Glaziers, Architectural Metal & Glass Workers Local Union No 513

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 792 (N.L.R.B. 1989)

792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Glaziers , Architectural Metal & Glassworkers Local
Union No 513 and Custom Contracting Compa
ny Case 14-CD-712
January 31, 1989
DECISION AND ORDER DENYING
MOTIONS
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed by Custom Contracting
Company (the Employer) on February 4, 1985, and
duly served on Glaziers , Architectural Metal &
Glassworkers Local Union No 513 (the Respond-
ent), the General Counsel of the National Labor
Relations Board issued a complaint on July 9, 1986,
against the Respondent alleging that it had violated
Section 8 (b)(4)(i) and (ii)(D) of the National Labor
Relations Act
The complaint alleges that since January 24,
1985, the Respondent has demanded that the Em
ployer assign certain work to employees who are
members of or represented by the Respondent
rather than to the Employer 's unrepresented nonsu-
pervisory employees The complaint also alleges
that in furtherance of its demand , on January 24
and 28 , 1985, the Respondent , through its business
manager , Jerry Krause , threatened to picket at the
jobsite of the disputed work , and on January 28,
and February 23 and 25 , 1985, picketed at the job-
site of the disputed work with picket signs stating
Notice to the public employees of Custom
Contracting have wages and conditions below
those established in this area by Glaziers, Ar
chitectural Metal & Glass Workers Local
Union 513 , AFL-CIO This picketing does not
have recognition , jurisdiction or bargaining as
an object Employees of these and other em
ployers are not requested to refrain from
working or performing other services
The complaint further alleges that the Respond-
ent has failed and refused to comply with the
Board 's June 24 , 1986 Decision and Determination
of Dispute , ' which awarded the disputed work to
the Employer 's unrepresented nonsupervisory em-
ployees , by advising the Regional Director for
Region 14 in a letter dated July 2, 1986, that it
would not comply with the Board 's Decision and
Determination of Dispute On July 21 , 1986, the
Respondent filed an answer admitting in part, and
1 Glaziers Local 513 (Custom Contracting Co) 280 NLRB 974 (1986)
Member Johansen dissenting In that case the Board majority rejected
the Respondents affirmative defense that Custom Contracting Company
is not an employer nor does it have employees as required under Sec
8(b)(4)(D) of the Act The Board further found reasonable cause to be
lieve Sec 8(b)(4)(D) had been violated
denying in part, the allegations in the complaint,
denying the commission of any unfair labor prac
tices, and asserting as an affirmative defense that
Custom Contracting Company is not an employer
and does not have employees as required under
Section 8(b)(4)(D) of the Act The Respondent also
moved that the complaint be dismissed
On August 1, 1986, the General Counsel filed a
Motion to Strike Denials in the Respondent's
Answer and Motion for Summary Judgment The
General Counsel asserted that the denials in the
Respondent's answer are of factual allegations pre-
viously decided by the Board in its Decision and
Determination of Dispute, that the remaining issues
are legal in nature, and that there is no issue of dis
puted fact requiring a hearing On August 8, 1986,
the Board issued an order transferring this proceed-
ing to the Board and Notice to Show Cause why
the General Counsel's motions should not be grant
ed The Respondent filed a response to the General
Counsel's motions, a Motion in Opposition to the
General Counsel's Motion for Summary Judgment,
and a Cross-Motion for Summary Judgment In its
motions, the Respondent again asserted that the
Employer is not an employer as defined in the Act,
nor does it have employees as required under Sec
tion 8(b)(4)(D)
We find, contrary to the General Counsels con
tentions, that the pleadings and submissions of the
parties raise genuine issues of material fact that can
best be resolved by a hearing before an administra
tive law judge Here, the Respondent denied, inter
alia, that the Employer is an employer engaged in
commerce within the meaning of the Act, that it
has demanded the work in dispute be assigned to
employees it represents and, specifically, that its
business manager, Jerry Krause, made threats in
furtherance of that demand on January 24 and 28,
1985, and that an object of its conduct was to force
the Employer to assign the work in dispute to em
ployees it represents
In Longshoremen ILWU Local 6 (Golden Grain),
289 NLRB 1 (1988), we held that summary judg-
ments are only appropriate where there are no gen-
uine issues of material fact and a party is entitled to
judgment as a matter of law Respondents in
8(b)(4)(D) cases are not required to proffer new or
previously unavailable evidence in order to be enti
tled to a hearing Id at 2
Here, the Respondent has reasserted in its
answer, in its response to the General Counsel's
motion, and its motions, its affirmative defense that
the Employer is not an employer as defined in the
Act and does not have employees, as required
under Section 8(b)(4)(D) This is a mixed question
of fact and law and, despite the Respondent's Cross
292 NLRB No 82
ARCHITECTURAL METAL WORKERS LOCAL 513 (CUSTOM CONTRACTING) 793
Motion for Summary Judgment, the Respondent is
arguably alleging that there are issues of material
fact in dispute
The Respondent's affirmative defense is not a
mere threshold matter but a necessary element to
proving a violation of Section 8(b)(4)(D) 2 The
entire thrust of the section is to regulate competing
claims for work between two groups of employees,
if there is no employer to assign the work and if
only one group of employees exists, there is no
ground for a violation Thus, Section 8(b)(4)(D)
makes it unlawful to threaten, coerce, or restrain,
where an object is
forcing or requiring any employer to assign
particular work to employees in a particular
labor organization or in a particular trade,
craft, or class rather than to employees in an-
other labor organization or in another trade,
craft, or class, unless such employer is failing
to conform to an order or certification of the
Board determining the bargaining representa
tive for employees performing such work
[Emphasis added ]
The issue raised by the Respondent here stands
in sharp contrast to a threshold issue such as
whether a voluntary means of resolving a dispute
exists Thus, pursuant to Section 10(k) the Board is
"empowered and directed to hear and determine
the dispute out of which such unfair labor practice
shall have arisen, unless, within ten days after
notice that such charge has been filed, the parties
to such dispute submit to the Board satisfactory
evidence that they have adjusted, or agreed upon
methods for the voluntary adjustment of, the dis
pute " This language, unlike that concerning forc-
ing an employer to assign work to one rather than
to another group of employees, is not included in
Section 8(b)(4)(D) In this regard, it is truly a pre
liminary matter that determines whether the Board
may reach consideration of the alleged violation
E Cf Golden Grain supra at fn 4 in which the Board specified that it
would not permit the relitigation of threshold matters not necessary to
prove an 8(b)(4)(D) violation
The Respondent's affirmative defense does not
raise such purely preliminary or threshold matters
This would be the case had the Respondent assert
ed that the Employer did not meet the Board's ju
risdictional standards However, the Respondent
here is asserting that the Charging Party is not an
employer and has no employees, and that, there-
fore, any demand for assignment of work from it
cannot constitute coercing an employer to assign
work to one group of employees rather than to an
other We find this analogous to the situation in
Golden Grain, supra There, the Board found a fac-
tual dispute concerning whether a violation of Sec-
tion 8(b)(4)(D) existed on the basis, inter alia, of
the respondent union's claim that, because its
object was to preserve work, its demand for the
disputed work did not amount to a violation of
Section 8(b)(4)(D) In other words, as here, the re-
spondent-union was claiming that the elements of a
violation of Section 8(b)(4)(D) had not been shown
to exist
On this basis, we find that by the renewal of its
affirmative defense, as well as the denial in its
answer of the complaint allegations relating to
whether alleged unlawful conduct occurred, the
Respondent has demonstrated the existence of gen
uine issues of material fact concerning the elements
of the alleged 8(b)(4)(D) violation We, therefore,
conclude that summary judgment is inappropriate
in the instant case
ORDER
It is ordered that the General Counsel's motions
and the Respondent's motion are denied and the
proceeding is remanded to the Regional Director
for Region 14 for further appropriate action
MEMBER JOHANSEN dissenting in part
I agree with the majority that the General Coun-
sel's Motion for Summary Judgment must be
denied for the reasons given in their decision
However, for the reasons given in my dissent in
the underlying 10(k) proceeding, I would grant the
Respondent's Cross-Motion for Summary Judg
ment and would dismiss the complaint