Plumbers Local 32 (Ramada, Inc.)

National Labor Relations Board - Board Decisions

May 13, 1991

302 N.L.R.B. 919 (N.L.R.B. 1991)

919
302 NLRB No. 155
PLUMBERS LOCAL 32 (RAMADA, INC.)
1 294 NLRB 501. Members Cracraft and Oviatt did not participate in the
decision.
2 912 F.2d 1108, 1111.
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local 32, AFL–
CIO and Ramada, Inc. Case 28–CC–784–1
May 13, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 31, 1989, the National Labor Relations
Board issued a Decision and Order in this proceeding.1
The Board found, in agreement with the administrative
law judge, that the Respondent’s July 31, 1987 letter
to Ramada, Inc. (Ramada) contained an unqualified
threat to engage in secondary picketing and therefore
constituted an unlawful threat in violation of Section
8(b)(4)(ii)(B) of the Act. In reaching this decision, the
Board declined to pass on the judge’s findings that the
threats to handbill and organize a boycott also con-
tained in the letter violated the Act.
In an opinion dated August 30, 1990, the United
States Court of Appeals for the Ninth Circuit2 reversed
the Board’s finding that the Respondent’s threat to
picket violated the Act and remanded the case for a
decision concerning the threats to organize a union
boycott of Ramada and to establish a handbilling pro-
gram.
On November 8, 1990, the Board advised the parties
that they could file statements of position regarding the
issues under consideration. Thereafter, the General
Counsel, Ramada, and the Respondent filed statements
of position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The facts of this case are not in dispute. Briefly, in
May 1987, Ramada hired Baugh Construction Com-
pany (Baugh) as general contractor on its Ramada Inn
hotel project at the Sea-Tac airport, located between
Seattle and Tacoma, Washington. Baugh chose Chap-
man Mechanical, Inc. (Chapman), a nonunion firm, as
subcontractor for the plumbing and mechanical work
on the project. When the Respondent’s business man-
ager, Floyd Sexton, learned that Chapman had been
chosen, he wrote to Baugh concerning the Respond-
ent’s disappointment over the choice. Subsequently, on
July 31, 1987, Sexton wrote the following letter to
Richard Snell, Ramada’s president and chairman of the
board, with copies to Baugh officials:
It is my understanding that Baugh Construction
Company, your general contractor for the Sea-Tac
Airport Ramada Inn scheduled to begin soon in
Seattle, Washington, will be subcontracting the
plumbing work to Chapman Plumbing Company
from Tacoma, Washington.
This is to advise you that Chapman Plumbing
is a nonunion contractor. The wages paid by
Chapman to his nonunion workers constitute a se-
rious threat to the standard of living enjoyed by
our members.
I will establish an aggressive and continuing
picketing program for the job site and will do ev-
erything necessary to organize the Seattle building
trades’ support for our picketing program. We
will also ask our affiliate groups to join with us
in not patronizing the Ramada Inns.
We will establish a handbilling program to no-
tify prospective customers of problems with the
Ramada Inn.
Chapman Plumbing has just started doing busi-
ness in King County. This will be their first major
job that we know about.
We would prefer to work with you and with
Baugh Construction but so far all of our requests
to meet with Baugh have been turned down. We
will not sit by and let Chapman Plumbing steal
work in King County with substandard rates and
poor workmanship. It looks like the beginning of
a full scale war with the Ramada Inn as the bat-
tlefield.
We accept as the law of the case the Ninth Circuit’s
determination that the threat to picket contained in
Sexton’s letter did not violate the Act. We shall there-
fore consider only the lawfulness of the threats to
handbill and organize a boycott.
The judge found that the threatened boycott of Ra-
mada Inns by the Respondent’s affiliated labor groups
would serve to pressure Ramada into reversing the
contractual commitments that led to Chapman’s pres-
ence on the jobsite. He found that threatening to hand-
bill prospective Ramada customers went beyond per-
missible conduct because there was no labor dispute
between the Respondent and Ramada. Finally, the
judge, noting that Edward J. DeBartolo Corp. v. Flor-
ida Gulf Coast Building Trades Council, 485 U.S. 568
(1988), involved only ‘‘peaceful handbilling,’’ rea-
soned that DeBartolo did not legitimize the Respond-
ent’s conduct because of ‘‘the unqualified pugnacious-
ness of Sexton’s communication . . . .’’ We disagree
with the judge.
In DeBartolo, supra, the Supreme Court held that
Section 8(b)(4)(ii)(B) does not proscribe peaceful
handbilling and other nonpicketing publicity urging a
consumer boycott of neutral employers. The Board, ap-
plying DeBartolo, has found that a union’s handbilling
of a neutral employer’s potential customers to encour-
age a consumer boycott in furtherance of its primary
labor dispute did not violate the Act. Service Employ-
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We reject the General Counsel’s and Ramada’s arguments that the instant
case is distinguishable because Sexton’s letter, containing the threats to hand-
bill and organize a boycott, also included a threat to picket. As stated above,
the Ninth Circuit found the letter’s threat to picket to be lawful. Further, the
picketing threat was specifically limited to the ‘‘job site’’; no other picketing
location can be inferred. Because we do not know the proximity of the jobsite
to areas where potential Ramada customers could be targeted for handbilling
and because no picketing, handbilling, or boycotting actually occurred, we
cannot conclude that the threatened picketing would necessarily coincide with
the threatened handbilling or boycott, so as to make the handbilling or boy-
cotting coercive.
4 The General Counsel and Ramada assert that in Food & Commercial
Workers Local 506 (Coors Distributing), 268 NLRB 475 (1983), and Plumbers
Local 114 (M & S Pipe), 277 NLRB 10 (1985), the Board found similar
threats to be unlawful. We note, however, that Coors Distributing predates
DeBartolo and has been superseded by DeBartolo. In M & S Pipe, the judge’s
finding of an 8(b)(4)(ii)(B) violation was not before the Board because only
the General Counsel filed exceptions.
ees Local 399 (Delta Air Lines), 293 NLRB 602
(1989). Similarly, in Steelworkers (Pet, Inc.), 288
NLRB 1190 (1988), the Board found lawful a union’s
consumer boycott of a neutral employer by means of
newspaper advertisements, leafletting, and other media.
In both Pet and Delta, the Board emphasized, as the
Supreme Court had in DeBartolo, the absence of vio-
lence, picketing,3 and patrolling attendant to the
handbilling and other publicity, and found instead that
the unions merely had attempted to persuade customers
not to patronize the neutral employers. That persuasion
was found not to be coercive.
It is clear that by the boycott and handbilling threat-
ened in Sexton’s letter, the Respondent would attempt
to persuade Ramada’s customers not to patronize Ra-
mada. These are activities which, under DeBartolo and
its progeny, are not themselves coercive. Therefore, the
mere threat to engage in such activity cannot be found
coercive. As the Supreme Court held in NLRB v.
Servette, 377 U.S. 46, 57 (1964), ‘‘The statutory pro-
tection for the distribution of handbills would be un-
dermined if a threat to engage in protected conduct
were not itself protected.’’4
Accordingly, we find that the Respondent’s threats
to handbill and organize a boycott did not violate Sec-
tion 8(b)(4). We shall therefore dismiss the complaint.
ORDER
The complaint is dismissed.