Local 40, Iron Workers

National Labor Relations Board - Board Decisions

May 30, 1980

249 N.L.R.B. 917 (N.L.R.B. 1980)

LOCAL 40, IRON WORKERS 917
Local 40, International Association of Bridge, Struc-
tural & Ornamental Ironworkers, AFL-CIO
and Spancrete Northeast, Inc. and Construction
and General Laborers Local Union Nos. 9 and
190, Laborers International Union of North
America, AFL-CIO. Case 2-CD-594
May 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 10, 1980, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, Rospondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision.
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
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Local 40, Inter-
national Association of Bridge, Structural & Orna-
mental Ironworkers, AFL-CIO, White Plains,
New York, its officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order.
I On August 13, 1979, the Board issued its Decision and Determination
of Dispute, in which the work in dispute was awarded to the employees
who are represented by Laborers Locals 9 and 190. Local 40, Internation-
al Association of Bridge, Structural and Ornamental Iron Workers. .4FL-
CIO (Spancrete Northeast, Inc). 244 NLRB No. 48
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In affirming the Administrative Law Judge's Decision, Member Jen-
kins finds it unnecessary to rely on International Association of Bridge,
Structural and Ornamental Ironworker. Local 10. AFL-CIO (Vincent
Metal Works). 215 NLRB 153 (1974), wherein he dissented.
DECISION
MAX ROSENBERG, Administrative Law Judge: This
proceeding was heard before me in New York, New
249 NLRB No. 112
York, on November 29, 1979, upon an amended com-
plaint filed by the General Counsel of the National
Labor Relations Board and an answer submitted thereto
by Local 40, International Association of Bridge, Struc-
tural & Ornamental Iron Workers, AFL-CIO, herein
called the Respondent or Local 40.' At issue is whether
Respondent violated Section 8(b)(4Xii)(D) of the Nation-
al Labor Relations Act, as amended, by certain conduct
to be chronicled below. Briefs have been received from
the General Counsel and Respondent which have been
duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of the demeanor of the witnesses
who testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Spancrete Northeast, Inc., herein called Spancrete, a
New York corporation with its offices and principal
place of business in South Bethlehem, New York, and
plants in Rochester, New York, and Aurora, Ohio, is en-
gaged in the manufacture, sale, and installation of pre-
cast and pre-stressed concrete building members. During
the annual period material to this proceeding, Spancrete
purchased and received goods, products, and materials at
its New York job sites and facilities valued in excess of
$50,000 directly from points located outside the State of
New York. The complaint alleges, the answer admits,
and I find that Spancrete is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
It is undisputed and I find that Respondent and Con-
struction and General Laborers Local Unions No. 9 and
190, Laborers International Union of North America,
AFL-CIO, herein called the Laborers, are labor organi-
zations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that, since on or about May 14,
1979,2 Respondent has violated Section 8(b)(4)(ii)(D) of
the statue by threatening Spancrete, Morse Diesel Cor-
poration,3 and the City of White Plains, New York, with
picketing and strikes unless the latter entities assigned the
work of erecting concrete components at the construc-
tion site of a municipal parking garage in the city of
White Plains to members of Local 40 rather than to em-
ployees who are members of the Laborers, despite the
fact that Respondent had not been certified by the Board
as the bargaining agent of any of the employees who
performed that work, nor had Respondent received any
order of the Board determining that it was the bargain-
' The complaint, which issued on August 17. 1979. is based upon a
charge which was filed on May 24. 1979, and served on May 25. 1979
2 Unless otherwise indicated, all dates herein fall in 1979
a Morse Diesel Corporation. herein called Morse, constituted the con-
struction manager for the garage here involved at the times material
LOCAL 40, IRON WORKERS 2
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing representative of the employees performing said
work. 4 Respondent denies the foregoing allegations.
The instant litigation was preceded by a hearing under
Section 10(k) of the Act,5 the record of which I have
taken official notice by agreement of the parties. The
composite record discloses that, in May 1978, Spancrete
submitted a bid to the city of White Plains, New York,
to manufacture, furnish, and erect all the concrete com-
ponents for the construction of a municipal parking
garage in a shopping mall located in that city. Sometime
thereafter, the city awarded the contract, valued at ap-
proximately $8 million, to Spancrete. Pursuant to its col-
lective-bargaining agreement with the International La-
borers Union and agreements thereunder with various
locals, including the laborers Locals involved herein,
which encompassed employees working at and out of its
three plants, Spancrete assigned the garage erection
work to employees represented by the Laborers.
At meetings conducted on Janaury 24, February 7, and
March 21, representatives of Spancrete, Respondent, and
the city discussed the assignment of the work in question
to members of the Laborers and Respondent's insistence
that the work rightfully belonged to its members. At the
conclusion of the March 21 session, the mayor of the
city and an official of Morse suggested that Respondent
submit the jurisdictional issue to the Impartial Jurisdic-
tional Disputes Board, herein called the IJDB, for reso-
lution. 6 In response to the suggestion, Respondent and
the Laborers stipulated the matter to the IJDB. Howev-
er, because Spancrete did not join the stipulation and de-
clined to abide by the IJDB's decision, the Laborers re-
fused to participate in the adjudication. Hence, no agree-
upon method for the voluntary adjustment of the dispute
was arrived at.
On May 4, the IJDB rendered a decision awarding the
work to Respondent. Upon receipt of the decision on
May 10, Respondent contacted a representative of Morse
to arrange for another meeting with the mayor to discuss
the situation. This session was conducted on May 14, and
was attended by Alfred Del Veccio, the Mayor of White
Plains; Paul Bergins, the city corporation counsel; James
' Sec. 8(bX4XIIXD) makes it an unfair labor practice for a labor orga-
nization or its agents to threaten, coerce, or restrain any person engaged
in commerce or in an industry affecting commerce, where in either case
an object thereof 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 another 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 representative for employees performing such work .
Sec. 10(k) provides:
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph (4)(D) of section
8(b), 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 dispute. Upon compliance by the parties to the
dispute with the decision of the Board or upon such voluntary ad-
justment of the dispute, such charge shall be dismissed.
6 This Board, located in Washington, D.C., is the forum for the settle-
ment of jurisdictional disputes on a national basis between labor organiza-
tions in the building and construction trades.
Yarmus, the city engineer and construction officer; Gene
McGovern, the vice president of Morse; and two repre-
sentatives of Respondent, Raymond Corbett, the business
manager, and James Mullett, the Business Agent. Speak-
ing for Respondent, Corbett drew attention to the favor-
able IJDB award and, after adverting to a number of
municipal garages which Respondent's members had
erected in the city and some decisions of the Board
awarding similar work to Respondent, Corbett stated
that "this was work that rightfully belonged to Iron
Workers" and that Respondent "would do whatever in
[its] power to see to it that Iron Workers did the work."
According to the testimony of Corporation Counsel Ber-
gins given in the 10(k) proceeding, Corbett added that, if
Spancrete embarked upon the construction of the project
with employees who were members of the Laborers, Re-
spondent would "take it down," by which Corbett meant
that ironworkers who were already employed by other
subcontractors on the shopping mall site and who be-
longed to Respondent would stop work and picket the
project. In his testimony in that proceeding, Corbett
denied that he had threatened to close down the project.
Rather, Corbett related that, by the use of the phrase
"take it down," he meant that Respondent intended to
file an action in a New York State court to compel the
city to defer construction until that tribunal could deter-
mine whether the contractual award to Spancrete was
lawful.
On June 4, Spancrete began erecting the garage with
employees who were members of the Laborers. Mean-
while, on May 24, that Company filed the instant
charges against Respondent alleging a violation of Sec-
tion 8(b)(4)(ii)(D) of the Act. On the basis of Corbett's
statement at the May 14 meeting which Corporation
Counsel Bergins had attributed to him, the Acting Re-
gional Director for Region 2 of the Board petitioned a
United States district court for a temporary injunction
pursuant to Section 10(I) of the Act. On June 15, the
court, having found reasonable cause to believe that a
violation of Section 8(b)(4)(ii)(D) existed, granted a 60-
day restraining order enjoining Respondent from engag-
ing in strikes, work stoppages, picketing, or threats there-
of, against the city of White Plains, Spancrete, or Morse,
for the object of forcing the assignment of the work in
dispute to its members. On the same day, and continuing
on June 18, 19, and 20, a 10(k) hearing was conducted by
the Board. On August 13, the Board issued its Decision
and Determination of Dispute in which it awarded the
disputed work to Spancrete's employees represented by
the Laborers rather than to Respondent's members. In
doing so, it interpreted Corbett's comment to "take it
down" to mean that the ironworkers employed at the
project would walk off the job and picket. Viewing the
statement as a threat to picket in support of its claim to
the garage work, the Board concluded that reasonable
cause existed to believe that Respondent had violated
Section 8(b)(4)(D) of the Statute. Because Respondent
refused to comply with the award, a complaint was
issued against it on August 17 which triggered the in-
stant litigation.
Inasmuch as Respondent had not been certified by the
Board as the bargaining agent of the employees designat-
LOCAL 40, IRONWORKERS 919
ed to perform the construction work at the garage and
had not received a Board order determining that it was
the bargaining representative for said employees, and in
light of Respondent's admission that whatever action it
took herein had as its object the acquisition of the con-
struction work for its members rather than employees
represented by the Laborers, the only issue which re-
mains for decision is whether Respondent's statements at
the May 14 meeting constituted an unlawful threat to
Spancrete, the city, and Morse, to achieve that object. 7
The Board addressed itself to this issue in the 10(k)
proceeding and found, based upon conflicting testimony
rendered by the city's corporation counsel, Bergins, and
Union Business Manager Corbett, that reasonable cause
existed to believe that Corbett had unlawfully threatened
to shut down the project unless the work in question was
assigned to his members. While such findings may be uti-
lized as evidence in a subsequent hearing before an ad-
ministrative law judge to determine whether a substan-
tive violation of Section 8(b)(4)(D) has occurred, 8 these
findings are subject to refutation in the subsequent pro-
ceeding.9 This is so because, in a 10(k) proceeding, the
quantum of proof necessary to support those findings is
simply measured by the standard of "reasonable cause to
believe" rather than a "preponderance of the evidence
on the record as a whole" as mandated in an unfair labor
practice proceeding. o I therefore turn to a consideration
of whether the evidence presented by the General Coun-
sel in this hearing preponderantly supports the Board's
earlier findings in the 10(k) hearing.
In the instant proceeding, the General Counsel sum-
moned Corporation Counsel Bergins to the stand where
he related that, when the May 14 meeting opened, Re-
spondent's business manager, Corbett, drew attention to
the IJDB decision which had awarded the construction
work to members of his labor organization. Corbett an-
nounced that the award had vested Respondent with ju-
risdiction over the work in question and that he intended
to protect that jurisdiction. He thereupon informed the
assemblage that, if Spancrete persisted in utilizing the
services of its employees who were represented by the
Laborers to erect the garage, Respondent would "take it
down." When Bergins inquired into the meaning of the
phrase, Corbett explained that Respondent would pull
the ironworkers employed by subcontractors who were
already at work on the mall off the job and commence
picketing the site. Corbett added that he anticipated this
activity would precipitate a 10(k) proceeding and that
the controversy would finally be resolved in court. Ber-
gins further testified that, later in the discussion, Corbett
mentioned a provision in a state statue which required
that the city make a determination as to which of the
competing Unions should be assigned to the disputed
work jurisdiction.
It is undisputed and I find that Respondent never induced any work
stoppages at the construction site through picketing or otherwise.
8 See nternartionaol Union of Operating Engineers Local 571, AFL-CIO
(J. E. D. Construction Company. Inc.)., 241 NLRB No. 173. (1979).
See N.L.R.B. v. International Association of Bridge. Structural and Or-
namental Ironworkers. AFL-CIO. Local 433, 549 F.2d 634, 638 (9th Cir.
1977).
10 Ibid.
James Yarmus, the City's Engineer and Construction
officer, corroborated Bergins' testimony in all salient re-
spects when called as witness in this proceeding.
For reasons which were unexplained on this record,
Respondent counsel failed to call Union Business Man-
ager Corbett as a witness. Instead, counsel chose to rely
upon the testimonial utterances of Union Business Agent
James Mullett.
Mullett recounted that, as he and Corbett proceded to
the May 14 meeting, the latter confided that the city of
White Plains had "goofed" in awarding the garage con-
struction contract to Spancrete because a state law man-
dated that a municipality award such work to a contrac-
tor whose employees had performed that work in the
past. Adverting to similar projects which Respondent's
members had erected for the city in former years, Cor-
bett went on to state that, inasmuch as the city had failed
to abide by that law when it awarded the erection con-
tract to Spancrete, the "job could get down." Mullett
testified that this was a new expression as far as he was
concerned, and he prodded Corbett for an explanation of
its meaning. Whereupon, Corbett remarked that, inas-
much as the state statue had been violated by the city,
"some judge around the State of New York is going to
take this job down." When questioned as to whether
Corbett repeated this statement to the attendants at the
meeting, Mullett confessed that, while Corbett mentioned
to Bergins that the job would be "taken down," Corbett
did not elaborate upon the purport of the expression.
When asked whether Corbett had mentioned the word
"picket" during the discussion, Mullett intially responded
in the negative. Curiously, Mullett then acknowledged
that Corbett did bring up the topic of a "strike," al-
though Mullett claimed that this subject had reference to
a protracted work stoppage in which Respondent had in-
dulged in the 1920's and 1930's without sucess. However,
Mullett failed to explain why this subject had surfaced
during the dialogue on May 14.
In view of Mullett's testimony that Corbett did not ex-
plain to Bergins, Yarmus, and the other participants at
the meeting the full meaning and context of the phase
"take it down" in reference to the garage project, and
did not plausibly account for Corbett's discussion of a
"strike" during that session, I credit the testimony of
Bergins and Yarmus, who impressed me as sincere and
forthright witnesses, and find that Corbett announced to
representatives of the city and Morse that Respondent
would engage in a strike and picket the construction
project here involved unless the work of erecting the
garage was assigned to members of Respondent rather
than employees of Spancrete who were represented by
the Laborers. By such conduct, I conclude that Re-
spondent violated Section 8(b)(4)(ii)(D) of the Act. t 2
"t Yarmus did not testify at the 10(k) hearing.
12 At the hearing, I granted the General Counsel's motion to amend
the complaint to add the names of the city of White Plains and Morse as
"persons engaged in commerce" within the purview of Sec. (bX4XD) of
the Act over Respondent's objection. The basis for the objection related
to Respondent's contention that, inasmuch as neither the city nor Morse
employed the men who where assigned to perform the work in question,
it could not be held legally accountable for having threatened these enti-
ties with strikes or picketing at the construction site. As the record amply
Continued
LOCAL 40, IRONWORKERS
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Employer's op-
erations described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
v. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(4)(ii)(D) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions, and the entire record made in this proceed-
ing, I hereby make the following:
CONCLUSIONS OF LAW
1. Spancrete Northeast, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Morse Diesel Corporation and the city of White
Plains, New York, are "person(s) engaged in commerce"
within the meaning of Section 8(b)(4)(D) of the Act.
3. Respondent and the Laborers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
4. By threatening Spancrete, Morse, and the city of
White Plains, New York, with picketing and strikes
unless these entities assigned the work of erecting con-
crete components at the construction site of the munici-
pal garage in the city of White Plains to members of Re-
spondent rather than employees who were members of
the Laborers, despite the fact that Respondent had not
been certified by the Board as the bargaining agent of
any of the employees who performed that work, and had
not received an order of the Board determining that it
was the bargaining representative of the employees per-
forming said work, Respondent has engaged in and is en-
gaging in unfair labor practices within the purview of
Sections 8(b)(4)(ii)(D) and 2(6) and (7) of the statue.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
establishes that both the city and Morse had sufficient authority and con-
tractual influence over the work assignment to effect the changes in the
work distribution desired by Respondent, I again conclude that Respond-
ent's objection to the amendment lacks merit. Local 3, International Broth-
erhood of Electrical Workers AFL--CIO (Mansfield Contracting Corpora-
tion), 205 NLRB 559 (1973). Nor is it material, as Respondent urges, that
Spancrete's representatives were not present at the May 14 meeting when
Respondent's threat was uttered, for the Board has held that a threat
made in order to cause a person engaged in commerce to influence an
employer to change a work assignment is violative of Sec 8(b)(4)(ii)(D)
because it unlawfully coerces not only the person threatened but also the
employer from whom the work assignment is sought. International Associ-
ation of Bridge, Structural and Ornamental Ironworkers, Local 10 AFL-
CIO (Vincent Metal Works), 215 NRLB 153 (1974). Finally, the fact Re-
spondent did not actually picket or strike the project in fulfillment of its
threat has no bearing on the coercive or unlawful effect of the threat
itself. See Vincent Metal Works. supra at 154.
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER t 3
The Respondent, Local 40, International Association
of Bridge, Structural & Ornamental Iron Workers, AFL-
CIO, its officers, agents, and representatives, shall:
1. Cease and desist from threatening Spancrete, Morse,
or the city of White Plains, New York, with picketing
and strikes unless these entities assign the work of erect-
ing concrete components at the construction site of the
municipal garage in the city of White Plains to members
of Respondent rather than employees who are members
of the Laborers, without first obtaining a Board certifica-
tion as the bargaining agent of the employees who per-
form that work or first receiving a Board order deter-
mining that Respondent is the collective bargaining rep-
resentative of the employees involved.
2. Take the following affirmative action which I deem
is necessary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix."' 4 Copies of
said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Furnish the Regional Director for Region 12, with
signed copies of such notice for posting by the Employ-
er, if willing, in places where notices to employees are
customarily posted.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
'3 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.
" In the event that 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 Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten Spancrete Northeast,
Inc., Morse Diesel Corporation, or the city of
White Plains, New York, with picketing or strikes
unless these entities assign the work of erecting con-
crete components at the construction site of the mu-
nicipal garage in the city of White Plains to mem-
LOCAL 40, IRONWORKERS 921
bers of our union rather than to employees who are
members of Construction and General Laborers
Local Unions Nos. 9 and 190, Laborers Internation-
al Union of North America, AFL-CIO, without
first obtaining a National Labor Relations Board
certification as the bargaining agent of the employ-
ees who perform the work or first receiving a
Board order determining that we are the collective-
bargaining representative of the employees involved
in the work.
LOCAL 40, INTERNATIONAL ASSOCIATION
OF BRIDGE, STRUCTURAL ORNAMENTAL
IRON WORKERS, AFL-CIO