Laborers' Local 676

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers' Local 676 and Clyde Stewart Excavating Co., Inc. Case 17-CD-216 May 13, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Clyde Stewart Excavating Co., Inc., herein called the Employer, alleging that Laborers' Local 676, herein called the Respondent, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its employees represented by Respondent rather than to unrepresented employees of the Employer. Pursuant to notice, a hearing was held before Hearing Officer David A. Nixon on January 18, 1977. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They 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 Employer is an excavating contractor with its principal place of business in Springfield, Missouri. During the past year, the Employer purchased goods from outside the State having a value of $50,000. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Respon- dent is a labor organization within the meaning of Section 2(5) of the Act. 229 NLRB No. 105 III. THE DISPUTE A. Background and Facts of the Dispute As noted above, the Employer performs excavation work in and about Springfield, Missouri. The Employer has a complement of seven employees, all but one of whom are related to him by blood or marriage, and he desires to continue to assign work to these employees. The employees are not represent- ed for the purposes of collective bargaining. Respon- dent does not have any contracts with, or represent any employees of, the Employer. On November 15, 1976, Laborers' Local 676 commenced picketing the Employer at an excavation site. Respondent had picketed successively at three different locations for a total of 34 days at the time of hearing. Evidence or testimony pertaining to the effect of the picketing was not allowed into the record. On November 17, 1976, Employer filed an unfair labor practice charge alleging that Laborers' Local 676 was picketing the Employer for the purposes of forcing it to assign work to employees represented by Respondent instead of Employer's unrepresented employees. B. The Work in Dispute The disputed work involves the digging of sewage lines, laying of pipes, backfilling, and cleanup at various locations in or about the city of Springfield, Missouri. C. The Contentions of the Parties The Employer contends that there is a jurisdiction- al dispute, that Respondent has violated Section 8(b)(4)(D) of the Act by exercising coercive pressure on it to assign the work to employees represented by Respondent, and that the work in dispute should continue to be assigned to its employees. The Respondent asserts that its picketing is solely informational in purpose; that there is no jurisdic- tional dispute; that, though at one time it sought to organize Stewart's employees, that plan had been abandoned months before its picketing; that its actions have never constituted a demand for assign- ment of work to particular employees; that there never existed any competing claims here; and for these reasons it contends that the Board cannot proceed under Section 10(k). D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause 664 LABORERS' LOCAL 676 to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method for the voluntary settlement of the dispute. In the instant case this also requires a determina- tion as to whether there are two competing groups of employees claiming the work in question, and whether Laborers' Local 676 has claimed the work and has used proscribed force to enforce this claim. As it is well settled that employees have standing to claim disputed work even though no union speaks in their behalf, we find that there are two competing groups in this case: the unrepresented employees of Stewart on the one hand, whose performance of the work indicates that they claim it, and the members of the Union whom the Union has offered to supply as employees on the other.1 As to Respondent's object in picketing, the record shows that between March and May 11, 1976, the Union on at least two occasions expressly requested the Employer to sign a contract covering its said unrepresented employees, on several occasions of- fered to supply members of Respondent who were out of work, and also contacted Stewart's employees as to the possibility of their selecting the Union to represent them, but to no avail. Then, after a period of 6 months during which the Union made no contact with either the Employer or the employees, it commenced picketing on November 15, 1976-and was continuing to do so at the time of the hearing on January 18, 1977-with a sign bearing the following legend: Stewart Excavating does not employ members of Laborer's Local 676. Laborers' Local 676 is not attempting to organize the employees of Stewart Excavating and is not requesting recognition by Stewart Excavating. Laborers' Local 676 is not attempting to induce any individual employee employed by any person in the course of his employment not to pick up, deliver, or transport any goods, or to perform any services. Laborers' Local 676 is not attempting to induce any person to cease doing business with Stewart Excavating. Laborers' Local 676 does not have a dispute with any other person or employer on this job. This notice is addressed to the general public. In the circumstances of this case we are not prepared to view this picketing as "solely informational" as Respondent contends. The sign begins by saying that Stewart does not employ members of the Laborers "which clearly imports an object of organization." 2 It then asserts I See Sheet Metal Workers Union Local NVo 54 (The Goodyear Tire & Rubber Company and O.T.D. Corporation). 203 NLRB 74, 76 (1973): International Brotherhood of Electrical Workers and its Local 639 (Bendix Radio Division of The Bendix Corporation), 138 NLRB 689. 692 (1962). that Laborers is not attempting to organize or request recognition, an assertion entirely contrary to Re- spondent's demonstrated intent some 6 months earlier with respect to Stewart's employees. Though the picket sign standing alone appears to have been intended to satisfy the proviso to Section 8(b)(7)(C), in the context here the picketing cannot be sepa- rated-on the ground it is merely informing the public, including consumers-from the relatively recent attempts by Respondent to have Stewart recognize it as the bargaining representative of Stewart's employees, or to have the employees themselves select the Union to represent them, or to supply the Employer with members capable of doing the work. We therefore find that an object of Respondent's picketing was to force or require the Employer to assign the disputed work to employees represented by it and that there is reasonable cause to believe Respondent has violated Section 8(b)(4)(D). No party contends, and the record discloses no evidence showing, that an agreed-upon method for the voluntary adjustment of the instant dispute exists to which all parties are bound. Accordingly, we find that the dispute is properly before the Board for determination under Section 10(k) of the Act. Respondent's motion to quash the notice of the 10(k) proceeding, therefore, is hereby denied. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. The following factors are relevant in making the determination of the dispute before us: 1. Relative skills No party elected to show the presence of or need for any specialized skills or training to perform this work. The Employer, however, presented testimony that its unrepresented employees have performed the work in dispute in a manner satisfactory to the Employer. Accordingly, this factor tends to support an award of the disputed work to the Employer's unrepresented employees. No party adduced evi- dence relating to any traditional area or industry practice pertaining to the type of work involved in the instant case. This factor, therefore, is inconclu- sive. 2 Local 429, International Brotherhood of Electrical Workers, AFL-CIO (Sam M. Melson, d/b/a Sam Melson, General Contractor), 138 NLRB 460, 462 (1962). 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Employer's assignment, past practice, and preference Since it commenced operations, the Employer has assigned the work in dispute exclusively to its own unrepresented employees. Such assignment is consis- tent with the Employer's stated preference. Accord- ingly, these factors favor an award of the work in dispute to the Employer's unrepresented employees. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's unrepresented employ- ees are entitled to perform the work in dispute. 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. The unrepresented employees of Clyde Stewart Excavating Co., Inc., are entitled to perform the work of digging of sewage lines, laying of pipes, backfilling, and cleanup performed by Clyde Stewart Excavating Co., Inc. 2. Laborers' Local 676 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Clyde Stewart Excavating Co., Inc., to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers' Local 676 shall notify the Regional Director for Region 17, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 666