Operating Engineers Local 12 (Sequoia Construction)

National Labor Relations Board - Board Decisions

May 24, 1990

298 N.L.R.B. 657 (N.L.R.B. 1990)

OPERATING ENGINEERS LOCAL 12 (SEQUOIA CONSTRUCTION)
International Union of Operating Engineers, Local
12, AFL-CIO and Sequoia Construction, Inc.
Case 28-CP-228
May 24, 1990
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 31, 1989, Administrative Law Judge
Gerald A. Wachnov issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs. The Respondent
filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
The complaint alleged that the Respondent's De-
cember 6 and 7, 1988 picketing at the Imperial
Palace and Vegas World jobsites violated Section
8(b)(7)(C). The theory of the General Counsel was
that, under John Deklewa & Sons, 282 NLRB 1375
(1987), the 8(f) picketing involved here was unlaw-
ful from its inception. The judge rejected the Gen-
eral Counsel's theory and found that the 2 days of
picketing did not exceed a "reasonable period of
time" within the meaning of Section 8(b)(7)(C). We
agree with the judge's dismissal of the complaint
for the following reasons. In Laborers Local 1184
(NVE Constructors), 296 NLRB 1325 (1989), which
issued subsequent to the judge's decision, the Board
held that a minority union's recognitional and orga-
nizational picketing of a construction industry em-
ployer that has a current work force is not barred
by Section 8(b)(7)(C) if the picketing is within the
time limitations set forth in that section. See also
Laborers Local 98 (Fisher Construction), 296 NLRB
1332 (1989).1
i The Charging Party excepts, asserting, inter alia, that the picketing
was designed to coerce Sequoia into complying with its subcontracting
agreement. The Charging Party maintains that the subcontracting agree-
ment violates Sec. 8(e) and the picketing in December 1988 to enforce it
is an independent violation We find this exception to be without merit
The General Counsel, not the Charging Party, determines the theory of
the case See, e.g, Castaways Hotel & Casino, 284 NLRB 612, 614 at In 5
(1987). The Charging Party's analysis of the picketing, advanced for the
first time at this stage of the proceeding, substantially differs from the
theory of the case relied on by the General Counsel and litigated by the
657
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
parties Further, due to the divergence in proof under the two theories
and the failure to plead or litigate the Charging Party's theory, we con-
clude that it was not fully and fairly litigated.
Cornele A. Overstreet, for the General Counsel.
David Koppelman and Anthony R. Segall, of Los Angeles,
California, for the Respondent.
Norman H. Kirshman (Kirshman & Harris), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Las Vegas, Nevada, on February
7, 1989. The initial charge was filed on December 7,
1988, by Sequoia Construction, Inc. (Sequoia). Thereaf-
ter, on December 23, 1988, the Regional Director for
Region 28 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging
a violation by International Union of Operating Engi-
neers, Local 12, AFL-CIO (Respondent) of Section
8(b)(7)(C) of the National Labor Relations Act (Act).
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. 'Since the close of the
hearing, briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Charging Party.
On the entire record, and based upon my observation
of the witnesses and consideration of the briefs submit-
ted, I make the following
FINDINGS OF FACT
1. JURISDICTION
Sequoia Construction, Inc. is a Nevada corporation
with its principal offices and place of business in Clark
County, Nevada, where it has been engaged in the build-
ing and construction industry as a concrete contractor.
In the course and conduct of its Nevada business oper-
ations Sequoia has an annual gross volume of business in
excess of $500,000 and annually purchases goods and ma-
terials valued at in excess of $50,000 directly from suppli-
ers located outside the State of Nevada. It is admitted,
and I find , that Sequoia is now, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
298 NLRB No. 89
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Respondent is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principle issues in this proceeding are whether the
Respondent has violated Section 8(b)(7)(C) of the Act by
engaging in picketing of the Charging Party for less than
30 days in order to force or require it to enter into a col-
lective-bargaining agreement permitted by Section 8(f) of
the Act, and to recognize and bargain with the Respond-
ent as the representative of certain of the Charging
Party's employees, and to force or require employees of
the Charging Party to accept or select the Respondent as
their collective -bargaining representative.
B. The Facts
At all times material herein the employees of Sequoia
have been represented by four different labor organiza-
tions, the Laborers, Millwrights, Carpenters, and Cement
Finishers. Sequoia has never been signatory to a collec-
tive-bargaining agreement with the Respondent. Howev-
er, in August 1987 the Respondent picketed Sequoia for
the purpose of causing it to enter into a collective-bar-
gaining agreement which provided for the employment
of Respondent's members to operate certain cranes and
other equipment. Sequoia refused to enter into an agree-
ment with the Respondent, but in order to resolve the
matter it did agree to subcontract the work in question
to an employer who had a contract with the Respondent.
At some point thereafter, according to the Respondent,
Sequoia failed to adhere to this agreement.
In October 1988, Richard Dielman, president of
Dielco Crane Service, Inc., contacted Mickey Adams,
district representative for District 6 of the Respondent,
regarding certain matters involving their bargaining rela-
tionship. During the course of the meeting they dis-
cussed future jobs in the Las Vegas area. Dielman was
interested in obtaining work for his company which
leases tower cranes and other equipment to construction
contractors, and also performs tower crane work as a
subcontractor. The then current agreement between
Dielco and the Respondent required that two employees,
an operator and an oiler, be utilized on each tower
crane. However, Adams provided Dielman with new
contract language which permitted only one employee
on the tower crane provided that members of the Re-
spondent be utilized to operate other equipment on the
job such as forklifts and loaders, regardless of whether
the equipment is utilized by the subcontractor (Dielco)
or the contractor. Thus, this new language would enable
Dielco to bid jobs more cheaply provided the contractor
agree to use members of the Respondent as operators of
loaders and forklifts.
Dielman and Adams discussed the construction
projects then in progress, including the Imperial Palace
project where Sequoia was the concrete subcontractor,
and Adams asked Dielman to pass along the new lan-
guage to Chris Julian, president of Sequoia. Dielman said
that he did not believe that Julian would sign an agree-
ment with the Respondent, but that possibly the new lan-
guage would be an incentive for Sequoia to subcontract
the tower crane work to Dielco rather than to perform
the work itself since Dielco's crane operator would be
better qualified and could perform the work more effi-
ciently. Adams said, according to Dielman, "that if Se-
quoia Construction didn't come around, he would throw
a picket line up."
Dielman met with Julian shortly thereafter and provid-
ed him with the new language. Dielman apparently at-
tempted to convince Julian that it would be advanta-
geous for him to subcontract the tower crane work to
Dielco even though Sequoia would have to use members
of the Respondent on the forklift and loaders. Julian was
not interested in this arrangement.
Thereafter, Dielman phoned Adams regarding another
matter and during the course of the conversation Adams
asked how Dielman's meeting went with Julian. Dielman
told Adams that it did not look like Julian wanted to
enter into an agreement with the Respondent.
Adams' testimony differs markedly with that of Diel-
man. Adams testified that he did not request Dielman to
give the new language to Julian. Rather, Dielman asked
Adams for the new language so that he could bid Se-
quoia's work. Further, according to Adams, he did not
threaten to picket Sequoia.
Julian testified that Dielman presented him with a
sheet of paper containing the new language and said that
the Respondent was willing to enter into this agreement
with Sequoia. Julian said that he would not sign such a
contract. According to Julian, Dielman was not bidding
the tower crane work at that time.
The general contractor for the Imperial Palace con-
struction project is Ralph Englestadt Construction. Eng-
lestadt subcontracted the work of forming, placing, and
finishing all the concrete work, and also operating the
tower crane, which was leased from Dielco by Engles-
tadt and was erected on location by Dielco's employees.
At 5 a.m. on December 6, 1988, Dielman, who had a
crew working on the dismantling of the tower crane and
erecting it at a different location on the project, told
Julian that he had spoken to Adams the night before and
that Julian could expect a picket on the project. The
picketing commenced later that morning. Pickets also ap-
peared the following day at another jobsite, Vegas
World Hotel and Casino, where Sequoia was also work-
ing. The picketing at both locations ended on December
7, 1988. The picket signs contained the following lan-
guage:
OPERATING ENGINEERS LOCAL 12 (SEQUOIA CONSTRUCTION)
SEQUOIA
CONSTR INC.
UNFAIR
TO
OPERATING ENGINEERS
LOCAL # 12
NOT PAYING PREVAILING
WAGES FOR AREA
STANDARDS
SANCTIONED BY THE
SOUTHERN NEVADA BUILDING AND
CONSTRUCTION TRADES COUNCIL
John Clatterbuck, one-half owner of Sequoia, is field
superintendent over all of Sequoia's projects. Clatterbuck
approached two of Respondent's business agents, Jerry
Claborn and Jim Rusk, who were picketing in front of
the Imperial Palace project on the morning of December
6, 1988. He was accompanied by a security guard,
Charles Post, who was employed by the Imperial Palace.
Clatterbuck testified that as he was in the process of
taking a photograph of the picket sign , Claborn asked
him if he wasn't getting tired of this. Clatterbuck replied
that Sequoia was fair and did not have a problem with
the picketing. Claborn replied that "[W]e have a good
package for you this time." Clatterbuck did not reply.
He took pictures of the sign and walked away.
Security Officer Post corroborated Clatterbuck's testi-
mony. According to Post, Claborn said, "[T]hought
you're all through with this, didn't you." Clatterbuck
said yes, and Claborn said, "[W]ell, we got a better pack-
age for you this time, Mr. Clatterbuck." Post made notes
of this conversation immediately thereafter.
Business , Agent Claborn testified that when he ob-
served Clatterbuck approaching, he told Business Agent
Rusk not to say one word to Clatterbuck. Clatterbuck
said he had been instructed to take pictures of the picket-
ing and Claborn asked how Clatterbuck wanted them to
pose. Claborn testified that they had been through the
same procedure with Clatterbuck and others on many
previous occasions. Clatterbuck asked what the picket
sign meant, and Claborn told him to "just read the sign,"
and that if he did not like that sign he would not like the
next one.' Claborn denied that he indicated to Clatter-
buck that the Respondent had a better package for Se-
quoia. Business Agent Rusk testified that he was not
close enough to hear the entire conversation; however,
he did hear Claborn tell Clatterbuck to read the sign. He
had been advised by Claborn not to say anything as Clat-
terbuck approached.
The record evidence shows that although the Re-
spondent did not specifically investigate Sequoia's wage
structure in order to determine the wages and benefits
being paid to the employees who were performing the
work in question, it was clear that the wage rates in Se-
quoia's various agreements with the four other labor or-
ganizations were inferior to those embodied in Respond-
ent's area contracts.
1 Claborn testified that he was not referring to a different picket sign,
but merely was indicating that there would be other picketing at other
locations
659
Analysis and Conclusions
Section 8(b)(7)(C) of the Act prohibits the picketing of
an employer by an uncertified labor organization with an
object of forcing or requiring an employer to recognize
or bargain with it where the picketing has been conduct-
ed without the filing of a petition under Section 9(c)
within a reasonable period of time, not to exceed 30 days
from the commencement of the picketing.
The Respondent maintains that the picketing, of 2
days' duration, was solely area standards picketing for
the purpose of protesting substandard working conditions
within Respondent's jurisdiction, as evidenced by the
plain meaning of the picket sign language and the fact
that Sequoia was paying its employees, represented by
other labor organizations, less than the prevailing wages
and benefits which Respondent's members received for
the work of operating tower cranes, forklifts, and bob-
cats.
According to the Respondent, the record evidence is
insufficient to establish a recognitional or organizational
objective encompassed within the provisions of Section
8(b)(7)(C) of the Act. I do not agree. Rather, I find that
the General Counsel has established by a preponderance
of the reliable evidence that the picketing had a recogni-
tional objective. Thus, the Respondent admittedly had
such an objective in 1987; it requested that Dielman ap-
proach Sequoia with new contract language in October
1988 in an effort to make it more attractive for Sequoia
to enter into a collective-bargaining relationship with the
Respondent; and 2 months later it engaged in picketing
Sequoia's projects. I credit Dielman's testimony, and find
that during their aforementioned October 1988 conversa-
tion, Adams said "that if Sequoia Construction didn't
come around, he would throw a picket line up." More-
over, I credit the testimony of Clatterbuck, and find that
he was told by Business Agent Claborn on the first day
of the picketing that "[W]e have a good package for you
this time." In my view, absent any clear and credible
statement by the Respondent to Sequoia's officials ex-
pressing a contrary intent,2 the compelling record evi-
dence mandates the conclusion that the Respondent's
direct and indirect dealings with Sequoia were designed
to establish a collective bargaining relationship.
The General Counsel argues that the Board's decision
in John Deklewa & Sons, 282 NLRB 1375 (1987), enfd.
sub nom. Iron Workers v. NLRB, 843 F.2d 770 (3d Cir.
1988), is determinative of the issue herein and that
Deklewa has overturned the Board's earlier and long-
standing determination in Los Angeles Building Trades
Council (Donald Schriver, Inc.), 239 NLRB 264, 269
(1978). In Deklewa the Board- formulated new law re-
garding the continuing relationship between employers
and unions which commenced upon the parties' entering
into contracts permitted under Section 8(f) of the Act.
The Board stated at 1386 that:
2 Adams testified that the Respondent was no longer interested in a
collective-bargaining relationship with Sequoia and that he had made up
his mind not to enter into such a relationship because prior experience
proved that Sequoia could not be trusted to honor its agreements
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Even absent an election, upon the contract's expira-
tion, the signatory union will enjoy no majority pre-
sumption and either party may repudiate the 8(f) re-
lationship. The signatory employer will be free, at
all times, from any coercive union efforts, including
strikes and picketing, to compel the negotiation
and/or adoption of a successor agreement.
According to the General Counsel, this language
makes any recognitional picketing of an employer in the
construction industry void ab initio and, as noted above,
overturns the contrary determination in Los Angeles
Building Trades Council (Donald Schriver, Inc.), supra,
which specifically sanctions recognitional picketing for
30 days for the purpose of obtaining an 8(f) contract.
For the following reasons, I find that the above-quoted
portion of the Deklewa decision does not mandate the
conclusion that the Respondent has violated the Act as
alleged.
Deklewa did not specifically involve Section 8(b)(7)(C)
of the Act, and the Board did not specifically overrule
its determination in Los Angeles Building Trades Council
(Donald Schriver, Inc.).
Further, the Board is clearly discussing the relation-
ship between a "signatory union" and "signatory em-
ployer" upon the expiration of an 8(f) contract, and its
apparent prohibition of coercive strikes and picketing
specifically refers to a "successor agreement." In the in-
stant case the Respondent and Sequoia have never been
signatory to any agreement and, as found herein, the
picketing by the Respondent was for the purpose of ob-
taining an initial 8(f) agreement. I do not agree with the
rationale of the Charging Party that this distinction lends
added support for the finding of a violation on the basis
that if picketing for a successor 8(f) agreement is prohib-
ited, picketing for an initial 8(f) agreement must, a for-
tiori, be proscribed. Rather, it would appear that a labor
organization, as a signatory party to an 8(f) agreement, is
in a more favorable position to create a permanent 9(a)
relationship; and the application of Section 8(b)(7)(C) of
the Act to a labor organization seeking to establish such
a relationship by enabling it to picket for 30 days would
have the potential effect of providing a nonincumbent
union with a similar opportunity.
Lastly, the Board does not define its language "coer-
cive union efforts, including strikes and picketing." It is
not unreasonable to conclude that the Board intended
such language to insure the viability of Section 8(b)(7)(C)
with regard to the construction industry by permitting
"noncoercive"3 picketing for up to 30 days, particularly
as the Board, at 1387, footnote 53 stated that:
That is, nothing in this opinion is meant to suggest
that unions have less favored status with respect to
construction industry employers than they possess
with regard to those outside the construction indus-
try. [Emphasis supplied.]4
On the basis of the foregoing,-5 I conclude that the
General Counsel has failed to establish that the Respond-
ent has violated the Act as alleged.6
CONCLUSIONS OF LAW
1. Sequoia Construction Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) and Section 8(f) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
It is ordered that the complaint is dismissed in its en-
tirety.
3 See Mine Workers District 12 (Truax-Traer Coal), 177 NLRB 213, 218
(1969), enfd. 76 LRRM 2828 (7th Cir 1971), Retail Store Union District
65 (Eastern Camera), 141 NLRB 991, 999 (1963).
° While the Board, in this footnote, is discussing an unrelated matter,
nevertheless its all-inclusive language appears to be inconsistent with the
theory advanced by the General Counsel herein
5 See also the similar result reached by Administrative Law Judge
Richard Taphtz in Laborers Local 98 (Fisher Construction), 296 NLRB
1332 (1988)
5 As a result of the determination herein it appears unnecessary to dis-
cuss the further arguments presented in the Respondent 's extensive brief
to the effect that the finding of a violation herein would be fundamental-
ly unsound and inconsistent with the intended provisions of Sec
8(b)(7)(C) of the Act
7 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 objections to them shall be deemed waived for all pur-
poses