Local Union No. 3, Electrical Workers

National Labor Relations Board - Board Decisions

Oct 16, 1973

206 N.L.R.B. 423 (N.L.R.B. 1973)

LOCAL UNION NO. 3, ELECTRICAL WORKERS 423 '
Local Union No. 3, International Brotherhood of Elec-
trical Workers, AFL-CIO and Mansfield Contract-
ing Corporation and Local 819E, International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case 2-CD-428
October 16, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a charge filed on July 19, 1971, by Mansfield
Contracting Corporation, herein called the Employer,
and duly served on Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 2, issued a complaint on March 27,
1973, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Co-
pies of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly served
-on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint in pertinent part alleges in substance that the
Respondent violated Section 8(b)(4)(i) and (ii)(D) of
the Act by failing and refusing to comply with the
terms of the Board's Decision and Determination of
Dispute in a 10(k) proceeding 1 and by its threat to
picket, and picketing of, the jobsite at 226 West 26th
Street, New York City, with the object of forcing and
requiring the Employer to assign the electrical work
being performed by its employees represented by a
local (either Local 819 E or Local 363) of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called
Teamsters, rather than to employees represented by
the Respondent.
On April 9, 1973, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint, alleging newly discov-
ered evidence that would establish that the
Employer's employees, being, in fact, unrepresented,
i Local Union No. 3, International Brotherhood of Electrical Workers, AFL
CIO (Mansfield Contracting Corporation), 201 NLRB No. 114, issued Febru-
ary 8, 1973 . Official notice is taken of the record in the 10(k) proceeding,
including Respondent's memorandum filed therein on February 24, 1973,
and including the record in Case 2-CC-1205, involving the same parties and
conduct, which had been incorporated in the 10(k) proceeding and in which
the Board, in the absence of exceptions , adopted the Administrative Law
Judge's recommended Order based on findings that the Respondent had
violated Sec. 8(b)(4)(i) and (u)(B) of the Act
made no jurisdictional claim to the disputed work,
and asking leave to offer evidence concerning the pro-
ductivity of its electricians.
On April 19, 1973, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with a petition in support, submitting that
the Respondent's answer raises matters considered
and decided by the Board in the 10(k) proceeding and
admits the Respondent does not intend to comply
with the Board's Decision and Determination of Dis-
pute herein. Subsequently, on June 30, 1973, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to Notice To Show Cause, called Opposition
to General Counsel's Motion for Summary Judgment.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Our review of the record herein reflects that, follow-
ing the filing of a charge by the Employer alleging that
the Respondent had violated Section 8(b)(4)(i) and
(ii)(D) of the Act, a hearing was held pursuant to
Section 10(k) of the Act. On February 8, 1973, the
Board issued a Decision and Determination of Dis-
pute 2 in which it concluded that there was reasonable
cause to believe a violation of Section 8(b)(4)(D) had
occurred. In so concluding, the Board disagreed with
the Respondent's contentions that (1) there was no
jurisdictional dispute because its picketing had only
an area standards purpose and (2) one Teamsters Lo-
cal had not established it succeeded the other Team-
sters Local as representative of the Employer's
employees. As to (1), the Board found that it was clear
from the record that Respondent stated that the pur-
pose of its picketing was to support its demand that
the disputed electrical work being performed by the
Employer's employees be transferred to its members,
and therefore the Board refused to accept at face
value the picket signs protecting the alleged "substan-
dard" conditions. As to (2), the Board found that it
appeared that the Employer's employees' were repre-
sented by one of the two Teamsters Locals, although
it also found that it was not essential that employees
to whom an award is made be represented by a labor
organization. Accordingly, upon the basis of the en-
tire record, the Board awarded the disputed electrical
Ibid
206 NLRB No. 84
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to the Employer's employees represented by one
of the Teamsters Locals rather than to employees rep-
resented by the Respondent. Thereafter, on March 27,
1973, the Regional Director issued the complaint
herein.
In its answer to the complaint and response to the
Notice To Show Cause, the Respondent contends (1)
that its denials of the allegations of the complaint,'
without more, raise issues which, under section 554(a)
and 556(b) of the Administrative Procedure Act, re-
quire a determination by an Administrative Law
Judge since the 10(k) findings establish only "reason-
able cause"; (2) that newly discovered evidence, in the
form of more recent NLRB transcripts, would show
that the Employer's employees, to whom the award
was made, were in fact unrepresented and therefore
no group of employees made a jurisdictional claim for
the disputed work; and (3) that the Respondent re-
quests a hearing to correct a libel against its electri-
cians' productivity. We find no merit in the
Respondent's contentions.
As to (1), we find lacking in merit the contention
that the Administrative Procedure Act automatically
requires an Administrative Law Judge's decision in
the unfair labor practice proceeding herein. We do
agree with the General Counsel that the issues raised
by the Respondent's denials in its answer were consid-
ered and resolved in the underlying 10(k) proceeding
and do not require relitigation before an Administra-
tive Law Judge. Support for this petition is to be
found in the recent decision of the United States
Court of Appeals for the District of Columbia where
the court, in enforcing the Board's 8(b)(4)(D) Order
entered pursuant to a motion for summary judgment
following a 10(k) proceeding, rejected the contention
that the Administrative Procedure Act requires an
Administrative Law Judge's decision 4 The court spe-
cifically found that such an Administrative Law
Judge's decision was not essential on conflicting evi-
dence issues raised in the 10(k) proceeding and re-
solved by the Board as ancillary to its power to
determine the jurisdictional dispute under Section
10(k). This is the situation herein and such issues may
not be relitigated absent newly discovered or previ-
ously unavailable evidence or special circumstances.
Accordingly, the denials are striken as frivolous 5 in
3 The Respondent admits that it failed and refused to comply with the
Board's' Decision and Veterminaticrn of Dispute, although afforded a fair
opportunity to do so.
Rricklayers Miisonsand Plasterers International Union of America v. NL.
R.B, 475 F.2d 1316 (C A D.C.), enfg Bricklayers, Stone Masons, Marble
Masons, Tile Setters and Terrazzo Workers Local Union No, I of Tennessee
fSheIby^Marble,& Tile ca), 18$NLRB l48.
s See Ndtional Maritime Union of America, :4FL-CIO (Prudential-Grace
Lines, Inc), 198 NLRRNo.'1`12,1e sfd. withoutopinion on;Iune IY, 1971(C.A.
2), 83 LRRM 2493; see also Loeal'UmonWo. 3, °IBL"W, AFL=CIO (Mansfield
Coniractrrrg Corporataon), 22CC-12Q5,`wltere'th£Board , in the absentee of
exceptions, arlopted -the. 'Adtninistrative 'Law Judge's fnsdfn'gs, that 'the
footnote 7, infra.
As to (2), we find without merit the Respondent's
contention that the employees to whom the Board had
awarded the disputed electrical work, and who alleg-
edly were unrepresented, have not made a jurisdic-
tional claim for the work. We have stated, in the
underlying 10(k) proceeding herein, "it is not essential
that employees to whom an award is made be repre-
sented by a labor organization." Further, it is well
established that Section 8(b)(4)(D) encompasses com-
peting claims between a union and a group of unre-
presented employees.' Implicit in our making
jurisdictional awards to groups of unrepresented em-
ployees performing disputed work is the presumption
that they are claiming the work they are performing.
Absent a rebuttal of the presumption by a specific
disclaimer, or a refusal to perform the work, it is rea-
sonable to assume that employees who, as here, were
performing the disputed work, even if unrepresented,
wanted the work and were claiming it. Therefore, no
specific claim would be required to establish the juris-
dictional dispute herein.
As to (3), the Respondent admits that it had the
opportunity to submit the evidence as to productivity
of its members at the 10(k) hearing, but that it failed
to do so. Further, we agree with the General Counsel
that the Respondent's offer to prove that its electri-
cians have performed outstandingly since 1896, pre-
sumably to contradict the uncontradicted testimony
that the Employer's employees surpass Respondent's
members in their skills, efficiency, and productivity,
would be insufficient to alter our 10(k) award herein.
In these circumstances, we deem it unnecessary to
conduct a hearing in order to permit the Respondent
to submit evidence in support of its offer of proof.
As all material issues have been previously decided
by the Board, or admitted by the Respondent in its
answer,7 and as the Respondent's contentions con-
`Respondent's same conduct violated Sec 8(b)(4)(i) and (n)(B) of the Act.
6 See also Local Union 354, International Brotherhood of Electrical Workers,
AFL-CIO (F. G Johnson Company, Incorporated), 200 NLRB No. 92, and
cases cited in In. 4 , see also NLRB v. Local 1291, International
Longshoremen's Association, 368 F 2d 107 (C.A. 3), cert. denied 386 U.S. 1033.
7In its answer to the complaint, the Respondent admitted that (1) it
'picketed the jobsite located at 826 West 26th Street, New York City, from
June 1, 1971, until August 10, 1971; and (2) it has failed and refused to
comply with the Board 's 10(k) determination , although afforded the opportu-
nity to do so. Absent newly discovered or previously unavailable evidence
, or special circumstances, the following denials in the answer are striken as
frivolous and the dented allegations of£the complaint found to be true by the
Board, in the 10(k).proceeding' (1) the jurisdictional commerce data of the
Employer -and its status as an employer in commerce ; (2) the Employer's
subcontract from the generalcontractor for the electrical work at thejobsite;
'(3)the"Respondent 's claim that the electrical work be assigned to employees
who are,its .members or represented by it; (4) the Respondent's threat to
,picket unless the Employer was replaced by a subcontractor whose employ-
ees were ,members of the Respondent ; (5) the Respondent 's inducement of
employees of other jobsite , employiers to stop work; and (6) an object of the
'Respondent was to force and require the Employer to assign the disputed
teleetncal work 'to=employees who were members of the Respondent. (See
cases cited , in fn. 5, supM )
LOCAL UNION NO. 3, ELECTRICAL WORKERS 425
cerning the necessity of an Administrative Law
Judge's decision and concerning the absence of a ju-
risdictional claim for the work have been found to be
lacking in merit, and as the Respondent's offer of
proof as to its members' productivity is now belatedly
made, and, in any event, would not have altered our
10(k) award, we find that there are no issues properly
triable in this proceeding and that therefore no further
hearing is required or warranted.8 Accordingly, we
shall grant the General Counsel's Motion for Summa-
ry Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Employer, a New York corporation, with its
offices and principal place of business in New York
City, is engaged in the business of electrical installa-
tion in the construction industry. During the past
year, the Employer purchased electrical equipment
valued in excess of $50,000 directly from firms located
outside the State of New York.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO, and Local 819E and
Local 363, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
are labor organizations within the meaning of Section
2(5) of the Act.
al contractor did not subcontract the electrical work
to a contractor who employed members of the Re-
spondent. When the general contractor refused to
comply with this demand, the Respondent, on June 1,
1971, carried out its threat and commenced picketing
the jobsite until it was rejoined on or about August 10,
1971. During the picketing, some of the employees at
the jobsite ceased work.
B. The Determination of the Dispute
On February 8, 1973, the Board issued its Decision
and Determination of Dispute assigning the disputed
electrical work at the jobsite to the Employer's em-
ployees represented by a local of the Teamsters and
finding that the Respondent was not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force the Employer to assign the disputed work to
employees represented by the Respondent.
C. The Respondent's Refusal To Comply
In addition to its threat to picket on or about May
27, 1971, and its picketing from June 1, 1971, to Au-
gust .10, 1971, the Respondent has refused and contin-
ues to refuse to comply with the Board's Decision and
Determination of Dispute that it is not entitled to
force or require the Employer to assign the disputed
work to employees represented by it and that it notify
the Regional Director to that effect.
On the basis of the foregoing, and the entire record
in this proceeding, we find, as described above, that
the Respondent's threat to picket, its picketing, and its
refusal to comply with the Board's Decision and De-
termination of Dispute violated Section 8(b)(4)(i) and
(ii)(D) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
III. UNFAIR LABOR PRACTICES
A. Background and Facts of the Dispute
The Employer had a subcontract "from the general
contractor to perform electrical work in connection
with the renovation of a vocational school -at 226 West
26th Street, New York City . The Employer assigned
the electrical work on the school project to its employ-
ees. On or about May 27, 1971, the Respondent,
claiming the electrical work, threatened the general
contractor that it would picket the jobsite if the gerler-
s Itnphcst herein, as to -all -tau labor practice proceethngs, is that out
findings are based upon a preponderance of the evidence,
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening'and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is-engaging in unfair labor practices within , the me-
ing of Section 8(b4j(i) and (ii)(D) Of -the Act, we shall
order that it -cease and desist t- erefrom and take cer-
tain affirmative acUon-designed -to effectuate the pur-
426
poses of the Act.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Mansfield Construction Corporation is an,em-
ployer engaged in commerce and in an industry af-
fecting commerce within the meaning of Sections 2(6)
and (7) and 8(b)(4) of the Act.
2. Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO, and Locals 819E
and 363, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
are labor organizations within the meaning of Section
2(5) of the Act.
3. Respondent has violated and is violating Section
8(b)(4)(i) and (ii)(D) of the Act (a) by threatening to
picket and picketing the jobsite at 226 West 26th
Street, New York City, where the Employer has been
performing electrical work, with the object of forcing
and requiring the Employer to assign the performance
of the electrical work at the jobsite to employees who
are members of, or represented by, the Respondent,
by means proscribed by Section 8(b)(4)(i) and (ii)(D)
of the Act and (b) by failing and refusing to comply
with the Board's Decision and Determination of Dis-
pute.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that Respondent, Local Union No.
3, International Brotherhood of Electrical Workers,
AFL-CIO, Flushing, New York, its officers, agents,
and representatives, shall:
1. Cease and desist from refusing to comply with
the Board's Decision and Determination of Dispute
or threatening to picket or picketing Mansfield Con-
tracting Corporation, or any other persons engaged in
commerce or in an industry affecting commerce,
where an object is to force or require Mansfield Con-
tracting Corporation to assign electrical work to em-
ployees who are members of, or represented by, Local
Union No. 3, International Brotherhood of Electrical
Workers, AFL-CIO, rather than to employees who
are unrepresented or to employees who are members
of Local 819E or Local 363, International Brother-
hood of Teamsters, Chauffeurs Warehousemen and
Helpers of America, or of any other labor organiza-
tion.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the Re-
gional Director for Region 2, after being duly signed
by Respondent 's representative , shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, 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) Furnish the Regional Director for Region 2
signed copies of such notice for posting by the Em-
ployer, if willing, in places where notices to employees
are customarily posted.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
v 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 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
Decision and Determination of Dispute or
threaten to picket or picket Mansfield Contract-
ing Corporation, or any other persons engaged in
commerce or in any industry affecting com-
merce , where an object is to force or require
Mansfield Contracting Corporation to assign
electrical work to employees who are members
of, or represented by, Local Union No . 3, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO , rather than to employees who are
members of Local 819E or Local 363 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or to
employees who are unrepresented.
LOCAL UNION No.3, INTER-
NATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
LOCAL UNION NO. 3, ELECTRICAL WORKERS 427
Dated By days from the date of posting and must not be altered,
(Representative) (Title) defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
This is an official notice and must not be defaced Board's Office, 36th Floor, Federal Building, 26 Fed-
by anyone. eral Plaza, New York, New York 10007, Telephone
This notice must remain posted for 60 consecutive 212-264-0300.