Local Union No. 721, Laborers' International Union Of North America, Afl-Cio

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 166 (N.L.R.B. 1989)

166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Union No. 721, Laborers ' International Union
of North America, AFL-CIO and H. H. Haw-
kins & Sons Company and United Brotherhood
of Carpenters and Joiners of America, AFL-
CIO, Local 424
J. F. White Contracting Company and United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO, Local 624
Freeman Concrete Construction Co. and United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local 424. Cases 1-CD-
812, 1-CD-813, and 1-CD-815
May 23, 1989
DECISION AND ORDER DENYING
MOTIONS
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
Upon the charges filed on August 11, 14, and 28,
1987,1 by three Employers,2 and duly served on
Laborers Local 721 (the Respondent), the General
Counsel of the National Labor Relations Board
issued an order consolidating cases, and consolidat-
ed complaint3 on July 1, 1988, against the Re-
spondent alleging that it had violated Section
8(b)(4)(i) and (ii)(D) of the National Labor Rela-
tions Act.
The consolidated complaint alleges that the Re-
spondent has demanded that the Employers Haw-
kins, White, and Freeman assign the work of strip-
ping concrete foundation forms (the disputed
work) at Hawkins' Pembroke site,4 White's Brock-
ton site,5 and Freeman's Duxbury site6 to employ-
ees who are members of or represented by the Re-
spondent rather than to employees who are mem-
bers of or represented by Carpenters Local 4247 or
Carpenters Local 624.8 The consolidated complaint
also alleges that in furtherance and support of its
demands, on August 7, and continuing until August
19, the Respondent engaged in a strike against
Hawkins and picketed at the Pembroke site with
picket signs stating: "Local 721, Laborers-on
strike" and that on July 1, and continuing to mid-
July, and commencing again on August 10 and
continuing to August 17, the Respondent engaged
' All dates are in 1987 unless otherwise indicated
2 H H Hawkins & Sons Company (Hawkins), J F White Contracting
Company (White), and Freeman Concrete Construction Co (Freeman)
"On November 2, 1988, the consolidated complaint was amended to
correct certain references in pars 11(a) through (g)
4 The Arnold Hall Conference Center jobsite, Pembroke, Massachu-
setts This demand was made since July
'The construction site at Plain Street, Brockton, Massachusetts This
demand was made since early summer
6 The Holy Family Parish Complex jobsite in Duxbury, Massachusetts
This demand was made since August
7 At Hawkins' Pembroke site and Freeman's Duxbury site
9 At White's Brockton site
in a strike against White and picketed the Brockton
site with picket signs stating. "Local 721 Labor-
ers-on strike." The consolidated complaint further
alleges that in furtherance and support of its de-
mands, the Respondent, on August, 13, acting
through its business manager, Louis P,alavanchi,
threatened White with the "power" of the Re-
spondent at the Brockton site; on August 17, acting
through Palavanchi, threatened Freeman with pick-
eting at the Duxbury site, commencing on August
18, and continuing to August 25, engaged in a
strike against Freeman and picketed the Duxbury
site with picket signs stating. "Local 721, Labor-
ers-on strike"; and on August 21, acting through
Palavanchi, threatened Freeman and the general
contractor, Berry, with a work stoppage at the
Duxbury site. The consolidated complaint also al-
leges that since September 14, and continuing to
date, the Respondent has been pursuing arbitration
claims with White seeking assignment of the dis-
puted work at the Brockton site, to employees who
are members of or represented by the Respondent
and/or seeking damages for White's failure to make
such an assignment.
Finally, the consolidated complaint alleges that
since June 13, 1988, the Respondent has failed and
refused to comply with the Board's May 31, 1988
Decision and Determination of Dispute,9 which
awarded the disputed work to employees repre-
sented by Carpenters Locals 424 and 624, since the
Respondent has not notified the Regional Director
that it will refrain from forcing Hawkins, White,
and Freeman to assign the disputed work to em-
ployees represented by the Respondent, in violation
of Section 8(b)(4)(D) and has instead informed the
Board that it will not comply with the Determina-
tion of Dispute. By letter dated June 13, 1988, the
Respondent informed the Board that it is unable to
comply with the broad remedial orders contained
in the Board's Decision and Determination of Dis-
pute.
On July 8, 1988, the Respondent filed an answer,
admitting in part and denying in part, the allega-
tions in the consolidated complaint, and denying
the commission of any unfair labor practices. The
Respondent also moved to strike the General
Counsel's allegations that it failed and refused to
comply with the Board's Order, asserting that these
charges are frivolous and were made in bad
faith. 10
9 Laborers Local 721 (Hawkins & Sons), 288 NLRB 1246 In that case
the Board found that, in each case, reasonable cause existed to believe
that Sec 8(b)(4)(D) of the Act had been violated No credibility issues
nor affirmative defenses were raised
is This motion is denied as lacking in merit While the Respondent
denies that the object of its actions was unlawful, it is clear that the Re-
spondent does not assert that it has complied with the Board Order
294 NLRB No. 14
LABORERS LOCAL 721 (HAWKINS & SONS) 167
On December 21, 1988, the General Counsel
filed a Motion for Summary Judgment and to
Transfer to the Board for Decision with exhibits at-
tached. The General Counsel asserts that summary
judgment should be granted because there are no
genuine issues of material fact in this proceeding
concerning the facts found by the Board in the
10(k) proceeding and such facts form the basis for
determining that Section 8(b)(4)(D) has been violat-
ed. In this regard, the General Counsel asserts that
Longshoremen ILWU Local 6 (Golden Grain), 289
NLRB 1 (1988), is distinguishable because there the
General Counsel's Motion for Summary Judgment
did not appear to contain supporting materials,
whereas the General Counsel's motion here is sup-
ported by the attachment of the 10(k) transcript
and exhibits as well as other relevant materials. On
December 23, 1988, the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted. The Respondent filed a Memorandum in
Opposition to the General Counsel's Motion for
Summary Judgment, asserting that the General
Counsel's exclusive reliance on the record, and on
the Decision and Determination of Dispute in the
parties' 10(k) hearing fails to meet the applicable
standards for granting summary judgment. i i
We find, contrary to the General Counsel's con-
tentions, that the pleadings and submissions of the
parties raise genuine issues of material fact that can
best be resolved by a hearing before an administra-
tive law judge. In its answer to the amended con-
solidated complaint, the Respondent denied, inter
alia, that Hawkins, White, and Freeman each as-
signed the disputed work at their respective job-
sites to employees who are members of or repre-
sented by Carpenters Local 424, or Carpenters
Local 624, rather than to employees who are mem-
bers of or represented by the Respondent; that the
Respondent demanded that the disputed work be
reassigned exclusively to Laborers-represented em-
ployees rather than to Carpenters-represented em-
ployees; that in furtherance of its demands for as-
signment of the disputed work, the Respondent en-
gaged in strikes against Hawkins, White, and Free-
man, and picketed at their respective jobsites with
signs stating "Local 721, Laborers on strike"; that
the Respondent, acting through its business manag-
er, Louis Palavanchi, threatened White with the
"power" of the Respondent, threatened Freeman
11 The Respondent also asserts that the Regional Director improperly
consolidated the complaints of Hawkins, White, and Freeman on the mis-
taken premise that the three cases involved the same claim for the disput-
ed work, and that there are issues of material fact in dispute concerning
certain allegations of the consolidated complaint
with picketing, and threatened Freeman and its
general contractor, Berry, with a work stoppage;
that the Respondent sought the assignment of the
work through the continued pursuance of arbitra-
tion claims against White; and that an object of its
conduct was to force Hawkins, White, and Free-
man to assign the work in dispute to employees it
represents.
In Longshoremen IL WU Local 6 (Golden Grain),
supra, we held that summary judgment is appropri-
ate only where there are no genuine issues of mate-
rial fact, or where the parties have stipulated the
record of the 10(k) hearing, as a basis for the
Board's determination of the unfair labor practice.
Under Section 10(k) the Board is required only to
find that reasonable cause exists to believe that an
8(b)(4)(D) violation has occurred, however, in an
8(b)(4)(D) proceeding the Board is required to find
by a preponderance of the evidence that the Union
has violated Section 8(b)(4)(D). When the 10(k) de-
termination does not end a work dispute, the pro-
ceeding becomes adjudicatory following the issu-
ance of an unfair labor practice complaint. In an
8(b)(4)(D) case, the Respondent is not required to
proffer new or previously unavailable evidence in
order to be entitled to a hearing. (Longshoremen
IL WU Local 6 (Golden Grain), supra at 2.) A genu-
ine issue of material fact exists and entitles the Re-
spondent to a hearing before an administrative law
judge when the Respondent denies the existence of
any element of the 8(b)(4)(D) violation by either
raising an affirmative defense or by direct denial,
or where there are credibility issues that must be
resolved.
Here, as described above, the Respondent in its
answer to the consolidated complaint denied alle-
gations such as its engaging in work stoppages and
picketing to further its demands for the disputed
work. In opposition to the General Counsel's
Motion for Summary Judgment, the Respondent
asserts that, prior to August 1987, Hawkins and
Freeman assigned the disputed work to composite
crews of Carpenters and Laborers and that its de-
mands to these Employers were that they maintain
the composite crews and not take away 50 percent
of the disputed work from employees represented
by the Respondent. With respect to White, the Re-
spondent asserts that the work in dispute was the
handling, carrying, and distribution of concrete
forms, which prior to August 1987 had been as-
signed to Laborers-represented employees and that
it demanded only that White maintain that assign-
ment. The Respondent further asserts that all of the
actions it took in furtherance of its demands to
Hawkins, Freeman, and White, including the con-
tinued pursuit of arbitration claims against White,
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were for the purpose of retrieving jobs the Em-
ployers had reassigned outside the bargaining
unit-an objective not necessarily prohibited by
Section 8(b)(4)(D ) The Respondent 's denials and
assertions concern elements necessary to prove a
violation of Section 8 (b)(4)(D) They present mixed
questions of fact and law, and demonstrate that
there are issues of material fact in dispute
On the basis of the Respondent ' s assertions,
which do not concern merely preliminary or
threshold matters, 12 we find that the Respondent
12 Cf Golden Grain , supra at fn 4, in which the Board specified that it
would not permit the relitigation of threshold matters not necessary to
prove an 8(b)(4)(D) violation In this connection , we find that the Re-
spondent 's assertions concerning the allegations that Hawkins , Freeman,
has demonstrated the existence of genuine issues of
material fact concerning elements of the alleged
8(b)(4)(D ) violations and we conclude that summa-
ry judgment is inappropriate in this case
ORDER
It is ordered that the General Counsel ' s motion
is denied and the proceeding is remanded to the
Regional Director for Region 1 for further appro-
priate action.
and White are employers within the meaning of Sec 2 (2), (6), and (7)
address preliminary matters that were determined in the 10 (k) proceeding
and may not be relitigated That the Respondent chose not to participate
in the 10(k) hearing , for which it received proper notice does not require
a different result