International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 229,

Docket Number:21-CC-183510
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229, AFL–CIO and Commercial Metals Company d/b/a CMC Rebar. Case 21–CC–183510

August 30, 2017 DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On May 4, 2017, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2

ORDER

The National Labor Relations Board orders that the Respondent, International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229, AFL–CIO, San Diego, California, its officers, agents, and representatives, shall

  1. Cease and desist from inducing or encouraging any individual employed by Commercial Metals Company d/b/a CMC Rebar (CMC), or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal to perform work in the course of employment, where an object is to force or require CMC, McCarthy Building Companies, Inc., or any other person to cease doing business with Western Concrete Pumping, Inc.

  2. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Within 14 days after service by the Region, post at its office and union hall in San Diego, California, copies of the attached notice marked “Appendix.”3 Copies of the

    1 We deny the Respondent’s exceptions to the remedy as the Respondent has not demonstrated that the remedy or the Board’s standard remedial language is inaccurate or should be modified.

    2 We shall modify the judge’s recommended Order and substitute a new notice to conform to the Board’s standard remedial language.

    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 Na-

    notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, 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 members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

    (b) Within 14 days after service by the Region, deliver to the Regional Director for Region 21 signed copies of the notice in sufficient number for posting by the Commercial Metals Company d/b/a CMC Rebar at its Temecula, California facility, if it wishes, in all places where notices to employees are customarily posted.

    (c) Within 21 days after service by the Region, file with the Regional Director for Region 21 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.

    Dated, Washington, D.C. August 30, 2017

    ______________________________________

    Philip A. Miscimarra, Chairman

    ______________________________________

    Mark Gaston Pearce, Member

    ______________________________________

    Lauren McFerran, Member

    (SEAL) NATIONAL LABOR RELATIONS BOARD

    tional 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.”

    365 NLRB No. 126

    2

    DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    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 induce or encourage any individual employed by Commercial Metals Company d/b/a CMC Rebar (CMC), or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal to perform work in the course of employment, where an object is to force or require CMC, McCarthy Building Companies, Inc., or any other person to cease doing business with Western Concrete Pumping, Inc.

    INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL, AND

    REINFORCING IRON WORKERS, LOCAL 229, AFL–CIO

    The Board’s decision can be found at www.nlrb.gov/case/21-CC-183510 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.

    Lisa McNeill, Esq., for the General Counsel.

    David A. Rosenfeld, Esq., for the Respondent.

    L. Brent Garrett, Esq., for the Charging Party.

    DECISION

    MARY MILLER CRACRAFT, Administrative Law Judge. The issue in this case is whether a labor organization unlawfully induced or encouraged employees of Commercial Metals Company d/b/a CMC Rebar (CMC) to strike or refuse to perform services in support of its labor dispute with Western Concrete Pumping, Inc. (WCP). The violation is found as alleged. Arguments that the Act, as applied here, violates the First and Thirteenth Amendments and the Religious Freedom Restoration Act (RFRA) are rejected.

    I. FACTS

    Construction of a four-story parking structure at the Pechanga Resort & Casino in Temecula, California (Pechanga jobsite) was the locus of the dispute. The general contractor on the Pechanga jobsite was McCarthy Building Companies, Inc. (McCarthy). Charging Party CMC worked as a subcontractor of McCarthy at the Pechanga jobsite from February 2016 to December 2, 2016. CMC furnished and installed reinforcing steel and post-tensioning reinforcement. WCP, another McCarthy subcontractor, performed concrete work at the Pechanga jobsite.

    Labor organization International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229, AFL–CIO (Local 229) and non-party labor organization Operating Engineers Local 12 (Local 12) have a labor dispute with WCP.1 The parties agree that at no time have Local 229 or Local 12 been engaged in a primary labor dispute with CMC, McCarthy, or any other contractors at the Pechanga jobsite other than WCP.2 However, it is Local 229’s position that it has been engaged in a labor dispute with McCarthy and CMC within the meaning of Section 2(9) of the National Labor Relations Act (the Act)3 because WCP does not pay area standards and is on the Pechanga site.4 The General Counsel and CMC do not agree with this position and note that there is no contention that CMC and WCP are allied with each other in the performance of any work subject to any labor dispute.5

    CMC is a signatory to the Iron Workers Master Labor Agreement (Master Agreement) effective July 1, 2014, to June 30, 2017. The Master Agreement applies to projects in Temecula, California, including the Pechanga jobsite.6

    On August 16, 2016,7 Local...

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