Operating Engineers Local 150 (D. H. Johnson Co.)

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1339 (N.L.R.B. 1984)

OPERATING ENGINEERS LOCAL 150 D. H. JOHNSON CO.
International Union of Operating Engineers, Local
150, AFL-CIO and D. H. Johnson Company
and Construction and General Laborers' Local
118, Laborers' International Union of North
America, AFL-CIO, Party of Interest. Case
13-CD-304
29 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
Upon a charge filed 2 September 1981 by D. H.
Johnson Company, herein the Employer, and duly
served on International Union of Operating Engi-
neers, Local 150, AFL-CIO, herein the Respond-
ent, the General Counsel of the National Labor
Relations Board, by the Acting Regional Director
for Region 13, issued a complaint and notice of
hearing dated 9 September 1982 against the Re-
spondent, alleging that the Respondent had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the
National Labor Relations Act. Copies of the
charge and complaint and notice of hearing were
duly served on the parties.
The complaint alleges that since on or about 17
August 1981, and continuing to date, the Respond-
ent has demanded that the Employer assign certain
work in dispute to employees represented by the
Respondent rather than to employees represented
by Construction and General Laborers' Local 118,
Laborers' International Union of North America,
AFL-CIO, herein the Union.' The complaint also
alleges that, on 23 August 1982, the Respondent
stated in writing that under no circumstances
would it comply with the Board's Decision and
Determination of Dispute2 in the underlying 10(k)
proceeding, which awarded the disputed work to
employees represented by the Union. Additionally,
the complaint alleges that commencing on or about
27 August 1981, and continuing until on or about
11 September 1981, the Respondent picketed the
Employer at its Centennial construction project in
Mount Prospect, Illinois, with the effect of induc-
ing and encouraging individuals employed by the
Employer to strike or refuse in the course of their
employment to use, manufacture, transport, or oth-
erwise handle or work on any goods, articles, ma-
' We note that par. V(b) of the complaint inadvertently alleges that the
Respondent has demanded that the Employer assign the work in dispute
to employees represented by the Union rather than to employees repre-
sented by the Respondent. We would read par. V(b) like par. VIII of the
complaint, which correctly denotes that the Respondent sought the work
for its own members, not for employees represented by the Union.
2 Laborers Local 118 (D. H. Johnson Co.), 262 NLRB 1147 (1982).
268 NLRB No. 200
terials, or commodities or to perform services. The
complaint also alleges that the Respondent has
threatened, coerced, and restrained the Employer
and other persons engaged in commerce or in in-
dustries affecting commerce. The Respondent filed
its answer to the complaint, dated 1 November
1982, in which it admitted in part, and denied in
part, the allegations in the complaint. The Re-
spondent admits therein that it failed and refused to
comply with the Board's 10(k) Determination of
Dispute, but claims that the Board lacked jurisdic-
tion to make a work award in the first instance be-
cause all parties were bound to a voluntary dispute
resolution mechanism. The Respondent also admits
having picketed the Employer from on or about 24
August 1981 to on or about 11 September 1981, but
asserts that its picketing was legal, economic pick-
eting conducted in connection with a dispute
against the Employer and other employers over the
terms and conditions of a new collective-bargaining
agreement. Furthermore, the Respondent denies in
its answer that, since on or about 17 August 1981,
it has demanded that the Employer assign the dis-
puted work to employees represented by the Re-
spondent rather than to employees represented by
the Union.
As of 28 October 1982 the parties entered into a
stipulation and moved to transfer the proceeding to
the Board. The parties agreed that the stipulation,
along with the charge in Case 13-CD-304, the
complaint and notice of hearing in Case 13-CD-
304, the entire record of the 10(k) proceeding in
Cases 13-CD-303 and 13-CD-304,3 the order
scheduling hearing in Case 13-CD-304, the Re-
spondent's answer in Case 13-CD-303, and order
postponing hearing in Case 13-CD-304 constitute
the entire record in this case, and that no oral testi-
mony is necessary or desired by any of the parties.
They waived a hearing, the making of findings of
fact and conclusions of law by an administrative
law judge, and the issuance of an administrative
law judge's decision, and submitted the case for
findings of fact, conclusions of law, and an appro-
priate order directly to the Board.
On 10 February 1983 the Board approved the
stipulation, made it a part of the record, and trans-
ferred to and continued the proceeding before the
Board for the purpose of making findings of fact
and conclusions of law for the issuance of a deci-
s The parties agreed that the entire record of the 10(k) proceeding in
Cases 13-CD-303 and 13-CD-304 consists of Board Exhs. I(a) through
l(i); C.P. Exhs. I through 3; Resp. Exhs. I through II; the Party of In-
terest's Exh. I; the hearing transcript; the hearing officer's report; the
Employer's, the Respondent's, and the Party of Interest's briefs to the
Board; the Board's prior Decision and Determination of Dispute; the Re-
spondent's motion for reconsideration; and the Employer's response to
the motion for reconsideration.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion and order. Thereafter, the General Counsel
and the Respondent filed briefs with the Board.
The Board has considered the stipulation, the
briefs, and the entire record, and hereby makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a corporation duly organized
under and existing by virtue of the laws of the
State of Delaware, with its principal place of busi-
ness in DuPage County, Illinois, where it is en-
gaged in the business of brick masonry as a con-
struction subcontractor. In the calendar or fiscal
year preceding issuance of the Board's Decision
and Determination of Dispute in the underlying
10(k) proceeding, the Employer had gross revenues
in excess of $500,000 and purchased goods and ma-
terials from outside the State of Illinois which it re-
ceived at its worksites within the State of Illinois
having a value in excess of $50,000.
We find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
We find that Operating Engineers Local 150 and
Laborers Local 118 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Pursuant to its agreement with the Construction
and General Laborers' District Council of Chicago
and Vicinity and consistent with its desires, the
Employer assigned the operation of the forklift on
its Mount Prospect, Illinois project to employees
represented by the Union by letter dated 17 August
1981. The Respondent then threatened to picket
the jobsite unless the forklift work being performed
by employees represented by the Union was reas-
signed to employees represented by the Respond-
ent. The Respondent began picketing on 27 August
1981, and the picketing continued for approximate-
ly 2 weeks. In a letter dated 2 September 1981, the
Union informed the Employer that it would engage
in picketing if the Employer reassigned the forklift
work in any manner inconsistent with the then-cur-
rent assignment of the same to those employees
represented by the Union. On 2 September 1981
the Employer filed 8(b)(4)(D) charges against the
Union and the Respondent in Cases 13-CD-303
and 13-CD-304, respectively.
On 14 September 1981 the Respondent requested
a hearing before the Joint Conference Board (the
JCB) regarding the Employer's assignment of the
disputed forklift operation to employees represent-
ed by the Union. The declared purpose of the JCB
is to act as mediator in disputes arising at jobsites
in Cook County, Illinois, where the Employer's
Mount Prospect project is located, concerning
trade agreements between particular unions and as-
sociations. The JCB awarded the work in dispute
to employees represented by the Respondent.
On 22 July 1982, after conducting a hearing pur-
suant to Section 10(k) of the Act, the Board issued
its Decision and Determination of Dispute. The
Board stated therein that it was undisputed that the
Respondent picketed the Centennial project site,
and then found that such picketing was to protest
the Employer's assignment of the disputed work to
employees represented by the Union. Moreover,
the Board stated that it was undisputed that the
Union threatened to picket the project if the Em-
ployer were to reassign the disputed work to the
employees represented by another union. Thus, the
Board concluded that there was reasonable cause
to believe that Section 8(b)(4)(D) of the Act had
been violated.
The Board also concluded that there was no
agreed-upon method for the voluntary adjustment
of the dispute within the meaning of Section 10(k)
of the Act. The Board stated that, assuming ar-
guendo that the Respondent, the Union, and the
Employer all could be found to be bound to the
use of the JCB for resolution of jurisdictional work
disputes, the existence of the equally binding, but
conflicting, work dispute provision in another
agreement to which the Employer was bound 4 pre-
cluded a finding of a determinative, agreed-upon
method of dispute resolution in the case. Accord-
ingly, the Board concluded that the dispute was
properly before it for determination and based on
the factors of economy, efficiency, and employer
preference, the Board awarded the work in dispute
to the employees of D. H. Johnson Company who
were represented by the Union. The Board also
found, inter alia, that the Respondent was not enti-
tled to force or require D. H. Johnson Company to
assign the work to employees it represented by
means proscribed by Section 8(b)(4)(D) of the Act.
4As described more fully in sec. Ill,B, infra, of this Decision and
Order, the Employer, as a member of another employer association (the
MCAA), was subject to an agreement between the MCAA and the La-
borers' International Union of North America, AFL-CIO, which con-
tained an equally binding, but conflicting, work dispute provison and
which obligated its parties to submit jurisdictional disputes to the Interna-
tional office of the Union for resolution and indicated that such proce-
dure was exclusive and superseded any other procedure delineated in an
agreement between a member of the MCAA and any local union.
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OPERATING ENGINEERS LOCAL 150 (D. H. JOHNSON CO.)
The decision further directed the Respondent to
notify the Regional Director for Region 13, in
writing, within 10 days, whether it would refrain
from the proscribed action. The Respondent has
failed and refused to comply with the Board's De-
cision and Determination of Dispute.
The Respondent filed a motion for reconsider-
ation of the Board's initial Decision and Determi-
nation of Dispute on 18 August 1982, and thereaf-
ter stated in writing on 23 August 1982 that it
would not, under any circumstances, comply with
the Board's Order. On 16 December 1982 the
Board denied the Respondent's motion for recon-
sideration as lacking in merit.
B. Discussion
The Respondent, in its brief, asserts that it does
not contest the Board's award of the work in dis-
pute to employees represented by the Union on the
merits, but rather contends that the Board erred, in
the first instance, in making a determination in the
10(k) proceeding because there was an agreed-upon
method of dispute resolution. More particularly,
the Respondent asserts that the Board erred in con-
cluding that the Employer was committed to the
use of two "equally binding, but conflicting" work
dispute resolution provisions, thus precluding a
finding of an agreed-upon method of dispute reso-
lution. The Respondent contends that the Employ-
er, as well as the Respondent and the Union, was
obligated to submit jurisdictional work disputes to
the Joint Conference Board (JCB) for resolution.
Furthermore, the Respondent claims that the dis-
pute resolution mechanism enunciated in the
MCAA-Laborers' International agreement, which
the Board found to be "equally binding, but con-
flicting" is inapplicable in the instant case. Al-
though the Employer is an admitted member of the
employer association MCAA, the Respondent con-
tends that the absence of any collective-bargaining
agreement between the Employer and Laborers
Local 118 (the Union) involved in this dispute ren-
ders the dispute resolution provision in the
MCAA-Laborers' International agreement inap-
plicable. The Respondent also claims that the
Board's acknowledgement of this jurisdictional
work dispute provision gives credence to an agree-
ment between the Employer and a nonparty to this
dispute. We find no merit in the Respondent's con-
tention because it raises an argument which was
considered previously by the Board.5
I See Teamsters Local 528 (National Homes Corp.), 255 NLRB 208, 209
(1981); Teamsters Local 445 (Blount Bros. Corp.), 197 NLRB 46 (1972),
and cases cited therein at 51 fn. 5.
With the exception of the Respondent's claim
with regard to the nature of its picketing, all af-
firmative defenses raised by the Respondent in its
answer have been litigated previously. "It is settled
that issues raised and litigated in a 10(k) proceeding
may not be relitigated in a subsequent unfair labor
practice proceeding, alleging violations of Section
8(b)(4)(D) which are based in part on factual deter-
minations made in the 10(k) proceeding." 6
With regard to the picketing, the Respondent
claims that its members engaged in lawful, econom-
ic picketing at the Employer's construction project.
The Respondent contends that the members whom
it represents engaged in an economic strike against
various employers, including the Employer, from
20 July 1981 to 16 September 1981, over the terms
and conditions of a new collective-bargaining
agreement. In its Decision and Determination of
Dispute, however, the Board concluded that such
picketing was engaged in to protest the Employer's
assignment of the disputed work to employees rep-
resented by the Union. The Respondent has pre-
sented no evidence to demonstrate that the Board's
factual finding was erroneous. Because all material
allegations either have been admitted by the Re-
spondent in its answer, or have been decided previ-
ously by the Board, there are no matters outstand-
ing for resolution.*
Having determined that the Respondent has not
complied with the Board's 10(k) determination, the
merits of the complaint concerning whether the
Respondent has engaged in conduct violative of
Section 8(b)(4)(D) of the Act must be examined.
It should be noted that the Respondent's failure
to comply with the Board's 10(k) determination
does not per se constitute a violation of Section
8(b)(4)(D). Rather, noncompliance merely triggers
a complaint alleging that a violation of Section
8(b)(4)(D) has occurred. Once the complaint has
issued "in the Section 8(b)(4)(D) proceeding itself,
the Board must find by a preponderance of the evi-
dence that the picketing union has violated Section
8(b)(4)(D)." 8 All the factors essential for a finding
of such a violation are present in the instant case.
As set forth above, the Respondent picketed the
Employer; by such conduct, the Respondent in-
duced and encouraged the Employer's employees
to engage in a strike or a refusal in the course of
their employment to use, manufacture, transport, or
othewise handle or work on any goods, articles,
' Ironworkers Local 433 (Plaza Glass Co.), 218 NLRB 848, 849 (1975),
enfd 549 F.2d 634 (9th Cir. 1977).
7 Longshoremen ILA Local 1410 (Employer-Members of Mobile Steam-
ship Assn.), 237 NLRB 1283 (1978).
8 NLRB v. Plasterers Local 79 (Texas State Tile), 404 U.S. 112, 116 fn.
10 (1971).
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materials, or commodities or to perform services,
and threatened, coerced, and restrained the Em-
ployer and other persons engaged in commerce or
industries affecting commerce; the picketing's
object was to force the Employer to assign the
forklift operation to members of the Respondent
rather than to members of the Union; and the Re-
spondent has not been certified by the Board as the
collective-bargaining representative of the employ-
ees performing the forklift operation, nor has the
Board issued any order determining that the Re-
spondent is the bargaining representative of these
employees. On the basis of the foregoing and the
entire record in this proceeding, we find by a pre-
ponderance of the evidence that the Respondent
violated Section 8(b)(4)(i) and (ii)(D) of the Act.
CONCLUSIONS OF LAW
1. D. H. Johnson Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent Operating Engineers Local 150 is
a labor organization within the meaning of Section
2(5) of the Act.
3. By picketing the Employer, the object of
which was to force or require the Employer to
assign the operation of a forklift used by the Em-
ployer at the apartment construction project at 900
East Centennial Drive in Mount Prospect, Illinois,
to employees represented by the Respondent,
rather than to employees represented by the Union,
the employees represented by the Respondent not
being lawfully entitled to that work, the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(D) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in certain unfair labor practices,
we shall order it to cease and desist therefrom and
take affirmative actions designed to effectuate the
purposes of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, International Union of Operating
Engineers, Local 150, AFL-CIO, Countryside, Illi-
nois, its officers, agents, and representatives, shall
1. Cease and desist from picketing D. H. Johnson
Company, the object of which is to force or re-
quire D. H. Johnson Company to assign the forklift
work at the Employer's East Centennial Drive
apartme: t construction project in Mount Prospect,
Illinois, to employees represented by the Respond-
ent rather than to employees represented by Con-
struction and General Laborers' Local 118, Labor-
ers' International Union of North America, AFL-
CIO, except insofar as such conduct is permitted
under Section 8(b)(4)(i) and (ii)(D) of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its office and meeting halls copies of
the attached notice marked "Appendix." 9 Copies
of the notice, on forms provided by the Regional
Director for Region 13, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of said notice
to the Regional Director for Region 13 for posting
by D. H. Johnson Company, if it is willing, at all
locations on the jobsite where notices to its em-
ployees customarily are posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
9 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 picket D. H. Johnson Company
with an object of forcing or requiring D. H. John-
son Company to assign employees of D. H. John-
son Company represented by International Union
of Operating Engineers, Local 150, AFL-CIO,
rather than employees of D. H. Johnson Company
represented by Construction and General Laborers'
1342
OPERATING ENGINEERS LOCAL 150 (D. H. JOHNSON CO.)
Local 118 Laborers' International Union of North
America, AFL-CIO, the forklift operation at the
Employer's East Centennial Drive apartment con-
struction project in Mount Prospect, Illinois,
except insofar as such conduct is permitted under
Section 8(b)(4)(i) and (ii)(D) of the Act.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL 150, AFL-
CIO
1343