Intl. Assn. Of Bridge, Etc., & Ornamental Ironworkers

National Labor Relations Board - Board Decisions

Jun 25, 1975

218 N.L.R.B. 848 (N.L.R.B. 1975)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge , Structural and
Ornamental Ironworkers, AFL-CIO, Local 433
and Plaza Glass Company and .Glaziers, Glass
workers and Glass Warehouse Workers Union,
Local No. 636, affiliated with the International
Brotherhood of Painters and Allied Trades, AFL-
CIO. Case 31-CD-129
June 25, 1975
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge and first amended charge filed
March 14, 1974, and January 21, 1975, respectively,
by Plaza Glass Company, hereafter Employer, and
duly served on the International Association of
Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, Local 433, hereafter Respondent, the
General Counsel of the National Labor Relations
Board, by the'' Regional Director for Region 31,
issued a complaint and notice of hearing on January
23, 1975, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Sections
8(b)(4)(ii)(D) and 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that during January,
February, and March 1974, Respondent violated
Section 8(b)(4)(ii)(D) of the Act by warning and
threatening the Employer that it would, inter alia,
shut down a job on which the Employer was a
subcontractor if employees represented by it were
not placed on the job, with an object of forcing or
requiring the Employer to assign the work of
fabricating metal doors, metal framing pieces, and
glass panes in the construction of window wall units,
to employees represented by it rather than to
employees represented by the Glaziers, Glasswor kers
and Glass Warehouse Workers Union, Local No.
636, affiliated with the International Brotherhood of
Painters and Allied Trades, AFL-CIO, hereafter the
Glaziers. The complaint further alleges that Respon-
dent has failed and refused to abide by the Board's
November 12, 1974, Decision and Determination of
Dispute,' which awarded the disputed work to the
employees represented by the Glaziers, by continuing
to demand the disputed work and by failing and
1 Glaziers, Glassworkers and Glass Warehouse Workers Union, Local No.
636, affiliated with the International Brotherhood of Painters and Allied
Trades, AFL-CIO (Plaza Glass Company), 214 NLRB No . 140 (1974).
2 The Board's taking official notice of the record in the 10 k) proceeding,
218 NLRB No. 140
refusing to notify the Regional Director, in writing
within 10 days, whether or not it would comply with
the award, as required thereby. On February 13,
1975, Respondent filed an answer to the complaint,
admitting in part and denying in part the allegations
of The complaint, and denying the commission of any
unfair labor practices.
On March 26, 1975, the General Counsel, by
counsel, filed with the Board motions for summary
judgment and to strike Respondent's answer. He
asserts, in substance, that Respondent is not entitled
to a trial de novo on issues which were raised and
litigated in the underlying 10(k) proceeding, and that,
with the exception of Respondent's failure and
refusal to give the Regional Director the requisite
timely written notice, all issues raised by Respon-
dent's answer were litigated in the 10(k) proceeding.
On April 10, 1975, the Board issued an order
transferring the proceedings before it and a notice to
show cause why the General Counsel's motions
should not be granted. On April 14, 1975, Respon-
dent filed an opposition to ' the General Counsel's
motions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, includ-
ing the record of the underlying 10(k) proceeding,2
the Board makes the following:
Ruling on the Motions to Strike and for
Summary Judgment
Review of the record in this proceeding, and the
record of the underlying 10(k) proceeding, indicates
that a hearing was held pursuant to Section 10(k) of
the Act, at which all parties appeared and presented
evidence, and were allowed to cross-examine wit-
nesses . On November 12, 1974, the Board issued its
Decision and Determination of Dispute, finding,
inter alia, the existence of a jurisdictional dispute
involving the Respondent and the Glaziers, and that
there was reasonable cause to believe that the parties
had attempted to resolve it by means proscribed by
Section 8(b)(4)(D). The Board also found that the
results of the proceeding before the Impartial
Jurisdictional Disputes Board for the Construction
and reliance thereon, is well settled . Local Union No 3, International
Brotherhood of Electrical Workers, AFL-CIO (Mansfield Contracting
Corporation), 206 NLRB 423 (1973)
INTL. ASSN, OF BRIDGE, ETC., & ORNAMENTAL IRONWORKERS 849
Industry was not controlling, as Respondent had
contended.3 After due consideration of the relevant
factors, the Board awarded the disputed work to
employees represented by the Glaziers, and deter-
mined that Respondent was not entitled by means
proscribed by Section 8(b)(4)(D) to force or require
the Employer to assign the disputed work to
employees represented by it. The Board further
ordered Respondent to notify the Regional Director
for Region 31, in writing, within 10 days from the
date of the award whether or not it would refrain
from engaging in the proscribed conduct.
By its denials in its answer to the complaint and by
its response to the notice to show cause, Respondent
seeks to place in issue, inter alia, the Employer's
status as an employer as defined in the Act; the
Employer's subcontracting to perform the disputed
work; its threatening the Employer in support of its
demand that employees represented by it be assigned
to perform the disputed work; and the existence of a
jurisdictional dispute. Respondent also seeks to
litigate issues relating to the National Joint Board for
the Settlement of Jurisdictional Disputes (and its
successors), arguing, in effect, that a hearing in the
instant proceeding is the proper forum in which to do
so.
Review of the record in the 10(k) proceeding
indicates that these issues were raised and litigated
therein. As noted above, Respondent appeared in
that proceeding and was provided with a full
opportunity to litigate -these issues. It offers no
evidence herein that was not presented in that
proceeding. It is settled that issues raised and
litigated in a 10(k) proceeding may not be relitigated
in a subsequent unfair labor practice proceeding,
alleging violations of Section 8(b)(4)(D) which are
based in part on factual determinations made in the
10(k) proceeding.4 Further, it is established that a
hearing de novo is , not required in the unfair labor
practice case on issues litigated in the previous 10(k)
proceeding, especially where, as here, Respondent
offers nothing' not previously ' considered therein.5
Accordingly, inasmuch as Respondent is attempting
to relitigate issues settled in the underlying 10(k)
proceeding, we shall grant the General Counsel's
motion to strike the denials in Respondent' s answer
relating to the above matters.
In the 10(k) proceeding, on the basis of undisputed
testimony, we found that Respondent had demanded
the disputed work and had threatened to shut down
the job in support of this demand, and had by this
conduct sought to force or require the assignment of
the disputed work to employees represented by it. On
this basis, we found reasonable cause to believe that
Respondent had violated Section 8(b)(4)(ii)(D) of the
Act. This undisputed evidence, which as noted above
is neither supplemented nor controverted in this
proceeding, likewise establishes, and we find, that
Respondent had engaged in the conduct with an
object proscribed by Section 8(b)(4)(iiXD) of the Act,
in violation thereof.
Respondent's answer also denies the allegations of
having continued to demand the disputed work, and
that it failed and refused to timely advise the
Regional Director whether or not it intended to
comply with the .10(k) award. For the reasons set
forth below, we shall grant the General, Counsel's
motion to strike these denials as well. Initially, with
regard to Respondent's continuing to demand the
disputed work and its failure to give the Regional
Director the requisite timely written notice, the
General Counsel attaches as exhibits to his motion
certain letters to the Respondent from the Regional
Office dated November 18 and December 11, 1974,
and January 7, 1975. The first letter is essentially a
reminder to Respondent of its duty to provide the
required notice, while the other two note that such
notice has not been,received and basically request
that it be forthcoming to forestall further proceed-
ings . Respondent offers nothing to controvert these
documents, nor their import, in its response to the
notice to show cause. In these circumstances, we
find, on the basis of this uncontroverted evidence,
that Respondent did in fact fail and refuse to provide
the Regional Director with timely written notice of
whether or not it would comply with the 10(k) award,
as required thereby.6
Compliance with a 10(k) award requires a good-
faith intent by' the particular respondent to accept
and abide thereby, including the performance of
substantially the same acts as are required for a
showing of an intent to comply with a remedial order
of the Board.? This showing includes, inter alias a
timely and unequivocal written statement to the
3 The Board found, inter alia, that the Employer's contract specifically
referred to the National Joint Board , which was not in existence at the time
of the pertinent events, and that the Employer had not agreed to be bound
by the Impartial Jurisdictional Disputes Board.
4 Mansfield Contracting Corporation, supra Bricklayers , Masons and
Plasterers International Union of America v. N.L.RB, 475 F.2d 1316
(C.A.D.C., 1973), enfg. Bricklayers, Stone Masons, Marble Masons, Tile
Setters and Terrazzo Workers, Local Union No . 1 of Tennessee (Shelby
Marble & Tile Co.), 188 NLRB 148 (1971).
5 Mansfield Contracting Corporation, supra.
6 Cf. Teledyne, Landis Machine, 212 NLRB 73, t:n. 4 (1974).
'x Cf. Local 595, International Association of Bridgs { Structural and
Ornamental Iron Workers, A.F.L., et al. (Bechtel Corporation), 112 NLRB
812(1955).
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director indicating such an intent, as is
required by the 10(k) award .8 In the instant case,
Respondent has completely failed to notify the
Regional Director of its intent to abide, or not abide,
by the 10(k) award, a lack of expression which clearly
does not manifest the required good-faith intent to
abide by the Board's determination. In these circum-
stances , having found on the basis of undisputed
evidence that Respondent had demanded the disput-
ed work, and that it has not expressed a good-faith
intent to abide by the Board's resolution of the
dispute in the 10(k) proceeding, we infer that
Respondent has not abided thereby and has contin-
ued to demand the disputed work.9
We have found that Respondent engaged in
conduct proscribed by Section 8(b)(4)(D) of the Act,
and by not complying with the Board's 10(k) award
has continued to engage in such conduct. In view of
these findings, and the fording that Respondent is
attempting to relitigate issues raised and litigated in
the underlying 10(k) proceeding, and that a de novo
hearing herein is not required, we shall grant the
General Counsel's motion to strike the denials in
Respondent's answer. There being no issues properly
litigable in this proceeding, we shall also grant the
General Counsel's motion for summary judgment.
Upon the basis of the entire- record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Plaza Glass Company is a California corporation
engaged in the business of glazing, including the
fabricating and installing of glass curtain walls and
window walls, with an office and principal place of
business located in Woodland Hills, California. In
the course and conduct of its business operations
annually, Plaza performs services or sells goods
valued in excess of $50,000 to customers located
within the State of California, who, in turn, annually
purchase and receive goods valued in excess of
$50,000 directly from sources located outside the
State of California.
We find, on the basis of the foregoing, that Plaza
Glass Company is, and, has been at all times material
hereto, an employer engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
International Association of Bridge, Structural and
Ornamental Ironworkers, AFL-CIO, Local 433, and
8 Bechtel Corporation; supra Local 569 International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Dickerson
Glaziers, Glassworkers and Glass Warehouse Work-
ers Union, Local No. 636, affiliated with the
International Brotherhood of Painters and Allied
Trades, AFL-CIO, are now, and have been at all
times material hereto, labor organizations within the
meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background and Facts of the Dispute
At all times material hereto, Respondents and the
Glaziers have had a jurisdictional dispute concerning
the work of fabricating and installing metal doors,
metal framing pieces, and glass panes in the
construction of window wall units. In and about the
months of January, February, and March 1974, in
furtherance of this dispute, Respondent warned and
threatened the Employer, inter alia, that it would
shut down the job unless employees who were
members of or represented by it were assigned to
perform the disputed work. In so doing, Respondent
has threatened, coerced, and restrained the Employ-
er, with an object of forcing or requiring it to assign
the disputed work to employee-members of or
represented by it, rather than to employee-members
of or represented by the Glaziers.
B. The Determination of Dispute
On November 12, 1974, the Board issued a
Decision and Determination of Dispute (214 NLRB
No. 140) finding that employees represented by the
Glaziers are entitled to perform the disputed work,
and that Respondent was not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require the Employer to assign the work to
employees represented by it.
C. Respondent's Refusal To Comply
By failing and refusing to notify the Regional
Director for Region 31, in writing, of its intent to
comply with the above-mentioned Decision and
Determination of Dispute, Respondent has not
complied with the award and has continued to
demand the disputed work.
N. THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, as set forth in section
III, above, occurring in connection with the opera-
tions of the Employer, set forth in section I,-above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the, several
Structural Concrete Corporation), 204 NLRB 59 (1973).
9 Ibid
INTL. ASSN. OF BRIDGE, ETC., & ORNAMENTAL IRONWORKERS 851
States, and tend 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 unfair labor practices affecting
commerce within the meaning of Section
8(b)(4)(ii)(D) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing facts and the entire
record, the Board makes the following:
CONCLUSIONS OF LAW
1. Plaza Glass Company is an employer engaged
in commerce or an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent International Association of
Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, Local 433, and Glaziers, Glassworkers
and Glass Warehouse Workers Union, Local No.
636, affiliated with the International Brotherhood of
Painters and Allied Trades, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
3. Respondent has violated and is violating
Section 8(b)(4)(ii)(D) of the Act by failing and
refusing to comply with the Board's Decision and
Determination of Dispute and by continuing to
demand the disputed work, thereby threatening,
coercing, and restraining the Employer, with an
object of forcing or requiring the Employer to assign
the disputed work to employees represented by it.
4. The aforementioned unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
framing pieces, and glass panes in the construction of
window wall units to employees represented by it
rather than to employees represented by Glaziers,
Glassworkers and Glass Warehouse Workers Union,
Local No. 636, affiliated with the International
Brotherhood of Painters and Allied Trades, AFL-
CIO.
2. Take the following affirmative action which
the Board fmds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuout places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 31
with signed copies of such notice for posting by the
Employer, if willing, in places where notices to
employees are customarily posted.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has been taken to comply
herewith.
10 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Association of Bridge, Structural and
Ornamental Ironworkers , AFL-CIO, Local 433, Los
Angeles, California , its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from refusing to comply with
the Board's Decision and Determination of Dispute
and from threatening , coercing, or restraining Plaza
Glass Company, where an object thereof is to force
or require Plaza Glass Company to assign the work
of fabricating and installing metal doors, metal
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to comply with the Board's
Decision and Determination of Dispute and
threaten, coerce, or restrain Plaza Glass Compa-
ny, where an object thereof is to force or require
Plaza Glass Company to assign the work of
fabricating and installing metal doors, metal
framing pieces, and glass panes in the construc-
tion of window wall units to employees represent-
ed by us rather than to employees represented by
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glaziers, Glassworkers and Glass Warehouse
Workers Union, Local No. 636, affiliated with the
International Brotherhood of Painters and Allied
Trades, AFL-CIO.
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL
IRONWORKERS, AFL-
CIO, LocAL 433