ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, UA., AFL-CIO (Firetrol Protection Systems, Inc.),

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.

Road Sprinkler Fitters Local Union 669 and Firetrol Protection Systems, Inc. and Cosco Fire Protection, Inc., MX Holdings US, Inc., and CFP Fire Protection, Inc. Case27–CC–091349

May 23, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On August 22, 2013, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Respondent, Road Sprinkler Fitters Local Union 669, filed exceptions and a supporting brief; the General Counsel, Charging Party Firetrol Protection Systems, Inc. (Firetrol), and Parties in Interest Cosco Fire Protection, Inc. (Cosco), MX Holdings US, Inc. (MX), and CFP Fire Protection, Inc. (CFP) filed answering briefs; and the Respondent filed replies. The General Counsel filed cross-exceptions, and the Respondent filed an answering brief. Firetrol filed cross-exceptions¹ and a supporting brief, the Respondent filed an answering brief, and Firetrol filed a reply brief.²

The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to adopt the judge’s rulings, findings,³

¹ Parties in Interest Cosco, MX, and CFP joined in Firetrol’s crossexceptions.

² We deny the Respondent’s motion to strike Firetrol’s reply brief for allegedly containing argument outside the scope of the Respondent’s answering brief. We do, however, at Firetrol’s request, take administrative notice of two federal district court decisions involving the parties: Jones v. Road Sprinkler Fitters Local Union No. 669, U.A., AFL–CIO, No. CV13-3015-GHK (JPRx), 2013 WL 553291 (C.D. Cal. July 24, 2013) (denying the Regional Director’s petition for injunctive relief under Section 10(l) of the Act); and Road Sprinkler Fitters Local Union No. 669, U.A., AFL–CIO v. Cosco Fire Protection, Inc., No. SA CV 12-1596-GHK (JPRx) (C.D. Cal. Aug. 8 (2013) (unpublished order granting defendants’ motion to stay the plaintiff’s lawsuit to compel arbitration). Charging Party Firetrol and the Parties in Interest have requested oral argument. The request is denied as the record and briefs adequately present the issues and the positions of the parties.

³ The Respondent has in effect excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

We deny the Respondent’s suggestion that we defer this unfair labor practice case for resolution in the first instance to the Respondent’s grievance-arbitration procedures pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971). We find deferral to be inappropriate for several reasons. First, Firetrol, CFP, and MX have no bargaining relationship

and conclusions as modified herein, to amend the remedy, and to adopt the judge’s recommended Order as modified and set forth in full below.⁴

ORDER

The National Labor Relations Board orders that the Respondent, Road Sprinkler Fitters Local Union 669, its officers, agents, and representatives, shall

with the Respondent, and they are not party to a collective-bargaining agreement requiring them to arbitrate disputes with the Respondent. Moreover, while Cosco has a bargaining relationship with the Union as to its own unit employees, and Addendum C to that agreement contains an arbitration provision, the dispute here does not involve Cosco’s unit employees, but rather Firetrol’s employees in Denver, Colorado. Furthermore, this case involves allegations of secondary pressure under the Act, which are not well suited to resolution by arbitration. See, e.g., Iron Workers Pacific Northwest Council (Hoffman Construction), 292 NLRB 562, 577–578 (1989); Elevator Constructors (Long Elevator), 289 NLRB 1095, 1097 (1988), enfd. 902 F.2d 1297 (8th Cir. 1990). There is no merit to the Respondent’s argument that under Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), and BE & K Construction Co., 351 NLRB 451 (2007), the First Amendment precludes the Board from finding that the Respondent violated the Act because its grievance and lawsuit allegedly are reasonably based. Under Bill Johnson’s Restaurants and its progeny, the Board may find that pursuit of a reasonably based grievance and lawsuit violates the Act where the object thereof is illegal under Federal law. Bill Johnson’s, 461 U.S. at 737 fn. 5; see, e.g., Elevator Constructors (Long Elevator), 289 NLRB at 1095. For example, where a respondent files a grievance and lawsuit to exert secondary pressure on a neutral employer, the Board may properly find a violation under the “footnote 5 exception” to Bill Johnson’s, and we do so here. Iron Workers (Southwestern Materials & Supply, Inc.), 328 NLRB 934, 935–936 (1999). We note, however, that the judge erred in suggesting that the Respondent bore the burden of demonstrating that its grievance and lawsuit were reasonably based. See, e.g., Milum Textile Services Co., 357 NLRB 2047, 2053 (2011). That error, however, did not affect the disposition of this case.

In her decision, Conclusions of Law, and Remedy, the judge stated that the Respondent violated Sec. 8(e) as well as Sec. 8(b)(4)(ii)(A) and

(B) of the Act by pursuing its grievance and lawsuit. This is understandable, since a violation of Sec. 8(b)(4)(ii)(A) requires a predicate 8(e) finding. See Teamsters Local 560 (County Concrete Corp.), 362 NLRB No. 183, slip op. at 1–2 (2015). However, the complaint does not allege that the Respondent violated Sec. 8(e), and the parties agree that the judge’s statement was inadvertent. Therefore, because we find that the Respondent violated only Sec. 8(b)(4)(ii)(A) and (B), we have amended the judge’s decision, Conclusions of Law, and Remedy accordingly.

⁴ We deny Firetrol’s exceptions to the judge’s failure to order certain enhanced remedies as it has not cited any record evidence in support of this request or otherwise demonstrated why the Board’s traditional remedies are insufficient here. We shall, however, modify the judge’s recommended Order to provide for electronic notice posting pursuant to

J. Picini Flooring, 356 NLRB 11 (2010), and to conform to the Board’s standard remedial language. We shall also substitute new notices to conform to the Order as modified and in accordance with our decision in Durham School Services, 360 NLRB 694 (2014). Finally, although we decline Firetrol’s request that we take administrative notice of its proffered photographic evidence of the Respondent’s website, we note that Firetrol will have an opportunity at the compliance stage of this proceeding to introduce evidence of any electronic means by which the Respondent typically communicates with its members.

365 NLRB No. 83

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1. Cease and desist from

   (a) Seeking to enforce or apply through grievance, arbitration, or litigation Addendum C of its collectivebargaining agreement with Cosco Fire Protection, Inc. (Cosco), Party in Interest, where an object thereof is to threaten, restrain, or coerce Cosco, MX Holdings US, Inc. (MX), CFP Fire Protection, Inc. (CFP), or any other person to refuse to do business with Firetrol Protection Systems, Inc. (Firetrol) or to force or require Firetrol to recognize and bargain with the Respondent as the representative of Firetrol’s employees even though the Respondent has not been certified as the bargaining representative of the employees under the provisions of Section 9 of the Act.

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

   (a) Withdraw the grievance and arbitration demand giving rise to this case, seek dismissal of the lawsuit, and reimburse Firetrol, Cosco, CFP, and MX for all reasonable expenses and legal fees, with interest, incurred in defending against the Respondent’s grievance and lawsuit as prescribed in the remedy section of the judge’s decision.

   (b) Within 14 days after service by the Region, post at the Respondent’s business office a copy of the attached notice marked “Appendix.”⁵ Copies of the notice, on forms provided by the Regional Director for Region 27, 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 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.

   (c) Within 14 days after service by the Region, deliver to the Regional Director for Region 27 signed copies of the notice in sufficient numbers for posting by Firetrol, Cosco, CFP, and MX, if willing, at places where they customarily post notices to their employees.

   (d) Within 21 days after service by the Region, file with the Regional Director for Region 27 a sworn certification of a responsible official on a form provided by the

   ⁵ If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order...