International Union Of Operating Engineers, Afl-Cio

354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Operating Engineers Local 181 , a/w International Union of Operating Engineers , AFL-CIO and S.F. Steel Fab, Inc. and Aluminum Company of America, Party in Interest. Cases 25-CC-638 and 25-CP-143 January 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 31, 1988, Administrative Law Judge Irwin H. Socoloff issued the attached decision. The General Counsel, the Charging Party, and the Re- spondent filed exceptions. The General Counsel filed a supporting brief and an answering brief to the Respondent's exceptions. The Respondent filed a brief in support of its exceptions and in opposi- tion to the General Counsel's exceptions, and a sep- arate brief in opposition to the Charging Party's ex- ceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions as modified and to adopt the recom- mended Order. One issue presented here is whether the Re- spondent's undisputed 1-day recognitional picketing of a construction industry employer that had no statutory employees violated Section 8(b)(7)(C) of the Act. As further explained below, we agree with the judge that the Respondent's conduct was not unlawful. S.F. Steel Fab, Inc. is a construction industry contractor principally owned by Stewart Leithliter and his wife. In late 1986, it contracted with gener- al contractor Castle Construction Co., Inc. to erect a metal building at an ALCOA jobsite in New- burgh, Indiana. In January 1987, the Leithliters formed a sole proprietorship named Steel Fabrica- tors and Erectors (Steel Fabricators), which pur- chased a crane for use by Stewart Leithliter in per- forming the contract. Leithliter began jobsite operation of the crane on February 2, 1987. He was approached by the Re- spondent's steward, James Snow, who asked if Leithliter had a union card. Leithliter said no. He ' The General Counsel and the Charging Party have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. told Snow that he owned the company and the equipment and he intended to operate it. He did not state the fact that he was the only employee of Steel Fabricators. Snow reported this incident to the Respondent's vice president, Manning, that day. Thereafter that same morning, Manning con- tacted ALCOA and that afternoon dispatched the Respondent's business agent, Cecil Murphy, to the ALCOA site to discuss the situation. As more fully set forth in the judge's decision, Murphy was not allowed to enter the jobsite when he requested the opportunity to speak with Steel Fabricators to "work something out." On February 4, the Respondent picketed the en- trance to the jobsite used by Steel Fabricators and employees of other contractors. A single sign was displayed, stating: "Steel Fabricators are refusing to negotiate and bargain with IUOE Local 181." Approximately 300 jobsite employees refused to report to work. On Leithliter's arrival at the job- site, he asked Manning, "What's your purpose here?" Manning replied, "To get you to negotiate with us." The Respondent ceased picketing that afternoon pursuant to an agreement with the gener- al contractor. No further picketing took place after February 4. A telegram received from counsel for Steel Fab- ricators on February 5 advised the Respondent that "Steel Fabricators, Inc., has only one employee and your union cannot lawfully picket to organize and bargain for a one-man unit under the National Labor Relations Act." Several days later, Leithliter hired union signatory Tri-State Steel and its opera- tor and crane to complete the erection of the struc- tural portion of the contract. The judge found that the Respondent was un- aware that Steel Fabricators had no statutory em- ployees prior to and during the picketing, despite efforts to obtain such knowledge, and that no fur- ther picketing occurred after the Respondent learned of this fact. In these circumstances, the judge concluded that the "Respondent's picketing may not be deemed to have occurred for the pur- pose of obtaining a prehire agreement" pursuant to Section 8(f) of the Act and "was not otherwise vio- lative of Section 8(b)(7)(C) of the Act." The General Counsel excepts to the judge's con- clusion. The General Counsel contends that absent evidence of any effort by the Respondent to solicit authorization cards or to file an election petition the undisputed recognitional picketing constituted an unlawful coercive effort to compel adoption of an 8(f) agreement in alleged contravention of the Board's rationale in John Deklewa & Sons, Inc.2 In 2 282 NLRB 1375 in. 39 (1987), enfd . sub nom . Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988). 292 NLRB No. 47 OPERATING ENGINEERS LOCAL 181 (STEEL FAB) 355 addition, the General Counsel contends that recog nitional picketing for this unit violates Section 8(b)(7)(C) ab initio, since the absence of statutory employees at the time of the picketing precluded both raising a question concerning representation and holding an expedited election We disagree with each contention 3 Initially, we find that although the picketing had an undisputed recognitional objective, such an ob jective does not necessarily mean that the Re spondent had picketed with an objective of secur ing an 8(f) prehire agreement in the absence of stat utory employees The credited evidence reflects that the Respondent inquired about the union mem bership of the only individual identified with Steel Fabricators The Respondent never proffered a contract to Steel Fabricators nor demanded that it sign one after receiving notice that Steel Fabrica- tors had only one employee Picketing had ceased even before that notice These facts are insufficient to prove that the Respondent had picketed to obtain an 8(f) prehire agreement in the absence of statutory employees Furthermore, we find the present situation distin guishable from cases relied on by the General Counsel involving picketing by a guard union barred from obtaining certification because it con sists of a mixed unit of guard and nonguard em ployees or admits nonguard employees to member ship 4 In those cases, Section 9(b)(3) of the Act provides clear statutory notice that any petition for an election will be dismissed because the petition- ing union is ineligible to be certified By contrast, no statutory bar existed here and no reason was ap parent to the Respondent at the commencement of its picketing why it could never gain an election 5 On the contrary, on commencement of the Re spondent's picketing there could have been circum stances, i e , Steel Fabricators' hiring of employees in the Union's craft, which would have permitted the filing of a petition for recognition No further picketing occurred after the Respondent's receipt on February 5, 1987, of a telegram from counsel for Steel Fabricators stating that it had only one employee 6 Based on these facts, we conclude that the Respondent's recognitional picketing did not exceed a reasonable period of time within the meaning of Section 8(b)(7)(C) of the Act ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed liter as that employee Contrary to the statement of law in that telegram the Board has held that Sec 8 (b)(7)(C) does not apply to picketing for recognition in a stable one employee unit Plumbers Local 195 (Neches In struments Service) 221 NLRB 1226 (1975) Teamsters Local 115 (Vila Barr Co) 157 NLRB 588 (1966) Richard J Simon Esq, for the General Counsel Charles L Berger Esq and James Rosenberry Esq, of Evansville, Indiana, for the Respondent Arthur D Rutkowski Esq, of Evansville, Indiana, for the Charging Party DECISION STATEMENT OF THE CASE IRWIN H SOCOLOFF, Administrative Law Judge On charges filed on 19 February and 5 March 1987 by S F Steel Fab, Inc, against Operating Engineers Local 181 a/w International Union of Operating Engineers, AFL- CIO (the Respondent), the General Counsel of the Na tional Labor Relations Board, by the Regional Director for Region 25 issued an amended complaint dated 18 June 1987 alleging violations by Respondent of Sections 8(b)(4)(i) and (ii)(B), 8(b)(7)(C) and 2(6) and (7) of the National Labor Relations Act (the Act) Respondent by its answer, denied the commission of any unfair labor practices Pursuant to notice trial was held before me in Evans ville Indiana on 16 July 1987 at which the General Counsel the Charging Party and the Respondent were represented by counsel and were afforded full opportune ty to be heard to examine and cross examine witnesses and to introduce evidence Thereafter the parties filed briefs that have been duly considered On the entire record in this case and from my obser vations of the witnesses I make the following FINDINGS OF FACT I JURISDICTION 3 For reasons stated by the judge we also disagree with the General Counsel s further contention that Leithliter s statement to the Respondent on February 2 that he owned the crane and the company and that he was going to operate the rig gave the Respondent clear notice that Steel Fab ricators neither employed nor intended to employ statutory employees as crane operators 4 E g Teamsters Local 71 (Wells Fargo) 221 NLRB 1240 (1975) enfd 553 F 2d 1368 (D C Cir 1977) Teamsters Local 639 (Dunbar Armored Express) 211 NLRB 687 (1974) 5 Cf Food & Commercial Workers Local 23 (S & I Valu King) 288 NLRB 986 (1988) 6 Even if picketing had continued after notice that the Employer had only one employee it is not clear that such picketing would be unlaw ful The telegram did not expressly identify the Employers owner Leith Aluminum Company of America (ALCOA) is a Penn Sylvania corporation , engaged at its Newburgh , Indiana facility in the smelting and fabrication of aluminum During the year ending 31 December 1986 ALCOA, in the course and conduct of its business operations pur chased and received at the Newburgh facility products goods and materials valued in excess of $50,000 directly from points located outside the State of Indiana During the same time period ALCOA engaged in various con struction projects at Newburgh and purchased and re ceived at that site for use on those construction projects 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD goods, and materials, valued in excess of $50,000, direct- ly from points outside Indiana. Castle Contracting Co., Inc. (Castle) is an Indiana cor- poration, and maintains its principal office and place of business at Newburgh, Indiana. Castle is engaged in in- dustrial and commercial general construction at the ALCOA plant in Newburgh (the ALCOA jobsite). During the year ending 31 December 1986, Castle, in the course and conduct of its business operations , purchased and received at its Newburgh locale products, goods, and materials valued in excess of $50,000 directly from points located outside the State of Indiana. During the year ending 18 June 1987, the following construction industry contractors performed services at the ALCOA jobsite: Mel-Kay Electric , CDK Plumbing, T and T Acoustic, Sims Painting, Fabcon, Shannahan Crane and Hoist, Prescotsch, Sterling, Crawford Door, Builder's Specialties, and M and S Fire and Safety. In that time period, those contractors and Castle, in the course and conduct of their business operations at the ALCOA jobsite, collectively purchased and received at the jobsite products, goods, and materials valued in excess of $50,000 directly from points located outside the State of Indiana and/or from enterprises located within Indiana which received the products , goods, and materi- als directly from points located outside Indiana. S.F. Steel Fab, Inc., an Indiana corporation, maintains its principal office and place of business at Newburgh, Indiana, and operates a facility in Carmi, Illinois, where it fabricates and manufactures component parts for steel- type building construction . During the year ending 31 December 1986, that Company shipped goods and mate- rials valued in excess of $50 ,000, from its Illinois, facility, to a jobsite located in the State of Kentucky.' Steel Fabricators and Erectors, a sole proprietorship owned by Stewart A. Leithliter and his wife, Janet Leithliter, maintains its principal office and place of busi- ness at Newburgh , Indiana, and is engaged at the ALCOA jobsite in the operation of heavy equipment in the construction industry. S.F. Steel Fab, Inc . and Steel Febricators and Erec- tors, by virtue of their common ownership , management, control of labor relations and interrelationship of oper- ations, constitute a single-integrated business enterprise and a single employer within the meaning of the Act. I find that ALCOA, Castle, and the S .F. Steel Fab, Inc.-Steel Fabricators and Erectors entity are persons and employers engaged in commerce within the meaning of Section 2(2), (6), and (7) and Section 8(b)(4) of the Act. IL LABOR ORGANIZATION III. THE UNFAIR LABOR PRACTICES A. Background Late in 1986, Castle, the general contractor at the ALCOA jobsite, engaged S.F. Steel Fab to erect a metal building on the ALCOA premises. In anticipation of that work, Stewart Leithliter and his wife, the owners of more than 95 percent of the S.F. Steel Fab stock, formed a sole proprietorship called Steel Fabricators and Erec- tors. The new Company was founded in January 1987. The Leithliters decided that the new company would perform the work at the ALCOA jobsite and, using per- sonal funds, they purchased a crane for use by Steel Fab- ricators and Erectors. It was not the Leithliters' intention to hire employees to operate the crane but, rather, they decided that Stewart Leithliter would, himself, perform the work. Leithliter began operating the crane on the subject jobsite on 2 February 1987. On 4 February, Respondent engaged in picketing at one entrance to the ALCOA job- site, with a sign stating, "Steel Fabricators are refusing to negotiate and bargain with IUOE Local 181." After 1 day, picketing ceased. In the instant case, the General Counsel contends, and Respondent denies, that an object of Respondent's pick- eting was to enmesh ALCOA, Castle, and other contrac- tors in Respondent's dispute with Steel Fabricators and Erectors, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. The General Counsel further asserts that the picketing had a recognitional object and was an attempt to coerce Steel Fabricators and Erectors to enter into an agreement pursuant to Section 8(f) of the Act, in .viola- tion of Section 8(b)(7)(C) of the Act. Also at issue is whether, on 2 February 1987, preceding the picketing, Respondent unlawfully threatened to picket the jobsite. B. Facts2 As noted, Leithliter arrived at the ALCOA jobsite on 2 February 1987, and began operating the crane owned by Steel Febricators and Erectors. At the same time, he supervised the work of employees of S.F. Steel Fab, Inc., represented by Iron Workers Local 103, who deliv- ered material and equipment to the jobsite and unloaded trucks. While operating the crane, Leithliter was ap- proached by James Snow, Respondent's steward, who showed Leithliter his union card and asked if Leithliter had such a card. Leithliter said no, adding that he owned the Company and the equipment and he intended to op- erate the crane. Leithliter did not tell Snow that Steel Fabricators and Erectors did not employ other crane op- erators.3 Snow reported the substance of this conversa- tion to James Manning, Respondent's vice president. Respondent is a labor organization within the meaning of Section 2(5) of the Act. ' This finding is based on G.C. Exh..3, which is hereby received in evidence. G.C. Exhs. 4(g), (i), (j), (k), (n), and (o) are also received. The remainder of G.C. Exhs . 4 and 5 are rejected. 2 The factfindings contained herein are based on a composite of the documentary and testimonial evidence introduced at trial. I have not gen- erally relied on the testimony of Timothy Alkire, ALCOA 's construction manager, who exhibited little recall of the details of significant events. For the reason stated infra, I have also accorded little weight to the testi- mony of Debbie Theueikauf, Alkire's secretary. 3 Indeed, Respondent was never advised of that fact prior to the pick- eting of 4 February. OPERATING ENGINEERS LOCAL 181 (STEEL FAB) Debbie Theuerkauf, secretary to ALCOA s construc tion manager Timothy Alkire , testified that during the morning of 2 February , she received a call from Man ning who wanted to talk to Alkire According to Theuerkauf Manning stated that he had heard that there was a nonunion contractor working on the jobsite and Theuerkauf replied that she did not know of any Man ning said that he would send Respondents business agent, Cecil Murphy to meet with Alkire that afternoon Theuerkauf further testified that Manning stated that if the situation wasn t resolved there would be pickets up in the morning According to Theuerkauf Murphy arrived at her office that afternoon She testified that she could not recall what he said or how long he was there Further she could not recall if Murphy saw Alkire or if he re marred in her office or if he received clearance to enter the jobsite She could not recall what Murphy did while waiting to see Alkire When shown Cecil Murphy in the hearing room she could not recall if she had ever seen him before Theuerkaufs lack of recall on these points persuades me that she is not a reliable witness Cecil Murphy testified that he arrived at the ALCOA construction office about 2 p in on 2 February seeking to meet with Steel Fabricators and Erectors and work something out Murphy went to Alkire s office and asked Alkire what procedure to follow in order to obtain clearance to enter the jobsite and speak to Steel Fabrica tors and Erectors Alkire said that he did not know and he asked Murphy to wait in the waiting room Murphy waited until 5 p in at which time Alkire told him that he could not enter the jobsite Murphy asked Alkire to bring the man out here and let them talk in the office Alkire refused, and Murphy left On 3 February, Murphy received a telephone call from an individual named Massey who stated that he was an attorney representing Steel Fabricators and Erec tors Massey asked if Murphy had a problem and Murphy replied that he did not know he needed to talk to the owner of the Company Massey told Murphy that the Steel Fabricators and Erectors owner would call him later that day Leithliter did not call Instead Murphy received a call from another attorney representing Steel Fabricators and Erectors Arthur Rutkowski who told him that a suit would be filed against Murphy because he had threatened a client Murphy stated that he had not been able even to talk to Rutkowski s client As indicated on 4 February Respondent picketed the entrance to the jobsite used by Steel Fabricators and Erectors and the employees of the other contractors A single sign was displayed, stating Steel Fabricators are refusing to negotiate and bargain with IUOE Local 181 After picketing commenced some 300 employees of var sous construction contractors on the jobsite refused to report to work When Leithliter arrived at the jobsite, he asked Manning, what s your purpose here? Manning replied to get you to negotiate with us Alkire spoke to Manning about 4 p in on 4 February, and suggested that Castle, the general contractor, stop work on the contract until the problem could be re solved Manning agreed to remove the pickets and, later that day picketing ceased By telegram dated 4 February 357 1987 and received by Respondent on 5 February Re spondent was advised for the first time that Steel Fabri cators and Erectors has only one employee No further picketing took place after 4 February Leithliter engaged another contractor to complete the work he had begun and that contractor Tri State Steel commenced work on 9 February C Conclusions The General Counsel contends that, on 2 February 1987, Respondent through Manning violated Section 8(b)(4)(ii)(B) of the Act by threatening to picket at the ALCOA jobsite This contention is premised entirely on the testimony in that regard of Debbie Theuerkauf sec retary to ALCOA s construction manager As I have found Theuerkauf to be an unreliable witness, I am un willing to base an unfair labor practice finding on her testimony I find and conclude that this allegation should be dismissed With respect to the picketing of 4 February which de cidedly had secondary effects there is a lack of record evidence showing that an object of the picketing was to exert secondary pressures Respondent picketed at the jobsite using a sign which clearly stated that its dispute was with Steel Fabricators and Erectors Picketing oc curred at the gate used by Steel Fabricators and Erectors and at a time when that company was on the jobsite and engaged in its normal business activities Thus the stand ards for lawful common situs picketing were met 4 Like wise Respondents words and conduct at and away from the picket line do not reveal that it harbored sec ondary objectives I find and conclude that Respondent, by its 4 February picketing at the ALCOA jobsite did not engage in conduct violative of Section 8(b)(4)(B) of the Act Finally the General Counsel argues that the picketing concededly recognitional was violative of Section 8(b)(7)(C) of the Act Thus by its picketing Respondent sought to compel Leithliter to sign a contract covering employees engaged in operating a crane for Steel Fabri cators and Erectors a unit which contained no statutory employees Such picketing the General Counsel urges is a violation of Section 8(b)(7)(C) ab initio without regard to the language in that Section privileging recog nitional picketing for a reasonable period as, in such circumstances a question concerning representation cannot be raised Also, in the General Counsels view, the picketing was necessarily aimed at forcing Leithliter to sign an agreement covering future employees pursuant to Section 8(f) of the Act , in violation of Section 8(b)(7)(C) In certain circumstances the Board has held that rec ognitional picketing in conformity with the reasonable period requirement is nonetheless , violative of Section 8(b)(7)(C) where a valid question concerning represents tion cannot be raised 5 The Board has also held that * Sailors Union (Moore Dry Dock) 92 NLRB 547 (1950) See A I Security Service Co 224 NLRB 434 (1976) enfd 578 F 2d 361 (D C Cir 1978) Dunbar Armored Express 211 NLRB 687 ( 1974) Cf Vila Barr Co 157 NLRB 588 (1966) 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picketing to compel an employer to sign a prehire agree- ment is violative of that Section of the Acts Here, how- ever, the record evidence shows that, despite its efforts to obtain the facts, Respondent was unaware, prior to and during the course of its 1 day of picketing, that Steel Fabricators and Erectors did not then employ statutory employees as crane operators . No further picketing oc- curred after it learned of that fact . In these circum- stances, I find and conclude that Respondent's picketing may not be deemed to have occurred for the purpose of obtaining a prehire agreement and that it was not other- wise violative of Section 8(b)(7)(C) of the Act. CONCLUSIONS OF LAW 1. S.F. Steel Fab, Inc. and Steel Fabricators and Erec- tors constitute a single employer engaged in commerce, and in operations affecting commerce , within the mean- ing of Section 2(2), (6), and (7) of the Act. 6 R. S. Noonan, Inc., 142 NLRB 1132 (1963). 2. Respondent, Operating Engineers Local 181, a/w International Union of Operating Engineers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in violations of Section 8(b)(4) and (7) of the Act, as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The complaint is dismissed. 7 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings , conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.