Laborers Local 104 (ACMAT Corp.)

National Labor Relations Board - Board Decisions

Dec 26, 1990

300 N.L.R.B. 1022 (N.L.R.B. 1990)

1022
300 NLRB No. 150
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers’ International Union of North America,
AFL–CIO, Local 104 and ACMAT Corpora-
tion and Sheet Metal Workers’ International
Association, AFL–CIO and Its Local 28. Case
2–CD–760
December 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 9, 1990, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. In re-
sponse, the General Counsel filed the brief submitted
to the judge.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laborers’ International
Union of North America, AFL–CIO, Local 104, New
York, New York, its officers, agents, and representa-
tives, shall take the action set forth in the Order.
Geoffrey Dunham, Esq. and David E. Leach III, Esq., for the
General Counsel.
Stephen Davis, Esq. and Wilfred L. Davis & Stephen Davis
P.C., for Laborers.
Bryon Marsh, for ACMAT Corporation.
Donald W. Fisher, Esq., for Sheet Metal Workers.
Cliford C. Ryan, Esq., for Metropolitan Life Insurance Com-
pany.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on February 14, 1990.
The charge was filed on September 13, 1988, and the com-
plaint was issued on August 9, 1989. The complaint alleges
that the Respondent violated Section 8(b)(4)(ii)(D) of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
ACMAT Corporation is engaged in the business of asbes-
tos removal. Annually it derives gross revenues in excess of
$500,000 and purchases and receives goods valued in excess
of $50,000 from suppliers located outside the State of New
York. I therefore find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. The parties agree and I conclude that the Respondent
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
On June 15, 1989, the Board in a decision reported at 295
NLRB 692 (1989), issued a Decision and Determination of
Dispute in this matter after a hearing held pursuant to Sec-
tion 10(k) of the Act. The Board concluded that there was
reasonable cause to believe that a jurisdictional dispute ex-
isted. The Board further concluded that certain asbestos re-
moval work being performed at the Pan Am Building in New
York City should be assigned to ACMAT’s own employees
(who happened to be represented by Local 28 Sheet Metal
Workers’ International Association), rather than to employees
represented by the Respondent.
In the context of the 10(k) hearing, the Respondent con-
tended that the Sheet Metal Workers’ International Associa-
tion should be precluded from representing the employees of
ACMAT because of a conflict of interest resulting from a
substantial financial investment in the Company by that
Union’s pension fund. At the 10(k) hearing, the Respondent
made an offer of proof on this point and later urged the
Board to reopen that hearing for the purpose of receiving
evidence on that issue. The Board refused and concluded
inter alia at footnote 2, that even if the offer of proof was
true, it was not relevant to the disposition of the case be-
cause the ‘‘issue in this proceeding is the identity of the em-
ployees entitled to perform the work, not the identity of their
representative.’’
The Respondent repeated its contention regarding the al-
leged conflict of interest in the present proceeding. In fur-
therance thereof, it issued subpoenas to ACMAT and to the
Sheet Metal Workers’ International Association and its pen-
sion fund to produce records which the Respondent felt
would prove its point. I granted petitions to revoke these
subpoenas because I believe that the Board’s previous con-
clusion regarding the relevancy of this contention is disposi-
tive. Consequently, the Respondent in this hearing made the
same offer of proof as it made in the previous 10(k) hearing.
The credible and uncontroverted evidence presented in the
unfair labor practice hearing established the following:
1. In August or early September 1988, ACMAT pursuant
to a contract with Cross and Brown Company, an affiliate of
Metropolitan Life Insurance Company, commenced the work
of removing asbestos from certain floors of the Pan Am
Building in New York City.
2. That ACMAT pursuant to a collective-bargaining agree-
ment with the Sheet Metal Workers’ International Associa-
tion, AFL–CIO assigned the foregoing work to employees
whom it hired and who were represented by Local 20 of the
Sheet Metal Workers’ International Association.
3. That on September 6, 1988, representatives of the Re-
spondent demanded that ACMAT hire members of the Re-
spondent and assign to them the work of removing asbestos
from the Pan Am Building.
1023LABORERS LOCAL 104 (ACMAT CORP.)
1 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 objec-
tions to them shall be deemed waived for all purposes.
2 If this 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
4. That on September 6, 1988, representatives of the Re-
spondent in furtherance of the aforesaid demand, threatened
to engage in picketing at the jobsite if Respondent’s demand
was not acceded to.
5. That on September 8, 1988, representatives of the Re-
spondent in furtherance of its work assignment demand,
threatened representatives of Cross and Brown that unless its
demand was met, the Respondent would cause a work stop-
page and engage in picketing at the building.
6. The complaint alleges and the answer admits that the
Respondent has not been certified by the Board as the collec-
tive-bargaining representative of any of the employees per-
forming the work described above, nor has the Board issued
any order determining that the Respondent is the bargaining
representative of the employees who performed the work.
7. The complaint alleges and the answer admits that the
Respondent, on August 1, 1989, notified the Regional Direc-
tor of Region 2 that it would not comply with the Board’s
award which issued on June 15, 1989.
CONCLUSIONS OF LAW
1. ACMAT Corporation is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent, Laborers’ International Union of North
America, AFL–CIO, Local 104, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. The Respondent has violated, and is violating, Section
8(b)(4)(ii)(D) of the Act by threatening employers with an
object of forcing and requiring ACMAT to assign the dis-
puted work to employees who are members of or represented
by Respondent.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Laborers’ International Union of North
America, AFL–CIO, Local 104, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from threatening, coercing, or restrain-
ing ACMAT Corporation or any other employer, with an ob-
ject of forcing or requiring ACMAT to assign the work of
asbestos removal or abatement at the Pan Am Building to
employees who are members of or represented by the Re-
spondent rather than to employees who are represented by
Sheet Metal Workers’ International Association, AFL–CIO,
Local 28.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its business offices and meeting halls copies of
the attached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten, coerce, or restrain ACMAT Cor-
poration or any other employer, with an object of forcing or
requiring ACMAT to assign the work of asbestos removal or
abatement at the Pan Am Building to employees who are
members of or represented by us, rather than to employees
who are represented by Sheet Metal Workers’ International
Association, AFL–CIO, Local 28.
LABORERS’ INTERNATIONAL UNION OF NORTH
AMERICA, AFL–CIO, LOCAL 104