Illinois Local Loses Appeal of Unfair Labor Practice Complaint

Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers Local 386 committed an unfair labor practice by distributing handbills that resulted in a secondary boycott at a construction site according to the U.S. Court of Appeals for the Dist. of Columbia Circuit decision on Jul. 12.

Even though the handbill specifically stated that the union did not intend to encourage a work stoppage made little difference, the court said, citing substantial evidence in support of the inference that the union sought to induce the neutral employees to walk off the Warshawsky & Co. job site. Judge Laurence H. Silberman criticized the administrative law judge’s (ALJ) decision, which the Nat. Labor Relations Board adopted, for relying too heavily on the First Amendment in concluding that the union didn’t induce or encourage the employees to engage in a secondary strike.

According to the decision, Warshawsky & Co., which sells automobile parts and accessories, was constructing a warehouse and mail order facility in LaSalle, Ill. Warshawsky’s general contractor, G.A. Johnson & Sons, subcontracted with various other companies, all of whom maintained collective bargaining agreements with the building trade unions. In Mar. 1997, Warshawsky retained Automotion, Inc. to install rack and conveyor systems on the site. In response, Local 386, representing Automotion’s workers, engaged in “area standards” picketing of Automotion at the construction site. One day later, the union stopped picketing when it learned that Automotion was not yet working at the site.

Local 386 received a letter from Warshawsky stating that a “reserve gate” had been established at the site for Automotion, and that any subsequent picketing should be done only when Automotion was working on the site. Automotion’s hours were Monday through Friday from 4 p.m. to 6 a.m. and all day Sunday. The hours for Johnson and the subcontractors were 7 a.m. to 3:30 p.m. weekdays and an occasional Saturday.

A day after the union received the letter, union agents distributed handbills to employees of Johnson and the subcontractors as they drove into the construction site. The handbill stated that Automotion was “[d]estroying the standard of wages for hard-working union members,” and that it “pays substandard wages and fringe benefits.” The handbill warned that “[i]gnoring the area standards threatens the efforts and sacrifices of all union members.” At the bottom, in smaller print, the handbill stated that the union was “appealing only to the general public. We are not seeking any person to cease work or to stop making deliveries.” In addition to passing out the handbills, the union agents also spoke to the employees.

As a result, Johnson employees and its subcontractors refused to enter the site. The union agents did the same thing on four of the next six days, and each day, employees refused to work. None of the handbilling occurred while Automotion or its employees, suppliers, or subcontractors, were working at the site.

The Nat. Labor Relations Act prohibits unions from inducing or encouraging anyone to refuse to work for his employer to force that employer to stop dealing with another employer. “[T]he First Amendment does not protect communications directed at — and only at — the neutral employees merely because the form of communications is handbilling and conversations,” Silberman said.

Silberman said the evidence pointed to the inference that Local 386 induced the secondary boycott. “The handbills themselves, the time, place and manner of their distribution, the simultaneous conversations between the union agents and the neutral employees, and the subsequent response of those employees all combine to paint
only one plausible picture. The ALJ unreasonably took each piece of the evidence, analyzed it separately — not even accurately in our view — and concluded that no one piece sufficed, never asking whether the totality of facts pointed in only one direction.” The disclaimer at the bottom of the handbill did not insulate the union from the unfair labor practice charge. The court pointed out that the “main language of the handbill contained a strident attack on Automotion’s substandard wages and, most significantly, the lugubrious prediction that ‘Ignoring the Area Standards Threatens the Efforts And Sacrifices Of All Union Members,’ which clearly tells the recipients of the handbill that they should regard this matter as one in which they as union members have a stake.” [BNA 7/13/99]