Los Angeles Building and Construction Trades Council

In the Matter of Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, A. F. L., AND LLOYD A. MASHBURN, ITS AGENT; MILL- WRIGHT AND MACHINERY ERECTORS LOCAL 1607, OF THE . UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., AND HERMAN F. BARBAGLIA, ITS AGENT and INTERNATIONAL AssocIATION OF MACHINISTS, FOR ITS LOCAL LODGE 1235 Case No. 21-CD-19.-Decided May 11,1949• DECISION : AND DETERMINATION OF DISPUTE { STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, as amended by Labor Management Relations Act, 1947, which provides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4 (D) of Section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . " On February 2, 1949, International Association of Machinists, on behalf of its Local Lodge 1235, herein called the Machinists, filed with the Regional Director for the Twenty-first Region a charge alleging -that Los Angeles Building and Construction Trades Council, A. F. L., herein called the Trades Council, and Lloyd A. Mashburn, its agent, had engaged in and were engaging in certain activities proscribed by Section 8 (b) •(4) (D) of the amended Act. It was alleged, in sub- stance, that they engaged in a strike, with an object of forcing and requiring Westinghouse Electric Corporation, herein called Westing- house, and/or Stone and Webster Engineering Corporation, herein called Stone, to assign particular work to members of "affiliates" of United Brotherhood of Carpenters and Joiners of America, A. F. L.- 1 The'relevant portions of Section 8 of the Act are as follows : (b) It shall be an unfair labor practice for a labor organization or its agents- ( • n $ * „ a (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities or to perform any services, where an object thereof is: ... (D) 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 em- ployees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to any order or certification of the Board determining the bargaining representative for employees performing such work: . . . 83 N. L. R. B., No. 76. 477 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to Sections 203.74 and 203.75 of the Board's Rules and Regulations, Series 5, as amended, the Regional Director investigated the charges and provided for an appropriate; hearing upon due notice to all the parties? Thereafter,,a hearing was held before James V. 'Altieri, hearing officer, on March 10, 11; 14, 16, 17; 18, 21, 22, 23, and 24, 1949. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings-of the-hearing officer made at the hearing are free • from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board; the Machinists, the Millwrights, and the Trades Council did so. The requests- , for oral argument of the Trades- Council and the Millwrights are denied because the record and briefs, in our opinion, adequately present the issues and positions of the parties. Upon the entire record in the case, the Board makes the following : FINDINGS of FACT 1. THE BUSINESS OF THE COMPANIES Westinghouse Electric Corporation ' maintains, - inter alia, two plants in the Commonwealth of Pennsylvania, where it is engaged in the manufacture of turbines and generators. The record reveals .that a substantial amount of the raw material used in the production of these turbines and generators comes from outside the Common- wealth of Pennsylvania. The' turbine generator with which the in- stant dispute is concerned was shipped to California by Westing- house from its Pennsylvania plants, and is being installed by Westing- house in California. We have heretofore found that Westinghouse.is engaged in commerce." Southern California Edison Company, herein called Edison, is a utility company, and delivers electric power to consumers in southern Millwright and Machinery Erectors Local 1607, of.the United Brotherhood of Car- ',penters and Joiners of America, A. F. L., herein called the Millwrights, and Herman F. Barbaglia , its agent, appeared at the opening of the hearing on March 10, 1949 , and moved for a 10-day continuance, on the ground that they had not been made parties respondent until the service of an amended charge a day earlier. The hearing officer denied this motion , without prejudice to its renewal at any time the Millwrights "claimed surprise." Counsel for the Millwrights thereupon withdrew from the hearing, and now alleges a denial of due process . We find that the Millwrights, which the record shows was the only "affiliate" of the Carpenters involved herein, was duly apprised of this proceeding,by service of the original notice of hearing: . Moreover, the Millwrights refused the hearing officer's express reservation to it of the right to renew the motion if "surprise". were claimed. The Trades Council and the Millwrights also moved the Board to strike the "Second Amended Charge" or, alternatively , to remand the proceeding for further hearing on new matter raised by the Second Amended Charge. We do not consider the Second Amended Charge, which was not filed until after the close of the hearing, as part , of the record before us, and we do not, therefore, find it necessary to pass , upon - the motion at this time. 8 Matter of Westinghouse Electric Corporation, 72 N. L. R. B. 60. LOS ANGELES BUILDING AND CONSTRUCTION TRADES- COUNCIL 479 -California. During 1948, approximately 39 percent of its total sales was to industrial consumers, a substantial number of which are en- gaged in commerce. It purchases -much of its equipment, including the turbine generator here involved, from outside the State of Cali- fornia. We' have heretofore found that Edison is engaged in commerce.4 We find, contrary to the contention of the Trades Council, that the companies are engaged in commerce within the meaning of the Act. 2. The dispute a. The facts Early in 1946, Edison entered into contracts with various contrac- tors for the construction of a new power plant at Redondo Beach, California. Chief among these contractors was Stone, which also acts in an advisory capacity to Edison for the entire project. Before construction of the power plant began, Edison had made arrangements for the purchase and installation of five steam turbine generator units. Two of these generators have already been installed, one each by Westinghouse apd General Electric Company; the third was being installed by Westinghouse when the dispute with which we are now concerned began; the fourth is to be supplied and installed by Gen- eral Electric, and operations on it are scheduled to begin about June 1, 1949; and the fifth is to be supplied and installed at some future date by Westinghouse. Stone and the other contractors working on the Redondo Beach project, with the exception of Westinghouse and General Electric, have employed only Trades Council members since the construction began. Westinghouse and General Electric had installed the first two generators using two Machinists' members, as well as some Trades .Council members. A short time before the installation of the third generator was scheduled to begin, representatives of the Trades Coun- cil and the Millwrights approached Stone and attempted to persuade Stone to have Westinghouse replace the Machinists with Millwrights. Stone disclaimed responsibility for the employment of these Machin- ists, saying that they were Westinghouse employees. On January 31, 1949, installation work on this third generator started. Shortly there- after, a Trades Council representative, Mashburn, asked William Budge, supervisor of the installation for Westinghouse, to replace the Machinists with Millwrights. Budge refused, whereupon Mashburn said that he had no other recourse "except to take action." On February 2, 1949, the Trades Council called a general strike of all the building trades employees on the project to enforce its demand on Westinghouse. All of the approximately 650 employees walked ' Matter of Southern California Edison Company, 70 N. L. R. B. 81. f480 •' ' DECISIONS - OF NATIONAL LABOR RELATIONS BOARD out, Except the 2 Machin ists^employed;by Westinghouse. The latter worked until February 11, 1949, when Edison requested Westinghouse to cease its installation work until the dispute was resolved. At the -tune of the hearing, • no further installation work had been done on -the' generator, although 'work on the rest of the project had been resumed. 'b. Contentions of the parties Neither Edison nor Stone has advanced any contentions respecting the merits of the dispute, nor has the-Millwrights. Westinghouse, although it likewise advanced no contentions, is clearly not a disinter- ested,party; its refusal to accede to the Trades Council's request pre- cipitated the, dispute. The Machinists contends that the work tasks involved in the in- stallation of generators is properly the craft and trade work of its members, and that it has satisfactorily supplied employees for all the generator installation work on the project, including the two com- pleted installations. - ' • The Trades Council contends'that the'Board is without jurisdiction to determine the dispute for., three reasons : (1) this case does not involve a "jurisdictional dispute," but presents a question of represen- tation; (2) the dispute is not one "affecting commerce"; and (3) See- tion 8 (b) (4) (D) is unconstitutional. ' 'The Trades Council also asserts that, in any event, the Millwrights is entitled to the work in question for various, reasons: (1) the work falls within the jurisdic- tiori'and the trade and craft skills of its members; (2) the Trades Council has a right, under the provisions of its contract with Stone, to demand conformance from Westinghouse with the terms of that contract; (3) A. F. of L. decisions, made while the Machinists was affiliated with the A. F. of L., awarded work of the type in question to _ the. Millwrights,; (4) as the Building Trades Department of the A. F. of L. (with which the Machinists was never affiliated) is the only body that- can effectively, determine a "jurisdictional dispute" between sub- ordinate locals in the construction field, no nonaffiliated union should be permitted to supply workers in this field; (5) the existing assign- ment of work by Westinghouse to the Machinists is immaterial; other- wise the employer could "oust the Board itself of jurisdiction"; (6) as there are approximately 650 Trades Council members on the project, and the dispute involves only 2 employees not members of the Trades Council, the purposes of the Act will "be better effectuated" by a de- termination by the Board that will compel Westinghouse to conform its employment practices to those of the other contractors on the job; and (7) this Section 10 (k) proceeding should be dismissed as "de miinimis" because the dispute involves only 2 out of 650 employees. ' LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 481 c. Applicability of the statute The'Board has held in several cases 5 that where a labor organization is charged with forcing or requiring an employer to assign particular work to members of a particular labor organization rather than to employees of his own who are members of another labor organization, such conduct comes within the purview of Section 8 (b) (4) (D) and the Board is "empowered and directed to hear and determine the dispute." On the record before us, it is clear that the "dispute" in this pro- ceeding involves efforts by the Respondents to compel Westinghouse to assign certain installation work to members of the Millwrights, although the work was being performed by Westinghouse employees who were members of the Machinists. We find, therefore, that under the language of the Act as presently written, the dispute in question is properly before us for determination e d. The merits of the dispute At the time the dispute began, Westinghouse was employil}g. two machinists and two riggers on the project; the former were members of the Machinists, and the latter were members of an affiliate of the Trades Council other than the Millwrights. Westinghouse had ' as- signed the work in dispute to the Machinists. The Respondents in- sisted that Westinghouse assign the work to the Millwrights. The Board said in Matter of Juneau Spruce Corporation, supra: As we read Sections 8 (b) (4) (D) and 10 (k), these Sections do not deprive an employer of the right to assign work to his own employees; nor were they intended to interfere with an employer's freedom to hire, subject only to the requirement against discrimination as contained in Section 8 (a) (3).. And in the Irwin-Lyoha case, supra, we held that the question of tradi- tion or custom in the industry is not a governing factor'r .. rwhere a union with no bargaining or representative status makes demands on an employer for, the assignment of work to the exclusion, of, the employer's 'own employees who are` performing the work : • :.' ,." . None, "Matter of Moore Drydock • Company, 81 N. L. R. B. 1108 ; Matter of Juneau Spruce Corporation, 82 N. L. It. B. 650 ; Matter ' of Irwin-Lyons Lumber Con pang, 82'N.' L. R. B. 916. - - - Members Houston and Murdock, who dissented in each of these cases, deem themselves bound to concur in the present decision . Moreover, they agree entirely with the observa- tion, infra, that "the employer in most cases will have resolved- by his own employment policy, the question as to . which organization shall be awarded the work." It is for this reason , as these dissenting Members have, consistently pointed out, that they believe the Board should eschew the pretense of deciding such matters, under Section, 10 (k) of the Act, in cases like this when the issue is predetermined by the employer. The Trades Council's contention that Section 8 (b) (4) (D ) is unconstitutional is also rejected . Matter of Rite-Form Corset Company, Inc., 75 N. L. It. B. 174. 482 DECISIONS ,OF ,NATIONAL. LABOR RELATIONS BOARD of the contentions here -advanced impels 'us to reach a different con- clusion in this case. Westinghouse had no collective bargaining agree- ment with any labor organization concerning the employees involved. The, fact that Stone, another contractor on the project, was operating under an agreement with the Trades Council, does not subject Westing- house to any of the, obligations of that agreement. It is clear that Westinghouse was not under contract with Stone, and was free to make use of its own employees for the installation, despite the fact that the other employers on, the project used Trades Council em- ployees.' We find, accordingly, that neither the Trades Council nor the Mill- wrights is lawfully entitled,to require Westinghouse to assign the work tin dispute to members of the Millwrights rather than to em- ployees of Westinghouse who are members of the Machinists. We are not by this action to be regarded as "assigning" the work in question to the Machinists. Because an affirmative award to either -labor organization would be tantamount to allowing that organization to require Westinghouse to employ only its members and therefore to violate Section 8 (a) .(3) of the Act, we believe we can make no such award. In reaching this conclusion we are aware that the em- ployer in most cases will have resolved, by his own employment policy, the question as to which organization shall be awarded-the work. Un- der the statute as now drawn, however, we see no way in which we cnn, by Board reliance upon such factors as tradition or custom in the industry, overrule his determination in a situation of this particu- lar'character. DETERMINATION OF DISPUTE On: the basis of the foregoing' findings of fact and the entire record in this case, the Board makes the following determination of the dis- pute, pursuant to Section 10 (k) of the amended Act : 8 - % 1. Los Angeles Building and Construction Trades Council, A. F. L., and Lloyd A. Mashburn, its agent, and Millwright and Machinery Erectors Local 1607, of the, United Brotherhood of Carpenters and Joiners of America, A. F. L., and Herman F. Barbaglia, its agent, are, not,. and have not been, lawfully entitled to force or require Westing- house;Electric Corporation to assign work on the installation'of steam 7'As Westinghouse was, not a party to any A. F. of L. awards of jurisdiction, we find no merit to the Trades Council's contention that such awards in its favor are determinative' in this case. 8 The Machinists contends that any determination by the Board should also include future installation work at the Redondo Beach project of Edison . We find no merit to that ,contention, and'shal restrict our determination here to the dispute before us.' LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 483 turbine generators at Southern California Edison Company's plant at Redondo Beach, California, to members of Millwright and Ma- chinery Erectors Local 1607, of the United Brotherhood of Carpenters and Joiners of America, A. F. L., rather than to employees of West- inghouse Electric Corporation who are members of International, As- sociation of Machinists, Local Lodge 1235. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, each of the Respondents, may notify the Regional Director for the Twenty-first Region, in writing, what steps the Re- spondents have taken to comply with the terms of this Decision and Determination of Dispute.