Local 372, Service Employees International Union, AFL-CIO (Pepper Construction Company)

LOCAL 372, SERVICE EMPLOYEES Local 372, Service Employees International Union, AFL-CIO and Pepper Construction Company and Marshall Field & Company and Interna- tional Union of Operating Engineers, Local Union No. 150, AFL-CIO. Case 13-CD-311 July 12, 1982 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Pepper Construction Compa- ny, herein called the Employer, alleging that Local 372, Service Employees International Union, AFL- CIO, herein called Local 372, has violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activities with an object of forcing or re- quiring the Employer to assign certain work to em- ployees represented by it rather than to employees represented by International Union of Operating Engineers, Local Union No. 150, AFL-CIO, herein called Local 150. Pursuant to notice, a hearing was held before Hearing Officer William V. Killoran, Jr., on March 30 and April 1, 1982. All parties appeared and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Em- ployer and Local 150 filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding 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. The rulings are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Delaware corporation with a place of business in Illinois, is engaged in commercial and industrial construction. During the past calendar year, a representative period, the Employer pur- chased and received at its Illinois facility goods and services valued in excess of $50,000 directly from points outside the State of Illinois. We find that the Employer 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. 262 NLRB No. 106 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 372 and Local 150 are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer has a long-term contract with Marshall Field & Company, herein called Field's, for construction, including alterations and renova- tions in Field's department stores. In October 1981 the Employer began a major remodeling project on the I Ith floor of Field's State Street store in Chica- go, and began using Field's existing freight eleva- tors, operated by employees of Field's represented by Local 372, to hoist the materials used in this project. Local 150, which represents employees of the Employer who operate cranes, bulldozers, per- sonnel hoists, and similar equipment on new con- struction sites, insisted that, pursuant to its collec- tive-bargaining agreement, one of its members had to operate an elevator that hoisted materials for the 11th floor project. The Employer conveyed this demand to Field's, which refused to grant permis- sion for anyone but its employees represented by Local 372 to operate its freight elevators. Local 150 then filed a grievance under its collective-bar- gaining agreement with the Employer. On January 27, 1982, a joint grievance commit- tee, in a proceeding to which neither Local 372 nor Field's was a party, awarded the work to an em- ployee represented by Local 150 and also awarded backpay to compensate for the Employer's failure to so assign the work since October 1981. The Em- ployer again requested Field's to permit an employ- ee represented by Local 150 to operate a freight elevator. Field's forwarded the request to Local 372, which, by its attorney, responded by stating that, if a "non-Local 372 person" were assigned to that job, Local 372 "would immediately implement any and all of those remedies available to us under the contract, and the National Labor Relations Act which may include picketing and other forms of job action." Field's denied the Employer's (and Local 150's) request, and the Employer has not complied with the grievance award. B. The Work in Dispute The dispute concerns the assignment of the fol- lowing work tasks: Operation of freight elevators used for hoisting construction equipment, materials, or workers to the site of remodeling work being per- formed by Pepper Construction Company s815 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within a building owned or occupied by Mar- shall Field & Company, at 111 North State Street, Chicago, Illinois. C. Contentions of the Parties Local 150 contends that the notice of hearing herein should be quashed because Local 150 effec- tively and unequivocally disclaimed the work in dispute at the conclusion of the hearing. It also contends that there is no reasonable cause to be- lieve that a violation of Section 8(b)(4)(D) oc- curred because Local 372 threatened only to take such action as is permitted by law. The Employer contends that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that Local 150's dis- claimer is ineffective, being merely an attempt to avoid an authoritative determination of the dispute. The dispute assertedly being unresolved and prop- erly before the Board for determination, the Em- ployer further contends that the Board should award the work to Field's employees represented by Local 372. D. Applicability of the Statute Section 10(k) of the Act, which directs the Board to hear and determine disputes out of which 8(b)(4)(D) charges have arisen, limits the Board's authority in this respect to situations in which an employer's assignment of work is in dispute. The Board has held, with Supreme Court approval, that a jurisdictional dispute no longer exists where one of the competing unions or parties effectively re- nounces its claim to the work. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 262, AFL-CIO (Dyad Construction, Inc.), 252 NLRB 48 (1980), and cases cited therein. In light of the fact that Local 150 unequivocally has disclaimed interest in the disputed work, at the hearing and again in its brief to the Board, we find that there no longer exists a jurisdictional dispute within the meaning of the Act. We shall therefore quash the notice of hearing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. ' The instant case is unlike those where the union purportedly dis- claiming interest has taken action inconsistent with a good-faith disclaim- er. See Local Union No. 55, Sheet Metal Workers International Assoiation., AFL-CIO (Gilbert L Phillips Inc.), 213 NLRB 479, 481 (1974). 816