International Union Of Operating Engineers, Afl-Cio

National Labor Relations Board - Board Decisions

Jan 17, 1989

292 N.L.R.B. 354 (N.L.R.B. 1989)

354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Operating Engineers Local 181 , a/w International
Union of Operating Engineers , AFL-CIO and
S.F. Steel Fab , Inc. and Aluminum Company of
America, Party in Interest . Cases 25-CC-638
and 25-CP-143
January 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On March 31, 1988, Administrative Law Judge
Irwin H. Socoloff issued the attached decision. The
General Counsel, the Charging Party, and the Re-
spondent filed exceptions. The General Counsel
filed a supporting brief and an answering brief to
the Respondent's exceptions. The Respondent filed
a brief in support of its exceptions and in opposi-
tion to the General Counsel's exceptions, and a sep-
arate brief in opposition to the Charging Party's ex-
ceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions as modified and to adopt the recom-
mended Order.
One issue presented here is whether the Re-
spondent's undisputed 1-day recognitional picketing
of a construction industry employer that had no
statutory employees violated Section 8(b)(7)(C) of
the Act. As further explained below, we agree
with the judge that the Respondent's conduct was
not unlawful.
S.F. Steel Fab, Inc. is a construction industry
contractor principally owned by Stewart Leithliter
and his wife. In late 1986, it contracted with gener-
al contractor Castle Construction Co., Inc. to erect
a metal building at an ALCOA jobsite in New-
burgh, Indiana. In January 1987, the Leithliters
formed a sole proprietorship named Steel Fabrica-
tors and Erectors (Steel Fabricators), which pur-
chased a crane for use by Stewart Leithliter in per-
forming the contract.
Leithliter began jobsite operation of the crane on
February 2, 1987. He was approached by the Re-
spondent's steward, James Snow, who asked if
Leithliter had a union card. Leithliter said no. He
' The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
told Snow that he owned the company and the
equipment and he intended to operate it. He did
not state the fact that he was the only employee of
Steel Fabricators. Snow reported this incident to
the Respondent's vice president, Manning, that
day. Thereafter that same morning, Manning con-
tacted ALCOA and that afternoon dispatched the
Respondent's business agent, Cecil Murphy, to the
ALCOA site to discuss the situation. As more fully
set forth in the judge's decision, Murphy was not
allowed to enter the jobsite when he requested the
opportunity to speak with Steel Fabricators to
"work something out."
On February 4, the Respondent picketed the en-
trance to the jobsite used by Steel Fabricators and
employees of other contractors. A single sign was
displayed, stating: "Steel Fabricators are refusing
to negotiate and bargain with IUOE Local 181."
Approximately 300 jobsite employees refused to
report to work. On Leithliter's arrival at the job-
site, he asked Manning, "What's your purpose
here?" Manning replied, "To get you to negotiate
with us." The Respondent ceased picketing that
afternoon pursuant to an agreement with the gener-
al contractor. No further picketing took place after
February 4.
A telegram received from counsel for Steel Fab-
ricators on February 5 advised the Respondent that
"Steel Fabricators, Inc., has only one employee
and your union cannot lawfully picket to organize
and bargain for a one-man unit under the National
Labor Relations Act." Several days later, Leithliter
hired union signatory Tri-State Steel and its opera-
tor and crane to complete the erection of the struc-
tural portion of the contract.
The judge found that the Respondent was un-
aware that Steel Fabricators had no statutory em-
ployees prior to and during the picketing, despite
efforts to obtain such knowledge, and that no fur-
ther picketing occurred after the Respondent
learned of this fact. In these circumstances, the
judge concluded that the "Respondent's picketing
may not be deemed to have occurred for the pur-
pose of obtaining a prehire agreement" pursuant to
Section 8(f) of the Act and "was not otherwise vio-
lative of Section 8(b)(7)(C) of the Act."
The General Counsel excepts to the judge's con-
clusion. The General Counsel contends that absent
evidence of any effort by the Respondent to solicit
authorization cards or to file an election petition
the undisputed recognitional picketing constituted
an unlawful coercive effort to compel adoption of
an 8(f) agreement in alleged contravention of the
Board's rationale in John Deklewa & Sons, Inc.2 In
2 282 NLRB 1375 in. 39 (1987), enfd . sub nom . Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1988).
292 NLRB No. 47
OPERATING ENGINEERS LOCAL 181 (STEEL FAB) 355
addition, the General Counsel contends that recog
nitional picketing for this unit violates Section
8(b)(7)(C) ab initio, since the absence of statutory
employees at the time of the picketing precluded
both raising a question concerning representation
and holding an expedited election We disagree
with each contention 3
Initially, we find that although the picketing had
an undisputed recognitional objective, such an ob
jective does not necessarily mean that the Re
spondent had picketed with an objective of secur
ing an 8(f) prehire agreement in the absence of stat
utory employees The credited evidence reflects
that the Respondent inquired about the union mem
bership of the only individual identified with Steel
Fabricators The Respondent never proffered a
contract to Steel Fabricators nor demanded that it
sign one after receiving notice that Steel Fabrica-
tors had only one employee Picketing had ceased
even before that notice These facts are insufficient
to prove that the Respondent had picketed to
obtain an 8(f) prehire agreement in the absence of
statutory employees
Furthermore, we find the present situation distin
guishable from cases relied on by the General
Counsel involving picketing by a guard union
barred from obtaining certification because it con
sists of a mixed unit of guard and nonguard em
ployees or admits nonguard employees to member
ship 4 In those cases, Section 9(b)(3) of the Act
provides clear statutory notice that any petition for
an election will be dismissed because the petition-
ing union is ineligible to be certified By contrast,
no statutory bar existed here and no reason was ap
parent to the Respondent at the commencement of
its picketing why it could never gain an election 5
On the contrary, on commencement of the Re
spondent's picketing there could have been circum
stances, i e , Steel Fabricators' hiring of employees
in the Union's craft, which would have permitted
the filing of a petition for recognition No further
picketing occurred after the Respondent's receipt
on February 5, 1987, of a telegram from counsel
for Steel Fabricators stating that it had only one
employee 6 Based on these facts, we conclude that
the Respondent's recognitional picketing did not
exceed a reasonable period of time within the
meaning of Section 8(b)(7)(C) of the Act
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
liter as that employee Contrary to the statement of law in that telegram
the Board has held that Sec 8 (b)(7)(C) does not apply to picketing for
recognition in a stable one employee unit Plumbers Local 195 (Neches In
struments Service) 221 NLRB 1226 (1975) Teamsters Local 115 (Vila Barr
Co) 157 NLRB 588 (1966)
Richard J Simon Esq, for the General Counsel
Charles L Berger Esq and James Rosenberry Esq, of
Evansville, Indiana, for the Respondent
Arthur D Rutkowski Esq, of Evansville, Indiana, for the
Charging Party
DECISION
STATEMENT OF THE CASE
IRWIN H SOCOLOFF, Administrative Law Judge On
charges filed on 19 February and 5 March 1987 by S F
Steel Fab, Inc, against Operating Engineers Local 181
a/w International Union of Operating Engineers, AFL-
CIO (the Respondent), the General Counsel of the Na
tional Labor Relations Board, by the Regional Director
for Region 25 issued an amended complaint dated 18
June 1987 alleging violations by Respondent of Sections
8(b)(4)(i) and (ii)(B), 8(b)(7)(C) and 2(6) and (7) of the
National Labor Relations Act (the Act) Respondent by
its answer, denied the commission of any unfair labor
practices
Pursuant to notice trial was held before me in Evans
ville Indiana on 16 July 1987 at which the General
Counsel the Charging Party and the Respondent were
represented by counsel and were afforded full opportune
ty to be heard to examine and cross examine witnesses
and to introduce evidence Thereafter the parties filed
briefs that have been duly considered
On the entire record in this case and from my obser
vations of the witnesses I make the following
FINDINGS OF FACT
I JURISDICTION
3 For reasons stated by the judge we also disagree with the General
Counsel s further contention that Leithliter s statement to the Respondent
on February 2 that he owned the crane and the company and that he was
going to operate the rig gave the Respondent clear notice that Steel Fab
ricators neither employed nor intended to employ statutory employees as
crane operators
4 E g Teamsters Local 71 (Wells Fargo) 221 NLRB 1240 (1975) enfd
553 F 2d 1368 (D C Cir 1977) Teamsters Local 639 (Dunbar Armored
Express) 211 NLRB 687 (1974)
5 Cf Food & Commercial Workers Local 23 (S & I Valu King) 288
NLRB 986 (1988)
6 Even if picketing had continued after notice that the Employer had
only one employee it is not clear that such picketing would be unlaw
ful The telegram did not expressly identify the Employers owner Leith
Aluminum Company of America (ALCOA) is a Penn
Sylvania corporation , engaged at its Newburgh , Indiana
facility in the smelting and fabrication of aluminum
During the year ending 31 December 1986 ALCOA, in
the course and conduct of its business operations pur
chased and received at the Newburgh facility products
goods and materials valued in excess of $50,000 directly
from points located outside the State of Indiana During
the same time period ALCOA engaged in various con
struction projects at Newburgh and purchased and re
ceived at that site for use on those construction projects
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
goods, and materials , valued in excess of $50,000, direct-
ly from points outside Indiana.
Castle Contracting Co., Inc. (Castle) is an Indiana cor-
poration , and maintains its principal office and place of
business at Newburgh , Indiana. Castle is engaged in in-
dustrial and commercial general construction at the
ALCOA plant in Newburgh (the ALCOA jobsite).
During the year ending 31 December 1986, Castle, in the
course and conduct of its business operations , purchased
and received at its Newburgh locale products , goods,
and materials valued in excess of $50,000 directly from
points located outside the State of Indiana.
During the year ending 18 June 1987, the following
construction industry contractors performed services at
the ALCOA jobsite: Mel-Kay Electric , CDK Plumbing,
T and T Acoustic , Sims Painting, Fabcon , Shannahan
Crane and Hoist , Prescotsch , Sterling, Crawford Door,
Builder 's Specialties , and M and S Fire and Safety. In
that time period , those contractors and Castle, in the
course and conduct of their business operations at the
ALCOA jobsite, collectively purchased and received at
the jobsite products , goods, and materials valued in
excess of $50,000 directly from points located outside the
State of Indiana and/or from enterprises located within
Indiana which received the products , goods, and materi-
als directly from points located outside Indiana.
S.F. Steel Fab , Inc., an Indiana corporation , maintains
its principal office and place of business at Newburgh,
Indiana, and operates a facility in Carmi, Illinois, where
it fabricates and manufactures component parts for steel-
type building construction . During the year ending 31
December 1986, that Company shipped goods and mate-
rials valued in excess of $50 ,000, from its Illinois, facility,
to a jobsite located in the State of Kentucky.'
Steel Fabricators and Erectors , a sole proprietorship
owned by Stewart A. Leithliter and his wife, Janet
Leithliter , maintains its principal office and place of busi-
ness at Newburgh , Indiana, and is engaged at the
ALCOA jobsite in the operation of heavy equipment in
the construction industry.
S.F. Steel Fab, Inc . and Steel Febricators and Erec-
tors, by virtue of their common ownership , management,
control of labor relations and interrelationship of oper-
ations, constitute a single-integrated business enterprise
and a single employer within the meaning of the Act.
I find that ALCOA , Castle, and the S . F. Steel Fab,
Inc.-Steel Fabricators and Erectors entity are persons
and employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) and Section 8(b)(4) of the
Act.
IL LABOR ORGANIZATION
III. THE UNFAIR LABOR PRACTICES
A. Background
Late in 1986, Castle, the general contractor at the
ALCOA jobsite, engaged S.F. Steel Fab to erect a metal
building on the ALCOA premises. In anticipation of that
work, Stewart Leithliter and his wife, the owners of
more than 95 percent of the S.F. Steel Fab stock, formed
a sole proprietorship called Steel Fabricators and Erec-
tors. The new Company was founded in January 1987.
The Leithliters decided that the new company would
perform the work at the ALCOA jobsite and, using per-
sonal funds , they purchased a crane for use by Steel Fab-
ricators and Erectors. It was not the Leithliters' intention
to hire employees to operate the crane but, rather, they
decided that Stewart Leithliter would, himself, perform
the work.
Leithliter began operating the crane on the subject
jobsite on 2 February 1987. On 4 February, Respondent
engaged in picketing at one entrance to the ALCOA job-
site, with a sign stating, "Steel Fabricators are refusing
to negotiate and bargain with IUOE Local 181." After 1
day, picketing ceased.
In the instant case, the General Counsel contends, and
Respondent denies, that an object of Respondent's pick-
eting was to enmesh ALCOA, Castle, and other contrac-
tors in Respondent's dispute with Steel Fabricators and
Erectors, in violation of Section 8(b)(4)(i) and (ii)(B) of
the Act. The General Counsel further asserts that the
picketing had a recognitional object and was an attempt
to coerce Steel Fabricators and Erectors to enter into an
agreement pursuant to Section 8(f) of the Act, in .viola-
tion of Section 8(b)(7)(C) of the Act. Also at issue is
whether, on 2 February 1987, preceding the picketing,
Respondent unlawfully threatened to picket the jobsite.
B. Facts2
As noted, Leithliter arrived at the ALCOA jobsite on
2 February 1987, and began operating the crane owned
by Steel Febricators and Erectors. At the same time, he
supervised the work of employees of S.F. Steel Fab,
Inc., represented by Iron Workers Local 103, who deliv-
ered material and equipment to the jobsite and unloaded
trucks. While operating the crane, Leithliter was ap-
proached by James Snow, Respondent's steward, who
showed Leithliter his union card and asked if Leithliter
had such a card. Leithliter said no, adding that he owned
the Company and the equipment and he intended to op-
erate the crane. Leithliter did not tell Snow that Steel
Fabricators and Erectors did not employ other crane op-
erators.3 Snow reported the substance of this conversa-
tion to James Manning, Respondent's vice president.
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
' This finding is based on G.C. Exh..3, which is hereby received in
evidence. G.C. Exhs. 4(g), (i), (j), (k), (n), and (o) are also received. The
remainder of G.C. Exhs . 4 and 5 are rejected.
2 The factfindings contained herein are based on a composite of the
documentary and testimonial evidence introduced at trial. I have not gen-
erally relied on the testimony of Timothy Alkire, ALCOA 's construction
manager, who exhibited little recall of the details of significant events.
For the reason stated infra , I have also accorded little weight to the testi-
mony of Debbie Theueikauf, Alkire's secretary.
3 Indeed, Respondent was never advised of that fact prior to the pick-
eting of 4 February.
OPERATING ENGINEERS LOCAL 181 (STEEL FAB)
Debbie Theuerkauf, secretary to ALCOA s construc
tion manager Timothy Alkire , testified that during the
morning of 2 February , she received a call from Man
ning who wanted to talk to Alkire According to
Theuerkauf Manning stated that he had heard that there
was a nonunion contractor working on the jobsite and
Theuerkauf replied that she did not know of any Man
ning said that he would send Respondents business
agent , Cecil Murphy to meet with Alkire that afternoon
Theuerkauf further testified that Manning stated that if
the situation wasn t resolved there would be pickets up
in the morning
According to Theuerkauf Murphy arrived at her
office that afternoon She testified that she could not
recall what he said or how long he was there Further
she could not recall if Murphy saw Alkire or if he re
marred in her office or if he received clearance to enter
the jobsite She could not recall what Murphy did while
waiting to see Alkire When shown Cecil Murphy in the
hearing room she could not recall if she had ever seen
him before Theuerkaufs lack of recall on these points
persuades me that she is not a reliable witness
Cecil Murphy testified that he arrived at the ALCOA
construction office about 2 p in on 2 February seeking
to meet with Steel Fabricators and Erectors and work
something out Murphy went to Alkire s office and
asked Alkire what procedure to follow in order to obtain
clearance to enter the jobsite and speak to Steel Fabrica
tors and Erectors Alkire said that he did not know and
he asked Murphy to wait in the waiting room Murphy
waited until 5 p in at which time Alkire told him that
he could not enter the jobsite Murphy asked Alkire to
bring the man out here and let them talk in the office
Alkire refused , and Murphy left
On 3 February , Murphy received a telephone call
from an individual named Massey who stated that he
was an attorney representing Steel Fabricators and Erec
tors Massey asked if Murphy had a problem and
Murphy replied that he did not know he needed to talk
to the owner of the Company Massey told Murphy that
the Steel Fabricators and Erectors owner would call him
later that day Leithliter did not call Instead Murphy
received a call from another attorney representing Steel
Fabricators and Erectors Arthur Rutkowski who told
him that a suit would be filed against Murphy because he
had threatened a client Murphy stated that he had not
been able even to talk to Rutkowski s client
As indicated on 4 February Respondent picketed the
entrance to the jobsite used by Steel Fabricators and
Erectors and the employees of the other contractors A
single sign was displayed, stating Steel Fabricators are
refusing to negotiate and bargain with IUOE Local 181
After picketing commenced some 300 employees of var
sous construction contractors on the jobsite refused to
report to work When Leithliter arrived at the jobsite, he
asked Manning , what s your purpose here? Manning
replied to get you to negotiate with us
Alkire spoke to Manning about 4 p in on 4 February,
and suggested that Castle , the general contractor, stop
work on the contract until the problem could be re
solved Manning agreed to remove the pickets and, later
that day picketing ceased By telegram dated 4 February
357
1987 and received by Respondent on 5 February Re
spondent was advised for the first time that Steel Fabri
cators and Erectors has only one employee
No further picketing took place after 4 February
Leithliter engaged another contractor to complete the
work he had begun and that contractor Tri State Steel
commenced work on 9 February
C Conclusions
The General Counsel contends that, on 2 February
1987, Respondent through Manning violated Section
8(b)(4)(ii)(B) of the Act by threatening to picket at the
ALCOA jobsite This contention is premised entirely on
the testimony in that regard of Debbie Theuerkauf sec
retary to ALCOA s construction manager As I have
found Theuerkauf to be an unreliable witness, I am un
willing to base an unfair labor practice finding on her
testimony I find and conclude that this allegation should
be dismissed
With respect to the picketing of 4 February which de
cidedly had secondary effects there is a lack of record
evidence showing that an object of the picketing was to
exert secondary pressures Respondent picketed at the
jobsite using a sign which clearly stated that its dispute
was with Steel Fabricators and Erectors Picketing oc
curred at the gate used by Steel Fabricators and Erectors
and at a time when that company was on the jobsite and
engaged in its normal business activities Thus the stand
ards for lawful common situs picketing were met 4 Like
wise Respondents words and conduct at and away
from the picket line do not reveal that it harbored sec
ondary objectives I find and conclude that Respondent,
by its 4 February picketing at the ALCOA jobsite did
not engage in conduct violative of Section 8(b)(4)(B) of
the Act
Finally the General Counsel argues that the picketing
concededly recognitional was violative of Section
8(b)(7)(C) of the Act Thus by its picketing Respondent
sought to compel Leithliter to sign a contract covering
employees engaged in operating a crane for Steel Fabri
cators and Erectors a unit which contained no statutory
employees Such picketing the General Counsel urges
is a violation of Section 8(b)(7)(C) ab initio without
regard to the language in that Section privileging recog
nitional picketing for a reasonable period as, in such
circumstances a question concerning representation
cannot be raised Also, in the General Counsels view,
the picketing was necessarily aimed at forcing Leithliter
to sign an agreement covering future employees pursuant
to Section 8(f) of the Act , in violation of Section
8(b)(7)(C)
In certain circumstances the Board has held that rec
ognitional picketing in conformity with the reasonable
period requirement is nonetheless , violative of Section
8(b)(7)(C) where a valid question concerning represents
tion cannot be raised 5 The Board has also held that
* Sailors Union (Moore Dry Dock) 92 NLRB 547 (1950)
See A I Security Service Co 224 NLRB 434 ( 1976) enfd 578 F 2d
361 (D C Cir 1978) Dunbar Armored Express 211 NLRB 687 ( 1974) Cf
Vila Barr Co 157 NLRB 588 (1966)
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picketing to compel an employer to sign a prehire agree-
ment is violative of that Section of the Acts Here, how-
ever , the record evidence shows that, despite its efforts
to obtain the facts , Respondent was unaware , prior to
and during the course of its 1 day of picketing , that Steel
Fabricators and Erectors did not then employ statutory
employees as crane operators . No further picketing oc-
curred after it learned of that fact . In these circum-
stances, I find and conclude that Respondent 's picketing
may not be deemed to have occurred for the purpose of
obtaining a prehire agreement and that it was not other-
wise violative of Section 8(b)(7)(C) of the Act.
CONCLUSIONS OF LAW
1. S.F. Steel Fab, Inc. and Steel Fabricators and Erec-
tors constitute a single employer engaged in commerce,
and in operations affecting commerce , within the mean-
ing of Section 2(2), (6), and (7) of the Act.
6 R. S. Noonan, Inc., 142 NLRB 1132 (1963).
2. Respondent, Operating Engineers Local 181, a/w
International Union of Operating Engineers , AFL-CIO
is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has not engaged in violations of Section
8(b)(4) and (7) of the Act, as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The complaint is dismissed.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.