Local 1456, Carpenters

National Labor Relations Board - Board DecisionsApr 30, 1973

203 N.L.R.B. 381 (N.L.R.B. 1973)

LOCAL 1456 , CARPENTERS 381 Dock Builders, Shorers, House Movers , Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Vibroflotation Foundation Company. Case 22-CD-210 April 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 30, 1973, Administrative Law Judge Harry H. Kuskin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER tices in violation of Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in, and inducing and encouraging employees of Vibroflotation to engage in, a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, arti- cles, materials , or commodities or to perform any services, and by threatening, coercing, and restraining Vibroflota- tion , an object thereof , in either case being to force and require Vibroflotation to assign certain work to employees who are members of, or are represented by, Dock Builders, rather than to employees who are members of, or are repre- sented by, Laborers' International Union of North Ameri- ca, Local No. 343, AFL-CIO. herein called Laborers, and by Local Union No. 825, International Union of Operating Engineers , AFL-CIO, herein called Operating Engineers.' In its answer, Respondent admitted (1) that, after a hearing held pursuant to Section 10(k) of the Act, the Board, on or about September 29, 1972, issued its Decision and Determi- nation of Dispute 2 in which it assigned the work of "Vibro process" including guiding the probe, maintaining cables and hoses, keeping the log, operating valves and repairing hoses and machines at a jobsite in Long Branch, New Jer- sey, to employees represented by Laborers and Operating Engineers and not to Respondent or its members; and (2) that it has, since on or about October 11, 1972, failed and refused to comply with this Decision and Determination of Dispute. In addition, Respondent denies that it has violated Section 8(b)(4)(i) and (ii)(D) of the Act as alleged herein. Upon the entire record, including my observation of the witnesses , including their demeanor while on the witness stand, and after due consideration of the briefs of the Gen- eral Counsel and of Respondent, I make the following: Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent , Dock Builders , Shorers, House Movers, Pile Drivers and Foundation Work- ers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Long Branch , New Jersey , its officers , agents , and represen- tatives , shall take the action set forth in the said rec- ommended Order. DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Administrative Law Judge: This case was heard at Newark, New Jersey, on November 28 and 29, 1972. A complaint issued herein on October 19, 1972, based on a charge filed on April 28, 1972, by Vibroflotation Foun- dation Company herein called Vibroflotation, against Dock Builders, Shorers, House Movers, Pile Drivers and Founda- tion Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of Amercia, AFL-CIO, herein called Dock Builders. The complaint alleged that Respon- dent had engaged, and was engaging, in unfair labor prac- FINDINGS OF FACT I THE BUSINESS OF VIBROFLOTATION The complaint alleges, and Respondent admits, that Vi- broflotation , at all times material herein , has maintained its principal office in Pittsburgh, Pennsylvania, and is now, and at all times material has been , continuously engaged as a contractor in the building and construction industry; that it performed work at a jobsite located at Ocean Avenue and Lake Drive, Long Branch, New Jersey; and that, during the 12 months preceding the issuance of the complaint, which is a representative period, in excess of $50,000 of the reve- nue received by Vibroflotation was derived from services within the States of the United States other than Pennsylva- nia. I find, upon all the foregoing, as Respondent also ad- mits, that Vibroflotation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If THE LABOR ORGANIZATIONS INVOLVED The complaint alleges , and Respondent further admits, 1 The employees who are members of, or are represented by, Operating Engineers are incorrectly referred to in the record as "operating Joiners." The record, in such instances, is accordingly corrected to read "operating engi- neers " i 199 NLRB No 53. 203 NLRB No. 64 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I find, that Laborers' International Union of North America, Local Union No. 343, AFL-CIO; Local Union No. 825, International Union of Operating Engineers, AFL-CIO; and Respondent are each labor organizations within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Contentions as to the Scope of the Issues To Be Determined Herein It is well established that, in a proceeding under Section 10(k) of the Act, the Board must determine initially whether there is reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) of the Act has been committed; and, if so, and if the parties have not settled or agreed upon a method for the settlement of their dispute, the Board must then hear and determine the dispute. Thereafter, if there is compliance with the Board's decision in the 10(k) proceeding, the unfair labor practice charge, which gave rise to the 10(k) proceed- ing, is dismissed; otherwise, a complaint issues based upon that charge. Respondent contends, in effect, in its brief that where, as here, a complaint has issued alleging a failure to comply with the Board's Decision and Determination of Dispute in the 10(k) proceeding, procedural due process requires that I, as Administrative Law Judge, determine anew whether, as the Board found, (1) there are here claims for the same work by competing groups of employees and therefore a jurisdictional dispute exists; and (2) the work in issue should be awarded to employees represented by Laborers and Op- erating Engineers. And it contends further, in effect, that it is within my province to modify the scope of the award. I find these contentions to be lacking in merit. The Board has consistently held that, in the absence of newly discovered evidence, its award of disputed work under Section 10(k) of the Act is not open to review by a Trial Examiner (now an Administrative Law Judge) in a related proceeding upon a complaint alleging a violation of Section 8(b)(4)(D) of the Act. In the foregoing connection, Respondent takes excep- tion to my ruling in which I denied it an opportunity to introduce evidence beyond that submitted in the 10(k) hear- ing and purporting to indicate the contractual history be- tween Vibroflotation and Dock Builders;5 and urges that I 3 See Secs . 102.90 and 102 .91 of the Boards Rules and Regulations, and Secs . 101.31 and 101 .33 of the Board 's Statement of Procedure, Series 8, as amended 4 See Cleveland Stereotypers' Union No 22, International Stereotypers' and Electrotypers' Union of North America, AFL-CIO ( Western Press Inc), 160 NLRB 1184; New York Newspaper Printing Pressmen's Union No 2, AFL- CIO (New York Times Company), 154 NLRB 1122, and cases cited therein in fn 6. Contrary to Respondent , the cases of International Longshoremen 's Associ- ation, Local 1576, 409 F 2d 709 (C A. 5); Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (American Bread Company), 170 NLRB 91; and Carpenters District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Shepard Marine Construction Company), 195 NLRB 530, do not require a different result here. s Respondent thereupon made an offer of proof as to what its witness, William C. Finneran , would testify in reference thereto were he allowed to do so, which I rejected reconsider my ruling and remand the case to permit the taking of such evidence. Respondent is thereby seeking to adduce before me evidence which the Board has refused to consider upon Respondent's motion to reopen the record in the 10(k) proceeding. In so ruling, the Board held that, "Respondent has failed to set forth facts which establish that such evidence was previously unavailable or could not have been made available at the scheduled hearing by the exercise of proper diligence." Crew Builders Supply Co., 154 NLRB 1747, 1748, fn. 1. In all these circumstances , includ- ing the fact that the evidence sought to be adduced pertains to the propriety of the Board's award; and the further fact that the Board has heretofore rejected such evidence when proferred after the hearing in the 10(k) proceeding was closed, indicating, in substance, that it was not persuaded that such evidence was newly discovered, and hence no warrant existed for considering such belatedly offered evi- dence in determining the dispute; and as the Board's ruling is binding on me, I adhere to my ruling at the instant hearing and conclude, and find, that the Board's findings as to who is entitled to perform the work involved in this proceeding are binding upon me, and they are hereby adopted as part of the findings herein. B. The Issues To Be Decided Herein It follows from all the foregoing that the only issues be- fore me are (1) whether Respondent has complied with the Board's Decision and Determination of Dispute, and (2) whether Respondent engaged in conduct described in Sec- tion 8(b)(4)(i) and (ii) for an objective proscribed in Section 8(bx4)(D). As to (1), Respondent has, as already indicated, admitted that it has since on or about October 11, 1972, failed and refused to comply with the Board's Decision and Determination of Dispute. In addition, the record shows that Respondent notified the Regional Office of Region 22 of the Board by letter dated October 11, 1972, under signa- ture of counsel for Respondent herein, inter alia, that "the Union does not intend to abide by the award in question." As to (2), the record 6 discloses the following: Vibroflotation entered into a contract with E. J. Frankel Construction Company to perform soil compaction service for it at a construction site in Long Branch, New Jersey, herein called the jobsite. It began operations on April 17, 1972, and em- ployed at that time about 12 employees, 4 of whom were represented by Laborers and 8 of whom were represented by Operating Engineers. The employees represented by Op- erating Engineers consisted of two crane operators, two oilers, one front-end loader operator, one general operator, one pump operator and one master mechanic. The employ- ees represented by Laborers were engaged in shovelling sand dumped from the front-end loader into the hole where the soil compaction was taking place, in moving the hoses and cables to keep the rig from damaging or riding over them, and in repairing hoses if they began to leak. Two laborers were assigned to each crane. The uncontradicted testimony of Michael Hapsis, the field superintendent of Vibroflotation, which I credit, estab- 6 This includes the record made before me as well as the record of the 10(k) proceeding and the Board's Decision and Determination of Dispute therein. LOCAL 1456, CARPENTERS 383 lishes that Arthur Helt, the admitted business representative and agent of Respondent, appeared at the jobsite. at or about 8 a.m. on April 25 and 26, 1972, and had the hereinaf- ter described conversations with him: On the first-men- tioned day, Helt 7 asked him for the name of the company doing the work on the jobsite, and he identified Vibroflota- tion as the one so involved. Thereupon, Helt asked him, "where the dockbuilders were for the job," and he replied that Vibroflotation did not use dockbuilders. At this, Helt said, "we would have to use dockbuilders, four men and one foreman per crane." When he repeated his above answer and added that he would have to check with his office first, Helt remarked that, "if we didn't do it, he (Helt) was going to put pickets up the next day." On the next day, Helt again approached him and followed up their conversation of the day before by asking, "if [he] was going to use the dock builders." His answer was that, "my Company said, `no.' " At this, Helt responded that "there would be pickets." The uncontradicted and credited testimony of Hapsis es- tablishes further that pickets appeared at the jobsite on April 26, shortly after the above-described conversation with Helt; that two pickets were there in the morning, five in the afternoon, and two at night; that they carried signs with the legend "Vibroflo wages and conditions below the standards of the Dock Builders, Local 1456"; that the em- ployees represented by Operating Engineers and those rep- resented by Laborers reported for work on April26; that the laborers crossed the picket line and were going to go to work but could not do so as the operating engineers would not cross the picket line and refused to work, with the conse- quence that there was no work for the laborers to per- form;8 that the picketing lasted for approximately 2 weeks, and Vibroflotation's work was at a standstill during that period; and that the laborers, unlike the operating engi- neers, crossed the picket line every day of that period and got show-up time pay9 for the first week, whereas the operat- ing engineers received no pay at all. C. Conclusion as to the Allegations Herein It is apparent from all the foregoing that there existed, as the Board found in the 10(k) proceeding, claims for the same work by competing groups of employees; that Re- spondent threatened Vibroflotation on April 25 and 26 that it would picket the jobsite if the disputed work was not awarded to dockworkers whom it represented; 10 that Re- spondent did picket the jobsite at which the disputed work was being performed; and that, in consequence thereof, the employees represented by Operating Engineers refused to cross the picket line; and, while the employees represented 7 Helt did not testify in this proceeding. 8 As heretofore indicated, the operating engineers operated the equipment and the laborers performed the manual work required as part of the soil compacting process. 9 The record shows that show -up time pay is full-time pay. 101 attach no overriding significance to the fact that Helt did not, in his conversations with Hapsis , seek the removal of the operating engineers or the laborers from the ,lobsite in haec verba . As it appears that no more than the existing complement was needed by Vibroflotation to perform the work at hand , it follows that Helt 's request that Vibroflotation hire dockbuilders was tantamount to seeking the removal of other employees , and I so find by Laborers did cross the picket line, they were prevented from performing any work due to their dependence for work upon the operation of Vibroflotation equipment by the operating engineers.' 1 It follows further from the above, and from the additional fact that Respondent admits in its answer that at no time material herein has the Board issued an order or certifica- tion determining the bargaining representative for the work involved herein, that the steps taken by Respondent, i.e., the threats and the picketing, were for a proscribed object, namely, that of forcing or requiring Vibroflotation to assign particular work to employees in a particular labor organiza- tion rather than to employees in another labor organization or organizations, and I so find. And it follows, too, and I find, that Respondent engaged in unlawful acts in pursuit of this objective, as follows: (1) it picketed the jobsite and thereby induced and encouraged employees of Vibroflota- tion to engage in a strike or refusal in the course of their employment to perform services at the picketed location; and (2) it threatened Vibroflotation with picketing of the jobsite unless the disputed work was assigned to dockwork- ers whom it represented, and also engaged in the above picketing in fulfillment of these threats, and by such con- duct separately, or in combination, threatened, restrained, or coerced Vibroflotation. I, therefore, conclude, and find, that, by the conduct set forth in (1) and (2) above, Respon- dent has violated Section 8(b)(4)(i)(D) and (ii)(D) of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Operating Engineers and Laborers, are each labor organizations within the meaning of Section 2(5) of the Act. 2. Vibroflotation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By engaging in, and inducing and encouraging indi- viduals employed by Vibroflotation to engage in, a strike or refusal in the course of their employment to perform serv- ices , and by threatening, coercing, or restraining Vibroflota- tion, an object thereof, in either case , being to force or require Vibroflotation to assign certain work to employees who are its members or are represented by it rather than to the employees of Vibroflotation who are members of or represented by Operating Engineers and by Laborers, Re- spondent engaged, and continues to engage, in unfair labor practices proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act. 11 As there is absent here any express disclaimer by the operating engineers themselves , or by their representative in their behalf , of the work which they were doing , I find without merit Respondent 's contention , in effect, in its brief that it follows from the fact that the operating engineers refused to cross the picket line that they did not claim such work . And insofar as it asserts therein that the laborers were also not claiming some of the disputed work, I also conclude that such contention is without meet, as it cannot be gainsaid that the laborers' conduct herein during the picketing was inconsistent with a conclusion they they did not claim the work. See, in this connection, N.L.R.B v Local 1291, International Longshoremen's Association [Pochahan- tas Steamship Company], 368 F.2d 107 (C.A. 3), which is quoted , in relevant part. in the Board 's Decision and Determination of Dispute herein. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(b)(4)(i) and (ii)(D) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. As to the former, I shall, consistently with the scope of the Board's award set forth in its Decision and Determination of Dispute herein, recommend further that Respondent cease and desist from engaging in the aforesaid illegal con- duct whenever Vibroflotation operates in the New York or New Jersey area and whenever the geographical jurisdiction of Dock Builders coincides with the jurisdiction of Laborers and Operating Engineers. 12 Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, I hereby issue the following recommended: 13 ORDER Respondent , Dock Builders , Shorers , House Movers, Pile Drivers and Foundation Workers , Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Long Branch , New Jersey , its officers, agents, and representatives , shall: 1. Cease and desist from: Refusing to comply with the Board 's Decision and Deter- mination of Dispute herein ; or (1) engaging in, or inducing or encouraging individuals employed by persons engaged in commerce or an industry affecting commerce to engage in, a strike or refusal in the course of their employment to use, manufacture , process , transport , or otherwise handle or work on any goods , articles , materials , or commodities, or to perform any services; or (2) threatening , coercing, or re- straining persons engaged in commerce or in an industry affecting commerce , where , in either case , an object thereof is to force or require Vibroflotation Foundation Company, whenever the latter operates in the New York or New Jersey area and whenever the geographical jurisdictions of the three labor organizations herein coincide, to assign the work described below to employees who are the members of, or represented by, Respondent , rather than to employees who are members of, or represented by, either Laborers ' Interna- tional Union of North America , Local Union No. 343, AFL-CIO, or Local Union No. 825 , International Union of Operating Engineers , AFL-CIO. The work is that involved in the "Vibro process" includ- ing guiding the probe , maintaining cables and hoses, keep- ing the log , operating valves , and repairing hoses and machines. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its meeting halls and offices copies of the attached notice marked "Appendix ." 14 Copies of said no- tice on forms provided by the Regional Director for Region 22, after being signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereaf- ter, in conspicuous places , including all places where notices to employees are customarily posted. Reasonable 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 said Regional Director for posting by Vibroflotation Foun- dation Company, if it is willing, at locations where notices to its employees are customarily posted. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. i2 Although Respondent takes exception in its brief to the scope of the Board 's award and urges that the remedial order herein be limited , it advanc- es no sufficient reason therefor . Apart from the foregoing, as heretofore found , I am bound by that award i3 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes i4 In the event that the Board's 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 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 Deci- sion and Determination of Dispute set forth in 199 NLRB No. 53. WE WILL NOT engage in , or induce or encourage indi- viduals employed by persons engaged in commerce or an industry affecting commerce to engage in, a strike or refusal in the course of their employment to use, manufacture , process , transport, or otherwise handle or work on any goods , articles , materials , or commodities, or to perform any services; and WE WILL NOT threaten , coerce , or restrain persons en- gaged in commerce or in an industry affecting com- merce where , in either case , an object thereof is to force or require Vibroflotation Foundation Company, when- ever the latter operates in the New York or New Jersey area and whenever the geographical jurisdictions of the three labor organizations herein coincide , to assign the work described below to employees who are our mem- bers or represented by us rather than to employees who are members of, or represented by, either Laborers' International Union of North America , Local Union No. 343, AFL-CIO. or Local Union No. 825, Interna- tional Union of Operating Engineers , AFL-CIO. The work is that involved in the "Vibro process" including guiding the probe, maintaining cables and LOCAL 1456, CARPENTERS 385 hoses, keeping the log, operating valves , and repairing hoses and machines. Dated By (Representative) (Title) DOCK BUILDERS , SHORERS, HOUSE MOVERS , PILE DRIVERS AND FOUNDATION WORKERS. LOCAL UNION No. 1456, UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERI- CA. AFL-CIO (Labor Organization) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office , Federal Building, 16th Floor, 970 Broad Street, Newark , New Jersey 07102, Telephone 201- 645-2100.