Local 1456, Carpenters

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 381 (N.L.R.B. 1973)

LOCAL 1456 , CARPENTERS 381
Dock Builders, Shorers, House Movers , Pile Drivers
and Foundation Workers, Local Union No. 1456,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and Vibroflotation Foundation
Company. Case 22-CD-210
April 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 30, 1973, Administrative Law Judge
Harry H. Kuskin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
tices in violation of Section 8(b)(4)(i) and (ii)(D) of the Act
by engaging in, and inducing and encouraging employees of
Vibroflotation to engage in, a strike or a refusal in the
course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, arti-
cles, materials , or commodities or to perform any services,
and by threatening, coercing, and restraining Vibroflota-
tion , an object thereof , in either case being to force and
require Vibroflotation to assign certain work to employees
who are members of, or are represented by, Dock Builders,
rather than to employees who are members of, or are repre-
sented by, Laborers' International Union of North Ameri-
ca, Local No. 343, AFL-CIO. herein called Laborers, and
by Local Union No. 825, International Union of Operating
Engineers , AFL-CIO, herein called Operating Engineers.'
In its answer, Respondent admitted (1) that, after a hearing
held pursuant to Section 10(k) of the Act, the Board, on or
about September 29, 1972, issued its Decision and Determi-
nation of Dispute 2 in which it assigned the work of "Vibro
process" including guiding the probe, maintaining cables
and hoses, keeping the log, operating valves and repairing
hoses and machines at a jobsite in Long Branch, New Jer-
sey, to employees represented by Laborers and Operating
Engineers and not to Respondent or its members; and (2)
that it has, since on or about October 11, 1972, failed and
refused to comply with this Decision and Determination of
Dispute. In addition, Respondent denies that it has violated
Section 8(b)(4)(i) and (ii)(D) of the Act as alleged herein.
Upon the entire record, including my observation of the
witnesses , including their demeanor while on the witness
stand, and after due consideration of the briefs of the Gen-
eral Counsel and of Respondent, I make the following:
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
Order of the Administrative Law Judge and hereby
orders that Respondent , Dock Builders , Shorers,
House Movers, Pile Drivers and Foundation Work-
ers, Local Union No. 1456, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, Long
Branch , New Jersey , its officers , agents , and represen-
tatives , shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Administrative Law Judge: This case
was heard at Newark, New Jersey, on November 28 and 29,
1972. A complaint issued herein on October 19, 1972, based
on a charge filed on April 28, 1972, by Vibroflotation Foun-
dation Company herein called Vibroflotation, against Dock
Builders, Shorers, House Movers, Pile Drivers and Founda-
tion Workers, Local Union No. 1456, United Brotherhood
of Carpenters and Joiners of Amercia, AFL-CIO, herein
called Dock Builders. The complaint alleged that Respon-
dent had engaged, and was engaging, in unfair labor prac-
FINDINGS OF FACT
I THE BUSINESS OF VIBROFLOTATION
The complaint alleges, and Respondent admits, that Vi-
broflotation , at all times material herein , has maintained its
principal office in Pittsburgh, Pennsylvania, and is now, and
at all times material has been , continuously engaged as a
contractor in the building and construction industry; that it
performed work at a jobsite located at Ocean Avenue and
Lake Drive, Long Branch, New Jersey; and that, during the
12 months preceding the issuance of the complaint, which
is a representative period, in excess of $50,000 of the reve-
nue received by Vibroflotation was derived from services
within the States of the United States other than Pennsylva-
nia. I find, upon all the foregoing, as Respondent also ad-
mits, that Vibroflotation is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
If THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges , and Respondent further admits,
1 The employees who are members of, or are represented by, Operating
Engineers are incorrectly referred to in the record as "operating Joiners." The
record, in such instances, is accordingly corrected to read "operating engi-
neers "
i 199 NLRB No 53.
203 NLRB No. 64
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I find, that Laborers' International Union of North
America, Local Union No. 343, AFL-CIO; Local Union
No. 825, International Union of Operating Engineers,
AFL-CIO; and Respondent are each labor organizations
within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Contentions as to the Scope
of the Issues To Be Determined Herein
It is well established that, in a proceeding under Section
10(k) of the Act, the Board must determine initially whether
there is reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) of the Act has been committed; and, if so,
and if the parties have not settled or agreed upon a method
for the settlement of their dispute, the Board must then hear
and determine the dispute. Thereafter, if there is compliance
with the Board's decision in the 10(k) proceeding, the unfair
labor practice charge, which gave rise to the 10(k) proceed-
ing, is dismissed; otherwise, a complaint issues based upon
that charge.
Respondent contends, in effect, in its brief that where, as
here, a complaint has issued alleging a failure to comply
with the Board's Decision and Determination of Dispute in
the 10(k) proceeding, procedural due process requires that
I, as Administrative Law Judge, determine anew whether,
as the Board found, (1) there are here claims for the same
work by competing groups of employees and therefore a
jurisdictional dispute exists; and (2) the work in issue should
be awarded to employees represented by Laborers and Op-
erating Engineers. And it contends further, in effect, that it
is within my province to modify the scope of the award. I
find these contentions to be lacking in merit. The Board has
consistently held that, in the absence of newly discovered
evidence, its award of disputed work under Section 10(k) of
the Act is not open to review by a Trial Examiner (now an
Administrative Law Judge) in a related proceeding upon a
complaint alleging a violation of Section 8(b)(4)(D) of the
Act. In the foregoing connection, Respondent takes excep-
tion to my ruling in which I denied it an opportunity to
introduce evidence beyond that submitted in the 10(k) hear-
ing and purporting to indicate the contractual history be-
tween Vibroflotation and Dock Builders;5 and urges that I
3 See Secs . 102.90 and 102 .91 of the Boards Rules and Regulations, and
Secs . 101.31 and 101 .33 of the Board 's Statement of Procedure, Series 8, as
amended
4 See Cleveland Stereotypers' Union No 22, International Stereotypers' and
Electrotypers' Union of North America, AFL-CIO ( Western Press Inc), 160
NLRB 1184; New York Newspaper Printing Pressmen's Union No 2, AFL-
CIO (New York Times Company), 154 NLRB 1122, and cases cited therein
in fn 6.
Contrary to Respondent , the cases of International Longshoremen 's Associ-
ation, Local 1576, 409 F 2d 709 (C A. 5); Teamsters, Chauffeurs, Helpers and
Taxicab Drivers Local 327, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America (American Bread
Company), 170 NLRB 91; and Carpenters District Council of Detroit, Wayne
and Oakland Counties and Vicinity, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Shepard Marine Construction Company), 195
NLRB 530, do not require a different result here.
s Respondent thereupon made an offer of proof as to what its witness,
William C. Finneran , would testify in reference thereto were he allowed to
do so, which I rejected
reconsider my ruling and remand the case to permit the
taking of such evidence. Respondent is thereby seeking to
adduce before me evidence which the Board has refused to
consider upon Respondent's motion to reopen the record in
the 10(k) proceeding. In so ruling, the Board held that,
"Respondent has failed to set forth facts which establish
that such evidence was previously unavailable or could not
have been made available at the scheduled hearing by the
exercise of proper diligence." Crew Builders Supply Co., 154
NLRB 1747, 1748, fn. 1. In all these circumstances , includ-
ing the fact that the evidence sought to be adduced pertains
to the propriety of the Board's award; and the further fact
that the Board has heretofore rejected such evidence when
proferred after the hearing in the 10(k) proceeding was
closed, indicating, in substance, that it was not persuaded
that such evidence was newly discovered, and hence no
warrant existed for considering such belatedly offered evi-
dence in determining the dispute; and as the Board's ruling
is binding on me, I adhere to my ruling at the instant hearing
and conclude, and find, that the Board's findings as to who
is entitled to perform the work involved in this proceeding
are binding upon me, and they are hereby adopted as part
of the findings herein.
B. The Issues To Be Decided Herein
It follows from all the foregoing that the only issues be-
fore me are (1) whether Respondent has complied with the
Board's Decision and Determination of Dispute, and (2)
whether Respondent engaged in conduct described in Sec-
tion 8(b)(4)(i) and (ii) for an objective proscribed in Section
8(bx4)(D). As to (1), Respondent has, as already indicated,
admitted that it has since on or about October 11, 1972,
failed and refused to comply with the Board's Decision and
Determination of Dispute. In addition, the record shows
that Respondent notified the Regional Office of Region 22
of the Board by letter dated October 11, 1972, under signa-
ture of counsel for Respondent herein, inter alia, that "the
Union does not intend to abide by the award in question."
As to (2), the record 6 discloses the following: Vibroflotation
entered into a contract with E. J. Frankel Construction
Company to perform soil compaction service for it at a
construction site in Long Branch, New Jersey, herein called
the jobsite. It began operations on April 17, 1972, and em-
ployed at that time about 12 employees, 4 of whom were
represented by Laborers and 8 of whom were represented
by Operating Engineers. The employees represented by Op-
erating Engineers consisted of two crane operators, two
oilers, one front-end loader operator, one general operator,
one pump operator and one master mechanic. The employ-
ees represented by Laborers were engaged in shovelling
sand dumped from the front-end loader into the hole where
the soil compaction was taking place, in moving the hoses
and cables to keep the rig from damaging or riding over
them, and in repairing hoses if they began to leak. Two
laborers were assigned to each crane.
The uncontradicted testimony of Michael Hapsis, the
field superintendent of Vibroflotation, which I credit, estab-
6 This includes the record made before me as well as the record of the 10(k)
proceeding and the Board's Decision and Determination of Dispute therein.
LOCAL 1456, CARPENTERS 383
lishes that Arthur Helt, the admitted business representative
and agent of Respondent, appeared at the jobsite. at or
about 8 a.m. on April 25 and 26, 1972, and had the hereinaf-
ter described conversations with him: On the first-men-
tioned day, Helt 7 asked him for the name of the company
doing the work on the jobsite, and he identified Vibroflota-
tion as the one so involved. Thereupon, Helt asked him,
"where the dockbuilders were for the job," and he replied
that Vibroflotation did not use dockbuilders. At this, Helt
said, "we would have to use dockbuilders, four men and one
foreman per crane." When he repeated his above answer
and added that he would have to check with his office first,
Helt remarked that, "if we didn't do it, he (Helt) was going
to put pickets up the next day." On the next day, Helt again
approached him and followed up their conversation of the
day before by asking, "if [he] was going to use the dock
builders." His answer was that, "my Company said, `no.' "
At this, Helt responded that "there would be pickets."
The uncontradicted and credited testimony of Hapsis es-
tablishes further that pickets appeared at the jobsite on
April 26, shortly after the above-described conversation
with Helt; that two pickets were there in the morning, five
in the afternoon, and two at night; that they carried signs
with the legend "Vibroflo wages and conditions below the
standards of the Dock Builders, Local 1456"; that the em-
ployees represented by Operating Engineers and those rep-
resented by Laborers reported for work on April26; that the
laborers crossed the picket line and were going to go to work
but could not do so as the operating engineers would not
cross the picket line and refused to work, with the conse-
quence that there was no work for the laborers to per-
form;8 that the picketing lasted for approximately 2 weeks,
and Vibroflotation's work was at a standstill during that
period; and that the laborers, unlike the operating engi-
neers, crossed the picket line every day of that period and
got show-up time pay9 for the first week, whereas the operat-
ing engineers received no pay at all.
C. Conclusion as to the Allegations Herein
It is apparent from all the foregoing that there existed, as
the Board found in the 10(k) proceeding, claims for the
same work by competing groups of employees; that Re-
spondent threatened Vibroflotation on April 25 and 26 that
it would picket the jobsite if the disputed work was not
awarded to dockworkers whom it represented; 10 that Re-
spondent did picket the jobsite at which the disputed work
was being performed; and that, in consequence thereof, the
employees represented by Operating Engineers refused to
cross the picket line; and, while the employees represented
7 Helt did not testify in this proceeding.
8 As heretofore indicated, the operating engineers operated the equipment
and the laborers performed the manual work required as part of the soil
compacting process.
9 The record shows that show -up time pay is full-time pay.
101 attach no overriding significance to the fact that Helt did not, in his
conversations with Hapsis , seek the removal of the operating engineers or the
laborers from the ,lobsite in haec verba . As it appears that no more than the
existing complement was needed by Vibroflotation to perform the work at
hand , it follows that Helt 's request that Vibroflotation hire dockbuilders was
tantamount to seeking the removal of other employees , and I so find
by Laborers did cross the picket line, they were prevented
from performing any work due to their dependence for
work upon the operation of Vibroflotation equipment by
the operating engineers.' 1
It follows further from the above, and from the additional
fact that Respondent admits in its answer that at no time
material herein has the Board issued an order or certifica-
tion determining the bargaining representative for the work
involved herein, that the steps taken by Respondent, i.e., the
threats and the picketing, were for a proscribed object,
namely, that of forcing or requiring Vibroflotation to assign
particular work to employees in a particular labor organiza-
tion rather than to employees in another labor organization
or organizations, and I so find. And it follows, too, and I
find, that Respondent engaged in unlawful acts in pursuit
of this objective, as follows: (1) it picketed the jobsite and
thereby induced and encouraged employees of Vibroflota-
tion to engage in a strike or refusal in the course of their
employment to perform services at the picketed location;
and (2) it threatened Vibroflotation with picketing of the
jobsite unless the disputed work was assigned to dockwork-
ers whom it represented, and also engaged in the above
picketing in fulfillment of these threats, and by such con-
duct separately, or in combination, threatened, restrained,
or coerced Vibroflotation. I, therefore, conclude, and find,
that, by the conduct set forth in (1) and (2) above, Respon-
dent has violated Section 8(b)(4)(i)(D) and (ii)(D) of the
Act.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Operating Engineers and Laborers, are
each labor organizations within the meaning of Section 2(5)
of the Act.
2. Vibroflotation is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By engaging in, and inducing and encouraging indi-
viduals employed by Vibroflotation to engage in, a strike or
refusal in the course of their employment to perform serv-
ices , and by threatening, coercing, or restraining Vibroflota-
tion, an object thereof, in either case , being to force or
require Vibroflotation to assign certain work to employees
who are its members or are represented by it rather than to
the employees of Vibroflotation who are members of or
represented by Operating Engineers and by Laborers, Re-
spondent engaged, and continues to engage, in unfair labor
practices proscribed by Section 8(b)(4)(i) and (ii)(D) of the
Act.
11 As there is absent here any express disclaimer by the operating engineers
themselves , or by their representative in their behalf , of the work which they
were doing , I find without merit Respondent 's contention , in effect, in its
brief that it follows from the fact that the operating engineers refused to cross
the picket line that they did not claim such work . And insofar as it asserts
therein that the laborers were also not claiming some of the disputed work,
I also conclude that such contention is without meet, as it cannot be gainsaid
that the laborers' conduct herein during the picketing was inconsistent with
a conclusion they they did not claim the work. See, in this connection,
N.L.R.B v Local 1291, International Longshoremen's Association [Pochahan-
tas Steamship Company], 368 F.2d 107 (C.A. 3), which is quoted , in relevant
part. in the Board 's Decision and Determination of Dispute herein.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated Section
8(b)(4)(i) and (ii)(D) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. As
to the former, I shall, consistently with the scope of the
Board's award set forth in its Decision and Determination
of Dispute herein, recommend further that Respondent
cease and desist from engaging in the aforesaid illegal con-
duct whenever Vibroflotation operates in the New York or
New Jersey area and whenever the geographical jurisdiction
of Dock Builders coincides with the jurisdiction of Laborers
and Operating Engineers. 12
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, I
hereby issue the following recommended: 13
ORDER
Respondent , Dock Builders , Shorers , House Movers, Pile
Drivers and Foundation Workers , Local Union No. 1456,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Long Branch , New Jersey , its officers, agents,
and representatives , shall:
1. Cease and desist from:
Refusing to comply with the Board 's Decision and Deter-
mination of Dispute herein ; or (1) engaging in, or inducing
or encouraging individuals employed by persons engaged in
commerce or an industry affecting commerce to engage in,
a strike or refusal in the course of their employment to use,
manufacture , process , transport , or otherwise handle or
work on any goods , articles , materials , or commodities, or
to perform any services; or (2) threatening , coercing, or re-
straining persons engaged in commerce or in an industry
affecting commerce , where , in either case , an object thereof
is to force or require Vibroflotation Foundation Company,
whenever the latter operates in the New York or New Jersey
area and whenever the geographical jurisdictions of the
three labor organizations herein coincide, to assign the work
described below to employees who are the members of, or
represented by, Respondent , rather than to employees who
are members of, or represented by, either Laborers ' Interna-
tional Union of North America , Local Union No. 343,
AFL-CIO, or Local Union No. 825 , International Union of
Operating Engineers , AFL-CIO.
The work is that involved in the "Vibro process" includ-
ing guiding the probe , maintaining cables and hoses, keep-
ing the log , operating valves , and repairing hoses and
machines.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its meeting halls and offices copies of the
attached notice marked "Appendix ." 14 Copies of said no-
tice on forms provided by the Regional Director for Region
22, after being signed by a representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof and be maintained for 60 consecutive days thereaf-
ter, in conspicuous places , including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
said Regional Director for posting by Vibroflotation Foun-
dation Company, if it is willing, at locations where notices
to its employees are customarily posted.
(c) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
i2 Although Respondent takes exception in its brief to the scope of the
Board 's award and urges that the remedial order herein be limited , it advanc-
es no sufficient reason therefor . Apart from the foregoing, as heretofore
found , I am bound by that award
i3 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 recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
i4 In the event that the Board's 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 Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to comply with the Board 's Deci-
sion and Determination of Dispute set forth in 199
NLRB No. 53.
WE WILL NOT engage in , or induce or encourage indi-
viduals employed by persons engaged in commerce or
an industry affecting commerce to engage in, a strike
or refusal in the course of their employment to use,
manufacture , process , transport, or otherwise handle or
work on any goods , articles , materials , or commodities,
or to perform any services; and
WE WILL NOT threaten , coerce , or restrain persons en-
gaged in commerce or in an industry affecting com-
merce where , in either case , an object thereof is to force
or require Vibroflotation Foundation Company, when-
ever the latter operates in the New York or New Jersey
area and whenever the geographical jurisdictions of the
three labor organizations herein coincide , to assign the
work described below to employees who are our mem-
bers or represented by us rather than to employees who
are members of, or represented by, either Laborers'
International Union of North America , Local Union
No. 343, AFL-CIO. or Local Union No. 825, Interna-
tional Union of Operating Engineers , AFL-CIO.
The work is that involved in the "Vibro process"
including guiding the probe, maintaining cables and
LOCAL 1456, CARPENTERS 385
hoses, keeping the log, operating valves , and repairing
hoses and machines.
Dated By
(Representative) (Title)
DOCK BUILDERS , SHORERS,
HOUSE MOVERS , PILE DRIVERS
AND FOUNDATION WORKERS.
LOCAL UNION No. 1456,
UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERI-
CA. AFL-CIO
(Labor Organization)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office , Federal Building, 16th Floor, 970
Broad Street, Newark , New Jersey 07102, Telephone 201-
645-2100.