Metro Regional Cncl v. NLRB , 50 F. App'x 88 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-30-2002
Metro Regional Cncl v. NLRB
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-3973
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 01-3973/4340
________________
METROPOLITAN REGIONAL COUNCIL OF PHILADELPHIA AND VICINITY,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
Petition for Review and Cross Application for Enforcement of An Order of the National
Labor Relations Board
(Cases No. 4-CB-8315, 4-CC-2245, 4-CC-2250, 4-CC-2247)
Argued on July 29, 2002
Before: BECKER,Chief Judge, ROTH
and RENDELL, Circuit Judges
(Opinion filed: October 30, 2002)
Richard C. McNeill, Jr., Esquire
Jennifer B. Liebman, Esquire (Argued)
Sagot, Jennings & Sigmond
Penn Mutual Towers, 16th Floor
510 Walnut Street
Philadelphia, PA 19106-3683
Counsel for Respondent
Arthur F. Rosenfeld
General Counsel
John E. Higgins, Jr.
Deputy General Counsel
John H. Ferguson
Associate General Counsel
Aileen A. Armstrong
Deputy Associate General Counsel
Robert J. Englehart
Supervisory Attorney
David B. Schwartz (Argued)
Attorney
National Labor Relations Board
1099 14th Street, N.W.
Washington, D.C. 20570
Counsel for Petitioner
O P I N I O N
ROTH, Circuit Judge:
Petitioner Metropolitan Regional Council of Philadelphia and Vicinity, United
Brotherhood of Carpenters and Joiners of America (the Union) asks us to review a
National Labor Relations Board Order insofar as it affirmed an ALJ’s conclusion that the
Union committed an unfair labor practice by repeatedly broadcasting a protest message at
excessive volumes in downtown Philadelphia. We will not, however, grant the petition
for review since the Board’s factual findings are supported by substantial evidence on the
record as a whole and the Board’s construction of the National Labor Relations Act is
reasonably defensible.
A. Facts and Procedural Background
This case arises out of the Union’s activities protesting the use of contractors by
two Philadelphia housing complexes, the Society Hills Tower at 2nd and Locust Streets
and the Versailles at 1530 Locust Street. The Union contends that the two contractors
employed non-Union carpenters at substandard wages and created unsafe working
conditions. Upset that the complexes hired the contractors to do carpentry work, an agent
of the Union met with the property manager of each complex. The agent told the property
manager at Society Hill Towers that, unless the complex hired different contractors,
"there could possibly be some problems in the future." The agent told the property
manager at the Versailles that "he would have 100 of his men show up at the job and
there might be trouble."
Shortly thereafter, the Union picketed the complexes and broadcast audio
recordings of messages contained in its handbills from the public property adjacent to the
complexes. While each recording lasted only about 45 seconds, the recordings were
repeated continuously for periods ranging between 45 minutes and 2 hours. The Union
broadcast the recordings on 48 separate days at Society Hill Towers and on 6 separate
days at the Versailles. At both complexes, the broadcasts began at approximately 7:00
a.m. and 7:00 p.m. - times when the Union expected residents of the complexes to be
going back and forth between their homes and their work. At times, the Union played the
recordings from multiple, unsynchronized loudspeakers, thereby creating "garbled" noise.
Hundreds of residents, including residents of the 31st floor at Society Hill Towers,
complained to the Complexes’ property managers about the excessive volume and
duration of the Union’s broadcasts. In turn, the property managers complained to the
Civil Affairs Division of the Philadelphia Police Department and the Air Management
Division of the Philadelphia Department of Health - the divisions charged with handling
citizen demonstrations and enforcing noise ordinances.
Willie Terrill, a noise pollution inspector for the Air Management Division,
attempted on several occasions to accurately measure the volume of the broadcasts. The
majority of Terrill’s attempts were thwarted by Union "spotters" who signaled for sound
system operators to lower the volume of the broadcasts when they saw Terrill approach.
On three occasions, however, Terrill circumvented the spotters by arriving early and
setting up his volume meters before the broadcasts began. On each of these three
occasions, Terrill measured volumes exceeding noise ordinance levels and issued
citations to the Union. The Union appealed these citations, and their ultimate resolution
is pending. Additionally, Terrill testified that on the occasions when spotters thwarted his
efforts, he was able to hear the broadcasts from as far away as five city blocks.
On August 11, 1999, one of the complexes filed an unfair labor practice charge
against the Union, alleging that the amplified and repeated broadcasts disturbed the peace
of residents and violated 8(b)(4)(ii)(B) of the National Labor Relations Act. After a
proceeding before an ALJ in which the parties presented evidence supporting their
respective positions, the ALJ determined that the Union’s activities violated Section
8(b)(4)(ii)(B) of the Act. Specifically, the ALJ found that the broadcasts were made at
excessive volume levels and that the broadcasts had the unlawful, secondary object of
coercing the complexes to stop doing business with the contractors.
In a August 27, 2001, Final Decision and Order, the Board affirmed the ALJ’s
findings, as well as the his conclusion that the Union committed an unfair labor practice.
The Board ordered the Union to cease and desist from broadcasting at excessive volume
levels for the purpose of coercing the Complexes to cease doing business with the non-
Union contractors. The Union thereafter timely petitioned us to review the Order.
B. Jurisdiction and Standards of Review
The Board had subject matter jurisdiction to determine whether the Union engaged
in the alleged unfair labor practices pursuant to Section 10(a) of the Act. See 29 U.S.C.
160(a) (2002). Because the Board issued a Final Decision and Order, and the alleged
unfair labor practice occurred within this Circuit, we have subject matter jurisdiction to
hear the Union’s petition pursuant to Section 10(f) of the Act. See id. at 160(f).
We must treat the Board’s factual findings as conclusive if they are supported by
substantial evidence on the record as a whole, see 29 U.S.C. 160(e), and we "may [not]
displace the [Board’s] choice between two fairly conflicting views, even though [we]
would justifiably have made a different choice had the matter been before [us] de novo."
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Accord Quick v. NLRB,
245 F.3d 231, 240 (3d Cir. 2001). Subject to limits on the deference we afford agency
determinations set forth in Chevron USA, Inc. v. Natural Resources Defense Council, 467
U.S. 837 (1984), the Board’s construction of the Act will be upheld if it is "reasonably
defensible." Ford Motor Co. v. NLRB, 441 U.S. 488, 497 (1979). Accord Quick, 245
F.3d at 241.
C. Discussion
The Union essentially makes three types of arguments against the Board’s Order.
First, the Union challenges the evidentiary support for several factual findings. Second,
the Union argues that the broadcasts were First Amendment protected speech. Finally,
the Union contends that the broadcasts were protected by the Publicity Proviso to Section
8(b)(4) of the Act and Section 8(c) of the Act. We reject each of these arguments in turn.
The Union first argues that no substantial evidence supports the ALJ’s findings
that the broadcasts were made at excessive noise levels and had an unlawful, secondary
object. Because the record is replete with evidence supporting both of these findings, we
will not reverse the Board.
In support of his finding that the broadcasts were too loud, the ALJ credited the
uncontradicted testimony of Terrill, two Philadelphia police officers and numerous
residents. This testimony consisted of first hand accounts that described the noise levels
in objective detail by, for example, comparing the noise levels to fire alarms and
household appliances. Additionally, the ALJ considered the Union’s "spotter" system of
looking out for Air Management Division authorities "probative evidence that [the
Union] was fully aware that its broadcasts were being conducted at excessive volume
levels." We find this evidence substantial and disagree with the Union’s contention that
such a finding could be based only upon a final determination that the Union violated a
Philadelphia noise ordinance.
In support of the unlawful, secondary object of the broadcasts, the ALJ cited
substantial evidence suggesting that the Union was attempting to force or coerce the
complexes to stop doing business with the contractors. For example, the ALJ found that
the Union agent’s warnings that the property managers might have "problems" or
"trouble" if they continued dealing with the contractors were "blatant threats."
Additionally, the broadcasted messages, themselves, urged the public to use their
influence to get the property managers to cease doing business with the contractors.
Finally, the fact that the broadcasts were reduced to unintelligible "garble" by the use of
unsynchronized loudspeakers is further evidence that the Union was concerned more with
making coercive and disruptive noise than with disseminating a particular message. We,
therefore, reject the Union’s claim that the ALJ’s factual findings were erroneous.
Likewise, the Union’s argument that the broadcasts were protected First
Amendment speech must fail. In International Longshoremen’s Ass’n v. Allied Int’l, 456
U.S. 212, 226-27 (1982), the Supreme Court noted:
We have consistently rejected the claim that secondary picketing by labor
unions in violation of 8(b)(4) is protected activity under the First
Amendment. . . . It would seem even clearer that conduct designed not to
communicate but to coerce merits still less consideration under the First
Amendment. The labor laws reflect a careful balancing of interests. . . . There
are many ways in which a union and its individual members may express their
[views] without infringing upon the rights of others.
456 U.S. at 226-27 (citations omitted). In this case, the excessive volume and the lack of
synchronization of the broadcasts make the Union’s conduct subject to the Board’s
legitimate regulation. In fact, the Supreme Court has upheld the constitutionality of such
regulation. See Kovacs v. Cooper, 336 U.S. 77, 86-87 (1949) (local ordinance
prohibiting "loud and raucous" noise was a constitutional time, place and manner
restriction that could be invoked to regulate a labor protestor’s use of an amplified sound
truck). Moreover, the Union has not argued that it was unable to express its views
without infringing on the rights of others by distributing its written handbills.
The Union’s final argument, which is based on the Publicity Proviso of Section
8(b)(4) and Section 8(c), is also misplaced. While the Publicity Proviso permits truthful
non-picketing publicity directed toward consumers and the public, it does not protect
coercive conduct. Similarly, Section 8(c) by its own terms protects only "expression
[that] contains no threat of reprisal or force or promise of benefit," 29 U.S.C. 158(c),
and not coercive speech used in furtherance of an unfair labor practice. See Int’l Bhd. of
Elec. Workers v. NLRB, 341 U.S. 694, 704-05 (1951). Because substantial evidence
supports the Board’s finding that the broadcasts were coercive, we conclude that the
Union cannot seek protection under either the Publicity Proviso or Section 8(c).
D. Conclusion
For the foregoing reasons, we will deny the petition for review of the August 27,
2001, Order of the Board insofar as it held that the Union’s broadcasts constituted an
unfair labor practice. The cross application for enforcement is granted.
___________________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Jane R. Roth
Circuit Judg