Longshoremen Ilwu Local 6 (Golden Grain)

LONGSHOREMEN ILWU LOCAL 6 (GOLDEN GRAIN) 1 Warehouse Union Local 6, International Longshore- men and Warehousemen's Union and Golden Grain Macaroni, Company. Case 32-CD-82 June 8, 1988 DECISION AND ORDER DENYING MOTIONS BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT Upon a charge filed by Golden Grain Macaroni Company (the Employer) on October 5, 1984, and duly served on Warehouse Union Local 6, Interna- tional Longshoremen and Warehousemen's Union (the Respondent), the General Counsel of the Na- tional Labor Relations Board issued a complaint August 14, 1985, against the Respondent alleging that it had violated Section 8(b)(4)(i) and (ii)(D) of the National Labor Relations Act.' The complaint alleges that on October 2, 1984, the Respondent claimed that employees represent- ed by it, rather than employees represented by Local 125, Bakery, Confectionery & Tobacco Workers' International Union (Local 125), were en- titled to package bread crumbs for Golden Grain stuffing mix at the Employer's Ghirardelli Choco- late Company plant (disputed work). The com- plaint also alleges that on October 4 and 5, 1984, the Respondent, in furtherance of its claim, encir- cled a machine at the Ghirardelli Chocolate Com- pany plant, wrapped paper around it, and placed on it a sign bearing the legend "Unfair to Local 6." The complaint further alleges that by such conduct the Respondent induced and encouraged individ- uals employed by Golden Grain to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materi- als, or commodities or to perform services, and threatened, coerced, and restrained the Employer and other persons engaged in commerce, or in in- dustries affecting commerce, with an object of forcing or requiring the Employer to assign the dis- puted work to employees it represents, rather than to employees represented by Local 125. The com- plaint further alleges that the Respondent has failed and refused to comply with the Board's July 19, 1985 Decision and Determination of Dispute,2 which awarded the disputed work to Local 125- represented employees, by failing to give the Re- gional Director timely and unequivocal written i On August 23, 1985, the complaint was amended to correct the cap- tion 2 Longshoremen ILWU Local 6 (Golden Grain), 275 NLRB 1128 (1985) In that case the Board rejected the Respondent's work preservation de- fense and found reasonable cause to believe Sec 8(b)(4)(D) of the Act had been violated No credibility issues were raised notice of its intent to comply with the decision. On August 22, 1985, the Respondent filed an answer admitting in part, and denying in part, the com- plaint allegations , denying the commission of any unfair labor practices, and asserting the work pres- ervation doctrine as an affirmative defense. On September 9, 1985, the General Counsel filed a Motion to Strike Denials in the Respondent's Answer and Motion for Summary Judgment. The General Counsel asserts that summary judgment should be granted because all evidentiary issues raised by the Respondent's answer were either liti- gated in the underlying 10(k) proceeding, admitted by the Respondent, or have been established by un- disputed evidence. On September 17, 1985, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. The Respondent filed a response, again as- serting that the Respondent's conduct is protected by the work preservation doctrine. We find, contrary to the General Counsel's con- tentions, that the pleadings and submissions of the parties raise issues which can best be resolved by a hearing before an administrative law judge. In its answer to the complaint, the Respondent denied, inter alia, that the Employer assigned the disputed work to Local 125-represented employees; that the Respondent claimed that Local 6-represented em- ployees were entitled to perform the work; that the Respondent encircled a machine, wrapped paper around it, and placed a sign on it; that such con- duct induced employees to engage in a work stop- page; that an object of the conduct was to force the Employer to assign the work to Local 6-repre- sented employees rather than to Local 125-repre- sented employees; and that the Respondent has re- fused to comply with the Board's determination of dispute by failing to state in writing its intent to comply.3 The Respondent also raised its work preservation defense in both its answer to the com- plaint and its response to the Board's Notice to Show Cause. 8 We note with regard to this final allegation that the Respondent has not submitted evidence to rebut the General Counsel's affidavit showing noncompliance Such refusal to promise compliance with the 10(k) deter- mination does not, however, serve as an independent basis for finding an 8(b)(4XD) violation Rather, such noncompliance serves as a triggering event for the issuance of a complaint . See Iron Workers Local 595 (Bechtel Corp), 112 NLRB 812, 817 (1955), Operating Engineers Local 150 (D H. Johnson Co.), 268 NLRB 1339, 1341 (1984), enfd. 755 F.2d 78 (7th Cir. 1985). To the extent that cases such as Longshoremen IL WU Local 62-B (Alaska Timber), 271 NLRB 1291 fn 3 (1984), modified 781 F.2d 919 (D.C Cir 1986), and Plumbers Local 195 (Texas Oil), 231 NLRB 525, 527 (1977), enfd 574 F.2d 1215 (5th Cir . 1978), are inconsistent , they are overruled 289 NLRB No. 4 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD An 8(b)(4)(D) proceeding, unlike a 10(k) pro- ceeding, is an adjudicatory proceeding required to be conducted pursuant to the Administrative Pro- cedure Act, 5 U.S.C. § 554. As the Supreme Court noted in ITT v. Electrical Workers IBEW Local 134, 419 U.S. 428, 446 (1975), relying on the following footnote from NLRB v. Plasterers Local 79, 404 U.S. 116, 122 fn. 10 (1971): The 10(k) determination is not binding as such even on the striking union . If that union con- tinues to picket despite an adverse 10(k) deci- sion, the Board must prove the union guilty of a 8(b)(4)(D) violation before a cease-and-desist order can issue. The findings and conclusions in a 10(k) proceeding are not res judicata on the unfair labor practice issue in the later § 8(b)(4)(D) determination. International Typo- graphical Union, 125 N.L.R.B. 759, 761 (1959). Both parties may put in new evidence at the § 8(b)(4)(D) stage, although often , as in the present cases, the parties agree to stipulate the record of the 10(k) hearing as a basis for the Board's determination of the unfair labor prac- tice. Finally, to exercise its powers under § 10(k), the Board need only find that there is reasonable cause to believe that a § 8(b)(4)(D) violation has occurred, while in the § 8(b)(4)(D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8(b)(4)(D). International Typographical Union, supra at 761 fn. 5 (1959). Therefore, when a 10(k) determination does not end the work dispute , the proceeding becomes ad- judicatory following the issuance of an unfair labor practice complaint. Bricklayers v. NLRB, 475 F.2d 1316, 1322 (D.C. Cir. 1973), enfg. 188 NLRB 148 (1971). At that point, if a genuine issue of material fact exists whether an unfair labor practice has oc- curred, a hearing before an administrative law judge is required, even if the issue was previously litigated in the underlying 10(k) proceeding. In this regard, we find that a genuine issue of material fact exists when there are credibility issues to be resolved or when a respondent denies the existence of an element of the 8(b)(4)(D) violation, either di- rectly or by raising an affirmative defense. An 8(b)(4)(D) respondent is not, however, required to proffer new and previously unavailable evidence in order to be entitled to a hearing.4 Accordingly, we 4 The Board will not, however, relitigate threshold matters that are not necessary to prove an 8(b)(4)(D) violation. See Bricklayers, above, in which the court found the threshold issue of whether there had been an overrule prior Board cases to the extent they sug- gest that a respondent in an 8(b)(4)(D) proceeding is not entitled to relitigate factual issues concerning the elements of the 8(b)(4)(D) violation that were raised in an underlying 10(k) proceeding unless it presents new or previously unavailable evidence. 5 Thus, summary judgment will be appropriate only when the parties have stipulated the record of the 10(k) hearing as a basis for the Board's deter- mination of the unfair labor practice or when a re- spondent has not demonstrated the existence of a material issue of fact with respect to the findings made at the 10(k) proceeding.6 In these instances, the Board will continue to utilize the record in the 10(k) hearing in order to determine whether, by a preponderance of the evidence, an 8(b)(4)(D) viola- tion has occurred. In this case, the parties have not stipulated the 10(k) record as a basis for the 8(b)(4)(D) unfair labor practice determination. Further, the Respond- ent's work preservation defense is a mixed question of fact and law relating to the alleged illegal object of the Respondent's conduct. We fmd that, by its renewal of the work preservation defense in its answer to the complaint and in its response to the notice to show cause, combined with its denial of the complaint allegations relating to whether the alleged unlawful conduct occurred, the Respondent has demonstrated the existence of a material issue of fact regarding the elements of the alleged 8(b)(4)(D) violation. Accordingly, we conclude that summary judgment is inappropriate in the in- stant case. ORDER It is ordered that the General Counsel's motions are denied and the proceeding is remanded to the Regional Director for Region 32 for further appro- priate action. agreed method of settlement had been resolved by the Board in the 10(k) proceeding. 5 See, e g., Operating Engineers Local 571 (J. E D. Construction), 241 NLRB 1066 (1979), enfd. 624 F 2d 846 (8th Cir. 1980); Iron Workers Local 433 (Plaza Glass), 218 NLRB 848 (1975), enfd 549 F 2d 634 (9th Cir. 1977), cert denied 434 U.S. 832 (1977); Electrical Workers IBEW Local 3 (Mansfield Contracting), 206 NLRB 423 (1973) 6 Member Cracraft expresses no view as to what result she would have reached here had the General Counsel 's Motion for Summary Judgment been "made and supported" in conformity with Rule 56 of the Federal Rules of Civil Procedure See Rule 56 (e), which provides, inter alia, as follows: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."