Local Union No. 721, Laborers' International Union Of North America, Afl-Cio

166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local Union No. 721, Laborers' International Union of North America, AFL-CIO and H. H. Haw- kins & Sons Company and United Brotherhood of Carpenters and Joiners of America, AFL- CIO, Local 424 J. F. White Contracting Company and United Broth- erhood of Carpenters and Joiners of America, AFL-CIO, Local 624 Freeman Concrete Construction Co. and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 424. Cases 1-CD- 812, 1-CD-813, and 1-CD-815 May 23, 1989 DECISION AND ORDER DENYING MOTIONS BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS Upon the charges filed on August 11, 14, and 28, 1987,1 by three Employers,2 and duly served on Laborers Local 721 (the Respondent), the General Counsel of the National Labor Relations Board issued an order consolidating cases, and consolidat- ed complaint3 on July 1, 1988, against the Re- spondent alleging that it had violated Section 8(b)(4)(i) and (ii)(D) of the National Labor Rela- tions Act. The consolidated complaint alleges that the Re- spondent has demanded that the Employers Haw- kins, White, and Freeman assign the work of strip- ping concrete foundation forms (the disputed work) at Hawkins' Pembroke site,4 White's Brock- ton site,5 and Freeman's Duxbury site6 to employ- ees who are members of or represented by the Re- spondent rather than to employees who are mem- bers of or represented by Carpenters Local 4247 or Carpenters Local 624.8 The consolidated complaint also alleges that in furtherance and support of its demands, on August 7, and continuing until August 19, the Respondent engaged in a strike against Hawkins and picketed at the Pembroke site with picket signs stating: "Local 721, Laborers-on strike" and that on July 1, and continuing to mid- July, and commencing again on August 10 and continuing to August 17, the Respondent engaged ' All dates are in 1987 unless otherwise indicated 2 H H Hawkins & Sons Company (Hawkins), J F White Contracting Company (White), and Freeman Concrete Construction Co (Freeman) "On November 2, 1988, the consolidated complaint was amended to correct certain references in pars 11(a) through (g) 4 The Arnold Hall Conference Center jobsite, Pembroke, Massachu- setts This demand was made since July 'The construction site at Plain Street, Brockton, Massachusetts This demand was made since early summer 6 The Holy Family Parish Complex jobsite in Duxbury, Massachusetts This demand was made since August 7 At Hawkins' Pembroke site and Freeman's Duxbury site 9 At White's Brockton site in a strike against White and picketed the Brockton site with picket signs stating. "Local 721 Labor- ers-on strike." The consolidated complaint further alleges that in furtherance and support of its de- mands, the Respondent, on August, 13, acting through its business manager, Louis P,alavanchi, threatened White with the "power" of the Re- spondent at the Brockton site; on August 17, acting through Palavanchi, threatened Freeman with pick- eting at the Duxbury site, commencing on August 18, and continuing to August 25, engaged in a strike against Freeman and picketed the Duxbury site with picket signs stating. "Local 721, Labor- ers-on strike"; and on August 21, acting through Palavanchi, threatened Freeman and the general contractor, Berry, with a work stoppage at the Duxbury site. The consolidated complaint also al- leges that since September 14, and continuing to date, the Respondent has been pursuing arbitration claims with White seeking assignment of the dis- puted work at the Brockton site, to employees who are members of or represented by the Respondent and/or seeking damages for White's failure to make such an assignment. Finally, the consolidated complaint alleges that since June 13, 1988, the Respondent has failed and refused to comply with the Board's May 31, 1988 Decision and Determination of Dispute,9 which awarded the disputed work to employees repre- sented by Carpenters Locals 424 and 624, since the Respondent has not notified the Regional Director that it will refrain from forcing Hawkins, White, and Freeman to assign the disputed work to em- ployees represented by the Respondent, in violation of Section 8(b)(4)(D) and has instead informed the Board that it will not comply with the Determina- tion of Dispute. By letter dated June 13, 1988, the Respondent informed the Board that it is unable to comply with the broad remedial orders contained in the Board's Decision and Determination of Dis- pute. On July 8, 1988, the Respondent filed an answer, admitting in part and denying in part, the allega- tions in the consolidated complaint, and denying the commission of any unfair labor practices. The Respondent also moved to strike the General Counsel's allegations that it failed and refused to comply with the Board's Order, asserting that these charges are frivolous and were made in bad faith. 10 9 Laborers Local 721 (Hawkins & Sons), 288 NLRB 1246 In that case the Board found that, in each case, reasonable cause existed to believe that Sec 8(b)(4)(D) of the Act had been violated No credibility issues nor affirmative defenses were raised is This motion is denied as lacking in merit While the Respondent denies that the object of its actions was unlawful, it is clear that the Re- spondent does not assert that it has complied with the Board Order 294 NLRB No. 14 LABORERS LOCAL 721 (HAWKINS & SONS) 167 On December 21, 1988, the General Counsel filed a Motion for Summary Judgment and to Transfer to the Board for Decision with exhibits at- tached. The General Counsel asserts that summary judgment should be granted because there are no genuine issues of material fact in this proceeding concerning the facts found by the Board in the 10(k) proceeding and such facts form the basis for determining that Section 8(b)(4)(D) has been violat- ed. In this regard, the General Counsel asserts that Longshoremen ILWU Local 6 (Golden Grain), 289 NLRB 1 (1988), is distinguishable because there the General Counsel's Motion for Summary Judgment did not appear to contain supporting materials, whereas the General Counsel's motion here is sup- ported by the attachment of the 10(k) transcript and exhibits as well as other relevant materials. On December 23, 1988, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. The Respondent filed a Memorandum in Opposition to the General Counsel's Motion for Summary Judgment, asserting that the General Counsel's exclusive reliance on the record, and on the Decision and Determination of Dispute in the parties' 10(k) hearing fails to meet the applicable standards for granting summary judgment. i i We find, contrary to the General Counsel's 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. In its answer to the amended con- solidated complaint, the Respondent denied, inter alia, that Hawkins, White, and Freeman each as- signed the disputed work at their respective job- sites to employees who are members of or repre- sented by Carpenters Local 424, or Carpenters Local 624, rather than to employees who are mem- bers of or represented by the Respondent; that the Respondent demanded that the disputed work be reassigned exclusively to Laborers-represented em- ployees rather than to Carpenters-represented em- ployees; that in furtherance of its demands for as- signment of the disputed work, the Respondent en- gaged in strikes against Hawkins, White, and Free- man, and picketed at their respective jobsites with signs stating "Local 721, Laborers on strike"; that the Respondent, acting through its business manag- er, Louis Palavanchi, threatened White with the "power" of the Respondent, threatened Freeman 11 The Respondent also asserts that the Regional Director improperly consolidated the complaints of Hawkins, White, and Freeman on the mis- taken premise that the three cases involved the same claim for the disput- ed work, and that there are issues of material fact in dispute concerning certain allegations of the consolidated complaint with picketing, and threatened Freeman and its general contractor, Berry, with a work stoppage; that the Respondent sought the assignment of the work through the continued pursuance of arbitra- tion claims against White; and that an object of its conduct was to force Hawkins, White, and Free- man to assign the work in dispute to employees it represents. In Longshoremen IL WU Local 6 (Golden Grain), supra, we held that summary judgment is appropri- ate only where there are no genuine issues of mate- rial fact, or where the parties have stipulated the record of the 10(k) hearing, as a basis for the Board's determination of the unfair labor practice. Under Section 10(k) the Board is required only to find that reasonable cause exists to believe that an 8(b)(4)(D) violation has occurred, however, in an 8(b)(4)(D) proceeding the Board is required to find by a preponderance of the evidence that the Union has violated Section 8(b)(4)(D). When the 10(k) de- termination does not end a work dispute, the pro- ceeding becomes adjudicatory following the issu- ance of an unfair labor practice complaint. In an 8(b)(4)(D) case, the Respondent is not required to proffer new or previously unavailable evidence in order to be entitled to a hearing. (Longshoremen IL WU Local 6 (Golden Grain), supra at 2.) A genu- ine issue of material fact exists and entitles the Re- spondent to a hearing before an administrative law judge when the Respondent denies the existence of any element of the 8(b)(4)(D) violation by either raising an affirmative defense or by direct denial, or where there are credibility issues that must be resolved. Here, as described above, the Respondent in its answer to the consolidated complaint denied alle- gations such as its engaging in work stoppages and picketing to further its demands for the disputed work. In opposition to the General Counsel's Motion for Summary Judgment, the Respondent asserts that, prior to August 1987, Hawkins and Freeman assigned the disputed work to composite crews of Carpenters and Laborers and that its de- mands to these Employers were that they maintain the composite crews and not take away 50 percent of the disputed work from employees represented by the Respondent. With respect to White, the Re- spondent asserts that the work in dispute was the handling, carrying, and distribution of concrete forms, which prior to August 1987 had been as- signed to Laborers-represented employees and that it demanded only that White maintain that assign- ment. The Respondent further asserts that all of the actions it took in furtherance of its demands to Hawkins, Freeman, and White, including the con- tinued pursuit of arbitration claims against White, 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were for the purpose of retrieving jobs the Em- ployers had reassigned outside the bargaining unit-an objective not necessarily prohibited by Section 8(b)(4)(D) The Respondent 's denials and assertions concern elements necessary to prove a violation of Section 8(b)(4)(D) They present mixed questions of fact and law, and demonstrate that there are issues of material fact in dispute On the basis of the Respondent's assertions, which do not concern merely preliminary or threshold matters, 12 we find that the Respondent 12 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 In this connection , we find that the Re- spondent 's assertions concerning the allegations that Hawkins , Freeman, has demonstrated the existence of genuine issues of material fact concerning elements of the alleged 8(b)(4)(D) violations and we conclude that summa- ry judgment is inappropriate in this case ORDER It is ordered that the General Counsel 's motion is denied and the proceeding is remanded to the Regional Director for Region 1 for further appro- priate action. and White are employers within the meaning of Sec 2 (2), (6), and (7) address preliminary matters that were determined in the 10 (k) proceeding and may not be relitigated That the Respondent chose not to participate in the 10(k) hearing , for which it received proper notice does not require a different result