Roth and Mckee, Circuit Judges, and O'neill, Senior District Judge*fn*
The opinion of the court was delivered by: O'neill, Senior District Judge
On Petition for Enforcement and Cross Petition for Review
Argued May 18, 1998 & Filed: August 31, 1998
This case requires us to decide whether a labor union may be liable for unfair labor practices under the National Labor Relations Act (NLRA or the Act), 29 U.S.C.A.§ 151-160 (West 1973), due to the actions of fellow unions pursuant to a joint venture theory of agency. We answer that question in the negative and remand to the Board for further proceedings consistent with this opinion.*fn1
This case is before us on application of the Board for enforcement of its order against Sheet Metal Workers International Association, Local Union No. 19 (Union or Local No. 19) and the Union's cross petition for review of the Board's order. Unfair labor practice charges were filed against the Union by Delcard Associates, Inc., Omni Mechanical, Inc. and Joseph Stong, Inc. After investigating these charges, the Board's General Counsel issued complaints alleging that the Union violated SS 8(b)(1)(A) and 8(b)(4)(ii)(B) of the Act, 29 U.S.C.A. §§ 158(b)(1)(A) and 158(b)(4)(ii)(B), by restraining, coercing and threatening employees seeking access to their jobsites and by picketing at jobsite gates reserved for use by neutral employers.*fn2 The complaints were consolidated for trial before an Administrative Law Judge.
Following six days of hearings, the A.L.J. issued an opinion in which he found that the Union committed unfair labor practices at all three of the job sites. In addition, the A.L.J. found that the Union engaged in a joint venture with four other unions picketing at the Stong job site and was jointly responsible for unfair labor practices committed by those unions. The A.L.J. recommended a broad order requiring the Union to cease and desist from restraining and coercing employees of the three employers and any other employer.
The Union filed exceptions to the A.L.J.'s findings of fact and legal Conclusions and to the recommended order. With some minor exceptions not relevant here, the Board adopted the A.L.J.'s Conclusions including the determination that the Union "was engaged in a joint venture with several other unions and thus was liable for the unlawful acts committed by the other unions," as well as the recommended broad cease and desist order. Sheet Metal Workers Int'l Ass'n, Local No. 19, 316 N.L.R.B. 426, 4-CB-3783, 4-CB-6879, 4-CB-6944, and 4-CC-2005-1, 1995 WL 77107, at *1 (N.L.R.B. February 23, 1995).
The factual background of this matter is fully described in the A.L.J.'s opinion and requires recital here only insofar as is relevant to resolution of the joint venture liability question.*fn3 We will limit our Discussion to the Stong job site because that was the only job site at which the A.L.J. and the Board found the Union vicariously liable for the unfair labor practices of other unions.
Stong is a nonunion contractor. About November 1992, several local labor organizations affiliated with the Building & Construction Trades Council of Philadelphia & Vicinity (BCTC), commenced an organizational campaign among Stong's employees. On March 12, 1993, BCTC and several local unions (Road Sprinkler Fitters Local No. 669, Steamfitters Local No. 420, Plumbers Local No. 74, Sprinkler Fitters Local No. 692, Plumbers Local No. 690, and Local No. 19), petitioned for a Board-conducted election in a single unit comprising all Stong employees performing construction and/or fabrication work in Philadelphia and its vicinity. An election was conducted on May 13, which the unions lost.
After the election, Swarthmore College commenced a construction project on which Stong was the only nonunion subcontractor. Stong's subcontract covered sprinkler work, installation of plumbing and piping, steam-fitter work, and related insulation. Swarthmore established three separate entrances to the campus for access to the project, with gate 1 reserved for exclusive use by Stong.
On June 2, the Union, together with Sprinkler Fitters Local No. 692, Plumbers Local No. 690, Steamfitters Local No. 420, and Asbestos Workers Local No. 14, commenced picketing at the Swarthmore site in furtherance of their labor dispute with Stong.*fn4 The complaint alleges, and the A.L.J. found, that the Union violated § 8(b)(1)(A) of the Act*fn5 by blocking ingress of employees to the job site and impliedly threatening employees with violence in ...