Iron Workers Local 433 (Swinerton Co.)

National Labor Relations Board - Board Decisions

Sep 10, 1992

308 N.L.R.B. 756 (N.L.R.B. 1992)

756
308 NLRB No. 105
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall amend the judge’s conclusions of law and rec-
ommended Order to conform with his findings and the complaint.
Specifically, we find, consistent with the judge’s discussion, that
Iron Workers Local 433’s maintaining and attempting to enforce
time-in-lieu claims subsequent to the Board’s 10(k) determination
violate the Act. See Longshoremen ILWU Local 7 (Georgia-Pacific),
291 NLRB 89, 92 (1988); Longshoremen ILWU Local 32
(Weyerhaeuser Co.), 271 NLRB 759 (1984), enfd. 773 F.2d 1012
(9th Cir. 1985), cert. denied 476 U.S. 1158 (1986). However, in light
of Longshoremen ILWU Local 6 (Golden Grain), 289 NLRB 1 fn.
3 (1988), we reverse the judge’s finding that the failure and refusal
to comply with the 10(k) determination independently violated Sec.
8(b)(4)(ii)(D).
2 In this regard, we note the following language by the U.S. Dis-
trict Court for Northern California in its December 10, 1990 denial
of Local 433’s motion to alter, amend, or vacate the court’s judg-
ment:
[Local] 433 contorts the history of this case in its attempt to
transform it into a subcontracting clause dispute. The fact of the
matter is that the grievance for which petitioner seeks arbitration
alleges violation of Section 30(C) of the collective bargaining
agreement—the ‘‘jurisdictional disputes’’ section of the contract.
The grievance makes no mention of an alleged violation of the
subcontracting clause of the contract. Similarly, Iron Workers’
petition to compel arbitration makes no claim that respondent
breached the agreement’s subcontracting clause.
International Association of Bridge, Structural &
Ornamental Iron Workers, Local No. 433,
AFL–CIO and Swinerton & Walberg Co.
District Council of Iron Workers of the State of
California and Vicinity, AFL–CIO and
Swinerton & Walberg Co. Cases 21–CD–569,
21–CD–583, and 21–CD–582
September 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 4, 1991, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Respondents filed exceptions and a supporting
brief. The General Counsel and the Charging Party
filed answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings as modi-
fied, and conclusions as modified1 and to adopt the
recommended Order as modified and set forth in full
below.
1. The Respondents contend that the Iron Workers
District Council is not a proper respondent in the in-
stant case because it did not participate in the 10(k)
proceeding, and therefore cannot be found to have vio-
lated Section 8(b)(4)(D) by maintaining its lawsuit in
district court. We find no merit to this contention. The
Respondents have stipulated, and the documentary evi-
dence expressly shows, that the Iron Workers District
Council filed its petition to compel arbitration on be-
half of itself and its affiliated local unions, including
Respondent Iron Workers Local 433, which was a
party in the 10(k) proceeding, and that the Respond-
ents have continued to pursue their petition in district
court subsequent to the issuance of the Board’s Deci-
sion and Determination of Dispute. In these cir-
cumstances, we conclude that the Iron Workers District
Council is a proper respondent in the instant proceed-
ing, because it was acting as an agent of Respondent
Iron Workers Local 433 in pursuing the lawsuit. See
Mine Workers (Garland Coal), 258 NLRB 56, 59
(1981), enfd. 727 F.2d 954 (10th Cir. 1984).
2. The Respondents further argue that Charging
Party Swinerton & Walberg Co. (S&W) subcontracted
the disputed work to Industrial Noise Corporation
(INC) in violation of a subcontracting clause in the
collective-bargaining agreement between the Respond-
ents and S&W, and that they could lawfully pursue a
lawsuit against S&W to compel arbitration over the
subcontracting violation. In support of this contention,
the Respondents cite Carpenters Local 33 (Blount
Bros.), 289 NLRB 1482 (1988). We do not agree with
the Respondents’ assertion that Blount Bros. is disposi-
tive of the instant case.
In Blount Bros., the union filed a grievance against
Blount, the general contractor who had subcontracted
disputed work to a subcontractor. The Board ruled that
a 10(k) decision awarding disputed work to employees
represented by a different union precluded the grieving
union from forcing the subcontractor to assign the
work to employees the grieving union represented, but
did not preclude the grieving union from asserting its
contractual rights against Blount. The Board found that
there was no conflict between arbitration of the griev-
ance and the 10(k) award because the union’s contract
action against Blount would have no effect on the sub-
contractor’s assignment of the disputed work.
In the instant case, S&W, the general contractor, as-
signs the disputed work and is the employer against
whom Iron Workers Local 433 filed a grievance. The
work awarded in the 10(k) proceeding requires S&W
to make an assignment to employees represented by a
different union. Thus, the Iron Workers contract claim
is against the same employer, S&W, who is respon-
sible for assigning the work awarded in the 10(k) pro-
ceeding. Therefore, contrary to Blount Bros., Respond-
ents’ contract claim for employees it represents is in-
consistent with the 10(k) award of the work to employ-
ees whom a different union represents.
Further, apart from the Blount Bros. issue, we find
that the Respondents’ subcontracting contention is un-
timely. The Iron Workers Local 433 grievance and the
Respondents’ lawsuit do not allege a violation of the
subcontracting provision of the parties’ contract.2 Rath-
757IRON WORKERS LOCAL 433 (SWINERTON CO.)
3 Because S&W is the assigning employer, because Local 433 did
not originally rely on the subcontracting clause in its grievances, and
because Local 433 had used picketing, as well as peaceful means,
to enforce its claims, Chairman Stephens finds no merit to the Re-
spondent’s contentions even under his dissenting opinion in Laborers
Local 731 (Slattery Associates), 298 NLRB 50 (1990).
4 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
of the National Labor Relations Board.’’
5 See fn. 4, above.
er, they allege that S&W’s failure to comply with the
alleged resolution of the conflicting claims over the
disputed work is a breach of a contractual provision
pertaining to jurisdictional disputes.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 3:
‘‘3. Respondent International Association of Bridge,
Structural & Ornamental Iron Workers, Local No. 433,
AFL–CIO has engaged in unfair labor practices pro-
scribed by Section 8(b)(4)(ii)(D) of the Act by threat-
ening to picket S&W jobsites and by actually picketing
four S&W jobsites and by maintaining and attempting
to enforce subsequent to the Board’s 10(k) determina-
tion time-in-lieu claims for work performed by mem-
bers of the Carpenters Union with an object of forcing
or requiring the Employer to assign the work, de-
scribed below, to employees represented by Iron
Workers rather than to employees represented by Car-
penters. The work in question consists of installation
of prefabricated acoustical panels on the structural steel
frame of the quiet room at the Los Angeles Times
printing plant, Los Angeles, California.’’
ORDER
The National Labor Relations Board orders that
A. Respondent International Association of Bridge,
Structural & Ornamental Iron Workers, Local No. 433,
AFL–CIO, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening to picket and actually picketing
S&W jobsites with an object of requiring S&W to as-
sign the disputed work to members of Respondent
Local rather than to members of the Carpenters.
(b) Maintaining and attempting to enforce subse-
quent to the Board’s 10(k) determination time-in-lieu
claims for work performed by members of the Car-
penters Union with an object of forcing or requiring
the Employer to assign the work, described below, to
employees represented by Iron Workers rather than to
employees represented by Carpenters. The work in
question consists of installation of prefabricated acous-
tical panels on the structural steel frame of the quiet
room at the Los Angeles Times printing plant, Los An-
geles, California.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and cease filing in-lieu-of claims for
the above-described work performed by members of
the Carpenters Union.
(b) Post at its office and meeting halls copies of the
attached notice marked ‘‘Appendix A.’’4 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondents immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Sign and mail sufficient copies of the notice to
the Regional Director for posting by Swinerton &
Walberg Co., if it is willing, at all locations on the
jobsite where notices to its employees customarily are
posted.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
B. Respondent District Council of Iron Workers of
the State of California and Vicinity, AFL–CIO, its offi-
cers, agents, and representatives, shall
1. Cease and desist from maintaining a lawsuit in
the U.S. district court seeking to compel S&W to arbi-
trate certain in-lieu-of grievances and maintaining an
appeal from the dismissal of the lawsuit.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw its appeal from the dismissal of its
lawsuit C-89-4411, SAW and otherwise withdraw and
cease filing or attempting to enforce time-in-lieu
claims for the work on the quiet room performed by
employees of S&W represented by the Carpenters at
the Los Angeles Times project, Los Angeles, Califor-
nia.
(b) Post at its office and meeting halls copies of the
attached notice marked ‘‘Appendix B.’’5 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondents immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Sign and mail sufficient copies of the notice to
the Regional Director for posting by Swinerton &
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein refer to 1989 unless otherwise indicated.
Walberg Co., if it is willing, at all locations on the
jobsite where notices to its employees customarily are
posted.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX A
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten to picket Swinerton &
Walberg Co. (S&W) jobsites with an object of requir-
ing S&W to assign the disputed work to members of
the Local rather than to members of the Carpenters.
WE WILL NOT maintain and attempt to enforce sub-
sequent to the Board’s 10(k) determination time-in-lieu
claims for work performed by members of the Car-
penters Union with an object of forcing or requiring
the Employer to assign the work, described below, to
employees represented by Iron Workers rather than to
employees represented by Carpenters. The work in
question consists of installation of prefabricated acous-
tical panels on the structural stell frame of the quiet
room at the Los Angeles Times Printing Plant, Los
Angeles, California.
WE WILL withdraw and cease filing in-lieu-of claims
for the above-described work performed by members
of the Carpenters Union.
INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL & ORNAMENTAL
IRON WORKERS, LOCAL NO. 433, AFL–
CIO
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to honor and comply with the
Board’s Decision and Determination of Dispute re-
ported in 298 NLRB 412 (1990), by maintaining a
lawsuit in the U.S. district court seeking to compel
Swinterton & Walberg Co. to arbitrate certain in-lieu
of grievances and by maintaining an appeal from the
dismissal of said lawsuit with an object, of requiring
Swinerton & Walberg Co. to assign the work to em-
ployees represented by International Association of
Bridge, Structural & Ornamental Iron Workers, Local
No. 433, AFL–CIO rather than to employees rep-
resented by the Carpenters.
WE WILL withdraw our appeal from the dismissal of
our lawsuit referred to above.
DISTRICT COUNCIL OF IRON WORKERS
OF THE STATE OF CALIFORNIA AND VI-
CINITY, AFL–CIO
Frank M. Wagner, Jr., Esq., for the General Counsel.
David Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Los Angeles, California, on Feb-
ruary 20, 1991,1 pursuant to a consolidated complaint issued
by the Regional Director for the National Labor Relations
Board for Region 21 on September 28, 1990, and which is
based on charges filed by Swinerton & Walberg Co. (Charg-
ing Party or S&W) on October 4 (21–CD–569), September
18 (21–CD–582), and September 20 (21–CD–583). The com-
plaint alleges that International Association of Bridge, Struc-
tural & Ornamental Iron Workers, Local No. 433, AFL–CIO
and District Council of Iron Workers of the State of Califor-
nia and Vicinity, AFL–CIO (Respondents) have engaged in
certain violations of Section 8(b)(4)(ii)(D) of the National
Labor Relations Act (the Act).
Issues
1. Whether Respondents have failed and refused to comply
with the Board’s Order issued in a related 10(k) proceeding
and through Respondent District Council, by maintaining and
litigating a petition to compel arbitration in the U.S. District
Court, Northern District of California, Case C–89–4411,
SAW, which seeks to arbitrate the issue of an alleged agree-
ment between International representatives of the Iron Work-
ers and Carpenters to the effect that the disputed work which
was the subject of the l0(k) proceeding should be awarded
to employees represented by Respondent Local rather than
employees represented by the Carpenters.
2. Whether Respondent Local engaged in an unlawful
strike at one or more S&W jobsites in support of its demands
to be assigned work to which it was not entitled.
3. Whether Respondent Local caused a letter to be sent to
S&W in which it unlawfully threatened S&W with picketing
or other job action if it refused to proceed to arbitration con-
cerning a grievance over the disputed work.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
759IRON WORKERS LOCAL 433 (SWINERTON CO.)
2 No representative of S&W attended the hearing, or subsequently
objected to the stipulation.
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
Respondents stipulate that Charging Party Swinerton &
Walberg Co. is engaged in the construction industry as a
general contractor in California, where it annually purchases
goods and products valued in excess of $1 million directly
from suppliers located outside the State of California.
Swinerton is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. (Par. 1, Jt. Exh. 1.)
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents admit, and I find, that they are labor organi-
zations within the meaning of Section 2(5) of the Act. (Par.
2, Jt. Exh. 1.)
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
General Counsel and Respondents entered into a written
stipulation of facts (Jt. Exh. 1) based primarily on facts
found by the Board in its 10(k) decision in Los Angeles
County District Council of Carpenters (Swinerton & Walberg
Co.), 298 NLRB 412 (1990).2 As agreed to by the parties
in the stipulation and as further based on certain exhibits en-
tered into evidence by each side without objection, here are
the uncontested facts.
S&W is the general contractor for the construction of a
printing plant for the Los Angeles Times in Los Angeles,
California. In March, S&W subcontracted the construction of
a quiet room in the printing plant to Industrial Noise Corp.
(INC). As specified in the contract, S&W provided the em-
ployees to do the work and INC provided the materials.
S&W hired carpenters rather than ironworkers to install
prefabricated acoustical panels on the structural steel frame
of the quiet room, because INC had requested a crew of car-
penters. INC does not have a contract with either union;
however, S&W is party to contracts both with Carpenters
District Council and with Respondent Local.
On March 17, Richard Walbourne, S&W’s job super-
intendent, advised Carpenters District Council Business
Agent Steven Graves that the quiet room work was being as-
signed to the Carpenters. Phase 1 of the three phases of the
quiet room work began in late March or early April, with
carpenters doing the disputed work. Around this time, Re-
spondent Local’s business agent, Jim Butner, discussed the
work assignment with Walbourne and claimed the work be-
longed to the Iron Workers.
The Unions’ contracts with S&W provide that in the event
of a jurisdictional dispute, such as existed on the Los Ange-
les Times project, International representatives of both unions
shall meet to settle the issue, which agreement, if reached,
is binding on the Employer. The contracts further provide
that if no agreement is reached, the Employer continues with
its own work assignment, which in this case means the car-
penters continue to do the work. Accordingly, on April 3,
Walbourne met with the Unions’ local representatives as well
as Carpenters International Representative Paul Cecil and
Iron Workers International Representative R. W. Lansford.
Respondent Local contends that the International representa-
tives agreed on April 3 that the disputed work belonged to
the Iron Workers. However, others in attendance at this
meeting do not agree that this occurred.
More specifically, according to Carpenters District Coun-
cil, Cecil was unfamiliar with the material being used at the
April 3 meeting. For that reason, Cecil entered into an agree-
ment with Lansford to contact Walbourne with a final deci-
sion after further investigation. According to Walbourne, he
left the April 3 meeting with the impression that the work
had been given to the Iron Workers, but that the parties
would get back to him about the matter.
On April 4, Douglas McCarron, secretary-treasurer of Car-
penters District Council, who apparently had not been at the
meeting the day before, called Walbourne and told him to
disregard Cecil’s comments at the April 3 meeting because
Cecil had misunderstood the type of material at issue. What
Cecil had stated on April 3 is not contained in the record.
Also on April 4, McCarron sent a confirming letter to
Walbourne, which letter also does not appear in the record.
In light of the Carpenters District Council’s continuing
claim for the work, S&W began phase 2 of the disputed
work using carpenters to perform said work. Respondent
Local again objected and continued to assert its claim during
another meeting on June 6, where the carpenters also claimed
the work.
On June 8, Respondent Local sent S&W a letter, which is
not in this record, stating its position that agreement had
been reached at the April 3 meeting and that accordingly by
operation of the contract, the work belonged to the Iron
Workers. To further enforce its claim, Respondent Local on
June 13, filed a grievance alleging S&W breached the con-
tract provision referred to above, requiring S&W to reassign
the work as agreed to by the International representatives
(G.C. Exh. 2). A board of adjustment notice (G.C. Exh. 3)
was duly prepared and issued.
After the board of adjustment deadlocked on July 13 over
the grievance issue, Respondent Local sought to proceed to
arbitration on the matter, but S&W refused.
Meanwhile, S&W attempted to resolve the matter by resort
to the ‘‘Plan for Settlement of Jurisdictional Dispute in the
Construction Industry.’’ However, on August 31, an arbitra-
tor ruled that neither the plan nor the arbitrator had jurisdic-
tion to decide the dispute because S&W was not timely stip-
ulated to the plan.
On September 18, Respondent Local’s attorney sent S&W
a letter, which is not contained in the record, stating that Re-
spondent Local was not making any jurisdictional claims, but
was merely trying to take a contractual issue, i.e., the refusal
to implement the alleged April 3 agreement on work assign-
ments, to arbitration. The letter continued that a failure to
proceed to arbitration would result in the attorney advising
Respondent Local that it was free to take job action to pro-
test S&W’s failure to proceed to arbitration.
On October 2, S&W met with representatives of Car-
penters District Council to ask for their position on a pos-
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Also admitted into evidence in the instant proceeding is a dec-
laration of C.W. Lansford in support of Respondent District Council
of Iron Workers Motion for Summary Judgment (R. Exh. 1), the
same party’s Memorandum of Points and Authorities in Support of
Petitioner’s Motion for Summary Judgment (R. Exh. 2), and its
Memorandum of Points and Authorities in Support of Motion for Al-
teration, Amendment or Vacation of Judgment (R. Exh. 3).
sible reassignment to members of the Iron Workers of work
on phase 3, scheduled to begin in late November. In reply,
the representatives stated the Carpenters would take eco-
nomic action in the event of a reassignment of the work.
On October 16 and 17, Respondent Local picketed the Los
Angeles Times printing plant jobsite and three other S&W
jobsites in the Los Angeles area with picket signs reading,
‘‘Swinerton & Walberg refuses to comply with grievance
and the arbitration procedures.’’ This picketing concerned the
work assignment dispute as described in these facts. In fact
on October 17, Matt Mattovich, a business representative of
Respondent Local, told Jon Crook, S&W job superintendent,
at a Los Angeles area jobsite, that the ironworkers picketing
resulted from the problem at the Los Angeles Times printing
plant jobsite and concerned the dispute between Iron Work-
ers and Carpenters with respect to the assignment of the
work of installing acoustical panels in the quiet room.
On December 13, Respondent District Council, on behalf
of itself and its affiliated Local Unions, including Respond-
ent Local, pursuant to Section 301 of the Act, filed a petition
to compel arbitration in United States District Court, North-
ern District of California, against S&W (C–89–4411, SAW)
(G.C. Exh. 4).
On April 30, 1990, the Board issued its Decision and De-
termination of Disputes in the l0(k) phase of the instant dis-
pute which is reported at 298 NLRB 42. In its decision, the
Board awarded the disputed work to members of the Car-
penters.
On October 4, 1990, the Honorable Stanley Weigel, U.S.
District Judge, entered a memorandum and order granting
S&W’s Motion for Summary Judgment (G.C. Exh. 5). Sub-
sequently, Respondents filed a motion asking the court to
alter, amend, or vacate the court’s October 4, 1990 order,
which motion was denied on December 10, 1990 (G.C. Exh.
6).3 On January 9, 1991, Respondent District Council of Iron
Workers filed its notice of appeal to the Ninth Circuit Court
of Appeals from the district court’s December 10, 1990
memorandum and order (G.C. Exh. 7). So far as the record
shows, the court of appeals has not yet decided the appeal.
Finally, since April 30, 1990, Respondent Local has failed
and refused to give written assurances to Region 21 of the
Board that it would comply with the Board’s l0(k) Decision
and Determination of Dispute referred to above. The parties
to the written stipulation have agreed that the failure to give
such written assurances is not 8(b)(4) conduct. (Par. 17, Jt.
Exh. 1.)
B. Analysis and Conclusions
As noted above, the Board issued its Decision and Deter-
mination of Dispute in the underlying l0(k) proceeding on
April 30, 1990 (298 NLRB 412). To explain the relationship
between the l0(k) proceeding and the instant case, I look to
the Board’s decision in Longshoremen ILWU Local 6 (Gold-
en Grain), 289 NLRB 1, 2 (1988), where the Board ex-
plained,
An 8(b)(4)(D) proceeding, unlike a l0(k) proceeding,
is an adjudicatory proceeding required to be conducted
pursuant to the Administrative Procedure Act, 5 U.S.C.
§ 554. As the Supreme Court noted in ITT v. Electrical
Workers IBEW Local 134, 419 U.S. 428, 446 (1975),
relying on the following footnote from NLRB v. Plas-
terers Local 79, 404 U.S. 116, 122 fn. 10 (1971):
The 10(k) determination is not binding as such
even on the striking union. If that union continues to
picket despite an adverse 10(k) decision, the Board
must prove the union guilty of a[n] 8(b)(4)(D) viola-
tion before a cease-and-desist order can issue. The
findings and conclusions in a l0(k) proceeding are
not res judicata on the unfair labor practice issue in
the later § 8(b)(4)(D) determination. Typographical
Union, 125 NLRB 759, 76l (1959). Both parties may
put in new evidence at the § 8(b)(4)(D) stage, al-
though often, as in the present cases, the parties
agree to stipulate the record of the 10(k) hearing as
a basis for the Board’s determination of the unfair
labor practice. Finally, to exercise its powers under
§ 10(k), the Board need only find that there is rea-
sonable cause to believe that a § 8(b)(4)(D) violation
has occurred, while in the § 8(b)(4)(D) proceeding
itself the Board must find by a preponderance of the
evidence that the picketing union has violated §
8(b)(4)(D). Typographical Union, supra, at 761 fn. 5
(1959).
Therefore, when a l0(k) determination does not end
the work dispute, the proceeding becomes adjudicatory
following the issuance of an unfair labor practice com-
plaint. Bricklayers v. NLRB, 475 F.2d 1316, 1322 (D.C.
Cir. 1973), enfg. 188 NLRB 148 (1971). At that point,
if a genuine issue of material fact exists whether an un-
fair labor practice has occurred, a hearing before an ad-
ministrative law judge is required, even if the issue was
previously litigated in the underlying l0(k) proceeding.
In this regard, we find that a genuine issue of material
facts exists when there are credibility issues to be re-
solved or when a respondent denies the existence of an
element of the 8(b)(4)(D) violation, either directly or by
raising an affirmative defense. An 8(b)(4)(D) respond-
ent is not, however, required to proffer new and pre-
viously unavailable evidence in order to be entitled to
a hearing.4
4 The Board will not, however, relitigate threshold matters that are
not necessary to prove an 8(b)(4)(D) violation. See Bricklayers, above,
in which the court found the threshold issue of whether there had been
an agreed method of settlement had been resolved by the Board in the
l0(k) proceeding.
The Board further explained, id. at 1 fn. 3, that Respond-
ent’s failure there to promise compliance with the l0(k) de-
termination does not serve as an independent basis for find-
ing an 8(b)(4)(D) violation. Rather, such noncompliance
serves as a triggering event for the issuance of a complaint
(citations omitted). Because the triggering event occurred in
761IRON WORKERS LOCAL 433 (SWINERTON CO.)
the present case, a complaint has issued and the allegations
therein must be adjudicated.
Section 8(b)(4)(D) makes it an unfair labor practice to take
coercive action with the object to ‘‘force or require any em-
ployer to assign particular work to employees in a particular
labor organization or in a particular trade, craft, or class,
rather than to employees in another trade, craft, or class
. . . .’’ In order to find reasonable cause to believe Section
8(b)(4)(D) has been violated, ‘‘there must be evidence that
one group of employees has exerted improper pressure upon
the Employer to compel it to assign certain work to that
group of employees rather than to another group which also
seeks work.’’ Laborers Local 964 (Eastern Steel), 302
NLRB 238 (1991).
1. Picketing and threats to picket
Under the circumstances present in this case, I find that
Respondent Local violated Section 8(b)(4)(ii)(D) by threaten-
ing to picket through the September 18 letter sent by the
Local’s attorney to S&W. I also find that on October 16 and
17, Respondent Local violated the same provisions of the
Act by actually picketing four S&W jobsites, including the
Los Angeles Times printing plant jobsite which is directly in
issue in this case. The admission of Respondent Local Agent
Mattovich, as recited in the facts, together with other facts
and circumstances contained in this case is ample evidence
to show than an object of the picketing and the prior threat
to picket was to require S&W to assign the disputed work
to members of the Respondent Local, rather than to the Car-
penters. Iron Workers Local 568 (Dickerson Structural), 204
NLRB 59 (1973); Laborers Local 104 (ACMAT Corp.), 300
NLRB 1022 (1990). See also New Orleans Typographical
Union 17 (E.P. Rivas) v. NLRB, 368 F.2d 755, 762 (5th Cir.
1966).
2. Filing and maintenance of ‘‘Payment In Lieu’’
grievance
I begin by considering the status of Respondent District
Council as urged in Respondents’ brief (pp. 1–2). In agree-
ment with Respondents, I find that Respondent District
Council was not involved in the 10(k) proceeding, either as
a party or so far as I can tell, as a participant. However, I
do not therefore conclude that Respondent District Council
should be dismissed from this proceeding. No cases are cited
for this contention. As noted in the facts, Respondent District
Council on behalf of itself and its affiliated Local Unions,
including Respondent Local, filed a Petition to compel arbi-
tration in the U.S. district court against S&W. The unchal-
lenged standing which Respondent District Council asserted
in filing the Petition means that it is a proper party in the
instant case. Cf. Broadcast Employees NABET, 230 NLRB
75 (1977). If this were not so, a union local would be able
to circumvent and undermine the Board’s 10(k) Decision and
Determination of Dispute merely by the technicality of sub-
stituting a related union entity as a petitioner in Federal
court. In moving to the merits of this segment of the case,
I begin with the case of Longshoremen ILWU Local 13 v.
NLRB, 884 F.2d 1407, 1409 fn. 2 (D.C. Cir. 1989), which
explains that a claim for time-in-lieu payment is made when
one employee group (herein the Iron Workers) asserts a right
to payment for work, which it believes it was entitled to per-
form, although it did not have an opportunity to do so, be-
cause it was not assigned the work. I agree with the General
Counsel (Br. at 17) that both the Board and courts have held
that claims for time-in-lieu payments state a demand for the
assignment of work which violate Section 8(b)(4)(D) when
the claims are inconsistent with an extant 10(k) decision. I
find in this case that Respondent Local’s claim for time-in-
lieu payments is inconsistent with the Board’s underlying
10(k) decision. Longshoremen ILWU Local 13 (Sea-Land
Service), 290 NLRB 616 (1988), enfd. 884 F.2d 1407 (D.C.
Cir. 1989).
The above discussion does not end the inquiry for Re-
spondents contend that the case of Longshoremen ILWU
Local 7 (Georgia-Pacific), 291 NLRB 89 (1988), affd. 892
F.2d 130 (D.C. Cir. 1989), contains the final word on the
pending issue. In that case, the Board held, after its earlier
decision had been remanded by the U.S. Court of Appeals
for the Ninth Circuit, that the union’s filing of arguably mer-
itorious work assignment grievances prior to the Board’s
award under Section 10(k) does not constitute coercion with-
in the meaning of Section 8(b)(4)(ii)(D).
In the Georgia Pacific case the ILWU filed time-in-lieu
grievance which ultimately resulted in a favorable decision
from an arbitrator. Subsequently the Board awarded the dis-
puted work to a competing union. After the Board’s 10(k)
decision, the ILWU continued to submit grievances claiming
payment in lieu of the work. Only the grievances filed after
the Board’s 10(k) award were found to constitute coercion
under the Act, and the reviewing court affirmed the Board’s
judgment.
In the instant case, Respondent Local filed its time-in-lieu
grievances on June 13 long before the Board announced its
decision in the 10(k) case on April 30, 1990. Unlike the
Georgia-Pacific case, Respondent Local here has never re-
ceived a favorable arbitration-decision. Accordingly, I ques-
tion whether the grievance at issue in this case can be prop-
erly characterized as ‘‘arguably meritorious.’’ However, I
need not decide this point. Assuming for the sake of argu-
ment that Respondent Local’s pre-10(k) grievance was ‘‘ar-
guably meritorious,’’ it makes no sense to permit Respondent
Local to continue to pursue its grievances, since this effort
runs directly contrary to the Board’s 10(k) award, and if the
Respondents ultimately were to prevail, the Board’s 10(k)
decision would be undermined.
In light of the above, I agree with General Counsel (Br.
at 19) that pursuing a grievance, either in arbitration or be-
fore a court, seeking ‘‘time in lieu’’ payments inconsistent
with the Board’s 10(k) award seeks to achieve a prohibited
objective (under Bill Johnson’s Restaurant v. NLRB, 461
U.S. 731 (1983)), i.e., to obtain the proceeds of work that
the Union is not entitled to perform and any such action
lacks a reasonable basis in fact and law. Longshoremen
ILWU Local 32 (Weyerhauser Co.), 271 NLRB 759 (1984),
affd. 773 F.2d 1012 (9th Cir. 1985), cert. denied 476 U.S.
1158 (1986).
I conclude and find therefore that by maintaining in lieu
of claims and by maintaining a Section 301 petition seeking
to force arbitration of an issue which the Board has already
decided adversely to Petitioner, Respondents are attempting
to undermine the Board’s authority to resolve jurisdictional
disputes. Respondents have failed to comply with the
Board’s 10(k) Decision and Determination of Dispute and
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have engaged in prohibited economic coercion of Swinerton
& Walberg Co. with an object of forcing or requiring the
company to assign the disputed work to members of Re-
spondent Local rather than to employees who are members
of the Carpenters. The conduct violates Section 8(b)(4)(ii)(D)
of the Act substantially as alleged in paragraphs 8–10 of the
complaint, and I so find.
CONCLUSIONS OF LAW
1. Swinerton & Walberg Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Association of Bridge, Structural & Orna-
mental Iron Workers, Local No. 433, AFL–CIO and District
Council of Iron Workers of the State of California and Vicin-
ity, AFL–CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondent International Association of Bridge, Struc-
tural & Ornamental Iron Workers, Local No. 433, AFL–CIO
has engaged in unfair labor practices proscribed by Section
8(b)(4)(ii)(D) of the Act by threatening to picket S&W
jobsites and by actually picketing four S&W jobsites and by
filing time-in-lieu claims for work performed by members of
Carpenters with an object of forcing or requiring the Em-
ployer to assign the work, described below, to employees
represented by Iron Workers rather than to employees rep-
resented by Carpenters, and by failing and refusing to com-
ply with the Board’s Decision and Determination of Dispute
reported at 298 NLRB 412 (1990). The work in question
consists of installation of prefabricated acoustical panels on
the structural steel frame of the quiet room at the Los Ange-
les Times printing plant, Los Angeles, California.
4. Respondent District Council of Iron Workers of the
State of California and Vicinity, AFL–CIO has engaged in
unfair labor practices proscribed by Section 8(b)(4)(ii)(D) of
the Act by maintaining a lawsuit in the U.S. district court
seeking to compel S&W to arbitrate certain in lieu of griev-
ances and by maintaining an appeal from the dismissal of
said lawsuit.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondents have engaged in and are
engaging in certain unfair labor practices, I shall recommend
that they be ordered to cease and desist and to take certain
affirmative action designed to effectuate the purposes of the
Act.
[Recommended Order omitted from publication.]