Laborers' Local 676

National Labor Relations Board - Board Decisions

May 13, 1977

229 N.L.R.B. 664 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' Local 676 and Clyde Stewart Excavating
Co., Inc. Case 17-CD-216
May 13, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Clyde Stewart Excavating Co.,
Inc., herein called the Employer, alleging that
Laborers' Local 676, herein called the Respondent,
had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to its employees represented by Respondent
rather than to unrepresented employees of the
Employer.
Pursuant to notice, a hearing was held before
Hearing Officer David A. Nixon on January 18,
1977. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues.
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.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is an excavating contractor with its
principal place of business in Springfield, Missouri.
During the past year, the Employer purchased goods
from outside the State having a value of $50,000. The
parties also stipulated, and we find, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Respon-
dent is a labor organization within the meaning of
Section 2(5) of the Act.
229 NLRB No. 105
III. THE DISPUTE
A. Background and Facts of the Dispute
As noted above, the Employer performs excavation
work in and about Springfield, Missouri. The
Employer has a complement of seven employees, all
but one of whom are related to him by blood or
marriage, and he desires to continue to assign work
to these employees. The employees are not represent-
ed for the purposes of collective bargaining. Respon-
dent does not have any contracts with, or represent
any employees of, the Employer.
On November 15, 1976, Laborers' Local 676
commenced picketing the Employer at an excavation
site. Respondent had picketed successively at three
different locations for a total of 34 days at the time of
hearing. Evidence or testimony pertaining to the
effect of the picketing was not allowed into the
record.
On November 17, 1976, Employer filed an unfair
labor practice charge alleging that Laborers' Local
676 was picketing the Employer for the purposes of
forcing it to assign work to employees represented by
Respondent instead of Employer's unrepresented
employees.
B. The Work in Dispute
The disputed work involves the digging of sewage
lines, laying of pipes, backfilling, and cleanup at
various locations in or about the city of Springfield,
Missouri.
C. The Contentions of the Parties
The Employer contends that there is a jurisdiction-
al dispute, that Respondent has violated Section
8(b)(4)(D) of the Act by exercising coercive pressure
on it to assign the work to employees represented by
Respondent, and that the work in dispute should
continue to be assigned to its employees.
The Respondent asserts that its picketing is solely
informational in purpose; that there is no jurisdic-
tional dispute; that, though at one time it sought to
organize Stewart's employees, that plan had been
abandoned months before its picketing; that its
actions have never constituted a demand for assign-
ment of work to particular employees; that there
never existed any competing claims here; and for
these reasons it contends that the Board cannot
proceed under Section 10(k).
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable cause
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LABORERS' LOCAL 676
to believe that Section 8(b)(4)(D) has been violated
and that there is no agreed-upon method for the
voluntary settlement of the dispute.
In the instant case this also requires a determina-
tion as to whether there are two competing groups of
employees claiming the work in question, and
whether Laborers' Local 676 has claimed the work
and has used proscribed force to enforce this claim.
As it is well settled that employees have standing to
claim disputed work even though no union speaks in
their behalf, we find that there are two competing
groups in this case: the unrepresented employees of
Stewart on the one hand, whose performance of the
work indicates that they claim it, and the members of
the Union whom the Union has offered to supply as
employees on the other.1
As to Respondent's object in picketing, the record
shows that between March and May 11, 1976, the
Union on at least two occasions expressly requested
the Employer to sign a contract covering its said
unrepresented employees, on several occasions of-
fered to supply members of Respondent who were
out of work, and also contacted Stewart's employees
as to the possibility of their selecting the Union to
represent them, but to no avail. Then, after a period
of 6 months during which the Union made no
contact with either the Employer or the employees, it
commenced picketing on November 15, 1976-and
was continuing to do so at the time of the hearing on
January 18, 1977-with a sign bearing the following
legend:
Stewart Excavating does not employ members
of Laborer's Local 676. Laborers' Local 676 is not
attempting to organize the employees of Stewart
Excavating and is not requesting recognition by
Stewart Excavating. Laborers' Local 676 is not
attempting to induce any individual employee
employed by any person in the course of his
employment not to pick up, deliver, or transport
any goods, or to perform any services. Laborers'
Local 676 is not attempting to induce any person
to cease doing business with Stewart Excavating.
Laborers' Local 676 does not have a dispute with
any other person or employer on this job. This
notice is addressed to the general public.
In the circumstances of this case we are not prepared
to view this picketing as "solely informational" as
Respondent contends.
The sign begins by saying that Stewart does not
employ members of the Laborers "which clearly
imports an object of organization." 2 It then asserts
I See Sheet Metal Workers Union Local NVo 54 (The Goodyear Tire &
Rubber Company and O.T.D. Corporation). 203 NLRB 74, 76 (1973):
International Brotherhood of Electrical Workers and its Local 639 (Bendix
Radio Division of The Bendix Corporation), 138 NLRB 689. 692 (1962).
that Laborers is not attempting to organize or request
recognition, an assertion entirely contrary to Re-
spondent's demonstrated intent some 6 months
earlier with respect to Stewart's employees. Though
the picket sign standing alone appears to have been
intended to satisfy the proviso to Section 8(b)(7)(C),
in the context here the picketing cannot be sepa-
rated-on the ground it is merely informing the
public, including consumers-from the relatively
recent attempts by Respondent to have Stewart
recognize it as the bargaining representative of
Stewart's employees, or to have the employees
themselves select the Union to represent them, or to
supply the Employer with members capable of doing
the work. We therefore find that an object of
Respondent's picketing was to force or require the
Employer to assign the disputed work to employees
represented by it and that there is reasonable cause
to believe Respondent has violated Section
8(b)(4)(D).
No party contends, and the record discloses no
evidence showing, that an agreed-upon method for
the voluntary adjustment of the instant dispute exists
to which all parties are bound. Accordingly, we find
that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
Respondent's motion to quash the notice of the 10(k)
proceeding, therefore, is hereby denied.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors. The following
factors are relevant in making the determination of
the dispute before us:
1. Relative skills
No party elected to show the presence of or need
for any specialized skills or training to perform this
work. The Employer, however, presented testimony
that its unrepresented employees have performed the
work in dispute in a manner satisfactory to the
Employer. Accordingly, this factor tends to support
an award of the disputed work to the Employer's
unrepresented employees. No party adduced evi-
dence relating to any traditional area or industry
practice pertaining to the type of work involved in
the instant case. This factor, therefore, is inconclu-
sive.
2 Local 429, International Brotherhood of Electrical Workers, AFL-CIO
(Sam M. Melson, d/b/a Sam Melson, General Contractor), 138 NLRB 460,
462 (1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Employer's assignment, past practice, and
preference
Since it commenced operations, the Employer has
assigned the work in dispute exclusively to its own
unrepresented employees. Such assignment is consis-
tent with the Employer's stated preference. Accord-
ingly, these factors favor an award of the work in
dispute to the Employer's unrepresented employees.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's unrepresented employ-
ees are entitled to perform the work in dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. The unrepresented employees of Clyde Stewart
Excavating Co., Inc., are entitled to perform the
work of digging of sewage lines, laying of pipes,
backfilling, and cleanup performed by Clyde Stewart
Excavating Co., Inc.
2. Laborers' Local 676 is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Clyde Stewart Excavating Co., Inc., to
assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers' Local 676
shall notify the Regional Director for Region 17, in
writing, whether or not it will 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 inconsistent with the above
determination.
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