International Brotherhood of Electrical Workers Local Union 357, AFL-CIO (Desert Sun Enterprises Lim

National Labor Relations Board - Administrative Judge Opinions

Jul 28, 2014

28-CC-115255 (N.L.R.B. Jul. 28, 2014)

JD(SF)–38–14
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION
357, AFL-CIO
and Case 28-CC-115255
DESERT SUN ENTERPRISES LIMITED
d/b/a CONVENTION TECHNICAL
SERVICES
Nathan Higley, Esq. and Larry A. Smith, Esq.
for the General Counsel.
Michael A. Urban, Esq., The Urban Law Firm,
for the Respondent.
Gregory E. Smith, Esq., and Amy Baker, Esq.,
(Lionel Sawyer & Collins) for the Charging Party.
DECISION
STATEMENT OF THE CASE
Gerald A. Wacknov, Administrative Law Judge: This case was tried before me in Las
Vegas, Nevada on May 6, 2014. The captioned charge was filed on October 22, 2013, by Desert
Sun Enterprises Limited d/b/a Convention Technical Services (Charging Party or Convention
Technical Services), and an amended charge was filed by the Charging Party on
January 14, 2014. On January 31, 2014, the Regional Director for Region 28 of the National
Labor Relations Board (Board) issued a complaint and notice of hearing alleging a violation by
International Brotherhood of Electrical Workers, Local Union 357, AFL-CIO (Respondent or
Union) of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended (Act).
The Respondent, in its answer to the complaint, duly filed, denies that it has violated the Act as
alleged.
Since the close of the hearing, briefs have been received from counsel for the General
Counsel (General Counsel) and counsel for the Respondent. Upon the entire record, I make the
following:
JD(SF)–38–14
2
Findings of Fact
I. Jurisdiction
Convention Technical Services has been a limited liability company with an office and 5
place of business in Las Vegas, Nevada, engaged in furnishing portable electrical services in the
convention industry. It annually purchases and receives at its Las Vegas facility goods and
services valued in excess of $50,000 directly from points outside the State of Nevada. It is
admitted and I find that at all times material herein Convention Technical Services has been an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act,10
The Las Vegas Convention and Visitors Authority (the LVCVA) is a governmental entity
that manages the Las Vegas Convention Center (LVCC) which includes common-situs
exhibition halls where employees dispatched by the Respondent and other labor organizations
perform work. The LVCVA annually purchases and receives at the LVCC facilities goods 15
valued in excess of $50,000 directly from points outside the State of Nevada. It is admitted and
I find that at all times material herein the LVCVA has been a person within the meaning of
Section 2(1) and Section 8(b)(4) of the Act.
ll. The Labor Organization Involved20
It is admitted and I find that the Respondent is, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
lII. Alleged Unfair Labor Practices25
A. Issues
The principal issue in this proceeding is whether the Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act by the conduct of Respondent’s 30
business agent in advising the LVCVA that he, on behalf of the Respondent, was seeking strike
sanction authorization from the Southern Nevada Building and Construction Trades Council
against Convention Technical Services “for any and all jobs because of not paying area
standards,” without further advising the LVCCA that if a picket line was established at the
LVCC the Respondent intended to comply with the standards set forth in Sailors Union of the 35
Pacific (Moore Dry Dock), 92 NLRB 547 (1950).
B. Facts and Analysis
At the outset of the hearing the General Counsel and Respondent entered into a 40
Stipulation of Facts. The Stipulation of Facts, in pertinent part, is as follows:
On October 9, 2013, Max Carter, Assistant Business Manager of Respondent, reported to
Al Davis, Business Manager and Financial Secretary of Respondent, that Employer
[Convention Technical Services] was performing work on the ABC Kids Show at the 45
LVCC. Davis told Carter to get a strike sanction against Employer for Employer’s
alleged failure to pay area standard wages and benefits.
JD(SF)–38–14
3
Also on October 9, Max Carter prepared the strike sanction request letter, Al Davis
signed it, and Carter sent it to the Southern Nevada Building and Construction Trades
Council. He also sent the letter to selected members of the Board of Directors for the
LVCVA.5
Later the same day, October 9, 2013, the Trades Council sent its approval of a strike
sanction against Employer to Carter.
Respondent’s strike sanction request letter and the Trades Council’s approval of this 10
request did not inform anyone that, if it established a picket line, it would comply with
the standards contained in Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547
(1950).
The strike sanction request letter referred to above, on IBEW Local 357 letterhead and 15
addressed to Darren Evans, Southern Nevada Building and Construction Trades Council, is as
follows:
Dear Darren,
20
Please be advised that Local Union #357 of the International Brotherhood of electrical
Workers is requesting a strike sanction against Convention Technical Services. This is
for any and all jobs because of not paying area standards. (Original emphasis.)
Your cooperation in this matter would be greatly appreciated.
Sincerely,25
/s/ Al Davis
Al Davis
Business Manager/Financial Secretary
IBEW Local #357
cc. LVCVA Board Members30
The foregoing Stipulation of the General Counsel and the Respondent constitutes an
admission of each of the essential allegations of the complaint. Accordingly, upon receipt in
evidence of the Stipulation, over the objection of the Charging Party,1 the General Counsel
moved for Summary Judgment. I verbally granted the General Counsel’s motion on the record.35

1 The Charging Party refused to enter into the Stipulation and takes the position that the Stipulation is
incomplete. Accordingly, the Charging Party sought to introduce additional evidence in support of its
argument that the Respondent’s conduct was unlawful and masked a secondary intent. The Charging
Party’s proposed evidence is summarized as follows: That the Charging Party had a collective-bargaining
agreement with another union; that the Regional Office’s investigation of the charge was inadequate; and
that as a result of the strike sanction request letter sent by the Respondent to the LVCVA board members
“the strike threat caused a group of [the Charging Party’s] employees to be taken from the show floor and
replaced by other employees from the Respondent.” I denied the Charging Party’s request to present such
evidence.
JD(SF)–38–14
4
The purpose of the foregoing sequence of events was to place the issue directly before the
Board in view of the fact that both the General Counsel and the Respondent believe that current
Board law is no longer viable as a result of the refusal of the D.C. Circuit and the Ninth Circuit
to enforce Board decisions requiring Moore Dry Dock assurances in similar circumstances.
The Board in Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 346 NLRB 5
199, 202 (2006), enf. denied 491 F.3d 429 (D.C. Cir. 2007), in agreement with the analysis of
the administrative law judge, found that the union had violated the Act as a result of its failure to
provide Moore Dry Dock assurances to a secondary employer under circumstances similar to
those herein. While the Board discussed the matter in a different context, it summarized the
current status and rationale of Board law on this issue, pertinent to the instant case, as follows, at 10
page 199:
The purpose of the Board’s requirement that unions provide secondary employers with
Moore Dry Dock assurances in connection with an announcement to picket a common
situs is to assure the secondary that the picketing will be confined to the primary 15
employer. Electrical Workers Local 98 (MCF Services), 342 NLRB 740, 749–750, 752
(2004).
The D.C. Circuit rejected the Board’s approach and denied enforcement of the Board’s
order. In doing so it took notice of the Ninth Circuit’s earlier rejection of current Board law in 20
this area and adopted the reasoning of the Ninth Circuit in NLRB v. Ironworkers Local 433, 850
F.2d 551 (9th Cir.1988). In that case the Ninth Circuit, in denying enforcement of a Board order
under similar factual circumstances, stated that “there is still considerable merit to the general
legal principal that people should be presumed to be acting lawfully until proven otherwise,” and
that there was “no justification for requiring [Moore Dry Dock assurances] in the absence of 25
evidence that the union intends to picket in an unlawful manner or that its conduct or statements
would reasonably be so understood.” Id at 557. See also another Ninth Circuit case denying
enforcement of a similar Board order: Plumbers Local 32 v. NLRB, 912 F.2d 1108 ((9th Cir.
1990).
30
The briefs of the General Counsel and Respondent in support of a reversal of Board
precedent and dismissal of the instant complaint are persuasive in setting forth legal and policy
justifications for the dismissal of the complaint. However, as I am required to follow current
Board law and as the General Counsel and Respondent will be submitting briefs to the Board on
appeal, it is unnecessary to recount in this decision their arguments and legal and policy reasons 35
favoring the adoption of circuit court precedent.
Accordingly, on the basis of the foregoing, and consistent with current Board law, I find
that the Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act as alleged.
40
Conclusions of Law and Recommendations
1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act.
2. The Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act as alleged. 45
REMEDY
JD(SF)–38–14
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Having found that the Respondent has violated Section (b)(4)(i) and (ii)(B) of the Act,
I shall recommend that it be ordered to cease and desist from such violation and to post an
appropriate notice.
5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
ORDER2
10
The Respondent, International Brotherhood of Electrical Workers, Local Union 357,
AFL-CIO, its officers, agents, and representatives, shall
1. Cease and desist from
15
(a) Unqualifiedly threatening to picket with the object of forcing The Las Vegas
Convention and Visitors Authority, or any other employer to cease doing business with Desert
Son Enterprises Limited d/b/a Convention Technical Services.
2. Take the following affirmative action necessary to effectuate the policies of the Act. 20
(a) Within 14 days after service by the Region, post at its business offices and
meeting halls within its jurisdiction copies of the attached notice marked “Appendix.”3 Copies of
the notice, on forms provided by the Regional Director for Region 28, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 25
consecutive days in conspicuous places including all places where notices to
employees/members are customarily posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customarily communicates with its
employees/members by such means. Reasonable steps shall be taken by the Respondent to 30
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since October 22, 2013.35
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–38–14
6
Dated, Washington, D.C. July 28, 2014
5
____________________
Gerald A. Wacknov
Administrative Law Judge
10
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten, coerce, or restrain The Las Vegas Convention and Visitors Authority
where an object thereof is to force or require The Las Vegas Convention and Visitors Authority
to cease doing business with Desert Son Enterprises Limited d/b/a Convention Technical
Services or any other person.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 357,
AFL-CIO
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CC-115255 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
JD(SF)–38–14
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.