telegram specifically directed the union to gate 1, and only the sign posted at the gates gave contrary information. Under those circumstances, we held there was insufficient evidence to support the Board's finding that the union engaged in unlawful picketing at gate 1, and left for further consideration on remand the question whether the absence of identifying wording on the picket signs is sufficient to justify a finding that the union had an illegal secondary objective.

III

Local 433 argues that the Board's supplemental order is not supported by substantial evidence because it is based on the finding that the union picketed at gate 2, as well as gate 1, and that particular finding is not supported by the evidence. The union contends that it only picketed at gate 1, which it believed was reserved exclusively for Warehouse, and therefore did not believe it was directly confronting any neutral employers at the jobsite.

The Board counters first that the union's argument lacks merit because our prior opinion adopted its earlier finding that Local 433 picketed at both gates. "The 'law of the case' rule ordinarily precludes a court from reexamining an issue previously decided by the same court in the same case." Russell v. Commissioner, 678 F.2d 782, 785 (9th Cir. 1982). The rule, however, is a voluntary limitation, not a limitation on courts' power. Id. It is an equitable doctrine and should not be applied if it would be unfair to a litigant. United States v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984), cert. denied, 469 U.S. 1110 (1985). We decline to apply the law of the case doctrine in this case because the Ironworkers I panel did not have the issue of picketing at gate 2 before it and Local 433 accordingly had no meaningful opportunity to challenge the Board's finding in the course of that appeal. See Ducey v. United States, 830 F.2d 1071, 1072 (9th Cir. 1987) (court's statement suggesting that the government was negligent was not given preclusive effect when court had based its decision on state law limitation of liability).

Local 433 now contends that the record does not support the finding because it was based on testimony that was at most equivocal about whether it had picketed at both gates. One witness testified only that he saw picketing at gate 1. Another witness, project manager Aronson, testified that he saw picketers at gate 1, but also responded when asked where he saw picketers:

It was on our Gate Two, which is at the north end--it's also Gate One, which is at the north end of our jobsite.

Blue Brief at 5-7. Reasonably construed, this testimony indicates that the union was picketing at gate 2 as well as gate 1.

The fact that the union picketed at both gates is significant because only the primary employer was expected to be using gate 1. It therefore had to know that neutral employers would be going past its pickets at one gate or the other. Because picketing occurred over the course of two days, the union had an opportunity to correct the situation, either by finding out which gate it was supposed to use or by adding Warehouse's name to the signs. Given these circumstances, the Board was not unjustified in concluding that the totality of circumstances showed Local 433's secondary intent.

IV

Local 433 also argues that the Board, by considering conduct at gate 2, exceeded the scope of the remand in Ironworkers I. Because the court in Ironworkers I stated that the basis for the Board's claim was picketing at gate 1, the union contends that it was impermissible for the Board to factor picketing at gate 2 into its new order. We do not read the scope of remand so narrowly. The Board was not required to blind itself to the context in which the absence of identification on the union's signs occurred. It appropriately considered evidence of picketing at both gates to show that Local 433 knew of the risk of confusion by not having identifying words on its signs.¹ 

The Board was obliged to consider the totality of the circumstances in determining secondary intent, see Constar, 748 F.2d at 522, and it was not unreasonable to conclude that picketing at both gates further evidenced a secondary intent because, even if it were not a violation of a reserved gate system, it still indicated that the Union was aware of the possibility of confusion by not identifying Warehouse on its signs. Thus, the Board did not exceed the scope of the remand in Ironworkers I.

V

Local 433 contends that the Board unjustifiably issued a broad order requiring it to cease and desist secondary boycotting with respect to all employers, not just the employers involved in this case. The Board may issue a broad order if a union has demonstrated a proclivity to engage in illegal secondary boycotting. NLRB v. Carpenters Union Local No. 1622, 786 F.2d 903, 905-06 (9th Cir. 1986). Ironworkers I remanded this issue because it vacated two of the Board's four findings of violations, to give the Board an opportunity to reconsider the scope of its order.

Local 433 first argues that the Board is barred by res judicata from issuing a broad order now because it did not issue a broad order in other cases that also involved the Union and were decided after all the conduct in this case had occurred. See Ironworkers, Local 433 (Chris Crane Co.), 288 NLRB No. 74 (April 29, 1988) ("Chris Crane I "); see also Iron Workers, Local 433 (Chris Crane Co.), 294 NLRB No. 17 (May 24, 1989) ("Chris Crane II "). It relies on International Union of Mine Workers, Local Nos. 15, 17, 107, 108 and 111 v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335 (1945), which held that the Board could not recall its order in a case to impose more appropriate relief.

Mine Workers does not control, however, because the Board is not seeking to vacate its own order; it is simply prescribing different relief from other cases involving the same union at different jobsites. Nor does the Board seek to reopen its own case; it has simply issued a broader order in this case taking into account all the instances of secondary boycotting from earlier cases as well as this one. Even though all the conduct had occurred when the Board decided the other cases, the primary facts to be considered have to be the ones involved in the particular case being decided. Therefore res judicata does not preclude the Board from prescribing different relief based on different facts in this proceeding.

The Board argues that its broad order is justified because the illegal picketing at the Carlson jobsite was one of three violations in this case, and the union had been found guilty of illegal picketing in numerous other decisions. Given a history of illegal picketing, see, e.g., Chris Crane I, 288 NLRB No. 74 (involving picketing neutral gates at a construction site), the Board's order was justified.

The Board's Supplemental Decision and Order is ENFORCED.