Glaziers, Architectural Metal & Glass Workers Local Union No 513

792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Glaziers, Architectural Metal & Glassworkers Local Union No 513 and Custom Contracting Compa ny Case 14-CD-712 January 31, 1989 DECISION AND ORDER DENYING MOTIONS BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed by Custom Contracting Company (the Employer) on February 4, 1985, and duly served on Glaziers , Architectural Metal & Glassworkers Local Union No 513 (the Respond- ent), the General Counsel of the National Labor Relations Board issued a complaint on July 9, 1986, 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 since January 24, 1985, the Respondent has demanded that the Em ployer assign certain work to employees who are members of or represented by the Respondent rather than to the Employer's unrepresented nonsu- pervisory employees The complaint also alleges that in furtherance of its demand , on January 24 and 28, 1985, the Respondent, through its business manager, Jerry Krause, threatened to picket at the jobsite of the disputed work , and on January 28, and February 23 and 25 , 1985, picketed at the job- site of the disputed work with picket signs stating Notice to the public employees of Custom Contracting have wages and conditions below those established in this area by Glaziers, Ar chitectural Metal & Glass Workers Local Union 513, AFL-CIO This picketing does not have recognition, jurisdiction or bargaining as an object Employees of these and other em ployers are not requested to refrain from working or performing other services The complaint further alleges that the Respond- ent has failed and refused to comply with the Board's June 24, 1986 Decision and Determination of Dispute, ' which awarded the disputed work to the Employer's unrepresented nonsupervisory em- ployees, by advising the Regional Director for Region 14 in a letter dated July 2, 1986, that it would not comply with the Board 's Decision and Determination of Dispute On July 21 , 1986, the Respondent filed an answer admitting in part, and 1 Glaziers Local 513 (Custom Contracting Co) 280 NLRB 974 (1986) Member Johansen dissenting In that case the Board majority rejected the Respondents affirmative defense that Custom Contracting Company is not an employer nor does it have employees as required under Sec 8(b)(4)(D) of the Act The Board further found reasonable cause to be lieve Sec 8(b)(4)(D) had been violated denying in part, the allegations in the complaint, denying the commission of any unfair labor prac tices, and asserting as an affirmative defense that Custom Contracting Company is not an employer and does not have employees as required under Section 8(b)(4)(D) of the Act The Respondent also moved that the complaint be dismissed On August 1, 1986, the General Counsel filed a Motion to Strike Denials in the Respondent's Answer and Motion for Summary Judgment The General Counsel asserted that the denials in the Respondent's answer are of factual allegations pre- viously decided by the Board in its Decision and Determination of Dispute, that the remaining issues are legal in nature, and that there is no issue of dis puted fact requiring a hearing On August 8, 1986, the Board issued an order transferring this proceed- ing to the Board and Notice to Show Cause why the General Counsel's motions should not be grant ed The Respondent filed a response to the General Counsel's motions, a Motion in Opposition to the General Counsel's Motion for Summary Judgment, and a Cross-Motion for Summary Judgment In its motions, the Respondent again asserted that the Employer is not an employer as defined in the Act, nor does it have employees as required under Sec tion 8(b)(4)(D) We find, contrary to the General Counsels con tentions, that the pleadings and submissions of the parties raise genuine issues of material fact that can best be resolved by a hearing before an administra tive law judge Here, the Respondent denied, inter alia, that the Employer is an employer engaged in commerce within the meaning of the Act, that it has demanded the work in dispute be assigned to employees it represents and, specifically, that its business manager, Jerry Krause, made threats in furtherance of that demand on January 24 and 28, 1985, and that an object of its conduct was to force the Employer to assign the work in dispute to em ployees it represents In Longshoremen ILWU Local 6 (Golden Grain), 289 NLRB 1 (1988), we held that summary judg- ments are only appropriate where there are no gen- uine issues of material fact and a party is entitled to judgment as a matter of law Respondents in 8(b)(4)(D) cases are not required to proffer new or previously unavailable evidence in order to be enti tled to a hearing Id at 2 Here, the Respondent has reasserted in its answer, in its response to the General Counsel's motion, and its motions, its affirmative defense that the Employer is not an employer as defined in the Act and does not have employees, as required under Section 8(b)(4)(D) This is a mixed question of fact and law and, despite the Respondent's Cross 292 NLRB No 82 ARCHITECTURAL METAL WORKERS LOCAL 513 (CUSTOM CONTRACTING) 793 Motion for Summary Judgment, the Respondent is arguably alleging that there are issues of material fact in dispute The Respondent's affirmative defense is not a mere threshold matter but a necessary element to proving a violation of Section 8(b)(4)(D) 2 The entire thrust of the section is to regulate competing claims for work between two groups of employees, if there is no employer to assign the work and if only one group of employees exists, there is no ground for a violation Thus, Section 8(b)(4)(D) makes it unlawful to threaten, coerce, or restrain, where an object is forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in an- other labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representa tive for employees performing such work [Emphasis added ] The issue raised by the Respondent here stands in sharp contrast to a threshold issue such as whether a voluntary means of resolving a dispute exists Thus, pursuant to Section 10(k) the Board is "empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dis pute " This language, unlike that concerning forc- ing an employer to assign work to one rather than to another group of employees, is not included in Section 8(b)(4)(D) In this regard, it is truly a pre liminary matter that determines whether the Board may reach consideration of the alleged violation E Cf Golden Grain supra at fn 4 in which the Board specified that it would not permit the relitigation of threshold matters not necessary to prove an 8(b)(4)(D) violation The Respondent's affirmative defense does not raise such purely preliminary or threshold matters This would be the case had the Respondent assert ed that the Employer did not meet the Board's ju risdictional standards However, the Respondent here is asserting that the Charging Party is not an employer and has no employees, and that, there- fore, any demand for assignment of work from it cannot constitute coercing an employer to assign work to one group of employees rather than to an other We find this analogous to the situation in Golden Grain, supra There, the Board found a fac- tual dispute concerning whether a violation of Sec- tion 8(b)(4)(D) existed on the basis, inter alia, of the respondent union's claim that, because its object was to preserve work, its demand for the disputed work did not amount to a violation of Section 8(b)(4)(D) In other words, as here, the re- spondent-union was claiming that the elements of a violation of Section 8(b)(4)(D) had not been shown to exist On this basis, we find that by the renewal of its affirmative defense, as well as the denial in its answer of the complaint allegations relating to whether alleged unlawful conduct occurred, the Respondent has demonstrated the existence of gen uine issues of material fact concerning the elements of the alleged 8(b)(4)(D) violation We, therefore, conclude that summary judgment is inappropriate in the instant case ORDER It is ordered that the General Counsel's motions and the Respondent's motion are denied and the proceeding is remanded to the Regional Director for Region 14 for further appropriate action MEMBER JOHANSEN dissenting in part I agree with the majority that the General Coun- sel's Motion for Summary Judgment must be denied for the reasons given in their decision However, for the reasons given in my dissent in the underlying 10(k) proceeding, I would grant the Respondent's Cross-Motion for Summary Judg ment and would dismiss the complaint