Local Union No. 3, Electrical Workers, 423 (1973)

LOCAL UNION NO. 3, ELECTRICAL WORKERS 423 ' Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO and Mansfield Contracting Corporation and Local 819E, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 2-CD-428

October 16, 1973 DECISION AND ORDER

BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on July 19, 1971, by Mansfield Contracting Corporation, herein called the Employer, and duly served on Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on March 27, 1973, against Respondent, 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, 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 in pertinent part alleges in substance that the Respondent violated Section 8(b)(4)(i) and (ii)(D) of the Act by failing and refusing to comply with the terms of the Board's Decision and Determination of Dispute in a 10(k) proceeding 1 and by its threat to picket, and picketing of, the jobsite at 226 West 26th Street, New York City, with the object of forcing and requiring the Employer to assign the electrical work being performed by its employees represented by a local (either Local 819 E or Local 363) of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, rather than to employees represented by the Respondent.

On April 9, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, alleging newly discovered evidence that would establish that the Employer's employees, being, in fact, unrepresented, i Local Union No. 3, International Brotherhood of Electrical Workers, AFL CIO (Mansfield Contracting Corporation), 201 NLRB No. 114, issued February 8, 1973. Official notice is taken of the record in the 10(k) proceeding, including Respondent's memorandum filed therein on February 24, 1973, and including the record in Case 2-CC-1205, involving the same parties and conduct, which had been incorporated in the 10(k) proceeding and in which the Board, in the absence of exceptions, adopted the Administrative Law Judge's recommended Order based on findings that the Respondent had violated Sec. 8(b)(4)(i) and (u)(B) of the Act made no jurisdictional claim to the disputed work, and asking leave to offer evidence concerning the productivity of its electricians.

On April 19, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with a petition in support, submitting that the Respondent's answer raises matters considered and decided by the Board in the 10(k) proceeding and admits the Respondent does not intend to comply with the Board's Decision and Determination of Dispute herein. Subsequently, on June 30, 1973, 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. Respondent thereafter filed a response to Notice To Show Cause, called Opposition to General Counsel's Motion for Summary Judgment.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Upon the entire record in this proceeding, the Board makes the following:

Ruling on the Motion for Summary Judgment Our review of the record herein reflects that, following the filing of a charge by the Employer alleging that the Respondent had violated Section 8(b)(4)(i) and (ii)(D) of the Act, a hearing was held pursuant to Section 10(k) of the Act. On February 8, 1973, the Board issued a Decision and Determination of Dispute 2 in which it concluded that there was reasonable cause to believe a violation of Section 8(b)(4)(D) had occurred. In so concluding, the Board disagreed with the Respondent's contentions that (1) there was no jurisdictional dispute because its picketing had only an area standards purpose and (2) one Teamsters Local had not established it succeeded the other Teamsters Local as representative of the Employer's employees. As to (1), the Board found that it was clear from the record that Respondent stated that the purpose of its picketing was to support its demand that the disputed electrical work being performed by the Employer's employees be transferred to its members, and therefore the Board refused to accept at face value the picket signs protecting the alleged 'substandard' conditions. As to (2), the Board found that it appeared that the Employer's employees' were represented by one of the two Teamsters Locals, although it also found that it was not essential that employees to whom an award is made be represented by a labor organization. Accordingly, upon the basis of the entire record, the Board awarded the disputed electrical Ibid 206 NLRB No. 84 work to the Employer's employees represented by one of the Teamsters Locals rather than to employees represented by the Respondent. Thereafter, on March 27, 1973, the Regional Director issued the complaint herein.

In its answer to the complaint and response to the Notice To Show Cause, the Respondent contends (1) that its denials of the allegations of the complaint,' without more, raise issues which, under section 554(a) and 556(b) of the Administrative Procedure Act, require a determination by an Administrative Law Judge since the 10(k) findings establish only 'reasonable cause'; (2) that newly discovered evidence, in the form of more recent NLRB transcripts, would show that the Employer's employees, to whom the award was made, were in fact unrepresented and therefore no group of employees made a jurisdictional claim for the disputed work; and (3) that the Respondent requests a hearing to correct a libel against its electricians' productivity. We find no merit in the Respondent's contentions.

As to (1), we find lacking in merit the contention that the Administrative Procedure Act automatically requires an Administrative Law Judge's decision in the unfair labor practice proceeding herein. We do agree with the General Counsel that the issues raised by the Respondent's denials in its answer were considered and resolved in the underlying 10(k) proceeding and do not require relitigation before an Administrative Law Judge. Support for this petition is...