Truck Drivers and Helpers Union Local No. 170

TRUCK DRIVERS AND }HEI.PERS UNION, L()CAI NO 170) Truck Drivers and Helpers Union, Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and The Labor Relations Division of Construction Industries of Massachusetts, Inc. and The Barletta Company and Massachusetts Laborers' District Council a/w Laborers' Inter- national Union of North America, AFL-CIO. Case 1-CD-579. September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) ME MBE RS JiNKINS ANI) PENI.II.O Upon a charge filed on July 10, 1979, by the Labor Relations Division of Construction Indus- tries of Massachusetts, Inc., herein called the Asso- ciation, on behalf of its member contractor. The Barletta Company, herein called Barletta or the Employer, and served on Truck Drivers and Help- ers Union, Local No. 170, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 1, issued a complaint on May 14, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that Respondent vio- lated the Act by (1) Business Agent George Valery, on or about July 10, 1979, ordering a strike against Barletta and Respondent thereafter striking Barletta at its two Worcester, Massachusetts, job- sites, an object of the strike being to force or re- quire Barletta and its subcontractors to assign the casual or occasional driving of pickup trucks to haul material and equipment, the disputed work in this case, to members of Respondent rather than to employees of Barletta and its subcontractors, repre- sented by the Massachusetts Laborers' District Council a/w Laborers' International Union of North America, AFL-CIO, herein the Laborers, to whom the disputed work has been and continues to be assigned; and (2) failing and refusing to comply with the terms of the Board's April 8, 1980, Deci- sion and Determination of Dispute in the 10(k) pro- ceeding.1 On May 21, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and asserting as an affirmative defense that the Board, by its Decision and Determination of Dis- pute in this proceeding. condoned a breach of con- tract and denied Respondent its contract rights. On May 29, 1980, counsel for the General Counsel filed directly with the Board a "Motion for Sum- mary Judgment and Motion to Strike Denials in Respondent's Answer," 2 submitting that Respond- ent's answer raises no issues which were not previ- ously considered and decided by the Board in the 10(k) proceeding; that Respondent's affirmative de- fense presents no factual issue requiring a hearing but rather is merely a matter for argument; and that Respondent admits that it has not and does not intend to comply with the Board's Decision and Determination of Dispute. Subsequently, on June 5, 1980, the Board issued an order transferrring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not granted. Respondent did not reply to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, in- cluding the record in the 10(k) proceeding and the Board's Decision and Determination of Dispute therein, the Board makes the following: Ruling on the Motion for Summary Judgment Pursuant to Section 10(k) of the Act, following a charge filed by the Association on behalf of Barlet- ta, alleging that Respondent had violated Section 8(b)(4)(i) and (ii)(D) of the Act, a hearing was held on August 13, 1979. On April 8, 1980, the Board issued a Decision and Determination of Dispute in which it concluded, inter alia, that Respondent's ar- guments that its contract gave it the right to per- form the disputed work and that Respondent's members had always performed the work in the past were without merit; found reasonable cause to believe that Respondent had violated Section 8(b)(4)(i) and (ii)(D) of the Act; and awarded the disputed work to employees who were represented by the Laborers rather than to employees who Iriuck Driver, and IHelpers L'nion. Local .o. 170. affilhaed with Inter- aulionual Brolh'rhd f lIearniers, Chauffeurs. 14arehouwnmen and llp.-ri of 4mLrica (lhb HBarlhtta Companvi. 248 NlRH I(X)0 We find it unnlecessars to pass on the General Counsel', tmollin to strike denials ill Respondent's answer in light of our granting the Motion for Summary Judgment :l' /hal Brlctiu Colnpulav, upru 252 NLRB No. 78 519 DECISIONS OF NATI()NAL LABOR RELATIONS BOARD were represented by Respondent. Thereafter, Re- spondent refused to comply with the Decision and Determination and the Regional Director issued the complaint herein. In its answer to the complaint, Respondent denied (1) that Business Agent George Valery, on or about July 10, 1979, ordered a strike against Barletta and that it subsequently did strike Barletta at its two Worcester, Massachusetts, jobsites; (2) that an object of the acts and conduct engaged in by Respondent was to force and require Barletta and its subcontractors to assign work to employees represented by Respondent rather than to employ- ees represented by the Laborers; and (3) that such conduct constituted unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. Respondent also asserted, as an affirmative de- fense, that the Board by its Decision and Determi- nation of Dispute condoned a breach of contract and denied Respondent its contractual rights. We find no merit in Respondent's contentions. Vincent Barletta's uncontroverted testimony in the 10(k) proceeding revealed that (1) Respondent en- gaged in a strike on July 10, 1979, as a direct result of laborers transporting a compressor and a gener- ator in a pickup truck on July 9, and (2) that Re- spondent Business Agent George Valery discussed the strike with Barletta later on July 10 and in- formed Barletta that: . . . it was for the cumulative, non-compliance of laborers utilizing quote pickup trucks, and particularly, in regards to an incident which happened the day before, on July 9, in regards to a laborer, one pulling a compressor and two, carrying a generator, on a pickup truck. Valery later testified in the 10(k) proceeding and stated that employees represented by Respondent had always performed the disputed work but he did not, at any time, contradict Barletta's testimony cited above. Therefore, we find that it was estab- lished in the 10(k) proceeding that the strike in fact occurred and that the object thereof was to force Barletta to assign the disputed work to employees represented by Respondent rather than employees represented by the Laborers. Moreover, although Respondent generally denied the strike and its un- lawful object in its answer, it has neither pleaded in its answer nor submitted any evidence to contro- vert those findings. Furthermore, in it brief in the 10(k) proceeding, Respondent asserted that the strike on July 10, 1979, was based on Barletta's violation of the con- tract as illustrated by Respondent's filing of over 200 grievances against Barletta. It is clear that the grievances were filed because employees represent- ed by the Laborers were driving pickup trucks, the disputed work in this case. Thus, the inescapable conclusion is that an object of the strike was to force Barletta instead to assign the disputed work to employees represented by Respondent. Accordingly we find that all issues, including Respondent's affirmative defense that its contract entitled it to the work, were addressed and decided by the Board in the 10(k) proceeding. As all mate- rial issues have been previously decided by the Board or admitted by Respondent in its answer, we find that no additional hearings are warranted or required, and we grant the General Counsel's Motion for Summary Judgment. 4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. HI:. BUSINESS OF THE EMP.OYER The Employer, a Massachusetts corporation, is engaged in the heavy and highway construction business as a general contractor and annually pur- chases, directly from points outside Massachusetts, steel, asphalt, and cement used by it in the con- struction of highways in Massachusetts, and valued in excess of $50,000. We find, therefore, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert ju- risdiction herein. 11. THE LABOR ORGANIZATIONS INVOLIVED Truck Drivers and Helpers Union, Local No. 170, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Massachusetts Laborers' District Council a/w Laborers' International Union of North America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Facts of the Dispute Barletta has been a general contractor in the highway and heavy construction industry through- out New England for a number of years and is sig- natory to a statewide agreement with Respondent as well as a statewide agreement with the Labor- ers' Union. In connection with the construction of highways in Massachusetts, Barletta and its subcon- tractors utilize a number of small pickup trucks. Respondent threatened to picket and strike Barletta over the assignment of the work of occasional 4 International Association of Bridge, Structural and Ornamental Iron- workers, AFL-CIO, Local 433 (Plaza Glass Company), 218 NLRB 848, 849 (1975). 520 TRUCK DRIVERS AND HELPERS UNION, LOCAL NO. 170 hauling material and equipment in pickup trucks to Laborers in 1978 and early 1979. On July 10, 1979, Respondent's business agent, George Valery, or- dered a strike against Barletta because employees represented by the Laborers rather than employees represented by Respondent were operating pickup trucks. B. The Determination of the Dispute On April 8, 1980, the Board issued its Decision and Determination of Dispute assigning the casual or occasional driving of pickup trucks to haul ma- terial and equipment to employees represented by the Laborers. The Board also found that Respond- ent was not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force or require the Employer to assign such work to individuals repre- sented by Respondent. C. Respondents Refusal To Comply In addition to its strike, Respondent has refused, and continues to refuse, to comply with the Board's Decision and Determination of Dispute that it is not entitled to force or require the Em- ployer to assign the disputed work to employees represented by the Laborers. On the basis of the foregoing, and the entire record in this proceeding, we find, as described above, that Respondent's strike and its refusal to comply with the Board's Decision and Determin- tion of Dispute violated Section 8(b)(4)(D) of the Act. IV. 'THi. 1FFECT OF THFI UNFAIR I ABOR PRACTICFS UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE RNMEI)Y Having found that Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(D) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the purposes of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI.USIONS OF LAW 1. The Barletta Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Union, Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, and Massachusetts Laborers' District Council a/w Laborers' International Union of North Amer- ica, AFL-CIO, are labor organizations wvithin the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(b)(4)(i) and (ii)(D) of the Act by (1) striking the Employer to assign the casual or occasional driving of pickup trucks to haul materials and equipment to employ- ees who are members of, or represented by, Re- spondent by means proscribed by that section of the Act, and (2) failing to and refusing to comply with the Board's Decision and Determination of Dispute which also covers the assigning of the casual or occasional driving of pickup trucks to haul materials and equipment. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Truck Drivers and Helpers Union, Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Worcester, Massachusetts, its officers, agents, and representatives, shall: 1. Cease and desist from refusing to comply with the Board's Decision and Determination of Dispute or striking or refusing to perform services for The Barletta Company and its subcontractors or any other persons engaged in commerce or an industry affecting commerce, where an object is to force or require The Barletta Company and its subcontrac- tors to assign the casual or occasional driving of pickup trucks to haul materials and equipment to employees who are members of, or represented by, Truck Drivers and Helpers Union, Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, rather than to employees who are members of, or represented by, Massachusetts Labcrers' District Council a/w Laborers' International Union of North America. AFL-CIO. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 521 DECISIONS OF NAI'IONAI. LABOR RELATIONS HOARD (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 1 signed copies of such notice for posting by the Em- ployer, if willing, in places where notices to em- ployees are customarily posted. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I: I1 e t c cunt t lill I}1is Order i, ceIforced hy al Judgment iofa Ilted a51;1t C'curl f Appeals,. the Ntords in it1 1lot reading 'otel hb ()rder of l he Nattill I .lahor Relaliocs t oilld" h. l 1 Il read oll ci d Iurs- lilt to i JlgllCTil Iof l i U litCed Stales ('c Jrl a' A\ppcalt I orilcr mg ;an Order f I hic Natiaull I abor Rctlltions It.ati ' APPENDIX No-rici To MIMBI:RS POST:I) Y ORI)R OF THEt NATIONAI. LABOR Rl-1 ATIONS BOARI) An Agency of the United States Government W'E WIlol. NOI' refuse to comply with the Board's Decision and Determination of Dis- pute awarding the work of casual or occasion- al driving of The Barletta Company's and its subcontractors' pickup trucks to haul materials and equipment, or to strike and to refuse to perform services for The Barletta Comany and its subcontractors, or any other person en- gaged in commerce or an industry affecting commerce, where an object is to force or re- quire The Barletta Company and its subcon- tractors to assign the above work to employ- ees who are members of or represented by Truck Drivers and Helpers Union, Local No. 170, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, rather than to employees who are members of or represented by Massachusetts Laborers' District Council a/w Laborers' In- ternational Union of North America, AFL- CIO. TRUCK DRI[ FRS AN) HEI PRS UNION, LOCAl NO. 170, A/W INTER- NA'IONAI. BRO IIRHOOI) O TAM- STERS, CIAUFI tIURS WARIHOUSIEI-NN \NI) HI(I PILRS 01 AMERICA 522