CORE TERMS: gate,
contempt, picketing, picket, landfill, nomination, threatening, fine,
business agent, picketers, notice, reserved, coercing, suppliers,
steward, truck, slate, restraining, entrance, decree, conversation,
driver, front, fuckin, picket line, contractor, intraunion, candidate,
unlawfully, engaging
LexisNexis(R) Headnotes
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Headnotes
OPINIONBY: [*1] FOR THE
COURT; P. DOUGLAS SISK
OPINION: REPORT
AND RECOMMENDATION
PRESENT: P. Douglas Sisk, Special Master
I. INTRODUCTION
(a) Background:
This petition presents at least the sixth time in which
allegations about the conduct of Respondent, Local 30-30B,
United Slate, Tile and Composition Roofers, Damp and Waterproof
Workers Association, AFL-CIO (hereafter, "Local 30-30B" or the
"Union"), have come before this Court. Local 30-30B has a
pervasive history of violating various sections of the National
Labor Relations Act and the provision of the law. n1 In April,
1978 the Court entered a judgment enforcing the National Labor
Relations Board's (hereafter, "the Board" or "NLRB") findings of
§ 8(b)(1)(A) violations against Local 30-30B. Thereafter, a
series of consent contempt adjudications, followed with
increasing sanctions against the Union and its officers.
[Judgments entered April 11, 1978 (C.A. No. 78-1260) (Hunter,
Weis, and Garth, J.J.), February 20, 1980 (C.A. No. 79-2649)
(Weis and Garth, J.J.), July 13, 1984 (C.A. No. 84-3107)
(Hunter, Weis, and Garth, J.J.), February 26, 1987 (C.A. No.
87-3042) (Stapleton, Mansmann, and Garth, J.J.), and August 10,
1987 (C.A.
[*2] No.
86-3324) (Hunter, Weis, and Garth J.J.) (Gov't, Ex. 1-5)]. The
within petition for adjudication of contempt is the latest of
such filings.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - -
- -
n1 See, e.g.,
U.S.
v. Local 30, United Slate, Tile, etc., 686 F.Supp. 1139 (E.D. Pa. 1988);
U.S. . Local 30, United Slate, 871 F.2d 401, 407 (3d Cir. 1989) (Gov't
Ex. 6). The District Court found a continuing, pervasive corrupt
influence in the leadership and operations of the Union, a finding which
was unchallenged on appeal.
871 F.2d at 407-408.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In a somewhat related matter, in December 1987, civil proceedings
pursuant to the Racketeer Influenced and Corrupt Organizations Act
(hereafter, "RICO"),
18 U.S.C. §§ 1961-68, were initiated in the district court against
Local 30-30B and thirteen individual defendants. Trial, in the Eastern
District, was held before the Chief Judge Louis C. Bechtle resulting in
the imposition of a decreeship.
United
States v. Local 30, United Slate, Tile, etc., 686 F.Supp. 1139 (E.D. Pa.
1988). [*3] The
decreeship prohibits the named defendants, including respondents in this
matter Daly and Schoenberger, from holding an officer position with
Local 30-30B and from being employed in the roofing industry within the
geographical area of Local 30-30B without a Court granted exception;
furthermore, it requires that Local 30-30B's financial affairs be
audited and that Local 30-30B establish a grievance/arbitration
provision. The decreeship further called for the court-appointment of a
Court Liaison Officer to enforce the provisions of the decree.
Id.,
686 F.Supp. at 1171-1174.
Respondents filed an initial objection to these contempt proceedings
asserting that the decreeship precluded the Board from exercising its
authority under the National Labor Relations Act, and precludes this
Court from having jurisdiction to hear the within contempt adjudication.
I rejected respondents' objection. While it is clear that some conduct
enjoined prospectively in the civil RICO case may be conduct which is
also violative of the National Labor Relations Act (Act), the existence
vel non of the decree cannot preclude the operation of national labor
law nor can it overcome
[*4] this
Court's inherent power to vindicate its own judgments. Respondents
assert that the only remedy for violative conduct is under the terms of
the decree and the District Court's contempt powers, and that some
respondents have already been punished for conduct at issue here. As
broad reaching as the decree may be, it is not coextensive with the
National Labor Relations Act. Neither can the decree supplant this
Court's earlier judgments in this case, nor can it be used to vindicate
a contempt of this Court's judgments. Moreover, much of the conduct
complained of here is essentially post-decree. If an aggrieved party
alleged such conduct to be violative of the decree, the District Court
could find the Union in contempt, or not. The Board was not a party and
the Judgments of this Court in earlier phases of this case were not
evidence in the RICO case resulting in the decree. Respondents cannot
interpose the decree as a shield to these proceedings. I note that
throughout the present contempt proceedings the Liaison Officer has not
offered any objections to this Court's jurisdiction.
(b) Present Case:
On or about June 5, 1989, the Board filed a contempt adjudication
petition
[*5] against
Local 30-30B, Richard Schoenberger, Michael Daly, and Donny Sherman. The
Board asserted that Local 30-30B and the other respondents should be
held in contempt for failing to comply with the judgment entered by the
Court on April 11, 1978 and for failing to comply with civil contempt
adjudications entered on February 20, 1980, July 13, 1984, February 26,
1987, and August 10, 1987. Thereafter, respondents, with the exception
of Richard Schoenberger, filed their answers in which they admitted
certain allegations, denied others and raised affirmative defenses. On
September 8, 1989, the Court appointed me as Special Master to conduct a
hearing and to make recommended findings of fact and conclusions of law
to the Court with respect to the allegations in the Board's petition.
On January 12, 1990, I granted the Board's motion to amend its contempt
petition. The amended petition named Local 30-30B business agent Phil
Cimini as an additional respondent and included allegations of unlawful
picketing at the Pottstown Landfill, and unlawful threats to picket the
Biehn Construction Company. A motion to dismiss the petition, filed by
Local 30-30B and joined by respondents Daly and
[*6] Sherman,
was denied on February 27, 1990.
The Board's original and amended contempt petition presented eight
issues, which for the sake of clarity, I have separated into four
sections.
1. (a) Whether Local 30-30B, on July 13, 14, 18, 19, 20, 1989, at the
Pottstown Landfill, violated the Court's April 11, 1978 judgment and
February 20, 1980, July 13, 1984, and August 10, 1987 contempt
adjudications by unlawfully restraining and coercing employees in the
exercise of their rights guaranteed by Section 7 of the National Labor
Relations Act.
(b) Whether Local 30-30B violated the Court's February 26, 1987 judgment
by picketing at the Pottstown Landfill on July 13, 14, 18, 19, and 20,
1989, with an object of enmeshing neutral employers in Local 30-30B's
primary labor dispute with Gundle Lining Construction Company.
2. (a) Whether Local 30-30B and Local 30-30B business agent Richard
Schoenberger and Local 30-30B steward Donny Sherman violated the Court's
April 11, 1978, judgment and February 20, 1980, July 13, 1984, and
August 10, 1987 contempt adjudications by unlawfully threatening,
restraining, and coercing employee-member William McAndrews from
engaging in protected intraunion activity.
[*7]
(b) Whether Local 30-30B and Local 30-30B business agent Richard
Schoenberger violated the Court's April 11, 1978 judgment and February
20, 1980, July 13, 1984, and August 10, 1987 contempt adjudications by
unlawfully threatening, restraining, and coercing employee-member
Patrick Costello from engaging in protected intraunion activity.
3. (a) Whether Local 30-30B and Local 30-30B business agent Michael Daly
violated the Court's April 11, 1978 judgment and February 20, 1980, July
13, 1984, and August 10, 1987 contempt adjudications by unlawfully
threatening, restraining, and coercing employee-member William McAndrews
from engaging in protected intraunion activity.
(b) Whether Local 30-30B and Local 30-30B business agent Michael Daly
violated the Court's April 11, 1978 judgment and February 20, 1980, July
13, 1984 and August 10, 1987 contempt adjudications by unlawfully
threatening, restraining, and coercing employee-member Charles Slemmer
from engaging in protected intraunion activity.
4. Whether Local 30-30B and Local 30-30B business agent Phil Cimini
violated the Court's February 26, 1987 judgment by unlawfully
threatening to picket neutral employer Biehn Construction Company
[*8] with an
object of forcing Biehn to cease doing business with Greg Carlton
Roofing.
Extensive pretrial proceedings occurred, and a four day hearing was held
from June 18 to June 21, 1990. The last post-trial briefs were filed in
November 1990. All of the testimony has been transcribed and the
transcript, with the exhibits, accompanies the present report and
recommendation. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Resolution of this matter by the Special Master has been delayed,
unfortunately, by the press of other Court business including Master's
proceedings in labor cases and other appeals.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
I respectfully submit that, by clear and convincing evidence, the Board
has established that Local 30-30B violated Sections 8(b)(1)(A),
8(b)(4)(B) of the Act, and the underlying judgement of the Court when it
engaged in picketing and related conduct at the Pottstown Landfill. The
evidence presented clearly establishes that Local 30-30B was acting in a
manner designed to coerce and enmesh neutrals in its dispute with Gundle
Lining Construction Company. Such an
[*9] intent
was evidenced by the form of picketing, the videotaping and
photographing of neutrals, the threats to neutrals crossing the picket
line, and the failure to abide by the reserved Gate system established
by the Landfill. I further submit that the evidence presented at the
hearing establishes that Local 30-30B, Local 30-30B business agent
Richard Schoenberger, and Local 30-30B steward Donny Sherman violated §
8(b)(1)(A) and the Court's prior orders by unlawfully threatening,
restraining and coercing employee members from engaging in protected
intraunion activity. I find the evidence presented at the hearing to
establish that Local 30-30B and Local 30-30B business agent Michael Daly
violated § 8(b)(1)(A) and this Court's judgment by unlawfully
threatening, restraining and coercing William McAndrews and Charles
Slemmer. However, I find that due to the circumstances under which Daly
made the threats to McAndrews, Daly was not acting as an agent of the
Union and would not have been understood as acting as an agent. Finally,
as to the alleged violation of § 8(b)(4)(B) and the Court's February 26,
1987 judgment involving Biehn construction company, I find the Board's
evidence to be
[*10]
insufficient to support such a claim. Furthermore, even if the alleged
statement was made, its effect was de minimis.
Based upon a review of the record, and my observation of the witnesses,
I make the following findings of fact and conclusions of law.
II. FINDINGS OF FACT - Secondary Picketing at Pottstown Landfill
A. Gundle Lining Construction Company ("Gundle"), a Texas based company,
began the installation of landfill liners at the Pottstown Landfill in
Pottstown, Pennsylvania. (I,241). n3 Gundle is a person engaged in
commerce or in an industry affecting commerce within the meaning of the
National Labor Relations Act. Gundle, a non-union employer, did not pay
area wages.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Testimony with regard to specific issues was scattered throughout the
four-day proceedings. In particular, scheduling roofer witnesses and
others was problematical. A total of thirty witnesses were heard.
Transcript references are as follows: transcript of testimony, June 18,
1990 = (I, ); transcript of testimony, June 19, 1990 = (II, );
transcript of testimony, June 20, 1990 (III, ); transcript of
testimony, June 21, 1990 (IV, ).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*11]
B. On Thursday, July 13, 1989, Local 30-30B began picketing the main
entrance of the Pottstown Landfill, located at 1475 Sell Road,
Pottstown, Pennsylvania, in support of its labor dispute with Gundle.
Picketing began at approximately 7:30 a.m. and lasted only until
approximately 9:30 a.m. because of poor weather conditions. (I, 40, 48
187, 251, 301; IV, 29). The picketers carried signs which stated "Gundle
does not pay area wages. No dispute with any other employer. Roofers
Local 30-30B." Picketing resumed on Friday, July 14, 1989, at
approximately 7:30 a.m. and continued until about 2:00 p.m.. (I, 48, 68;
II, 203). Local 30-30B members returned to the picket line on Tuesday,
July 18, 1989, Wednesday, July 19, 1989, and Thursday, July 20, 1989.
Picketing on Tuesday and Wednesday began at approximately 7:30 a.m. and
lasted until about 2:30 p.m.. (I, 48; IV, 172). On Thursday, July 20,
1989 picketers left at approximately 8:00 a.m., after being served with
a temporary restraining order by the local police department and
Pottstown Landfill representatives. (I, 48, 102; II, 46).
Throughout the picketing, the number of picketers present at the
Landfill varied between ten to fourteen
[*12] people.
(I, 49, 68, 81, 95, 102, 251, 301; II, 21, 36; III, 203; IV, 50, 129,
170).
C. On Thursday, July 13, 1989, Pottstown Landfill General Manager Tim
Schotsch met with his staff and with Richard Schaefer, Gundle Project
Superintendent, and discussed the establishment of a reserved gate
system. Schotsch discussed how the system would work, and explained who
would be allowed to use which gate. (I, 182, 253). In the evening of
Thursday, July 13, 1989, Pottstown posted two 4'x 8' signs at two of its
three gates. (6/18/90 62, 181). The signs indicated that a reserved gate
system had been established. Gundle and its suppliers were told to use
the reserved gate. (I, 180, 181, 253). Gate 1 was designated as the
Gundle Gate, while Gate 3, which was the Gate at the main entrance of
the Landfill, was to be used by all other individuals having business
with the Landfill. The remaining Gate was located by the Landfill's
Office building and was used solely for administrative purposes. The
sign at Gate 1 specifically stated:
"This entrance is reserved exclusively for Gundle Lining Construction
(sic) Corporation and Their Employees and Suppliers. Landfill Employees
and Suppliers, customers
[*13] and
persons engaging in Business with the Landfill shall not use this
entrance and Must Use The Main Entrance.
(I, 64; Government Exhibit 10). The sign at Gate 3 stated:
"This entrance reserved exclusively for Pottstown Landfill Employees
Customers and suppliers Doing Business with Pottstown Landfill. Gundle
Lining Construction Corporation and its Employees and Suppliers shall
not use this Entrance and Must only Use Gate 1."
(I, 64-65; Government Exhibits 10 and 19). n4 A guard was placed at Gate
1; he was instructed to open and close the Gate for Gundle and its
employees and suppliers only. (I, 68).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The signs, submitted as Government exhibits 10 and 19, were altered
at some point to reflect different Gate numbers. There was no
explanation of these alterations at trial. However, photographic
exhibits and trial testimony are in agreement about the numbers which
were on the signs at the time of the picketing.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
D. On Friday, July 14, 1989, at approximately 7:30 a.m., Local 30-30B
began picketing Gate 3. At
[*14]
approximately 8:00 a.m. Pottstown Landfill's attorney, Robert Carlton,
told the pickets that a reserved gate system was in effect and that
Gundle would be using Gate 1. At that point some of the pickets went
over to Gate 1. (I, 69, 185, 222). Local 30-30B continued to picket Gate
3. (I, 70, 185). Local 30-30B's business agent for Montgomery County,
John Devenney, did not relocate the Local 30-30B van, which served as a
base of operations, from the main gate to the reserved gate. (IV, 50).
Throughout the period during which Local 30-30B was picketing Gundle,
the majority of picketers remained at Gate 3. The number of picketers at
Gate 1 never exceeded 4. (I, 70, 95, 185-185, 281) On one occasion even
the administrative office Gate (Gate 4) was picketed by two Local 30-30B
members. (IV, 138, 154).
E. The witnesses for the Board testified that there was no contamination
of the reserved gate system, while Local 30-30B witnesses argued to the
contrary. I credit the witnesses for the Board. n5 (I, 71, 204, 270,
311, 312). There were no reports to Pottstown Landfill officials or
Gundle representatives as to any contamination by Gundle employee's or
suppliers. (I, 259, 271, 312, 270).
[*15] On July
13, 1989, prior to the establishment of a reserved gate system, supplies
were delivered to Gundle via the main gate. (I, 264, 265). Although,
there were allegations by Local 30-30B witnesses that the main gate was
polluted when a compressor, allegedly used by Gundle, was towed into the
Landfill by a Pottstown truck, the union representatives never found out
whether the compressor was actually used by or intended for use by
Gundle. (IV, 37; I, 88; (IV, 37, 64). The union took photographs of the
compressor as it entered Gate 3 behind a red pick up. At the hearing,
John Kellas, a Waste Management Company employee, identified the
compressor entering Gate 3 as one used by the Landfill; he also noted
that it was being pulled by his pickup. The compressor was described as
an Ingersoll-Rand compressor, and the testimony at the hearing was to
the effect that such a compressor was used by the Pottstown Landfill to
"blow the dust out of the radiators on the bulldozers. " (I, 88-89).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 I specifically do not credit a parade of respondents' witnesses who
testified on the fourth day of the proceedings, June 21, 1990. Their
testimony, which clearly reflected their loyalty to the Union, was too
consistent, even as to minute details and phraseology. This, together
with the demeanor, leads me to discredit their testimony.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*16]
Union witnesses generally testified to seeing a white Bronco and a white
pickup pollute Gate 3. (IV, 33). The union also asserted that Gate 3 was
polluted by the entry and exit of an unmarked white Bronco which was
driven by Schaefer, the Gundle supervisor at the Landfill. (III, 96,
204; IV, 33, 40, 134, 162, 172, 187). Schaefer testified that all Gundle
vehicles have a Gundle sign on the side, and that all of the vehicles
used at the landfill were white. (I, 250). Two of the picketers had
worked with Schaefer in the past, therefore, they would have been able
to identify Schaefer if he entered Gate 3. However, the majority of the
picketers had not had any involvement with Schaefer and only reported
that the Gate had been polluted as a result of other picketers comments
that the driver of the Bronco was employed by Gundle. (II, 200). No
report was made to either Gundle or the Pottstown Landfill regarding the
alleged pollution.
Schaefer testified that once the reserved gate system was established
neither he nor any other Gundle employee entered the landfill through a
gate other than Gate 1. (I, 253). He stated that once the picketing
began, the Gundle employees carpooled and arrived
[*17] at the
landfill in a caravan; the employees were also encouraged to bring their
lunch and, if leaving the premises for lunch, to travel in a group, in
order to minimize their entry and exit from the landfill. (I, 267, 270).
Gundle employees always entered and left the Landfill via Gate 1. (I,
253).
Devenney testified that Gate 3 was polluted due to the daily delivery of
supplies to Gundle via that Gate. (IV, 34). He specifically stated that
supplies were delivered to Gundle via Gate 3 on July 14, 1989. (IV, 34).
Schaefer had no reports of a delivery on that date. Schaefer did testify
that on July 19, 1989, Gundle received a load of geotextiles, and a few
trailers of bentonite. (I, 260). He knew that the geotextiles had been
received and unloaded on the 19th because this was reflected in the
company daily progress reports and invoices. (Government Exhibits 8 and
9). No union member testified to seeing the rolls of geotextiles or the
bentonite enter Gate 3 on July 19, 1989.
Pottstown Police Chief Swavely testified that while he was at the
landfill, he never saw any vehicle marked Gundle enter or leave through
Gate 3. (II, 47 - 48).
F. Local 30-30B picketed the entrance to Pottstown's
[*18] offices
which were located below the main gate. Pickets Steven and John O'Malley
testified that they picketed the administrative Gate. (IV, 138, 154). No
supplies were ever brought through that entrance. That area was reserved
purely for administrative purposes.
G. If Gundle, its employees or suppliers repeatedly used Gate 3, the
neutral gate, then Local 30-30B's failure to respect the reserved gate
system could be excused. However, in order for such picketing to be
excused, the pollution of the neutral gate must be substantial. Even if
the neutral gate is contaminated on one occasion, it is possible for the
gate to be rehabilitated. See
Local 761, International Union of Electrical Workers v. NLRB, 366 U.S.
667 (1961);
Local Union No. 76 v. NLRB, 742 F.2d 498 (1984). Furthermore, a de
minimis use of the neutral gate by Gundle employees would not
necessarily destroy the gate's neutrality.
I find the testimony regarding the preservation of a neutral gate to be
more credible than the testimony of the alleged pollution. Therefore, I
find that Gate 3 was not polluted. Although the union may have acted in
the mistaken
[*19] belief
that the neutral gate had been polluted, such a mistake would not excuse
its picketing. There is no testimony that at any point during the
picketing the union moved a majority of its picketers from the neutral
gate to the Gundle Gate. Nor is there any testimony that at any point
during the picketing the union reported the alleged pollution to the
Pottstown Landfill or to Gundle representatives.
H. On all the days of picketing, Local 30-30B actively blocked the
ingress and egress of employees, customers and suppliers of the
Pottstown Landfill. Picketers circled in front of the main gate in a
tight circle in order to obstruct traffic. Picketers jumped in front of
trucks, shouted obscenities and photographed drivers, in an attempt to
intimidate them. (I, 34-35, 49-50, 52-53, 59, 73, 77-78, 83, 86, 90-92,
101-102, 187, 189, 191, 197, 273-274, 278, 308, 310; II, 24-25, 27-29,
34, 35-37, 39). In order to prevent the picketers from jumping in front
of the trucks, drivers would get as close as possible to the rear bumper
of the truck in front of them, and inch their way forward through the
picket line. Pottstown Police Chief Earl Swavely testified that as the
days past, the tension
[*20] between
picketers and drivers attempting to enter the landfill increased. He
testified that the picketers walked close together and in tight circles.
(Govenment Ex. 12 A-Q).) The picketers apparently walked in a way which
would maximize their presence directly in front of the trucks. Chief
Swavely, as well as other witnesses, testified that the picketers would
repeatedly shout obscenities and would yell out to the drivers: "you'll
never F'in' drive again; I know who you are." (II, 28). Picketers would
also slap the vehicles as they attempted to enter Gate 3. On several
occasions the police had to ask the picketers to back away from the
trucks. At one point during the picketing, in order to prevent a
physical confrontation, the police were forced to intervene and escort a
truck through the picket line and into the landfill. (II, 29, 33, 34,
35).
Although union members testified that they did not shout any obscenities
or in any way threaten the drivers attempting to enter the landfill,
Chief Swavely was so concerned with the volatility of the situation that
on July 18, 1989, he activated a Police Code Blue in the county. (II,
36).
I. Picketing by Local 30-30B caused delays to
[*21] those
having to enter and exit the landfill. (I, 109, 60, 77, 111, 190; II,
24). The delays were reported to have been between one and five minutes.
(I, 60, 82, 109, 190; II, 24). Pottstown Manager John Kellas reported
that picketers caused 75% to 85% of the traffic entering the landfill to
experience delays of five minutes or more. (I, 60, 77, 82, 109, 111). On
several occasions the police were forced to direct traffic on an
intersecting road due to trucks being delayed in entering the landfill.
(I, 82). Pottstown Landfill is a regional landfill whose customers count
on the ability of the landfill to quickly process their loads. Due to
the picketing by Local 30-30B, the Landfill was unable to process its
customers' loads at the normal rate. (I, 171, 172, 202; II, 14).
Delays were also caused when some drivers decided that either they would
not or could not drive their trucks through the picket line and into the
landfill. Some of these drivers requested that Kellas, a Landfill
employee, drive the trucks through the picket line which resulted in
further delays. (I, 198, 199, 201, 202).
Business agent John Devenney testified that the police spoke with him
about traffic back ups;
[*22] he also
acknowledged that the police had to direct traffic on numerous
occasions. (IV, 57, 88). Furthermore, picket Al Graber testified that he
and other picketers were warned by the police to: continue moving, not
stop in front of trucks, and not interfere with traffic. (III, 212).
However, the majority of the union's witnesses asserted that the
picketing did not result in any delays and that there were no threats to
drivers crossing the picket line. (IV, 112, 142, 156, 175, 207, 233). I
credit the Board's witnesses and find that the union actively picketed
the Landfill, causing delays to neutrals, and threatened drivers
crossing the picket line in an attempt to enmesh them in the union's
labor dispute with Gundle.
J. I find that Local 30-30B acted in a manner to induce and coerce
neutrals from doing business with Gundle. The testimony supports the
Board's contentions regarding (a) the establishment of a valid reserved
gate system; (b) Local 30-30B's awareness of the establishment of such a
system; (c) the delays caused by Local 30-30B's pickets at the main
entrance of the Pottstown Landfill; (d) Local 30-30B's failure to
respect the neutral gate system; and (e) Local 30-30B's
[*23]
coercion of neutral employees by blocking the main entrance, screaming
at those entering the main gate, hitting the trucks which entered the
main gate, and taking photograph's and videotaping those entering the
main gate.
III. FINDINGS OF FACT - THE E.R. CARPENTER JOBSITE
A. During 1989, Biehn Construction company ("Biehn") renovated offices
and constructed a new warehouse onto an existing building at the E.R.
Carpenter Warehouse in Fogelsville, Pennsylvania. Lawrence DeCicco was
Biehn's manager for this construction project. Biehn subcontracted the
roofing work to Carlton Roofing, a non-union subcontractor. (II, 76-78).
B. During 1988, Biehn's gross annual revenue was $ 155 million. Biehn
performs 50% of its work in Eastern and Central Pennsylvania and 50% in
New Jersey. At any given time, Biehn has several construction projects
in progress. (II, 75-76).
C. Philip Cimini is a business agent for the union, and he works out of
the union's Kutztown, Pennsylvania office. Cimini receives Dodge reports
that describe construction that is being bid or contemplated and that
list the architect and general contractor for each project. (IV, 3-5).
After reviewing the Dodge reports,
[*24] Cimini
calls the general contractors "to see if they will use the union
contractors. And if they haven't got any of our union contractors to bid
to them, I will give them a list of union contractors that they can call
if they want to use them." (IV, 16). During the week of May 22, 1989,
Cimini called Biehn to speak with "whoever was in charge of the E.R.
Carpenter project." (IV, 6-7). DeCicco was not in, so Cimini left a
message. DeCicco returned his call, but this time Cimini was not in.
D. Cimini and DeCicco finally reached each other by phone on Friday, May
26, 1989. DeCicco's testimony as to the conversation was as follows:
A Yes, he asked me if I was, in fact, Larry DeCicco. I said, yes, I am.
And he asked me if I was the project manager at the ER Carpenter
Warehouse? I said that was correct. And he said, who is your roofing
contractor? . . . . I said, it's Carlton Roofing. He waited about five
seconds. He said they're non-union; they're not one of us; they're not
on our list. And I said, so what? And he said, well, I have interests to
protect. I'm going to picket Biehn at ER Carpenter Warehouse and I'm
going to picket Biehn at every Biehn job site that there is that
[*25] I can
find. You have a lot of job sites, right? I said yes, isn't that common
situs picketing? . . . . and isn't that against the law? And he said,
well, I'm going to picket ER Carpenter. I'm going to picket Carlton
Roofing. That he's allowed to do at the ER Carpenter Warehouse, and he
said, what are you going to do about that? And I said, well, I'll take
this whole conversation, all this information to my boss.
Q Was that the end of the conversation?
A That was the end of the conversation.
(II, 79-80). Cimini testified that the conversation went as follows:
A Well I basically asked him if the job at E.R. Carpenter had been let
yet and he told me yes, it was let to Carlton Roofing. And I told him at
that point that they don't pay -- to my knowledge, they don't pay the
area wages or follow the area standards and that I would have to picket
them and I really don't want to do that on Biehn's job site because
we've always had a good rapport with Biehn. Is there anything that we
can do to resolve this?
Q That's what you asked him?
A Yes.
Q All right.
A I asked him if we could have the bids reopened or anything like that
to give my roofing contractors a chance to rebid the
[*26] job.
Q And what did he say?
A He said no. That the bid was -- the contract was already signed.
Q And what else occurred in that conversation?
A I said, well I'd like to talk to Bob Biehn to see if I could get this
resolved somehow.
. . . . . . . . . . .
He said well you do what you have to do. I said i'll have to picket
Carlton Roofing on Biehn's job site and I really don't want to do that
because, you know, . . . .
(IV, 9-10). Cimini and DeCicco testified that, to the best of their
knowledge, Biehn had not been picketed by the union at the E.R.
Carpenter site or any other Biehn site.
E. The testimony on this count of the complaint is sparse, at best. I
note that to support DeCicco's testimony his daily diary was introduced
at the hearing. The diary was kept in the usual course of business; it
included a reference to DeCicco's conversation with Cimini. Both
witnesses were equally credible. Taking DeCicco's version as true and
considering the daily diary, I find that Cimini uttered a threat to
picket Biehn Construction wherever it could be found. I find further
that the threat was fleeting and of de minimis effect.
IV. FINDINGS OF FACT: THE PRE-ELECTION MISCONDUCT
[*27]
A. The Pre-Election Misconduct - Richard Schoenberger and Donny Sherman
1. On December 2, 1987, the union held a membership meeting to nominate
candidates for union offices. The election was to be held at the end of
December. The current union leadership supported a slate of candidates
headed by Tom Crosley. One other slate opposed the Crosley slate. This
slate was called the Sullivan slate and was composed of Michael Sullivan
running for business manager, Bill McAndrews for president, and Donald
Powers for an executive board position. (II, 126-27, 129).
2. At the time of the nomination meeting, Respondents Richard
Schoenberger and Michael Daly had just been convicted of criminal RICO
charges and were awaiting sentencing. E.g.,
United
States v. Local 30, United Slate, Tile Etc., 686 F. Supp. 1139 (E.D. PA.
1988)(J. Bechtle). Both men were business agents for Local
30-30B, and continued to be paid as business agents until the end of
December, 1987. Michael Daly was also the union's Recording Secretary.
(Deposition, 1/16/90 at 6-10, 24, Government Ex. 6, Government Ex. 14).
Business agents air disputes between members, arbitrate disputes with
[*28] other
trades, negotiate contracts, and generally "service the needs in the
membership." (II, 122). Respondent Donny Sherman was a Local 30-30B
member and a union steward at Gravely Roofing, where he worked. (III,
155-56). Union stewards represent union members at their jobsite and
resolve conflicts between the members and the employers. They also
enforce the union's contract with the employer and insure "safety on the
job for the men." (II, 109, 111, 166; III, 156-58).
3. Patrick John Costello, a union member, attended the December 2nd
nomination meeting with Michael Sullivan, Bill McAndrews, and other
Sullivan slate supporters. He carried campaign literature (fliers) in
his back pocket. When he attempted to pass out the fliers to members at
the nomination meeting, somebody behind him said, "stick them back in
your pocket or I'll stuff your head in your pocket." Costello turned
around and Respondent Schoenberger was standing directly behind him.
Costello did not hand out the fliers to members. (II, 154-58).
4. When Bill McAndrews signed in at the nomination meeting, he was
approached by Respondent Schoenberger. Schoenberger told McAndrews that
he didn't want McAndrews to run.
[*29]
Schoenberger also told McAndrews, "the boss doesn't want you to run,"
"to back off," and "to back the fuck down." In addition, Schoenberger
threatened to take McAndrews' job and stated, "I'm gonna put you in a
fuckin' body cast." Later on during the meeting, Schoenberger again came
up to McAndrews and told him he "wasn't gonna run." Through impeachment
by counsel for the NLRB, it appears that McAndrews also testified in
1987 that Schoenberger told him "now you're going against Stephen." (II,
174-80, 186-87). "Stephen" was Stephen Traits, who had been the union's
business manager. At the time of the nomination meeting he was in jail.
(II, 133; Deposition, 1/16/90 at 44).
5. Richard Schoenberger did not testify on his own behalf; instead he
asserted his Fifth Amendment privilege not to incriminate himself. (IV,
81-87). I advised Schoenberger that, in a civil proceeding, an adverse
inference could be drawn from his refusal to testify "in response to
probative evidence offered against" him.
Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1976). See also
Ullmann v. United States, 350 U.S. 422, 430-431 (1956) (Fifth
Amendment
[*30]
protection against self-incrimination only applies to testimony which
may expose witness to criminal charges);
Asherman v. Meachum, 932 F.2d 137, 145 (2d Cir. 1991) (court can
draw adverse inference from refusal to testify in civil proceeding where
immunity from criminal prosecution is provided or where other evidence
exists and witness' silence is not sole basis for adverse decision).
Given Costello's and McAndrews' testimony and Schoenberger's refusal to
testify, I find that Schoenberger did in fact make the above described
statements to Costello and McAndrews.
6. Respondent Donny Sherman came over to where McAndrews and
Schoenberger were standing, near the sign-in tables, several times
before the nomination meeting began, and spoke to McAndrews over
Schoenberger's shoulder. McAndrews testified that Sherman told him "he
was gonna fuck me up if I ran." Sherman also told McAndrews, "you better
change your mother fuckin' mind, boy. I'm gonna hurt you, boy," "You
heard what I'm tellin you?" "boy, I'm going to fuck you up. You better
back down." (II, 183-84).
7. Donny Sherman denied making threatening statements to McAndrews; he
further testified that
[*31] he does
not know McAndrews, that he does not curse, that he did not speak with
any member for more than 15 seconds at the nominations meeting, and that
he did not speak to any member with Schoenberger. (III, 162, 180-81).
Before the nominations meeting began, another candidate for union
office, Joe Crosley, told Sherman to stand by the entrance and remind
the members that they needed to sign in when they first arrived. Sherman
did this with James Marchese, who was then the Assistant Regional
Director of the American Arbitration Association (AAA). (III, 160-61). I
find the testimony of Donny Sherman to be incredible. Sherman's tone was
evasive, and his demeanor shifted markedly when he was cross-examined.
This shift in demeanor undermined any credence I might have given his
direct testimony.
8. I credit McAndrews testimony that Sherman came up several times and
spoke over Schoenberger's shoulder to him. Because McAndrews and
Schoenberger were standing close to where Sherman was positioned to
direct incoming members to the sign in tables, Sherman could have easily
stepped over to McAndrews and Schoenberger in order to make the
threatening comments to McAndrews. (Government Ex.
[*32] 21).
9. Arthur Mehr, who was then the Regional Vice President for the AAA,
also attended the nomination meeting to inform the union membership
about what the AAA was and how the election would be conducted. He
helped direct the union members to the sign-in tables until about 7:50
p.m.. At that time he went to the front of the meeting hall because he
thought the meeting was about to begin. The meeting was delayed until
8:15 p.m. because of parking problems. (III, 109-127).
10. Neither Mehr nor Marchese were situated in a position to hear or
observe the threatening comments properly. There were approximately 1000
members present at the meeting, and the noise level was reported to have
been high. (III, 125, 126, 152; Government exhibit 21). In referring to
the noise level in the Hall, Mehr testified that unless he was directly
on top of a conversation he would not have heard it. (III, 131). Mehr
was separated by several hundred roofer's from the location where the
threats were made. (III, 125). Therefore, it is doubtful that he heard
the conversation between Sherman, Schoenberger and McAndrews.
James Marchese testified that he stood next to Sherman from 6:30 in the
evening until
[*33] the
meeting started at 8:00 p.m.. (III, 141, 153). Marchese was stationed
either near the stage area or close to the front door, which would place
him approximately three sign-in tables, and hundreds of union members,
away from where the threats were made. (III, 126, 152). Considering that
Marchese was directing several hundred union members to the proper
sign-in tables, it is doubtful that he could have heard the threats made
in the large, and noisy, hall. I found Marchese's testimony both
incredible and evasive.
11. In addition, the demeanor of both AAA representatives was evasive
and their testimony incredible, inaccurate, and inconsistent. n6
Furthermore, I note that it appears that the AAA was hired to supervise
the special election, not the nomination meeting at which the threats
were made. (III, 119, 132). The AAA representatives were present at the
nomination meeting solely for the purpose of introducing themselves and
explaining how the election would be conducted. (III, 121).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 I note that at the hearing, counsel for the NLRB elicited from Mr.
Marchese that it is the policy of the AAA's regional office not to
discuss facts with counsel for either party prior to testifying, in
order to insure an unbiased reporting of facts. However, Marchese
admitted reviewing facts with the union's counsel immediately prior to
his testimony. (6/20/90 at 145-146). On an earlier occasion, the Board
had requested to discuss the case with Marchese, he refused citing the
AAA's regional policy as the reason why he could not discuss the case
with the Board. (6/20/90 at 145-47).
One example of the inconsistencies in the testimony of the AAA's
representatives involved the number of people present at the nomination
meeting. Mehr testified that there were about 1000 members present at
the meeting; Marchese testified that only 200 people attended the
meeting. (6/20/90 at 126, 153).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*34]
12. Based upon the foregoing, I find that Respondents Schoenberger and
Sherman made the threatening statements attributed to them by John
Patrick Costello and Bill McAndrews.
B. Michael Daly
1. Sometime during the early morning hours of the day after the
nomination meeting, December 3, 1987, Respondent Michael Daly went to
the home of Marion and Richard Ennis. He and Richard Ennis started
drinking around the kitchen table. Around 5:00 that afternoon Donald
Powers, a candidate on the Sullivan slate, came by with campaign
literature. Powers sat down, started drinking, and asked Daly about
running the union and approaching contractors. Marion Ennis also
testified that she and Daly had gone to high school together, and they
were talking about old times and getting out photographs. (III, 15-20,
46-47).
Michael Sullivan and Bill McAndrews stopped by the Ennis household the
next day, December 4th, around 5:00 or 6:00 in the morning joining a
drinking party which had been underway for about 24 hours. They had been
on their way to campaign at a coffee shop where roofers "hung out" and
had noticed Powers' car at the Ennises. Marion Ennis invited them in.
They joined Daly and Powers,
[*35] who had
been drinking through the night from the day before, in the kitchen.
McAndrews asked Daly what he thought of them running for office. Daly
told McAndrews that he was a bum, and that Daly didn't want McAndrews to
run, and if he did run it would be "over my dead body," and "I would
kill you first." (II, 188-92, III, 21-23, 48-49, 54-55, Daly Deposition,
1/16/90 at 29 37, 47-48). McAndrews testified on direct and cross that
he felt threatened and intimidated by Daly, "with the drink in him," but
he discounted any specific threat because of Daly's drunken condition.
(II, 191). He agreed with counsel for Daly that roofers watch out for
themselves around people who are drunk, but he denied feeling any
serious threat. (II, 198).
2. Michael Daly admits that he told McAndrews and Sullivan that they
should not run for union office, but he denies that he threatened to
kill McAndrews. (Deposition, 1/14/90 at 30-36).
3. In an incident which took place some days later, Daly is alleged to
have threatened Charles Slemmer. Testimony shows that approximately one
week after the nomination meeting, a phone call to Slemmer was made by
Richard Ennis and Michael Daly. (II, 218-220, III,
[*36] 27).
Union member Charles Slemmer helped distribute campaign posters
supporting the Sullivan slate of candidates. Slemmer testified that
Richard Ennis called him sometime after the nomination meeting and told
him he was putting Respondent Michael Daly on the phone. Daly has no
recollection of Charles Slemmer. He denied calling Slemmer. (Deposition
1/16/90 at 40-44). Slemmer stated that Mike Daly told him, "Cholly I
understand you're backin' Mike Sullivan. I says, yeah, that's right. He
says, you better watch your fuckin' ass. After counsel for the NLRB
questioned Slemmer about his previous testimony in the criminal RICO
case, Slemmer remembered that Daly also told him, "you see what happened
to fuckin' Matt. You could be next." (II, 220-21). Slemmer explained
that Matt Smith had been a union steward at Slemmer's jobsite, Logan
Roofing Company, and had publicly supported the Sullivan slate of
candidates. One day Slemmer heard union business agent Danny Cannon tell
the foreman at Logan Roofing Company, that Matt Smith was "done as a
steward." (II, 208-212). On cross-examination, Slemmer testified that at
the time business agent Canon came to the job site, Matt Smith had been
[*37] out of
work for three to four weeks due to an injury. (II, 235-36).
Slemmer also testified that two mornings after he had received the phone
call from Respondent Daly, his car windshield and driver's side window
were smashed. (II, 227-28). Daly denies damaging Slemmer's car.
(Deposition 1/16/90 at 40-44). Finally, Slemmer received several
anonymous phone calls where someone asked him whether he needed a job,
called him a "fuckin' ass-hole," and told him "you're fuckin' dead, stay
away from Sullivan." (II, 229, 231).
Marion Ennis, who lives in the same neighborhood as Charles Slemmer, and
who works in the neighborhood coffee shop where roofers hang out,
testified that Slemmer has a general reputation in the neighborhood for
lying. (III, 43). She stated that about a week after the nominations
Richard Ennis and Michael Daly called Charles Slemmer to yell at him for
using the Ennises' son Joey on campaign posters. (III, 26-27).
4. I credit McAndrews' and Slemmer's testimony that Respondent Michael
Daly made the above-described statements. I find no factual nexus,
however, between Michael Daly and Slemmer's smashed car windows or the
subsequent crank phone calls received by Slemmer.
[*38]
V. CONCLUSIONS OF LAW:
A. Pottstown Landfill
1. The Board must prove by clear and convincing evidence that the union
violated this court's decrees.
NLRB v. Local 825, A,B,C,D, Internt'l Union, 659 F.2d 379, 384 (3d Cir.
1981).
2. At all material times herein, the judgment of this court, entered
April 11, 1978, and the subsequent contempt judgments, entered February
20, 1980, July 13, 1984 and August 10, 1987, have been in full force and
effect. The order tracks the language of Section 8(b)(1)(A),
29 U.S.C. § 158(b)(1)(A). The order entered February 26, 1987,
tracks the language of Section 8(b)(4)(ii)(B) of the Act,
29 U.S.C. § 158(b)(4)(ii)(B), and prohibits Local 30-30B from
threatening, coercing, or restraining any person engaged in commerce or
in an industry affecting commerce, where an object thereof is to force
or require any person to cease doing business with any other person.
In this instance, the Board contends that Local 30-30B's picketing at
the main gate was intended to induce and encourage employees of neutral
employers to avoid using the Pottstown Landfill by impeding ingress and
[*39] egress
at the main entrance into the landfill and by threatening and coercing
such employees with the object of forcing neutral employers to cease
doing business with the Pottstown Landfill.
3. The union respondent is a labor organization as defined under the Act
and is subject to the court's jurisdiction.
29 U.S.C. § 152(5). I find that Pottstown Landfill is an employer
engaged in commerce within the meaning of the Act and is subject to the
court's jurisdiction.
29 U.S.C. § 152(2), (6).
4. Alleged Secondary Picketing at Pottstown:
(a) In any secondary boycott case in which a union's picketing is at
issue, it is necessary to determine the union's objective in picketing.
In order to be successful the Board must show that Local 30-30B
encouraged cessation of work by employees or suppliers of Pottstown
Landfill with the object of forcing Pottstown to cease doing business
with Gundle.
NLRB v. Local 825, 659 F.2d at 384. The union's sole objective does
not have to be unlawful.
Mautz & Oven, Inc. v. Teamsters, Chauffeurs, and Helpers Union, Local
No. 279, 882 F.2d 1117 (7th Cir. 1989). [*40]
(b) The union must picket with restraint in order not to mislead or
coerce neutrals.
NLRB v. Service Employees Local 77, 123 LRRM 3213, 3223 (9th Cir. 1986);
Local 98, United Assoc. of Journeymen and Apprentices of the Plumbing
and pipe fitting
Indus. v. NLRB, 497 F.2d 60, 65 (6th Cir. 1974);
Ramey Construction Co. v. Local 544, Painters, Decorator, and
Paperhangers, 472 F.2d 1127, 1131 (5th Cir. 1973). In NLRB v.
Service Employees Local 77, the court set out four standards, which are
commonly referred to as the Moore Dry Dock standards, which if met
establish a presumption that the picketing had a lawful object. The
standards, as applied to this case, are:
1. Was picketing limited to times Gundle was on the premises?
2. was Gundle performing normal business at time of picketing?
3. were picketers close to Gundle's situs?
4. did pickets disclose that the dispute was only with Gundle?
Local 30-30B has not met the third Moore Dry Dock standard. Pottstown
established a valid reserved gate system. When such a system is
established, and a union pickets a neutral gate, the object
[*41] of the
picketing is to encourage neutrals to cease doing business with the
primary employer.
NLRB v. Local 825, 659 F.2d, at 387.
Pottstown posted signs, which were observed by Pottstown employees and
Gundle employees and suppliers. Local 30-30B was informed of the gate
system on July 14, 1989 at approximately 8:30 a.m.. Although Local
30-30B asserts that the gate was contaminated, the testimony at the
hearing does not support such an assertion. Even if there were any
contamination, the union did not verify the alleged contamination prior
to picketing the neutral gate. See
Iron Workers, Local 433 (Chris Crane Co.), 128 LRRM 1088, 1089-90;
Operating Engineers, Local 12 (McDevitt & Street Co.), 286 NLRB 1203,
1203-04 (1987).
5. Coercion of Neutrals:
Local 30-30B pickets coerced and restrained employees and suppliers of
the Pottstown Landfill by blocking the ingress and egress from the
landfill and threatening neutral employees. By picketing in front of the
neutral gate in tight circles, Local 30-30B created delays for Pottstown
employees and suppliers. Some trucks turned away. See
Shopmen's Local Union No. 455, 243 NLRB 340, 346 (1979) [*42] (10
pickets stationed in front of and on the sides of a truck, blocking
entrance or exit, constitutes restraint and coercion within the meaning
of the Act);
NLRB v. Service Employees Int'l Union, Local 254, 535 F.2d 1335, 1337
(1st Cir. 1976)(walking closely spaced, stepping in front of cars,
in front of neutral gate so as to create traffic tie ups, constitutes
interference with rights of non-striking employees);
General Service Employees Union Local No. 73, 239 NLRB 295, 307-08
(1978). Local 30-30B further intimidated neutral employees and
suppliers by videotaping and photographing them.
NLRB v. Service Employees Int'l Union, Local 254, 535 F.2d at 1337 (1st
Cir. 1976)(pretending to videotape and photograph neutrals crossing
picket line has no legitimate purpose except to coerce and restrain
neutrals and customers).
B. The E.R. Carpenter Jobsite
1. The Board must prove by clear and convincing evidence that the union
violated this court's decrees.
NLRB v. Local 825, A.B,C,D, Internt'l Union, 659 F.2d 379, 384 (3d Cir.
1981).
2. At all material times herein,
[*43] the
judgment of this court, entered February 26, 1987, has been in full
force and effect. Local 30-30B, through its officers and agents, has had
notice and actual knowledge of its terms. The judgment tracks the
language of Section 8(b)(4)(ii)(B) of the Act,
29 U.S.C. § 158 (b)(4)(ii)(B), and prohibits Local 30-30B from
threatening, coercing, or restraining any person engaged in commerce or
in an industry affecting commerce, where an object thereof is to force
or require any person to cease doing business with any other person. In
this instance, the Board contends that Local 30-30B is in contempt of
the court's judgment because Cimini, a union business agent, threatened
to picket Biehn Construction Company if Biehn did not cease doing
business with Carlton Roofing, a non-union roofing contractor.
3. I find that Biehn Construction Company is an employer engaged in
commerce within the meaning of the Act and is subject to the court's
jurisdiction.
29 U.S.C. § 152(2), (6).
4. While a union can advise a neutral employer that it intends to picket
a primary employer, any unqualified or ambiguous threats of actions will
be construed
[*44] as
threats to the neutral employer's relationship with the primary
employer.
NLRB v. Service Employees Local 77, 123 LRRM at 3226 (1986). The
burden is on the union to insure that its notice to the neutral employer
is restricted to giving notice of lawful activity on the union's part
against the primary employer. If the notice describes an action that is
unqualified or ambiguous, it will be construed against the union.
Food & Commercial Workers Local 506 (Coors Distributing), 268 NLRB 475,
478 (1983).
Furthermore, when a union threatens a neutral with common situs
picketing, the union assumes the burden of assuring the secondary
employer that the picketing will conform to the Moore Dry Dock
requirements.
Local Union No. 418, Sheet Metal Workers, 227 NLRB 300, 312 (1976)(a
union may not make a generalized threat to picket, with a presumption
that it will conform with established restrictions, rather the union is
required to give assurances that its picketing will comply with the
restrictions on common situs picketing).
5. Here, at best, Cimini initially told DeCicco that Local 30-30B
[*45] would
picket Biehn, a neutral employer, wherever it was doing business. After
DeCicco asked whether that was not common situs picketing, Cimini told
DeCicco that Local 30-30B would picket E.R. Carpenter, and finally he
told DeCicco that Local 30-30B would picket Carlton Roofing, the primary
employer. After telling DeCicco that Local 30-30B would picket Carlton
Roofing, Cimini asked DeCicco what Biehn was going to do in response.
It could be argued that these statements reveal that Cimini, and thereby
Local 30-30B, n7 did not meet the union's burden of restricting "its
statement to the giving of notice of prospective lawful activity against
the primary."
Food & Commercial Workers Local 506 (Coors Distributing), 268 NLRB at
478. When DeCicco questioned the lawfulness of Cimini's first
statement, Cimini indicated that Local 30-30B would picket Carlton
Roofing and not Biehn. Then, Cimini asked DeCicco what Biehn would do in
response to Local 30-30B picketing Carlton Roofing at the E.R. Carpenter
job site.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Cimini's statements are easily attributed to the union because they
involved "a matter within the scope of [his employment], made during the
existence of the [employment] relationship."
Fed. R. Evid. 801(d)(2)(D);
United Rubber, Cork, Linoleum, and Plastic Workers of America, Local 878
(Goodyear Tire & Rubber Company), 255 NLRB 251, 251 n.1 (1981).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*46]
6. I have carefully reviewed the testimony of Lawrence DeCicco (II,
74-105) and Phillip Cimini (IV, 3-24) as well as my notes taken at
trial. I found both witnesses credible and I view their testimony as
distinguishable only in two respects: the presence of the
contemporaneous notes taken in the normal course of business by Mr.
DeCicco; and, the discrepancy about whether Mr. Cimini stated that he
would picket the general contractor, Biehn Construction. The diary entry
reflecting that DeCicco stated that he would picket Biehn Construction
wherever it was, adds a scintilla of support to the Board's charge. But
I find that the testimony adduced does not satisfy the clear and
convincing standard. Taking DeCicco's testimony at face value,
immediately upon uttering the phrases which would violate § 8(b)(4)(B),
Cimini was reminded of the problem of common situs picketing. He, then,
stated that the union would picket Carlton, the non-union roofer, an
appropriate target for picketing, at the E.R. Carpenter job site.
Neither witness testified of any further conversations remotely
containing threats of unlawful picketing, and neither testified of any
actual picketing at a Biehn site
[*47] or
Carlton Roofing site. Crediting DeCicco's testimony at face value, I
find that Cimini uttered forbidden words, but that at the prompting of
DeCicco about common situs picketing, he immediately shifted ground and
focussed on a proper target. This, together with the lack of any
follow-up threats or actions on the part of Cimini and the Union,
suggests that this was at most a fleeting, technical violation of the
orders and the Act, and I find that it does not meet the clear and
convincing test.
C. THE PRE-ELECTION MISCONDUCT
1. Jurisdiction
(a) The union respondent is a labor organization as defined under the
Act and is subject to the court's jurisdiction.
29 U.S.C. § 152(5).
(b) At all material times herein, the judgment of this court, entered
April 11, 1978, and the subsequent judgments of civil contempt entered
February 20, 1980, July 13, 1984, February 26, 1987, and August 10,
1987, have been in full force and effect. Local 30-30B, through its
officers and agents, has had notice and actual knowledge of the terms of
the April 11, 1978 order. The order tracks the language of § 8(b)(1)(A),
29 U.S.C. § 158(b)(1)(A),
[*48] and
directs the union and its officers, agents and representatives to cease
and desist from restraining and coercing employees within the
geographical area the union purports to represent by threatening
employees with, among other things, physical assaults. The order further
provides that the union cannot threaten employees with physical injury
for the purpose of coercing or restraining employees in the exercise of
their statutory rights. The last paragraph of the order also prohibits
the union from "in any other manner restraining or coercing employees in
the exercise of their rights guaranteed in Section 7 of the Act."
The Board contends that Local 30-30B and individual respondents
Schoenberger, Sherman and Daly, are in contempt of the Court's April 11,
1978 judgment and subsequent contempt orders because the individual
respondents verbally threatened three union members in a way that tended
to coerce those members in exercising their rights to engage in
intraunion activities protected by Section 7 of the Act. The Board
asserts that the individual respondents were agents of Local 30-30B, and
that Local 30-30B is therefore legally responsible for their conduct.
2. Whether Respondents
[*49]
Schoenberger, Sherman and Daly were agents off the union?
(a) Respondents Schoenberger and Daly had notice of this Court's April
11, 1978 judgment, and the subsequent contempt orders, as business
agents of the union. Both Schoenberger and Daly were mentioned by name
in the last contempt order entered August 10, 1987, and Schoenberger
signed that contempt order. The contempt orders require all business
agents to signify in writing, under oath, that they have read and
understood the April 11, 1978 judgment and the three subsequent contempt
orders. Respondent Sherman testified on direct examination that he had
received copies of some unspecified court orders and NLRB orders. He
further testified that he understood those orders to provide that he was
"not to bother any other contractors or any other scabs or things like
that," and not to address his relationship with fellow union members.
(6/20/91 at 158). I conclude that all three individual respondents had
notice of this court's April 11, 1978 judgment and the subsequent
contempt orders.
(b) All three individual respondents were agents of the union respondent
at the December 2, 1987 nomination meeting.
29 U.S.C. § 152 [*50] (13)
provides:
In determining whether any person is acting as an 'agent' of another
person so as to make such other person responsible for his acts, the
question of whether the specific acts performed was [sic] actually
authorized or subsequently ratified shall not be controlling.
This court recognizes a broad standard for determining whether a
principal-agent relationship exists under the Act.
NLRB v. L. & J. Equipment Co., Inc., 745 F.2d 224, 232 (3d Cir. 1984);
Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000, 1006 (3d Cir.
1981). The presence of actual or apparent authority can establish a
principal-agent relationship. Actual authority can be either expressed
by the principal's statements to the agent or implied from the
principal's conduct towards the agent. Apparent authority depends upon
how a third person views the principal's conduct. It arises from the
third person's belief, resulting from his or her reasonable
interpretation of the principal's conduct, that the principal consents
to the agent's actions.
L. & J. Equipment Co., Inc., 745 F.2d at 232-33.
In this instance,
[*51] the
relevant third person perspective is that of the union membership.
Therefore, one question is whether the union used the individual
respondents as conduits to relay information to the members or whether
the union placed the respondents in a position where the members could
reasonably believe they spoke on behalf of the union.
Our Way, Inc., 238 NLRB 209, 213 (1978). Both Schoenberger and Daly
were employed as business agents of the union. Daly was acting as the
union's recording secretary at the nomination meeting. Although
Schoenberger was not assigned any official role during the nomination
meeting, he claimed to speak for "the boss," i.e., Stephen Traits, Jr.,
the convicted Business Manager.
Respondent Sherman was an employee and union steward at Gravely Roofing
Company. On the night of the nomination meeting he was assigned the task
of directing union members to the appropriate sign-in tables. As a union
steward he was the union's conduit for members to air their grievances
to the employer. He was the union's representative for the members on
the jobsite. See
Western Renaissance Corporation, 267 NLRB 1030, 1040 (1983) [*52] (union
steward, who was elected official of union and was instructed by
business agent to distribute pro-dues increase literature, was acting
within general scope of authority conferred upon her when she
confiscated anti-dues increase literature distributed by dissident union
member);
East Texas Motor Freight, 262 NLRB 868, 871-72 (1982) (if union
steward participated in assault against dissident union member, then
basis could exist for holding union responsible for assault).
Based upon the foregoing, I conclude that Respondents Schoenberger, Daly
and Sherman were acting as agents of the union at the nomination
meeting. n8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 The Board sought to introduce several out of court statements made by
other union business agents who were not named as individual
respondents. See Transcript, II, 97-106, 113-17, 120-21, 125-26, 138-41;
Government Exhibit 6: 16T-1. These statements were not pleaded in the
Board's petition for an adjudication of contempt as conduct violating
this Court's April 11, 1978 judgment. The Board claimed that the
statements provided a context for the alleged pre-election misconduct,
and revealed that the current union officials and stewards participated
in the same illegal conduct as the convicted officials. Most of the
statements were offered by the Board for the truth of matters discussed
therein.
One of the statements comes from an unsworn transcript of a taped
conversation held by former business manager Stephen Traits, Jr. with
Stephen Traits, III, and Robert Hammond. During the conversation,
Stephen Traits, Jr. tells the other two that he will take "Donny Sherman
and a couple of other black guys out there tomorrow & I'm gonna scare em
good," and "I'll take Donny Sherman and them out there and I'll
humiliate the shit out of the guy." This transcript was recorded on
October 15, 1985, more than two years before the alleged pre-election
misconduct. To the extent the Board sought to use this statement as
background information establishing that the union had used Respondent
Sherman in the past to threaten others, I find the statement to be more
prejudicial than probative. Even assuming that Stephen Traits, Jr. did
use Respondent Sherman to threaten others, the statement does not prove
or disprove that Respondent Sherman threatened McAndrews on December 2,
1987, or that he threatened anyone else on any other date. The Board
asks me to infer that because Stephen Traits wanted to use Sherman to
threaten others, that Sherman actually did threaten others and that he
threatened McAndrews on December 2, 1987. Such an inference is
speculative. I find that regardless of whether or not the statement is
inadmissible as hearsay, it is inadmissible under
Federal Rules of Evidence 402,
403.
Other statements sought to be admitted were overheard by witness Charles
Slemmer at his jobsite. Slemmer was working within 15 to 20 feet of
business agent Danny Cannon when he came to talk to the foreman at
Slemmer's jobsite. Business agent Cannon told the foreman that "If
Sullivan wins the election we're going to lose everything we ever fought
for," and that union member Matt Smith was "done as a steward." Matt
Smith and Charles Slemmer had campaigned together for the Sullivan
slate.
These statements are admissible because they were made by a union
business agent in the presence of a witness who testified at the
hearing. United Rubber, Cork, Linoleum and Plastic Workers of America,
Local 878 (
Goodyear Tire & Rubber Company, 255 NLRB 251, 251 n.1 (1981)). In
addition, the statements made by Cannon are only admissible to explain
what Charles Slemmer thought Respondent Michael Daly meant when he told
Slemmer, "you see what happened to fuckin' Matt. You could be next."
They were not offered for the truth of the matters discussed and were
not considered for the truth of the matters discussed.
Candidate Michael Sullivan testified that after he informed Acting
Business Manager Mike Mangini of his intent to run for union office he
was fired as an apprenticeship instructor, and that Mangini told him
that he didn't think Sullivan could win and that "the new guy they get
in there -- gets in there isn't gonna like you too much." Sullivan also
testified that after the election he received only three job referrals,
two of which were for one day each, and the last of which was rained
out. As was stated above, neither the statement made by Mike Mangini nor
the actions taken by unnamed union officials were pleaded in the Board's
petition for an adjudication of contempt. The relevance of these matters
to the specific threatening statements pleaded in the petition is
unclear. These matters do not tend to prove or disprove that the
threatening statements pleaded in the petition were made by the
individual respondents. I therefore find that these matters are
irrelevant and inadmissible.
Federal Rule of Evidence 402.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*53]
C. Respondent Daly was not acting as an agent of the union when he spoke
to McAndrews around the Ennises kitchen table. The circumstances
surrounding his statements to McAndrews indicate that he was acting as a
union member who had been drinking for over 24 hours in an old friend's
and union member's home after he had been convicted, and that he was
speaking out of his concern for the future of the union. He was not
acting as a business agent or a recording secretary. Unlike
Schoenberger, he did not threaten McAndrews with loss of employment. In
addition, McAndrews' stated fear stemmed from his experience that drunk
roofers were dangerous. He was afraid of Daly becoming violent at that
time and not of what Daly could do in his capacity as a union business
agent or recording secretary.
Based upon the circumstances surrounding Daly's statements to McAndrews
at the Ennis household, I conclude that Daly was not acting as an agent
of the union at the time he made those comments.
D. However, I do conclude that Daly was acting as an agent of the union
when he spoke with Charles Slemmer over the telephone, because Daly
implied he could do something as a union official if Slemmer continued
[*54] to
support the Sullivan slate, by stating, "you see what happened to
fuckin' Matt. You could be next." At that time Daly was on the union
payroll as a business agent. n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 Argument at trial suggested that Daly and others were not "agents"
because they had been convicted, and it was well known that the were
lame ducks. Daly acted as the recording secretary at the December 2,
nomination meeting (Deposition, 7-9). He never tendered his resignation
as an officer. (Id.) The only action tantamount to a resignation of his
office was his tendering of his union card in the last week of December
and the new officers taking their positions shortly before Christmas
(Deposition, 7-8). Daly was cloaked with sufficient authority in this
period to show he was an agent of the Union.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -3.
Whether the individual respondents' statements to Costello, McAndrews
and Slemmer violated this Court's April 11, 1978, order because they
restrained employees in exercising rights guaranteed under Section 7 of
the Act.
(a) Although this Court's
[*55] April
11, 1978 order was not issued in a proceeding involving intraunion
coercion, it required Local 30-30B to cease and desist from "in any
other manner restraining or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.". The Supreme Court has held
that a party can be held in contempt for violating an injunction that
requires the party not to violate a statutory provision, so long as the
statutory provision, or the law interpreting the statutory provision
provides adequate notice of the forbidden conduct.
McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949);
American Greetings Corp. v. Dan-Dee Imports, Inc., 807 F.2d 1136, 1147
n.5 (3d Cir. 1986). Any ambiguity in the law should be resolved in
favor of the party charged with contempt. United States on behalf of the
I.R.S. v. Norton, 717 F.2d 767, 774 (3d Cir. 1983).
The law is clear that Section 7 does apply to union members engaging in
intraunion political activities. See
Heavy and Highway Construction Workers' Local Union No. 158, 280
N.L.R.B. No. 124, 123 L.R.R.M. 1042 (1986) [*56]
(refusal of union to refer eight employees because of their intraunion
political activities violated Section 8(b)(1)(A) and (2));
Flagstaff Brewing Corp., 1960 C.C.H. N.L.R.B. P 9108 at 14,106 (Act
protects union members' rights to express dissatisfaction over
stewardship of elected union officers without fear of Union causing
employer to discharge);
Highway, City and Freight Drivers,, 250 NLRB 1127, 1130 (1980)
(union president violated Section 8(b)(1)(a) of the Act by threatening
to cause the discharge of two employees, threatening to refuse to refer
the employees, and threatening to refuse to represent the employees,
because the employees opposed a dues increase);
United Steelworkers of America Local 1397, 240 NLRB 848 (1979)
(vice-president who was acting president, and grievance committee member
of union, violated Section 8(b)(1)(A) of the Act, by threatening to have
dissident member of union fired and by threatening to refuse to
represent member in any of dissident's future grievances). Accordingly,
the April 11, 1978, enforcement order and subsequent contempt orders
provided notice
[*57] that
any restraints on employees engaged in activity protected by Section 7
would be forbidden, regardless of whether the protected employees are
union members or not.
(b) The test for whether the individual respondents' statements violated
this Court's order and Section 8(b)(1)(A) of the Act is whether those
statements tended to restrain or coerce employees in the rights
guaranteed them in the Act. The test is not whether the individual
respondents intended to coerce employees, or whether the employees were
in fact intimidated or coerced.
Highway, City and Freight Drivers,, 250 NLRB at 1130 (1980);
United Steelworkers of America Local 1397, 240 NLRB 848, 849 (1979).
(c) At the nomination meeting respondent Schoenberger told Patrick John
Costello to "stick [those campaign fliers] back in your pocket or I'll
stuff your head in your pocket." The very nature of this statement
tended to restrain Costello in exercising his right to support a
candidate for union office and thereby violated this Court's April 11,
1978 judgment.
(d) At the same nomination meeting, respondent Schoenberger also told
Bill McAndrews not to
[*58] run for
union president. Schoenberger threatened to physically harm McAndrews
and to take away McAndrews' job. These statements tended to restrain
McAndrews in exercising his right to run for union office and thereby
violated this Court's April 11, 1978 judgment.
(e) While Schoenberger was threatening McAndrews, respondent Sherman
also approached McAndrews and threatened to physically harm him if he
ran for union office. Such statements tended to restrain McAndrews in
exercising his right to run for union office and thereby violated this
Court's April 11, 1978 judgment.
(f) Because I have concluded that respondent