197 N.L.R.B. 244 (N.L.R.B. 1972)

Operating Engineers, Local 675

National Labor Relations Board - Board DecisionsMay 31, 1972

197 N.L.R.B. 244 (N.L.R.B. 1972)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 675, AFL-CIO and Industrial Contracting Co. Cases 12-CP-129 and 12-CC-677 May 31, 1972 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On August 27, 1971, the Board issued a Decision and Order' in the above-entitled proceeding in which the Board found that the picketing engaged in by the Respondent Union violated Section 8 (b)(7)(C) of the Act. The majority of the Board found that the Respondent also violated Section 8(b)(4)(i) and (ii)(B) of the Act by successfully inducing certain employees of Industrial to refrain from working for Industrial , for an object of forcing or requiring Industrial to cease doing business with Peacock Construction Company.2 Contrary to the Trial Examiner , however, the majority of the Board found that the picketing engaged in by the Respondent Union did not violate Section 8 (b)(4)(B) of the Act.3 Thereafter, on October 26, 1971 , the Charging Party, Industrial Contracting Co., filed a motion for reconsideration and/or rehearing as to the Decision and Order finding that picketing did not violate Section 8(b)(4)(B) of the Act. The Charging Party alleged that the majority opinion failed to give consideration to precedent , gave improper weight to certain other precedent , and failed to properly evaluate certain of the alleged incidents involved. The motion also alleged that the Trial Examiner and the Board had failed to consider an allegation in the complaint , raised in the cross-exceptions, and to which no findings by either the Trial Examiner or the Board were made . The Charging Party in its motion requested that the Board delay any ruling on its motion until the fifth Board Member had been appointed to fill the then vacancy in order to afford the full membership of the Board the opportunity to consider and rule on the motion. The Respondent , International Union of Operating Engineers , Local 657, AFL-CIO, filed an opposition to motion for reconsideration and/or rehearing before a full Board . The Board has duly considered the matters raised. i 192 NLRB No 175 2 Member Fanning dissented on this issue and would dismiss the 8(b)(4)(B ) allegations of the complaint 3 Members Fanning and Jenkins and former Member Brown Chairman Miller and Member Kennedy dissented on the issue in question 4 Member Kennedy is of the view that the motion for reconsideration has merit and would grant the Charging Party's request for the reasons set out in his and Chairman Miller's dissent to the original Decision and Order Nevertheless , the motion here fails for lack of a majority By its motion, the Charging Party again asserts that the picketing engaged in by the Respondent Union during the relevant periods in question had a proscribed secondary object and thereby violated Section 8(b)(4)(i) and (ii)(B) of the Act. We find that the motion as it relates to that issue contains nothing not previously considered by the Board. According- ly, the motion for reconsideration of that issue is denied.4 The Charging Party's motion also asserts that Respondent's conduct was violative of the second part of Section 8(b)(4)(B) of the Act. Although that violation was alleged in the complaint, the Trial Examiner failed to make any findings or conclusions in this regard. Inadvertently, neither the majority decision nor the dissent indicated any disposition of the issue. The matter was fully litigated, and the record demonstrates that the violation occurred as alleged.5 The second part of Section 8(b)(4)(B) proscribes certain conduct which has an object of "forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 . . . ." The Board found that Respondent's picketing had an object of compelling Peacock Construction Company to rec- ognize or bargain with Respondent, although 'Re- spondent was not certified under the Act. The Board also found that Respondent induced and encouraged individuals employed by Industrial Contracting Co., a neutral employer, and threatened, coerced, and restrained Industrial, for an object of compelling Industrial to cease doing business with Peacock. Since it is clear that Respondent's activity bad the ultimate object of recognition and bargaining, the conclusion follows that a further object of Respon- dent's inducement and encouragement of Industrial and other neutral employees, to engage in a strike, and the threat, coercion, and restraint exerted on Industrial, were also in furtherance and support of Respondent's demand for bargaining and recogni- tion of Respondent by Peacocks Accordingly, we shall amend our Decision and Order issued on August 27, 1971, as provided below.? 5 In view of Member Fanning's dissenting view in which he would dismiss the 8(bX4)(B) allegations of the complaint , he would also deny the Charging Party's motion on this issue. 6 See International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 238 (Elmer A Fehrle), 190 NLRB No. 144 r Member Penello did not participate in the consideration of the Respondent's motion for reconsideration or in the above Supplemental Decision and Order 197 NLRB No. 29 OPERATING ENGINEERS , LOCAL 675 245 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: 1. The Conclusions of Law be amended by adding the following paragraph 6, and renumbering the remaining paragraphs accordingly: "6. By inducing and encouraging the employees of Industrial Contracting Company to refuse in the course of their employment to perform services for their employer, and by the threat, coercion, and restraint practiced on Industrial, with an object of forcing or requiring Peacock Construction Company to recognize or bargain with Respondent as the representative of its employees although Respondent has not been certified as the representative of such employees under Section 9 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act." 2. The Trial Examiner's recommended Order be amended by adding the following as paragraph 1(c) and relettering the remaining paragraph as 1(d): "(c) Engaging in, or inducing or encouraging any individual employed by Industrial Contracting Com- pany, or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threaten- ing, coercing, or restraining Industrial, or any other person, where an object thereof is to force or require Peacock Construction Company to recognize or bargain with Respondent as the representative of his employees unless Respondent has been certified as the representative of such employees under the provisions of Section 9 of the Act." 3. Substitute the attached notice for the Trial Examiner's notice. APPENDIX recognize or bargain with us as the representative of its employees. WE WILL NOT induce or encourage any individ- ual employed by Industrial Contracting Company to engage in a strike or a refusal , in the course of his employment , to use , process , transport, or otherwise handle or work on any goods , articles, materials , or commodities , or to perform any services , where an object thereof is to force or require said Employer to cease doing business with Peacock Construction Company. WE WILL NOT induce or encourage any individ- ual employed by Industrial Contracting Company to engage in a strike or a refusal in the course of his employment to use , process , transport, or otherwise handle or work on any goods , articles, materials , or commodities , or to perform any services, and WE WILL NOT threaten , coerce , or restrain Industrial , where an object thereof is forcing or requiring Peacock Construction Company to recognize International Union of Operating Engineers , Local 675, AFL-CIO , as representa- tive of such employees unless such labor organi- zation has been certified as the representative of such employees under the provisions of Section 9 of the National Labor Relations Act, as amended. WE WILL NOT threaten , coerce , or restrain Industrial Contracting Company where an object thereof is to force or require said Company to cease doing business with Peacock Construction Company. Dated By NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, under any conditions prohibited under Section 8(b)(7)(C) of the Act, picket or cause to be picketed , or threaten to picket Peacock Construction Company, where an object thereof is to force or require the said Employer to INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 675, AFL-CIO (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced , or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street , Tampa, Florida 33602, Telephone 813-228-7227.