Operating Engineers Local 571 (J.E.D. Construction Co.)

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1066 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers Local
571, AFL-CIO andJ. E. D. Construction Company,
Inc. and Laborers International Union of North
America, Local 1140, AFL-CIO. Case 17-CD-235
April 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On February 14, 1979, Administrative Law Judge
Michael O. Miller issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
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 Or-
der of the Administative Law Judge and hereby or-
ders that the Respondent, International Union of
Operating Engineers Local 571, AFL-CIO, Lincoln,
Nebraska, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: Upon a
charge filed on March 22, 1978, by J.E.D. Construction
Company, Inc., herein called the Employer, and a com-
plaint issued by the Regional Director of Region 17 of the
Board on October 5, 1978, a hearing was held before me in
Lincoln, Nebraska, on November 13, 1978.
The complaint alleged that the International Union of
Operating Engineers Local 571, AFL-CIO, herein called
Respondent, had engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(4)(D) of the
National Labor Relations Act, as amended, herein called
the Act. The unlawful conduct consisted of failing and re-
fusing to comply with the terms of the Board's Decision
and Determination of Dispute on a proceeding under Sec-
tion 10(k) of the Act' and picketing the Southeast Commu-
nity College jobsite in Lincoln, Nebraska, herein called the
Project, from on or about March 21, 1978, until about April
18, 1978,2 with an object of forcing or requiring the Em-
ployer to assign the job of operating the forklift "tending"
bricklayers at the Project and at other jobsites to employees
who are members of, or represented by, the Respondent
rather than to employees who are members of, or represent-
ed by, the Laborers International Union of North America,
Local 1140, AFL-CIO, herein called the Laborers, and who
are not members of, or represented by, the Respondent.
Respondent's timely filed answer denied the commission
of any unfair labor practices. Specifically, Respondent
averred that its labor dispute with the Employer related
solely to its attempt to see that the Employer paid its em-
ployees operating the forklifts at least the minimum stan-
dard of wages established for such work by Respondent in
that geographical area, i.e., "area standards," and to its ad-
vertising, by the use of pickets, the fact that the Employer
had failed to pay such wages. It further denied that it had a
jurisdictional dispute with the Employer within 6 months of
the filing of the charge herein or that it had engaged in any
proscribed activities within the limitations period of Section
10(b) of the Act,3 and asserted that it had disclaimed any
interest in the assignment of the work of driving the fork-
lifts to its members or employees whom it represented. Re-
spondent admitted that it had refused to comply with the
Board's Decision and Determination of Dispute.
At the hearing before me, General Counsel moved for
summary judgment, and Respondent moved for dismissal
of the complaint. Both motions were denied. General Coun-
sel renewed her motion in her brief. Respondent, at the
hearing and on brief, asserted that the different standards of
proof applicable to the 10(k) proceeding and the unfair la-
bor practice proceeding' precluded summary judgment.
Upon the entire record in this proceeding, I make the
following:
Ruling on the Motion for Summary Judgment
The record herein establishes that following the filing of a
charge by the Employer alleging that Respondent had vio-
lated Section 8(b)(4)(D), a hearing pursuant to Section
10(k) of the Act was held on April 18, 1978, at which all
parties, save the Laborers, appeared, presented evidence,
and were permitted to cross-examine witnesses. A repre-
sentative of the Laborers appeared, only as a witness. On
August 28, 1978, the Board issued its Decision and Deter-
mination of Dispute, supra, in which it concluded that there
I nternational Union of Operating Engineers Local 571, AFL-CIO (J. E. D.
Construction Company, Inc.), 237 NLRB 1386 (1978). Official notice was
taken of the record in the 10(k) proceeding, as requested by the parties.
On that date, Respondent was enjoined, by Order of the United States
District Court for the District of Nebraska, from further picketing pending
final adjudication by the Board of the charges filed on March 22, 1978.
Sec. 10(b) provides "[t]hat no complaint shall issue based upon any un-
fair labor practice occurring more than six months prior to the filing of the
charge with the Board....
4iln a Section 10(k) proceeding, the Board need only find that there is
reasonable cause to believe that an 8(bX4XD) violation has occurred; in an
8(bX4XD) proceeding, findings are based on a preponderance of the evidence."
International Typographical Union, AFL CIO (Worcester Telegram Publish-
ing Company, Inc.), 125 NLRB 759, 761, fn. 5 (1959).
241 NLRB No. 173
1066
OPERAFING ENGINEERS. .OCAI. 571
was reasonable cause to believe that a violation of Section
8(b)(4)(D) had occurred. In reaching that conclusion, on
the basis of record testimony. the Board specificall rejected
each of the contentions Respondent makes herein. Thus.
contrary to the arguments of' Respondent. the Board found
that a jurisdictional work dispute existed rather than a dis-
pute over the Employer's failure to pax "area standard"
wages: that Respondent picketed the Employer in further-
ance of that jurisdictional work dispute, that the evidence
of Respondent's proscribed objective was not time-barred
by Section 10(b) of the Act: and that its purported dis-
claimer of the work in dispute was ineffective,' Accordingly.
the Board, on the basis of the entire record. awarded the
work of operating the masonry forklifts at the project and
at any of' the Employer's present or future masonrs con-
struction jobsites in the Lincoln. Lancaster County. Ne-
braska, area, where the jurisdiction of the two unions coin-
cided, to employees who are represented by the Laborers
rather than to employees who are represented by Respon-
dent.
As noted, Respondent contends that because the stan-
dards of proof are different in a 10(k) proceeding than in
one on the unfair labor practice complaint. it is entitled to
an independent determination by an Administrative Law
Judge on those findings and conclusions of the Board which
it disputes. Upon reconsideration of my ruling at the hear-
ing herein. I must conclude, in agreement with the General
Counsel, that relitigation is not warranted. The issues Re-
spondent seeks to relitigate here were raised and fully liti-
gated by it in the earlier proceeding. Respondent offered no
new or previously unavailable or undiscovered evidence in
the unfair labor practice hearing. The Board has held that:
It is settled that issues raised and litigated in a 10(k)
proceeding may not be relitigated in a subsequent un-
fair 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.?
Moreover, as pointed out by the court in '. .. R. B. v. Iron-
workers. Local 433. supra at 638:
. . we hold that the findings of a §10(k) proceeding
may be used as evidence in a subsequent hearing, sub-
ject to refutation. When these findings are not contra-
dicted, as in the case a: bar. they may be the sole basis
for a subsequent finding
Accordingly. as Respondent is seckin, to relitigate issues
settled in the underlying 10(k) proceeding. I shall strike the
denials and affirmative defenses in Respondent's answer re-
lating to those matters as frivolous.'
In the 10(k) proceeding. on the basis of the record before
it, the Board found that Respondent had claimed the work
of driving the forklifts, had not effectively disclaimed its
I No useful purpose would he achiesed hb repeating the Board's rationale
for these conclusions, as the) are fully set forth in the Decision and D)etermi-
nation of Dispute. upra
6 International Assl,'lraton o* Bridge, Structural rnd Ornalienial re,nrrk -
ers. AFL, (10, ocal 433 (Pla:i Glas (mpani). 218 Nl.RB 848. 849
(1975), enild 549 F.2d 634 (9th Cir. 1977) See also 1x-al Lt'nunl X. ,N,
Internazional Brotherhood o Electrlal WortAcr, 4F. (4I) ( llntield (Con-
tracting (orporation), 206 NI.RB 423. 424 ( 1973)
' See Vanstied ( trftl ing ( orpralion. upr.
demand for the disputed work, and had picketed Respon-
dent's jobsite in furtherance of its objective of' forcing or
requiring the assignments of that work to employees whom
it represented. On that basis, the Board found reasonable
cause to believe that Respondent had violated Section
8(b)(4)(D) of the Act. That evidence, which was neither
supplemented nor controverted in the proceeding before
me, likewise establishes by a preponderance of the evidence
that Respondent engaged in the above-described conduct in
violation of Section 8(b)(4)(D). Respondent has admitted.
and I find, that it has refused to comply with the Board's
Decision and Determination of Dispute, In view of these
findings, and my conclusion that these are not issues prop-
erly subject to litigation herein, General Counsel's Motion
for Summary Judgment is granted.
On the basis of the entire record, I make the following:
FINm)tN(;s )1i FA( I
I. 1tH. MPL.()YIR S BtSINESS
The Employer is a Nebraska corporation with its princi-
pal place of business in Lincoln. Nebraska, where it is en-
gaged as a masonry contractor in the building and con-
struction industry. During the past year, the Employer
purchased goods and materials from outside the State of
Nebraska valued in excess of $50,000. The complaint al-
leged. Respondent admitted, and I find that the Employer
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. F I AB()R OR(GANIZAIIONS INVO()I .Vt)
The complaint alleged. Respondent admitted. and I find
that the Respondent and the Laborers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
111. 111 L N-AIR AB()R PRA( II( IS
A. Background and Facts of Dispule
At all material times. Respondent and the Laborers have
had a jurisdictional dispute concerning the work of operat-
ing the forklift "tending" the bricklayers. Respondent never
effectively disclaimed its claim to that work. and between
March 21. 1978, and April 18. 1978, it picketed Respondent
at the Project in furtherance of this dispute, in order to
force or require the Employer to assign the disputed work
to employees whom it represents rather than to employees
represented by the Laborers.
B. The Determination oj Dispute
On August 28, 1978, the Board issued its Decision and
Determination of Dispute (237 NRB 1386) finding that
employees represented by the Laborers are entitled to per-
form the disputed work and that Respondent was not enti-
tled by means proscribed by Section 8(b)(4 )) of the Act
to force or require the Employer to assign the work to em-
ployees represented by it.
1067
I)t('lSIONS ()I NA IIONA. LA()OR REL.ATIONS BOARD
C. Ro 'nt'. Rcfisal C mp/r
Respondent has failed and refused to comply with the
Board's award of the disputed work. By that failure and
refusal. Respondent has violated Section 8b)(4)(D) of the
Act.
IV. 1111E RIMl)Y
Having found that Respondent has engaged in and is
engaging in unfair labor practices aflecting commerce
within the meaning of Section 8(b)(4)(D) of the Act. I shall
recommend that it he ordered to cease and desist therefrom
and to take certain affrmiative action designed to effctuate
the policies of the Act.
('(ON I 'SI(INS (I LA'.\
I. .1 .I). Construction ('ompany, Inc.. is an employer
engaged in commerce or in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act
2. Respondent and the aborers are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent has violated and is violating Section
8(b)(4)(I)) of the Act hby demanding the disputed work. by
picketing to enforce that demand, and by failing and refus-
ing to comply with the Board's Decision and Determination
of' Dispute.
4. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing 'facts and conclusions of law, and the
entire record. I hereby issue the following recommended:
ORDERs
Pursuant to Section 10(c) of the National Labor Rela-
tions Act. as amended, it is hereby ordered that the Respon-
dent. International Union of' Operating Engineers Local
571. AFL CIO. Lincoln. Nebraska. its officers, agents, and
representatives. shall:
I. ('ease and desist from refusing to comply with the
Board's Decision and Determination of Dispute: from in-
ducing or encouraging individuals employed by the Em-
ployer and other employers at the Project and various other
jobsites to engage in strikes or refusals in the course of their
employment to use. manufacture, process. transport, or oth-
erwise handle or work on goods. articles, materials, or com-
modities, or to perform services: and from threatening. co-
ercing. or restraining the Employer or other persons
s 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 reconmmended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall he deemed
waived r all purposes.
engaged in commerce or in industries affecting commerce
with ;in object of forcing or requiring the Employer to as-
sign the disputed work, described .supra. to employees
whom it represents rather than to employees represented by
the Laborers.
2. ake the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 17. after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately upon re-
ceipt thereof' and be maintained b it for 60 consecutive
days thereafter, in comspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Furnish the Regional Director for Region 17 with
signed copies of such notice for posting by the Employer. if
willing, in places where notices to employees are customar-
ily posted.
(c) Notify the Regional Director for Region 17. in writ-
ing. w thin 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
I In the event that this Order is enforced by a judgnment 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 tinited States (Court of Appeals Enforcing an Order of, he National
Lahbor Relations Board.
APPENDIX
NotI(E To EMPt.OYEES
PosrFD BY ORDER OF THE
NAII()NAI LABOR REL.ATIONS BOARD
An Agency of the United States Government
WE rlt |I Not refuse to comply with the Board's De-
cision and Determination of Dispute or induce or en-
courage individuals employed by J.E.D. Construction
Company. Inc., or other employers, to engage in
strikes or refusals in the course of' their employment to
use, manufacture. process. transport, or otherwise han-
dle or work on goods, articles, materials, or commodi-
ties. or to perform any services: or threaten, restrain. or
coerce J.E.D. or other persons engaged in commerce or
in operations affecting commerce, with an object of
forcing or requiring J.E.D. Construction Company,
Inc.. to assign the operation of' forklifts tending brick-
layers to employees whom we represent, rather than to
employees represented by the Laborers International
Union of North America. Local 1140, AFL-CIO.
INII RNAIOINA. UNION () OPIRAIIN(i EN(INEEI-RS
Lo('AI. 571. AFL-CIO
1068