Local 372, Service Employees International Union, AFL-CIO (Pepper Construction Company)

National Labor Relations Board - Board Decisions

Jul 12, 1982

262 N.L.R.B. 815 (N.L.R.B. 1982)

LOCAL 372, SERVICE EMPLOYEES
Local 372, Service Employees International Union,
AFL-CIO and Pepper Construction Company
and Marshall Field & Company and Interna-
tional Union of Operating Engineers, Local
Union No. 150, AFL-CIO. Case 13-CD-311
July 12, 1982
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Pepper Construction Compa-
ny, herein called the Employer, alleging that Local
372, Service Employees International Union, AFL-
CIO, herein called Local 372, has violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activities with an object of forcing or re-
quiring the Employer to assign certain work to em-
ployees represented by it rather than to employees
represented by International Union of Operating
Engineers, Local Union No. 150, AFL-CIO,
herein called Local 150.
Pursuant to notice, a hearing was held before
Hearing Officer William V. Killoran, Jr., on March
30 and April 1, 1982. All parties appeared and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, the Em-
ployer and Local 150 filed briefs.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings 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 Em-
ployer, a Delaware corporation with a place of
business in Illinois, is engaged in commercial and
industrial construction. During the past calendar
year, a representative period, the Employer pur-
chased and received at its Illinois facility goods
and services valued in excess of $50,000 directly
from points outside the State of Illinois. We find
that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
262 NLRB No. 106
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
372 and Local 150 are labor organizations within
the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer has a long-term contract with
Marshall Field & Company, herein called Field's,
for construction, including alterations and renova-
tions in Field's department stores. In October 1981
the Employer began a major remodeling project on
the I Ith floor of Field's State Street store in Chica-
go, and began using Field's existing freight eleva-
tors, operated by employees of Field's represented
by Local 372, to hoist the materials used in this
project. Local 150, which represents employees of
the Employer who operate cranes, bulldozers, per-
sonnel hoists, and similar equipment on new con-
struction sites, insisted that, pursuant to its collec-
tive-bargaining agreement, one of its members had
to operate an elevator that hoisted materials for the
11th floor project. The Employer conveyed this
demand to Field's, which refused to grant permis-
sion for anyone but its employees represented by
Local 372 to operate its freight elevators. Local
150 then filed a grievance under its collective-bar-
gaining agreement with the Employer.
On January 27, 1982, a joint grievance commit-
tee, in a proceeding to which neither Local 372 nor
Field's was a party, awarded the work to an em-
ployee represented by Local 150 and also awarded
backpay to compensate for the Employer's failure
to so assign the work since October 1981. The Em-
ployer again requested Field's to permit an employ-
ee represented by Local 150 to operate a freight
elevator. Field's forwarded the request to Local
372, which, by its attorney, responded by stating
that, if a "non-Local 372 person" were assigned to
that job, Local 372 "would immediately implement
any and all of those remedies available to us under
the contract, and the National Labor Relations Act
which may include picketing and other forms of
job action." Field's denied the Employer's (and
Local 150's) request, and the Employer has not
complied with the grievance award.
B. The Work in Dispute
The dispute concerns the assignment of the fol-
lowing work tasks:
Operation of freight elevators used for hoisting
construction equipment, materials, or workers
to the site of remodeling work being per-
formed by Pepper Construction Company
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within a building owned or occupied by Mar-
shall Field & Company, at 111 North State
Street, Chicago, Illinois.
C. Contentions of the Parties
Local 150 contends that the notice of hearing
herein should be quashed because Local 150 effec-
tively and unequivocally disclaimed the work in
dispute at the conclusion of the hearing. It also
contends that there is no reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) oc-
curred because Local 372 threatened only to take
such action as is permitted by law.
The Employer contends that there is reasonable
cause to believe that a violation of Section
8(b)(4)(D) has occurred and that Local 150's dis-
claimer is ineffective, being merely an attempt to
avoid an authoritative determination of the dispute.
The dispute assertedly being unresolved and prop-
erly before the Board for determination, the Em-
ployer further contends that the Board should
award the work to Field's employees represented
by Local 372.
D. Applicability of the Statute
Section 10(k) of the Act, which directs the
Board to hear and determine disputes out of which
8(b)(4)(D) charges have arisen, limits the Board's
authority in this respect to situations in which an
employer's assignment of work is in dispute. The
Board has held, with Supreme Court approval, that
a jurisdictional dispute no longer exists where one
of the competing unions or parties effectively re-
nounces its claim to the work. United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, Local 262, AFL-CIO (Dyad Construction,
Inc.), 252 NLRB 48 (1980), and cases cited therein.
In light of the fact that Local 150 unequivocally
has disclaimed interest in the disputed work, at the
hearing and again in its brief to the Board, we find
that there no longer exists a jurisdictional dispute
within the meaning of the Act. We shall therefore
quash the notice of hearing issued herein.
ORDER
It is hereby ordered that the notice of hearing
issued in this case be, and it hereby is, quashed.
' The instant case is unlike those where the union purportedly dis-
claiming interest has taken action inconsistent with a good-faith disclaim-
er. See Local Union No. 55, Sheet Metal Workers International Assoiation.,
AFL-CIO (Gilbert L Phillips Inc.), 213 NLRB 479, 481 (1974).
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