General Teamsters Local No. 528

National Labor Relations Board - Board Decisions

Mar 24, 1981

255 N.L.R.B. 208 (N.L.R.B. 1981)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters Local Union No. 528, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and National Homes Corporation
and Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Acting on Behalf of
Millmen's Local Union No. 1528, United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO. Case 10-CD-271
March 24, 1981
DECISION AND ORDER
Upon a charge filed on March 27, 1978, by
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, acting on behalf of Millmen's Local
Union No. 1528, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, and duly
served on General Teamsters Local Union No. 528,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 10, issued a com-
plaint and notice of hearing, an amendment to
complaint, and an amended complaint and notice of
hearing dated respectively January 9, 1979, January
22, 1979, and March 12, 1980, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(4)(D)
and Section 2(6) and (7) of the National Labor Re-
lations Act, as amended. Copies of the charge,
complaint, notice of hearing, amended complaint,
and amended notice of hearing were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the
amended complaint' alleges in substance that on or
about March 13, 1978, Respondent violated Section
8(b)(4)(ii)(D) of the Act by threatening to strike
National Homes Corporation, herein the Employer,
if the service and maintenance work, including gas
and oil service of forklifts and straddlers, used by
the Employer, at its Thomson, Georgia, manufac-
turing facility, was not assigned to employees who
are represented by Respondent. The complaint also
alleges that the object of this conduct is and has
been to force or require the Employer to assign the
work to employees who are represented by Re-
spondent. The complaint further alleges that Re-
spondent failed and refused to abide by the Board's
Decision and Determination of Dispute 2 in the un-
I All references to the complaint are references to the complaint as
amended.
2 239 NLRB 370(1978X).
255 NLRB No. 30
derlying 10(k) proceeding which awarded the dis-
puted work to employees represented by Millmen's
Local No. 1528, affiliated with the United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, herein the Union, and has continued to
demand that the Employer assign the disputed
work to employees who are represented by Re-
spondent. Respondent filed its answer to the com-
plaint and answers to the amended complaints on
January 12, 1979, February 6, 1979, and March 24,
1980, respectively, admitting in part, and denying
in part, the allegations in the complaint.
On June 16, 1980, the parties entered into a stip-
ulation and moved to transfer the proceeding to
the Board. The parties agreed that the stipulation,
along with the charge, notice of charge filed, tran-
script of the 10(k) hearing, the Board's Decision
and Determination of Dispute in General Teamsters
Local Union No. 528, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (National Homes Cor-
poration), 239 NLRB 370 (1978), complaint and
notice of hearing, amendment to complaint, amend-
ed complaint and notice of hearing, Respondent's
respective answers to the complaint, amendment to
complaint and amended complaint, motion to trans-
fer case and continue proceeding before the Board
and for Summary Judgment, order transferring the
proceeding to the Board and Notice To Show
Cause, Respondent's brief in opposition to Motion
for Summary Judgment, order denying Motion for
Summary Judgment, notice of hearing, orders re-
scheduling hearing, and order postponing hearing
indefinitely constitute the entire record in this case,
and that no oral testimony is necessary or desired
by any of the parties. They waived a hearing, the
making of findings of fact and conclusions of law,
and the issuance of an administrative law judge's
decision, and submitted the case for findings of
fact, conclusions of law, and an appropriate order
directly to the Board.
On September 24, 1980, the Board approved the
stipulation, made it a part of the record, and trans-
ferred to and continued the proceeding before the
Board for the purpose of making findings of fact
and conclusions of law for the issuance of a deci-
sion and order. Thereafter, Respondent filed a
brief.
The Board has considered the stipulation, the
briefs, and the entire record, and hereby makes the
following:
GENERAL TEAMSTERS LOCAL NO. 528 209
FINDINGS OF FACTS
1. JURISDICTION
The Employer is a corporation duly organized
under and existing by virtue of the laws of the
State of Indiana, with an office and place of busi-
ness in Thomson, Georgia, where it is engaged in
the manufacture and sale of prefabricated homes.
Annually, the Employer, in the course and conduct
of its business operations, sells and ships goods
valued in excess of $50,000 directly to customers
located outside the State of Indiana.
The parties stipulated, and we find, that the Em-
ployer is engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and
(7) of the Act. We also find that it will effectuate
the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that General
Teamsters Local Union No. 528, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America and
Millmen's Local Union No. 1528, United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
IIi. THE UNFAIR LABOR PRACTICES
A. Facts
The parties stipulation shows these facts:
On or about May 31, 1977, Respondent, pursuant
to its collective-bargaining agreement with the Em-
ployer, filed a grievance concerning the Employ-
er's reassignment of service and maintenance work,
including gas and oil service of forklifts and strad-
dlers, from Respondent to the Union. On or about
January 25, 1978, Respondent's Southern Multi-
State Grievance Committee awarded the work de-
scribed above to employees represented by Re-
spondent. The Union, at no time material herein,
has participated in, or has been bound by this
grievance award. On or about March 13, 1978, Re-
spondent sent to the Employer a letter stating, inter
alia, that the Employer's refusal to abide by the
grievance award would leave Respondent "no
choice except to establish a picket line on your fa-
cility."
On November 20, 1978, after conducting a hear-
ing pursuant to Section 10(k) of the Act, the Board
issued its Decision and Determination of Dispute in
which it concluded that the employees of National
Homes Corporation who were represented by the
Union were entitled to perform the work in dis-
pute; i.e., service and maintenance work, including
gas and oil service of forklifts and straddlers, at the
Employer's Thomson, Georgia, facility. The Board
also found, inter alia, that Respondent was not enti-
tled to force or require National Homes Corpora-
tion to assign the work to employees it represented
by means proscribed by Section 8(b)(4)(D) of the
Act. The decision further directed Respondent to
notify the Regional Director for Region 10, in
writing, within 10 days, whether it would refrain
from the proscribed action. Respondent has failed
and refused to comply with the Board's Decision
and Determination. Respondent has not, at any
time material herein, notified the Regional Director
for Region 10, in writing, whether or not it would
refrain from forcing or requiring the Employer, by
means proscribed by Section 8(b)(4)(D) of the Act,
to assign the disputed work in a manner consistent
with the Board's Decision and Determination of
Dispute in the 10(k) proceeding.
B. Discussion
Respondent, in its brief, asserts that the Board's
10(k) determination was erroneous, that the work
in dispute should have been assigned to employees
whom it represents, and that its collective-bargain-
ing agreement requires that it be awarded the
work. We find no merit to Respondent's conten-
tions and they raise arguments all previously con-
sidered by the Board.3
Respondent further contends that it complied
with the Board's 10(k) determination because it
never engaged in any picket or strike action against
the Employer, and therefore the instant complaint
should be dismissed. We agree with Respondent
that compliance with a Board determination in a
10(k) proceeding constitutes a defense to conduct
allegedly violative of Section 8(b)(4)(i) and (ii)(D)
of the Act. Respondent's defense, however, fails in
that merely refraining from engaging in picket or
strike action is not sufficient to constitute compli-
ance with a 10(k) determination and justify dismiss-
al of a complaint alleging conduct violative of Sec-
tion 8(b)(4)(D). Rather, in order for the defense of
compliance with a 10(k) proceeding to be sucessful
in justifying the dismissal of a complaint arising
under Section 8(b)(4)(D), there must be actual per-
formance of the requirements set forth in the
Board's 10(k) determination. Local 595, Internation-
al Association of Bridge, Structural and Ornamental
Iron Workers, A.F.L., et al. (Bechtel Corporation),
112 NLRB 812 (1955).
a See Local 445. International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America (Blount Brothers Corporation). 197
NLRB 46 (1972). and cases cited therein at fn. 5.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the instant case, Respondent stipulated that on
March 13, 1978, it forwarded a letter to the Em-
ployer threatening to strike if the Emloyer refused
to abide by the grievance award and assign the dis-
puted work to employees represented by Respond-
ent. The record contains no evidence indicating
that Respondent has countermanded, revoked,
withdrawn, recalled, or canceled its demand for
the disputed work or notified the Employer that its
demand is no longer in effect and will not be reas-
serted or advanced to obtain the disputed work.
Therefore, since a threat to strike was made by Re-
spondent and has never been withdrawn either
through compliance with the Board's 10(k) deter-
mination or in any other manner, we find that the
threat is currently outstanding.
Having determined that Respondent has not
complied with the Board's 10(k) determination, the
merits of the complaint concerning whether Re-
spondent has engaged in conduct violative of Sec-
tion 8(b)(4)(D) of the Act must be examined. At
this juncture, it should be noted that Respondent's
failure to comply with the Board's 10(k) determina-
tion does not, per se, constitute a violation of Sec-
tion 8(b)(4)(D). Rather, noncompliance merely trig-
gers a complaint alleging that a violation of Section
8(b)(4)(D) has occurred. Once the complaint has
issued, "in the Section 8(b)(4)(D) proceeding itself,
the Board must find by a preponderance of the evi-
dence that the picketing union has violated Section
8(b)(4)(D)." N.L.R.B. v. Plasterers Local No. 79,
Operative Plasterers' & Cement Masons' International
Assn., AFL-CIO, et al., 404 U.S. 116, 122, fn. 10
(1971). All the factors essential for a finding of
such a violation are present in the instant case: As
set forth above, Respondent threatened to picket
the Employer and that threat is currently outstand-
ing; by such conduct, Respondent threatened to
induce and encourage the employees of the Em-
ployer to engage in a concerted refusal to perform
services for the Employer; its object was to force
the Employer to assign the service and mainte-
nance work, including gas and oil service of fork-
lifts and straddlers, to members of Respondent
rather than to nonmembers or to members of the
Union; and the Employer was not failing to con-
form to any order or certification of the Board de-
termining the bargaining representative for the em-
ployees performing the work in dispute. Accord-
ingly, on the basis of the foregoing and the entire
record in this proceeding, we find by a preponder-
ance of the evidence that Respondent violated Sec-
tion 8(b)(4)(ii)(D) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The conduct of Respondent as set forth above,
occurring in connection with the Employer's oper-
ations, has a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tends to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in certain unfair labor practices, we
shall order it to cease and desist therefrom and take
affirmative actions designed to effectuate the pur-
poses of the Act.
CONCLUSIONS OF LAW
1. National Homes Corporation is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent General Teamsters Local Union
No. 528, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening to strike National Homes Cor-
poration, the object of which was to force or re-
quire National Homes Corporation to assign to em-
ployees represented by Respondent, rather than to
employees represented by the Union, the service
and maintenance work, including gas and oil serv-
ice of forklifts and straddlers, at the Employer's
Thomson, Georgia, facility, the employees Re-
spondent represents not being lawfully entitled to
that work, Respondent has engaged in unfair labor
practices within the meaning of Section
8(b)(4)(ii)(D) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
General Teamsters Local Union No. 528, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Thomson, Georgia, its officers, agents, and rep-
resentatives, shall:
1. Cease and desist from threatening to strike Na-
tional Homes Corporation, the object of which is
to force or require National Homes Corporation to
assign the service and maintenance work, including
GENERAL TEAMSTERS LOCAL NO. 528 211
gas and oil service of forklifts and straddlers at the
Employer's Thomson, Georgia, facility, to employ-
ees represented by Respondent rather than to em-
ployees represented by Millmen's Local Union No.
1528, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO, except insofar as such
conduct is permitted under Section 8(b)(4)(ii)(D) of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of said notice
to the Regional Director for Region 10 for posting
by National Homes Corporation, if it is willing, at
all locations upon the premises where notices to its
employees are customarily posted.
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
4 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of General Teamsters Local Union
No. 528, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America:
WE WILL NOT threaten to strike National
Homes Corporation, the object of which is to
force or require National Homes Corporation
to assign employees represented by General
Teamsters Local Union No. 528, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, rather than to employees of Na-
tional Homes Corporation represented by Mill-
men's Local No. 1528, United Brotherhood of
Carpenters and Joiners of America, AFL-
CIO, the service and maintenance work in-
cluding gas and oil service of forklifts and
straddlers at the Employer's Thomson, Geor-
gia, facility except insofar as such conduct is
permitted under Section 8(b)(4)(D) of the Act.
GENERAL TEAMSTERS LOCAL UNION
No. 528, AFFILIATED WITH INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA