Teamsters Local 216 (Granite Rock Co.)

250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Building Materials and Construction Teamsters Local 216, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO and Granite Rock Compa- ny and Teamsters Union Local 287, Internation- al Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America, AFL-CIO. Case 20-CD-638 August 24, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 5, 1989, Administrative Law Judge Burton Litvack issued the attached decision. The Respondent filed exceptions and a supporting brief. The Charging Party filed exceptions and a brief in support of its exceptions and in answer to the Re- spondent's exceptions, and the General Counsel filed a brief answering the Respondent's exceptions. 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 as modified. In affirming the judge's finding that the Re- spondent violated Section 8(b)(4)(i) and (ii)(D), we do not rely on his broad statement that issues raised and litigated in a proceeding under Section 10(k) may not be relitigated in a subsequent 8(b)(4)(D) case. The Board has overruled the deci- sions which adopted that view, and now holds that a respondent may relitigate factual issues concern- ing the elements of the 8(b)(4)(D) violation that were raised in the underlying 10(k) proceeding. Longshoremen IL WU Local 6 (Golden Grain Maca- ' The Charging Party, Granite Rock Company, has excepted to the judge's finding that picketing did not occur on the morning of May 27, 1987 However, the Respondent admits having picketed Granite Rock's Redwood City facility from August 3 through August 28, 1987, carrying signs bearing the same message as those that were carried on May 27, and we are adopting the judge's findings that the August picketing violat- ed Sec 8(b)(4)(D) Consequently, we need not pass on Granite Rock's exceptions concerning this issue, because even if we were to find merit in them, that finding would not affect the conclusions of law or the remedi- al provisions of our Order Accordingly, we shall delete the provision of the judge's order dismissing the portion of the complaint that he found nonmeritorious. We correct the following inadvertent and inconsequential errors in the judge's decision (I) The reference to "Granite City" in fn 6 should be to "Granite Rock"; (2) Granite Rock's president's name is Bruce Woolpert (not Wolpert), and the operations coordinator at its Redwood City as- phalt plant is named Kenneth Ferguson (not Furguson), (3) the third word in the last sentence of par 2, sec. IV,A, and the 21st word in the last sentence of par 1, sec. IV,B, should be "drivers." rani), 289 NLRB 1, 2 (1988).2 Here, we find, from our review of the record , that a preponderance of all the evidence supports the judge's findings that the Respondent threatened to picket, threatened to strike, and actually picketed Granite Rock Compa- ny with an object of forcing Granite Rock to assign the driving of 15 ready-mix concrete trucks that were to be transferred from its San Jose facili- ty to its Redwood City concrete plant to drivers represented by the Respondent rather than to driv- ers represented by Teamsters Local 287 , and that, for the reasons stated in our 10(k) decision,3 the Respondent's other contentions are without merit.4 It is on this basis that we affirm the judge 's finding that the Respondent has violated Section 8 (b)(4)(i) and (ii)(D).5 2 However, the Board in Golden Grain also held that a respondent in an 8(b)(4)(D) proceeding would not be allowed to relitigate "threshold matters that are not necessary to prove an 8(b)(4)(D) violation"-as, for example, the issue of whether an agreed-on method of settlement exist- ed-if those matters had been raised in the underlying 10(k) proceeding. 289 NLRB 1, 2 fn. 4 Thus, to the extent the Respondent continues to argue that an agreed -on method of settlement exists in this case-a posi- tion we rejected in the 10(k) proceeding-we shall not reconsider those contentions here. 8 287 NLRB 1196 (1988) 4 As we have noted above at fn. 1, the Respondent admits that it pick- eted Granite Rock from August 3 through August 28 , 1987, carrying signs which, as the judge found, carried the message that Granite Rock should hire members of the Respondent to drive the transferred vehicles. Although the Respondent denies having threatened to picket or strike, the record evidence that it made such threats is uncontroverted. The Respondent also argues that it never demanded to represent Gran- ite Rock's drivers That argument is irrelevant. Violations of Sec 8(b)(4)(D) are not predicated on demands for recognition 5 In its exceptions, the Respondent argues, as it did in the 10(k) pro- ceeding, that no work assignment dispute exists because Granite Rock has not yet transferred the trucks in question from San Jose (in Local 287's jurisdiction) to Redwood City (in the Respondent 's jurisdiction) Characterizing the dispute as a possible future work assignment dispute, the Respondent contends that , as such, it is not comprehended by Sec. 8(b)(4)(D) We reject that suggestion, as we did in the 10 (k) proceeding. That particular, identified work has not yet begun does not preclude the existence of a jurisdictional dispute. 287 NLRB 1196 at fn 8, citing Long- shoremen ILWU Locals 8 and 40, 233 NLRB 459, 461 ( 1977). See also Operating Engineers Local 478 (Utility Service), 172 NLRB 1877, 1878 (1968) Foley-Wismer & Becker Y. NLRB, 695 F.2d 424 (9th Cir. 1982), affg 249 NLRB 176 (1980), cited by the Respondent , is not to the contrary In that case, the court of appeals affirmed the Board's determination that competing claims to the work in question did not exist . In so doing, the court stated (apparently as background , since future work was not at issue) that Sec 10(k) does not apply when there is no conflicting claim to the same work by competing unions, but where one union pickets to get future work Id at 427. The court cited Stromberg-Carlson Communica- tions v. NLRB, 580 F.2d 939 (9th Cir 1978), in which the picketing union had picketed not in order to obtain any identifiable work , but apparently only to set an example in the hope of getting work on some future jobs. The Stromberg-Carlson court found that picketing simply as an "invest- ment in the future" did not violate Sec 8(b)(4)(D); it agreed with the Board that the "particular work" with which that section of the Act is concerned is the work that is the target of the union's action Id at 941. In this case, by contrast, there is no question that the "particular work" that was the target of the Respondent's threats and picketing was that of driving Granite Rock's trucks when those trucks are transferred to Red- wood City . Accordingly, neither Foley-Wirmer & Becker nor Stromberg- Carlson can be construed, as the Respondent urges, as precluding the ex- istence of a jurisdictional dispute in this case. 296 NLRB No. 32 TEAMSTERS LOCAL 216 (GRANITE ROCK CO.) In both his conclusions of law and his recom- mended Order, the judge characterized the Re- spondent's violations of the Act as threatening to strike and picket, and picketing, Granite Rock with an object of forcing the Company to assign "the work of driving ready-mix concrete trucks, based at its Redwood City, California ready-mix concrete plant," to employees represented by the Respond- ent rather than to employees represented by Local 287. Although the quoted language tracks the alle- gations of paragraph 6 of the amended complaint, it is somewhat broader than the language we em- ployed in our Determination of Dispute in the 10(k) case. There we held that "[e]mployees of Granite Rock Company based at the Employer's San Jose, California ready-mix concrete plant, now represented by Teamsters Local 287 , are entitled to perform the work of driving ready-mix concrete trucks if such trucks are transferred from the Em- ployer's San Jose plant to its ready-mix plant at Redwood City, California." We did not, in other words, award the driving of all ready-mix trucks at Granite Rock's Redwood City plant to employees represented by Local 287, but only the driving of such trucks as Granite Rock might transfer from San Jose to Redwood City. We shall amend the conclusions of law and the Order to reflect the nar- rower scope of our earlier Determination of Dis- pute.7 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3. "3. The Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act by threatening to picket, threat- ening to strike, and picketing Granite Rock with an object of forcing or requiring Granite Rock to assign the work of driving ready-mix concrete trucks, if such trucks are transferred from Granite Rock's San Jose, California plant to its Redwood City, California ready-mix concrete plant, to em- ployees who are members of, or represented by, the Respondent rather than to employees who are members of, or represented by, Teamsters Local 287." a 287 NLRB 1196, 1199. 7 The Respondent will not be prejudiced by this action, which we take sua sponte. The Respondent filed no exceptions concerning the judge's recommended Order, other than to argue that no unfair labor practice should have been found, and thus that the complaint should be dismissed As we have explained, the revised Order is narrower than the one recom- mended by the judge More important, it is plain from the Respondent's brief to the Board that the Respondent understood fully that the work at issue involved only the driving of trucks that Granite Rock might trans- fer from San Jose to Redwood City 251 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Building Materials and Construction Teamsters Local 216, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1. "1. Cease and desist from threatening to strike, threatening to picket, and picketing Granite Rock Company with an object of forcing or requiring Granite Rock Company to assign the work of driv- ing ready-mix concrete trucks, if such trucks are transferred from Granite Rock's San Jose, Califor- nia facility to its Redwood City, California ready- mix concrete plant, to employees who are members of, or represented by, the Respondent rather than to employees who are members of, or represented by, Teamsters Local 287." 2. Delete the final paragraph. 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to strike , threaten to picket, or picket Granite Rock Company where an object of such conduct is to force or require that company to assign the work of driving its ready- mix concrete trucks, if such trucks are transferred from its San Jose, California plant to its Redwood City, California ready-mix concrete plant, to em- ployees who are members of, or represented by, us rather than to employees who are members of, or represented by, Teamsters Local 287. BUILDING MATERIALS AND CON- STRUCTION TEAMSTERS LOCAL 216, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA, AFL-CIO Boren Chertkov, Esq., for the General Counsel. Duane B. Beeson, Esq. (Beeson, Taylor, Silbert & Bodine), of San Francisco, California, for the Respondent. Michele J. Silak , Esq. (Littler, Mendelson, Fastiff & Tichy), of San Francisco, California, for the Charging Party. 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. Based on an unfair labor practice charge filed by Granite Rock Company (Granite Rock), on June 2, 1987,1 the Region- al Director of Region 20 of the National Labor Relations Board (the Board) issued an amended complaint in the above-captioned matter on July 6, 1988, alleging that Building Materials and Construction Teamsters Local 216, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO (Re- spondent), engaged in acts and conduct violative of Sec- tion 8(b)(4)(i) and (ii)(D) of the National Labor Relations Act (the Act). Respondent timely filed an answer, deny- ing the commission of any unfair labor practices. Pursu- ant to a notice of hearing, a hearing was held before me in San Francisco, California, on July 26, 1988. At the trial, all parties were afforded the opportunity to exam- ine and cross-examine witnesses, offer relevant evidence, argue their legal positions orally, and file posthearing briefs. Such briefs were filed by counsel for the General Counsel and by the Charging Party's counsel and were carefully considered . Accordingly, based on the entire record here,2 including the posthearing briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Granite Rock, a California corporation, with offices and places of business in San Jose and Redwood City, California, is engaged in the manufacture and wholesale and retail sale of concrete. During the 12-month period preceding the issuance of the amended complaint, which period is representative, Granite Rock, in the normal course and conduct of its aforementioned business oper- ations, purchased and received goods, products, and ma- terials valued in excess of $50,000 directly from suppliers located outside the State of California. Respondent admits that Granite Rock is now, and has been at all times material , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATIONS Respondent admits that it is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act and that Teamsters Union Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO (Teamsters Local 287) is now, and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. i Unless otherwise stated , all dates are in 1987 2 As his entire case-in-chief counsel for the General Counsel offered into evidence the entire record , including the transcript and exhibits, of the underlying 10(k) hearing, and the Charging Party offered no evi- dence. Thereupon , counsel for Respondent rested its case-in -chief with- out calling any witnesses or offering any evidence Therefore, all evi- dence in support of the positions of both the General Counsel and the Respondent comes from the foregoing jurisdictional dispute hearing III. ISSUES The amended complaint alleges that since on or about March 16, 1987, Respondent has demanded that Granite Rock assign the work of driving ready-mix concrete trucks at its Redwood City ready-mix concrete plant to employees who are members of, or represented by, it rather than to employees who are members of, or repre- sented by, Teamsters Local 287 and that, in furtherance and support of the demand Respondent has engaged in various acts and conduct violative of Section 8(b)(4)(i) and (ii)(D) of the Act, including, orally and in writing, threatening Granite Rock with picketing; threatening the Charging Party with a strike; and picketing at Granite Rock's Redwood City, California facility on two sepa- rate occasions with placards. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Factsa The record establishes that Granite Rock is engaged in the manufacture and sale of concrete, asphalt, and rock aggregate products and that it operates 15 northern Cali- fornia plants, located between Salinas and San Francisco, the largest of which is a ready-mix concrete facility lo- cated in San Jose. The record further establishes that Granite Rock operates an asphalt manufacturing plant in Redwood City and that it owns several adjacent parcels of land which are leased to various businesses. The parcel next to the asphalt plant was eased to Cap Con- crete, Inc. (Cap Concrete), which operated a ready-mix concrete plant on the property. At its San Jose plant, Granite Rock employs at least 51 ready-mix concrete truckdrivers who are represented for purposes of collec- tive bargaining by Teamsters Local 287 and covered by the terms and conditions of employment set forth in the existing June 1, 1987, through May 31, 1990 Aggregates and Concrete Association collective-bargaining agree- ment (ACA), a multiemployer-multiunion agreement.4 Cap Concrete employed truckdrivers at its Redwood City ready-mix concrete plant; the employees were rep- resented by Respondent and also covered under the terms and conditions of employment set forth in the ACA. Finally, Granite Rock employs oil tanker truck- drivers, called spreader drivers, at its asphalt plant in Redwood City, with the employees represented by Re- spondent for purposes of collective bargaining. In order to reorganize its business operations and to raise capital, Cap Concrete approached Granite Rock and offered to sell to the latter any business asset it wished to purchase. As a result, on December 15, 1986, the two companies entered into a purchase and sale agreement, pursuant to which Granite Rock agreed to purchase certain of Cap Concrete's property, including 0 The evidence, with regard to the alleged unlawful conduct, in the un- derlying 10(k) hearing record was uncontroverted by Respondent. Fur- ther, I note that Respondent 's counsel cross-examined each of the wit- nesses who testified as to the conduct . Accordingly, the facts here are not in dispute. 4 Of Respondent's employees at its manufacturing facilities, only the San Jose plant ready-mix concrete truckdrivers are covered under the ACA TEAMSTERS LOCAL 216 (GRANITE ROCK CO.) the Redwood City ready-mix concrete plant and 10 ready-mix delivery trucks.5 By dint of one provision of the aforementioned agreement, Granite Rock "expressly disclaim[ed] being bound by any collective-bargaining agreement executed by Cap Concrete." Subsequent to the purchase, Granite Rock stationed the 10 newly pur- chased trucks at its San Jose plant where the vehicles are now maintained and fueled, replaced the Cap Concrete logos on the doors of the trucks with its own decals, and operated the newly purchased Redwood City ready-mix facilitys on a "batch-out" basis (where delivery trucks are loaded but not fueled or based). Hiring new drivers at its San Jose ready-mix plant to operate the former Cap Concrete trucks and as no delivery trucks were to be based at the Redwood City ready-mix facility, Granite Rock did not offer employment to any former Cap Con- crete drivers to operate ready-mix delivery trucks out of the latter plant. However, sometime in early 1987, Granite Rock de- cided to permanently base 15 ready-mix delivery trucks at the Redwood City plant, with the vehicles to be oper- ated by drivers who were then based at the San Jose fa- cility, were members of, or represented by, Teamsters Local 287, and would commute each day to Redwood City. The record reveals that none of these trucks were among the ones purchased from Cap Concrete and that all were of a different size and type. Bruce Wolpert, the president and chief executive officer of Granite Rock, testified that both Respondent and Teamsters Local 287 were informed of the foregoing decision on March 11; that Respondent voiced no objection to the movement of the trucks but argued that "the trucks would have to come up without drivers"; and that Teamsters Local 287 demanded that Granite Rock "offer the opportunity to transfer to all of our employees and allow up to fifteen to go with those trucks."7 In order to resolve the matter , a meeting was held on March 16. Present were Wolpert; Mario Gullo, the sec- retary-treasurer of Teamsters Local 287; R. Fitzpatrick, president of Respondent; and Dallas Allen, secretary- treasurer of Respondent. According to Wolpert, as the parties discussed the proposed transfer of equipment, Allen said "if we transfer trucks with drivers he would begin informational picketing." Two weeks later, on March 31, Wolpert attended a meeting in the conference room at the Redwood City asphalt plant with the spread- 5 At the time, Cap Concrete also owned and operated a ready -mix con- crete plant in Fremont , California, and owned a total of 46 ready-mix concrete trucks Of the 10 such trucks purchased by Granite Rock, 2 had been based in Redwood City and 8 were stationed in Fremont. 6 Since purchasing the Redwood City ready-mix plant, Granite Rock has made "extensive" changes in the facility These include affixing the Granite City logo to the side of the plant, painting the facility in Granite Rock's "standard" color, redesigning the concrete mixing process, updat- ing the computer system, and making the mix designs compatible with the company's own products. 7 Sec 2(b) of the ACA provides that employers shall have the nght to transfer equipment between company -owned facilities; however, if an em- ployer permanently transfers equipment from one northern California Teamsters Local Union's jurisdiction to that of another , "the employees affected will be offered the opportunity to move with the equipment by seniority." Apparently, Granite Rock's intent was to comply with the provision when informing the two Teamsters locals of its plan. 253 er drivers and Fitzpatrick. Wolpert informed the employ- ees that he had heard rumors of informational picketing at the facility within the next few days. Wolpert testified that Fitzpatrick responded, saying he did not know where Wolpert had obtained this information. Wolpert replied that such had been said by Allen at the March 16 meeting and that "I considered it a real threat." Fitzpa- trick then said, "Well I don't understand where all this informational picketing comes from because as far as I'm concerned we ought to strike the whole Goddamn com- pany." There exists nothing in the record to establish that during the next 2 months Granite Rock, in fact, ef- fectuated the transfers of trucks and drivers from San Jose to Redwood City, nor is there any evidence that Respondent acted upon Fitzpatrick's warning. However, on May 27, Wolpert received the following letter, dated the previous day, from Respondent' s president: As a result of our last meeting, it appears that a reasonable settlement of this dispute, arising out of the acquisition by Granite Rock of the CAP oper- ation in Redwood City, is impossible at this time. Our position, as you well know, is that Granite Rock should hire the employees that lost their jobs when CAP ceased operations and Granite Rock ac- quired the Plant and started deliveries out of Red- wood City. We feel you have shown no concern for the interest of these employees, who are still out of work. Accordingly, it is our intention to picket Granite Rock in a continuing effort to protect the former CAP employees. This dispute can be resolved and the picketing will cease, if Granite Rock will make a reasonable offer concerning the employment of these individ- uals. The record will show that Teamsters Local #216 had been willing to compromise to attain a settlement. We regret having to take this step, but we have no alternative in the light of the unreasonableness of your position. The sole purpose of the picketing is to obtain employment for the former CAP employ- ees. Teamsters Local #216 is not seeking recogni- tion from Granite Rock, and is not seeking a con- tract with Granite Rock. If the problem can be re- solved by hiring the employees of the operation which Granite Rock has taken over, please let us know. Thank you for your time and kind attention to the important matter. Kenneth Furguson, the operations coordinator at Granite Rock's Redwood City asphalt plant, testified that he had been warned on May 26 by Respondent's shop steward for the spreader drivers that informational picketing would begin the next morning at the "concrete plant." Furguson immediately telephoned Wolpert and was instructed to be at the plant early the next morning to observe what, if anything, occurred. Thereupon, at 3:30 the next morning (May 27), Furguson parked his truck in the asphalt plant yard and stood beside it. He observed Dallas Allen's truck, with someone inside, parked near the adjacent entrances to the asphalt and 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ready-mix plants . Moments later, according to Furguson, he observed "a couple of cars, I'd say two or three, pulled up and out of these cars ten to twelve men emerged carrying what looked like picket signs." The men, including one former employee of Granite Rock, then "gathered around Dallas Allen's truck and he got out and talked to them and they all just milled about in the street for some time." Furguson watched them for 5 to 10 minutes, and then drove away . As he passed by the crowd, he observed the placards which read : "Granite Rock Unfair to Local 216, Refuses to Hire Ex-Cap Em- ployee." During cross-examination , Furguson admitted that what occurred did not seem to be "organized" pick- eting (the individuals were merely "holding the signs milling about") and that, at 3:30 a.m., both plants were "down" and no employees were working . Dallas Allen corroborated Furguson that he was, indeed, inside his truck which was parked outside the entrances to the Granite Rock Redwood City facilities early in the morn- ing of May 27. Allen testified that he was awaiting the arrival of a group of former Cap Concrete employees in order to convince them that it would not be "prudent" to picket at that time inasmuch as he was attempting to resolve the matter. According to Allen, he was able to do so, and no picketing occurred : "We dispersed the people and we went to a Denny's Restaurant and all sat around and had coffee." That the group of would-be pickets departed is certain as Wolpert testified that, after a phone call from Furguson, he arrived at the plant en- trances at 4:40 a.m. and observed no one there. Granite Rock filed the instant unfair labor practice charge on June 2, and the underlying jurisdictional dis- pute hearing, pursuant to Section 10(k) of the Act, was held on July 26. Respondent admits that , thereafter, from August 3 through 28 it picketed at the entrances to Granite Rock's Redwood City facility with placards which read "On Strike. Granite Rock Unfair to Local 216. Refuses to Hire Ex-Cap Employees." On February 17, 1988, the Board issued a Decision and Determination of Dispute, deciding that a jurisdictional dispute existed and determining that "employees of Granite Rock Com- pany based at the Employer's San Jose, California ready- mix concrete plant, now represented by Teamsters Local 287, are entitled to perform the work of driving ready- mix concrete trucks if such trucks are transferred from the Employer's San Jose plant to its ready-mix plant at Redwood City, California" and that " [Respondent is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Granite Rock Company to assign the dis- puted work to employees represented by it."8 On or about March 24 and April 11, 1988, Respondent admit- tedly advised an agent of the Board that it would not comply with the aforementioned decision of the Board. B. Analysis The General Counsel and Granite Rock argue that, based upon the above- described acts and conduct, Re- spondent must be found to have violated Section 8(b)(4)(i) and (ii)(D) of the Act. Although offering noth- ing to controvert the evidence adduced by the General 8 The Board's decision is reported at 287 NLRB 1196 (1988) Counsel, Respondent has raised two affirmative defenses to the alleged violations of the Act: that the jurisdiction- al dispute issues herein are pending resolution pursuant to the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, AFL-CIO, constitution and that, pursuant to the successorship pro- visions of the ACA, Granite Rock was required to con- tinue to employ the Cap Concrete drivers to operate ve- hicles at the Redwood City ready-mix concrete plant, which vehicles were transferred to that location from San Jose. At the outset, it is noted that Respondent's noncompliance with the Board's 10(k) determination trig- gered the instant proceeding and that "the Board must find by a preponderance of the evidence that [Respond- ent] has violated Section 8 (b)(4)(D)." Operating Engineers Local 150 (D. H. Johnson), 268 NLRB 1339, 1341 (1984), enfd. 755 F.2d 78 (7th Cir. 1985); Teamsters Local 528 (National Homes), 255 NLRB 208, 210 ( 1981). Based on analysis of the entire record here, I have concluded that all the factors necessary for such a finding are present in the instant record. Thus, on March 16, Respondent's sec- retary-treasurer, Allen, threatened to picket Granite Rock; on March 31, Respondent's president, Fitzpatrick, threatened, "to strike" the Company; and, by letter dated May 26, Fitzpatrick threatened Granite Rock with pick- eting. Subsequently, from August 3 through 28, Re- spondent picketed at the Company's Redwood City facil- ity.9 The Board has, of course, long held that such con- duct has the effect of inducing and encouraging Granite Rock's employees to engage in a strike or a refusal in the course of their employment to use, manufacture, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities or to perform services, and threatening, coercing, and restraining Granite Rock and other persons engaged in commerce or industries affect- ing commerce . Longshoremen IL WU Local 62-B (Alaska Timber Corp.), 271 NLRB 1291 (1984); Operating Engi- neers Local 150, supra; Teamsters Local 528, supra; Iron Workers Local 40 (Spancrete Northeast), 249 NLRB 917 (1980); Lumber & Sawmill Workers Local 2789 (Simpson Timber), 226 NLRB 1199 (1976). Moreover, the record clearly establishes that the objective of the conduct was to force or require Granite Rock to assign the driving of the 15 ready-mix concrete delivery trucks which were to be transferred from San Jose to the Redwood City ready-mix plant, to former Cap Concrete employee-driv- ers, who were represented by Respondent . In this regard the latter's stated position on Granite Rock's intent to utilize drivers, who were based at the San Jose ready- 9 Contrary to the General Counsel and to Granite Rock, I do not be- lieve that what occurred in the morning of May 27, in these circum- stances, constituted picketing While I have read the picketing cases cited by counsel for Granite Rock and other such decisions and agree that, in other circumstances, what occurred could be found to have been picket- ing, I note that while the former Cap Concrete employees ' intent may have been to engage in picketing, what actually occurred was a gathering in the vicinity of Dallas Allen 's parked truck while he convinced the group to disperse Further , the people left after a few minutes , both the asphalt and ready-mix concrete plants were "down" at the time, and no employees were present . Finally, no organized activity occurred while the group was in front of Granite Rock 's Redwood City facilities. Ac- cordingly, in these circumstances, I do not believe-and will not find- that picketing occurred in the morning of May 27 TEAMSTERS LOCAL 216 (GRANITE ROCK CO.) mix concrete plant and who were members of, or repre- sented by, Teamsters Local 287, to operate the 15 ready- mix concrete trucks, was that the trucks could be trans- ferred but not the drivers. Although Fitzpatrick's May 26 letter and Respondent's picket signs were phrased in terms of merely protesting Granite Rock 's failure to hire the former Cap Concrete drivers, that the intent was to force Granite Rock to utilize them to drive the 15 trans- ferred vehicles is clear . Thus, Allen's March 16 threat linked Respondent's threat of picketing to the transfer of both the San Jose trucks and drivers and, more signifi- cantly, there will be no work for the former Cap Con- crete drivers at the Redwood City ready-mix plant unless the transfer of the 15 trucks to that facility occurs. With regard to the asserted defenses , I note that both were raised in the underlying 10(k) proceeding and con- sidered and rejected by the Board 287 NLRB 1196, 1198. As the Board has long held, "It is settled that issues raised and litigated in a 10(k) proceeding may not be reli- tigated in a subsequent unfair labor practice proceeding, alleging violations of Section 8(b)(4)(D), which are based in part on factual determinations made in the 10(k) pro- ceeding." Longshoremen Local 7 (Georgia-Pacific), 273 NLRB 363, 366 ( 1984); Iron Workers Local 433 (Plaza Glass), 218 NLRB 848, 849 (1975), enfd . 549 F.2d 634 (9th Cir. 1977). Therefore, I find no merit in either of Respondent's affirmative offenses. Accordingly, I find that, by its acts and conduct, Respondent violated Sec- tion 8(b)(4)(i) and (ii)(D) of the Act. CONCLUSIONS OF LAW 1. Granite Rock Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent and Teamsters Local 287 are labor or- ganizations within the meaning of Section 2 (5) of the Act. 3. Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act by threatening to picket , threatening to strike, and picketing Granite Rock with an object of forcing or requiring Granite Rock to assign the work of driving ready-mix concrete truck, based at its Redwood City, California ready-mix concrete plant, to employees who are mem- bers of, or represented by, Respondent rather than to employees who are members of, or represented by, Teamsters Local 287. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 255 8(b)(4)(i) and (ii)(D) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the pur- poses and policies of the Act. On the basis of the foregoing findings of fact and con- clusions of law, I make the following recommended" ORDER The Respondent, Building Materials and Construction Teamsters Local 216, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, its officers, agents, and representa- tives, shall 1. Cease and desist from threatening to strike, threaten- ing to picket, and picketing Granite Rock Company with an object of forcing or requiring Granite Rock Company to assign the work of driving ready-mix concrete trucks, based at its Redwood City, California ready-mix plant, to employees who are members of, or represented by it, rather than to employees who are members of, or repre- sented by, Teamsters Local 287. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 11 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 20 with signed copies of such notice for posting by the Employ- er, if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint, to the extent it has been found without merit , be dismissed. 10 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 i i If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."