International Union of Operating Engineers, AFL-CIO, Local 925 (Bradshaw Industrial Coatings, Inc.)

DECISIONS OF NATI()NAI I .ABOR RELATIONS BOARD International Union of Operating Engineers, AFL- CIO, Local 925 and Bradshaw Industrial Coat- ings, Inc. and International Brotherhood of Painters and Allied Trades, AFL-CIO, District Council 66. Case 12-CD-280 September 30, 1982 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed on August 25, 1981, by Brad- shaw Industrial Coatings, Inc., herein called the Employer, alleging that International Union of Op- erating Engineers, AFL-CIO, Local 925, herein called the Operating Engineers, had violated Sec- tion 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an objective of forcing or requiring the Employer to assign work to its mem- bers rather than to employees represented by Inter- national Brotherhood of Painters and Allied Trades, AFL-CIO, District Council 66, herein called the Painters. Pursuant to notice, a hearing was held on Sep- tember 22, 1981, in Tampa, Florida, before Hearing Officer Priscilla Morgan Fenton. Both the Employ- er and the Operating Engineers, as well as the Painters, appeared at the hearing and were afford- ed full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and the Operating Engineers 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. They are hereby af- firmed. ' 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 Florida corporation with its principal place of business in Mulberry, Florida, is engaged in the business of painting industrial structures for private businesses and municipalities. During the past 12 months, the Employer has purchased from In light of our decision herein, we need not pass upon the Hearing Officer's evidentiary ruling concerning the affidavit of witness James Crawford. 264 NLRB No. 127 suppliers within the State of Florida goods, sup- plies, and materials valued in excess of $50,000. These goods, supplies, and materials were supplied to said suppliers directly from points outside the State of Florida. The parties also stipulated that during the same time period the Employer has per- formed services valued in excess of $50,000 for General Maintenance and Construction, Inc., and other employers who meet the jurisdictional stand- ards of the Board other than indirect. Accordingly, the parties stipulated, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert juris- diction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Op- erating Engineers and the Painters are each labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUrE A. Background and Facts of the Dispute The Employer utilizes gasoline and diesel- powered air compressors in the course of its indus- trial painting. The work in dispute involves the op- eration of air compressors of 125 CFM capacity or greater. The Employer has assigned this work to its employees represented by the Painters pursuant to a collective-bargaining agreement running from May 1, 1981, through April 30, 1983. The charge giving rise to this proceeding con- cerns picketing directed at the Employer by the Operating Engineers on August 20 and 21, 1981.2 The picketing took place at the Employer's work- site on the premises of C.F. Industries and protest- ed the Employer's failure to meet area standards. On August 21, the Employer was ordered off the job by C.F. Industries and the painting work was then assigned to another subcontractor. Prior to August 20 and 21, the following events occurred. On June 2, the Employer filed a charge alleging that the Operating Engineers had violated Section 8(b)(4)(D) by its actions at the Employer's jobsite at Page Engineering. On June 25, after issu- ance of the notice of hearing, the Employer filed a second charge alleging another 8(b)(4)(D) violation by the Operating Engineers, this time at its Becker Mine jobsite. On July 20, the Operating Engineers specifically disclaimed any interest in operating the air compressors at either location. The Employer then withdrew both charges. No conduct inconsist- All dates are in 1981. 962 OPERATING ENGINEERS LOCAL 925 ent with the disclaimers has been alleged at any time nor has the Employer made any application to reopen either of the June charges. The Operating Engineers informed both the Em- ployer and C.F. Industries, by letters on August 17, that it intended to picket the Employer to protest its failure to meet area standards with respect to the compensation paid its air compressor operators. A handbill distributed by the Operating Engineers during the picketing stated, inter alia: Our picketing is solely for the purpose of pub- licizing the fact that employees of the picketed employer, performing operating engineers craft work, do not receive the standard of wages, conditions, and benefits equal to that established in our contract. We do not seek recognition by, or a contract with this employ- er, or the removal of this employer from the job site, or the assignment of the operating en- gineers craft work to employees who are members of or represented by the union, and we have so advised the employer. At no time has the Operating Engineers made a demand for the work of operating the air compres- sors at the Employer's C.F. Industries worksite. The 8(b)(4)(D) charge in the instant proceeding was filed on August 25. Simultaneously, the Em- ployer filed a charge alleging that the Operating Engineers also violated Section 8(b)(7) by picketing for recognition. As to the latter charge, the Em- ployer and the Operating Engineers entered into a settlement agreement, containing a nonadmission clause, approved by the Regional Director for Region 12. After the issuance of the notice of the 10(k) hear- ing in this proceeding, the Employer filed another 8(b)(4)(D) charge. This one alleged a violation by the Operating Engineers at the Employer's Gardin- ier Company jobsite. The Employer withdrew this charge after investigation by the Regional Direc- tor. B. Contentions of the Parties The Employer contends that the Operating Engi- neers picketed its C.F. Industries jobsite in August 1981 for the purpose of forcing the Employer to reassign the work in question to the Operating En- gineers members in violation of Section 8(b)(4)(D) of the Act. The Operating Engineers asserts that the only objective of its picketing was to publicize the Employer's failure to meet area standards. The Employer states that it withdrew its charges as to threats to shut down and to picket the Page and Becker worksites on the basis of the Operating Engineers specific disclaimers. However, the Em- ployer insists that evidence as to these events was property admitted at the hearing to show the "true character of present occurrences" at C.F. Indus- tries. Further, the Employer contends that the Op- erating Engineers failed to ascertain the actual wages paid to the compressor operators at C.F. In- dustries and also failed to provide information as to the standards with which it was seeking compli- ance. In fact, asserts the Employer, it did provide wages and benefits which were comparable to, if not better than, any alleged area standards.3 The Employer contends that the Operating Engineers disclaimer as to the C.F. Industries work is ren- dered ineffective by its prior activities at Page and at Becker and its continuing claim that the disputed work was within the Operating Engineers craft ju- risdiction. The Operating Engineers contends that the notice of hearing was excessively broad in that it extended beyond the C.F. Industries jobsite to in- clude "various jobsites" throughout the State of Florida. Evidence concerning the incidents at Page and at Becker was not relevant to the charge filed as to the C.F. Industries job and should not have been admitted by the Hearing Officer. This is be- cause, contends the Operating Engineers, the charges as to the earlier events were withdrawn. The Operating Engineers also contends that its picketing at the C.F. Industries jobsite was not vio- lative of Section 8(b)(4)(D) of the Act because it made no demand at all for the compressor work, gave clear written notice to both the Employer and C.F. Industries as to its lawful objective of protest- ing the failure to meet area standards, engaged in no conduct inconsistent with either its letters or handbill, and had a reasonable basis for believing that area standards were being undermined. The Operating Engineers further argues that even if its conduct at the Page and Becker jobsites had evi- denced an illegal objective there has been no show- ing that such an objective carried over to its pick- eting at C.F. Industries, and that, in any event, the hiatus of approximately 2 months between the ear- lier incidents and the picketing which is the subject of the instant charge diminishes the impact of the prior allegedly illegal activity. The Operating En- gineers motion to quash the notice of hearing was referred to the Board by the Hearing Officer. 3 The record reveals that the Employer's president testified on recross examination that he does pay "key" employees over the Painters scale, but not "all the time." He agreed that such extra payments were a "sort of reward rather than part of the basic compensation" and that employ- ees "can't count on this" 963 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Applicability of the Statute Before the Board may proceed with the determi- nation of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) that the parties have not agreed upon a method for the voluntary adjustment of the dispute. For the Board to find reasonable cause, there must be (1) a genuine dispute, (2) proscribed activity under Section 8(b)(4)(i) or (ii), and (3) an objective to force the Employer to reassign the work. We conclude that there is no dispute because the Operating Engineers has effectively disclaimed the dispute work assignment for the C.F. Industries job. The record does not support the Employer's claim that the Operating Engineers picketing during 2 days in August 1981 was for a purpose other than forcing the Employer to pay the Em- ployer's workers area standard wages. 4 At no time has the Operating Engineers made any demand or request for any work assignment at the C.F. Indus- tries job on behalf of its members. We will not infer such a proscribed object without more evi- dence. For, even if the Operating Engineers prior actions at the Page and Becker jobsites had evi- denced a violation of Section 8(b)(4)(D), the Board does not interpret a statement of intention to act within lawful guidelines as a threat to breach those guidelines merely because the statement follows an unlawful threat. Carpenters Local Union No. 2361, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Bill E. Perry, its Agent (Adams Insulation Co., Inc.), 248 NLRB 313 (1980). For the above reasons, we conclude that there is no reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and, there- fore, we shall grant the Operating Engineers motion and quash the notice of hearing in the above-captioned case. ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. MEMBER HUNTER, dissenting: Unlike my colleagues in the majority, I would not quash the notice of hearing but would proceed to decide the instant dispute on the merits. I think the Operating Engineers (herein Respondent) past actions on the Page Engineering site, coupled with 4 The Operating Engineers reliance on contract comparisons, though it falls short of the standard of investigative thoroughness required by our dissenting colleague, is at least a reasonable basis for the claim that the Employer failed to meet area standards as to the total compensation package provided to Painters-represented employees doing compressor work. its perfunctory investigation of the working condi- tions at the C.F. Industries site, belie its contention that the picketing at the C.F. Industries site was area standards picketing. Accordingly, I would find Respondent has not effectively disclaimed the work in dispute at the C.F. Industries job, and that its picketing had a work assignment object. Testimony offered at the hearing clearly indi- cates that, in June 1981, responsible officials of Re- spondent threatened the Employer that Respondent would shut down the Page Engineering site if the Employer did not assign the air compressor work then in dispute to an employee represented by Re- spondent. 5 While it is true that on July 20 Re- spondent disclaimed any interest in operating the air compressors at the Page site (the Employer withdrew an earlier 8(b)(4)(D) charge based on that disclaimer), Respondent's actions at the instant C.F. Industries worksite demonstrate that its earlier disclaimer of interest was a sham. Thus, only 1 month after its July disclaimer of interest, Respondent began to picket the Employer at the C.F. Industries site ostensibly for an area standards purpose. That picketing continued until the Employer was requested to leave the site by the general contractor. While the picketing alleged- ly was for an area standards purpose, the evidence indicates otherwise. In this regard, it appears that Respondent never attempted to contact the Em- ployer before picketing to ascertain the wages the Employer paid the Painters-represented employee operating the air compressor on the site.6 Instead of obtaining data from the Employer, Respondent sent a letter dated August 17, to the Employer, claiming, without any specificity, that the Employ- er was paying substandard "wages or conditions" and stating that, if this was not true, the Employer should contact Respondent "immediately." The Employer attempted to do so by letter of August 19, but Respondent began picketing the next day I While these statements by Respondent's officials may have been denied by them, it is unnecessary to resolve anlly credibility issues at this stage before Section 10(k) proceedings may be triggered. See Local 24, The United Association of the Plumbing and Pipefirting Industry of the United States and Canada. AFL-CIO (E.L. & S. Contracting Co., Inc.), 231 NLRB 158, 159 (1977). a Respondent claims instead that it checked the pay scale for journey- men painters in the Employer's contract with Painters. However, Re- spondent also admits that it is not unusual for a contractor to pay above a contract rate when an employee takes on the extra duty of working an air compressor. Respondent did not check to see if a higher-than-contract rate was being paid here to the Painters-represented employee Respondent also relied on the fact that the Employer at one time was operating three compressors on the site, which allegedly created an even greater disparity in wage rates between what Painters-represented em- ployees earned and what Respondent's members received for the same work. But it appears that the Employer used three compressors on the site for only one 15-minute period some 6 days before the picketing began. There was only one compressor being used when the picketing began. 964 OPERATING ENGINEERS LOCAL 925 and did not cease picketing until the Employer was forced from the site. It seems clear to me that had Respondent been interested only in insuring that the Employer was paying area standard wages, its investigation before picketing would have been much less haphazard, and its contact with the Employer much less abrupt. Indeed, Respondent's conduct leads me to conclude that the picketing did not have as its sole purpose an area standards object. In light of all the circumstances, and with the Page Engineering project alleged threats as background, I think it clear that, at the least, an object of the picketing at the C.F. Industries site was to force the reassign- ment of the work in favor of Respondent's mem- bers. Accordingly, I would proceed to decide the dispute on its merits, and I dissent from my col- leagues' failure to do so. 965