Laborers' International Union

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, Local Union No. 600, AFL-CIO and Secord Bros. Inc., and International Union of District 50, U. M. W. A., Party to the Dispute. Case 3-CD-245 June 24, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Secord Bros . Inc., herein called the Employer, alleging that Laborers' International Union of North America, Local Union No. 600, AFL-CIO, herein called Respondent or the Laborers, violated Section 8(bX4XD) of the Act. A duly scheduled hearing was held before David W . Larrison, Hearing Officer, on March 31, 1969. All parties appearing were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues . Thereafter the Employer and the Laborers filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Secord Bros . Inc., the Employer herein, a New York State corporation with its principal office and place of business in the town of West Seneca, New York, is a construction contractor who engages primarily in the installation of water and sewer systems in western New York State; that during the past 12 months, it purchased goods and materials in excess of $50,000 which have been delivered directly or indirectly to its construction projects from outside the State; and that its gross annual volume of business exceeds $1 million. We find that Secord Bros . Inc. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED We find that Laborers' International Union of North America, Local Union No. 600, herein called the Laborers, is a labor organization as defined in Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In October 1967, the Employer entered into a contract with the city of Jamestown , New York, to install certain pipelines and perform other work. Late in October, Anthony Foti, the Laborers business representative , had a conversation with Henry F. Secord, the Employer's secretary-treasurer, at the Jamestown project field office. According to Secord , Foti said that the Employer was down in Foti's territory and was taking his work, and that he, Foti, wanted to get together with the Employer over the Jamestown contract. Secord replied that the Employer had a union-shop labor contract with District 50 covering the Jamestown work , and that there was therefore no need for further discussion of the matter. Foti denied Secord's version of the conversation and testified that it involved only a discussion of wages on the forthcoming Jamestown project. Work commenced on the project in December 1967. In May 1968 Secord and Foti had a second conversation at the Jamestown project field office, during which Foti, according to Secord , complained that the Employer was taking work away from his people, that he wanted his people on the job, and that something would have to be done about it. Secord replied that, in view of the current contract with District 50, he could do nothing about it. Foti testified that this conversation, like the first conversation , involved merely the discussion of wages on the Jamestown project. On August 28, 1968 , the Employer entered into a contract with the village of Lakewood , New York, for the laying of pipelines and the construction of a steel tank at a project approximately 3 miles from the Jamestown project. According to Secord, in October 1968, about a month before the commencement of work on the Lakewood project, he and Foti had a third conversation at the Lakewood jobsite field office , during which Foti demanded that the Employer give work on the Lakewood project to the Laborers , and that, when Secord refused on the grounds that he had a union-shop contract with District 50 covering such work, Foti replied that if the Employer did not comply, he would do something about it. Foti denied the occurrence of the third conversation. Employees of the Employer were assigned all of the work on the Jamestown project; on the other hand, employees of the Employer's subcontractors were assigned the construction of the water tank and its foundation at the Lakewood project. Shortly after the commencement of the Lakewood project in November 1968, the Laborers posted a picket with a picket sign at the intersection of a public road and an access road prepared by the Employer's 176 NLRB No. 142 LABORERS' INTERNATIONAL UNION employees and leading to the water tank installation site, some 800 feet away . The sign read as follows: SECORD BROS., INC. DOES NOT MAINTAIN THE WAGES HOURS & WORKING CONDITIONS ESTABLISHED IN THIS AREA BY LABORERS LOCAL 600 The picketing has continued and was in effect at the time of the instant hearing, some 3 months later. There has been no other picketing. B. The Work in Dispute The work in dispute involves the access road and pipeline work at the Lakewood project, assigned to the Employer's employees represented by District 50. C. The Contentions of the Parties The Employer and District 50 contend, in substance , that the Laborers has engaged in a jurisdictional dispute in violation of Section 8(b)(4)(D ) by encouraging the Employer's employees and employees of other employers to engage in a strike where an object thereof is to force or require the Employer to assign the work of pipeline installation to employees represented by the Laborers, rather than to employees represented by District 50, with which the Employer currently has a union-shop contract . At the instant hearing, the Laborers disclaimed interest in all work at the Lakewood project and contended that the purpose of their picket sign was merely to alert the Employer as to its alleged substandard wage scales and to enforce the Employer's compliance with alleged prevailing area wage scales. D. Applicability of the Statute Before the Board may proceed with a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated . The testimony of Secord supporting such a finding was contradicted by Foti. However, the Board is not charged with finding in a jurisdictional dispute context that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation . Without 997 ruling on the credibility of the testimony in issue, we find that such reasonable cause exists and that the dispute is properly before the Board for determination under Section 10(k) of the Act.' We find without merit Respondent's claim that it was merely seeking to enforce upon the Employer the payment of the alleged prevailing wage rate, and, therefore, its conduct was not for an objective proscribed by Section 8(b)(4)(D). The fact that Respondent directed its picketing exclusively toward the only worksite manned solely by employees of subcontractors, and the absence of evidence that the Respondent at any time specifically complained directly to the Employer about alleged substandard wages or requested the establishment of alleged prevailing wage scales, leads us to conclude that a concurrent objective of the Laborers was to force or require the assignment of the disputed work at the Lakewood jobsite to employees represented by Respondent rather than to employees represented by District 50, by inducing the cessation of the subcontracted work. That one basis for Respondent's claim was its insistence upon the Employer's payment of alleged prevailing wage rates does not detract from the jurisdictional nature of the dispute. E. Merits of the Dispute At the hearing, Respondent disclaimed interest in the work being performed at the Lakeside project and the current bargaining agreement between the Employer and District 50 covering the project. Under all the circumstances, we shall determine the. existing jurisdictional controversy by awarding to the Employer's employees represented by District 50, rather than to employees represented by the Laborers, all work on the Lakeside project other than that performed pursuant to subcontract. The present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this case, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees represented by District 50 U.M.W.A., and employed by Secord Bros. Inc., are entitled to perform all pipeline construction and associated work pursuant to the current contract between Secord Bros. Inc. and the village of Lakewood, New York, excepting the construction of the water tank and its foundation, currently assigned to employees of subcontractors of Secord Bros. Inc. ' United Brotherhood of Carpenters & Joiners of America, Local No. 753 (Blount Bros. Corporation), 173 NLRB No. 190, Jefferson County, Alabama, and Vicinity Carpenter District Council (S A W Masonry, Inc.), 173 NLRB No. 190. 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Neither Laborers' International Union of North America, Local Union No. 600, AFL-CIO nor its members are entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require assignment of the work in dispute to individuals represented by the aforesaid Union. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers' International Union of North America, Local Union No. 600, AFL-CIO, shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring Secord Bros. Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination.