International Hod Carriers, Building, and Common Laborer's Union of America

In the Matter Of INTERNATIONAL HOD CARRIERS , BUILDING, AND COM- MON LABORER'S UNION OF AMERICA, LOCAL #231, AFL, AND HAROLD HILL, ITS BUSINESS REPRESENTATIVE and MIDDLE STATES TELEPHONE COMPANY OF ILLINOIS Case No. 13 ,CD-12.Decided September 09,1950 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF CASE This proceeding arises. under Section 10 (k) of the Act, as amended, by the 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 June 2, 1950, Middle. States Telephone Company of Illinois, herein called the Company, filed with the Regional Director for the Thirteenth Region of the Board a charge alleging, in substance, that -International Hod Carriers, Building, and Common Laborer's Union of America, Local #231, AFL, herein called Hod Carriers, and Harold Hill, the Hod Carriers' business representative, had violated Section 8 (b) (1) and 8 (b) (4) (D) of the Act in that, on or about May 17, 1950, and thereafter, they had induced and encouraged various em- ployees of the Company to engage in a concerted refusal to perform certain work for the purpose of forcing or requiring the Company to assign particular work to Hod Carriers rather than to the Com- pany's employees who are members of Telephone Workers Local 399, IBEW, AFL. Thereafter, pursuant to Sections 203.74 and 203.75 of the Board Rules and Regulations, the Regional Director investigated the charge and provided for an appropriate hearing, upon due notice to all the parties. The hearing was held on July 12 and 13, 1950, before James V. Constantine, hearing officer of the Board. All parties appeared at the hearing and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce -evidence bearing 91 NLRB No. 99. 598 INTERNATIONAL HOD CARRIERS, BUILDING, ETC., UNION 599 on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Although all parties were afforded an opportunity to file briefs with the Board, none have been received. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS Middle States Telephone Company, an Illinois corporation with its principal place of business in Pekin, Illinois, is engaged in fur- nishing local and long distance telephone service in central, northern, and western Illinois. In providing long distance service the Com- pany utilizes connecting lines of the Bell Telephone System.' In many of the communities it serves, including Pekin, the Company provides the only available telephone service? It serves both residential and commercial subscribers. The Company is part of the Central Tele- phone Company system. Central, a South Dakota corporation which operates on an interstate basis, owns a majority of the common stock of the Company and of the other companies for which it provides management services. We find that the Company is engaged in com- merce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction.3 U. THE DISPUTE a. The facts Early in 1950 the Company decided to construct an additional tele- phone exchange in North Pekin. This project required the laying of 800 feet of underground conduit which involved digging trenches, pouring concrete into the trenches, the installation of tile, pulling cables through the tile, and the construction of manholes. Because of the shortage of its own employees, the Company hired two inde- pendent contractors; one to deliver ready-mixed cement to the job I During the past fiscal year , the Company ,s subscribers made 1,286,143 long distance calls, of which 120,518 were to points outside the State of Illinois. During the same period, the Company serviced approximately the same number of long distance calls from outside the State to its customers. 2 See footnote 1, supra. 8 Central Missouri Telephone Company, 15 NLRB 798, enfd. 115 F. 2d 563 (C. A. 8) ; see also San Marcos Telephone Company, 81 NLRB 314; Illinois Bell Telephone Company, 88 NLRB 1171. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and another, Stovall, "to assist" in the construction by furnishing a truck and laborers "as needed." 4 Work on the conduit project was begun early in May with Stovall and his men working under the supervision of a company engineer, Mills. Two or three days later, after the trenches had been opened, two crews and a foreman from the Company's plant department were assigned to the project. Stovall's men were hod carriers by trade and members of the Hod Carriers, their representative in a collective bargaining contract covering their employment by Stovall. The Com- pany's men were members of the IBEW under a collective bargaining agreement containing an authorized union-security clause. On May 11, Hill, then business agent of the Hod Carriers 5 observed the Company's employees, IBEW nien, performing the same tasks as Stovall's men with whom they worked, pouring concrete, laying foundations, and excavating. When he protested the work assignments to Mills, the company supervisor on the job, Mills referred him to Alder, the Company's dis- trict plant superintendent. The next morning, Hill telephoned Alder and protested that the use of company employees was an infringement of the Hod Carriers' jurisdiction, contrary to agreements between the IBEW and that Union and the Company's practice of giving con- duit work entirely to independent contractors.. Alder asserted the Company's right to use its own employees, but suggested that Hill attempt to settle the dispute with Stahl, the president and business representative of the IBEW. Alder agreed to remove the Com- pany's men, pending some agreement between the Unions involved. From May 12 to May 16, the Company assigned its employees to other tasks, leaving the independent contractor's men alone on the job. On May 15, Alder asked Hill if the Company could return its men to the job. Although the business representatives of the Unions involved had failed to reach any settlement, Hill repeated his claim that the work belonged to the Hod Carriers. On May 16, the Company re- assigned its own men to the job. On May 19, the Company's employees were ordered to lay tile. That afternoon, Hill appeared at the job and according to the testi- mony of the foreman, ordered the Company's men to "stop work and 4 The contract with Stovall did not guarantee that any laborers would be needed "to assist" on the project , nor did it reserve specific tasks for the Company's employees. Laborers furnished by Stovall were to remain his employees , although the contract pro- vided that the work would be supervised by the Company. 5 Hill's term as business agent expired on July 1, when he was succeeded by Snell who had been elected Hill 's successor. INTERNATIONAL HOD CARRIERS, BUILDING, ETC., UNION 601 get out of the hole [a trench]." 6 The foreman immediately.tele- phoned Alder for advice, and was instructed to, and did, withdraw the company employees from the job. ,. On May 22, Hill learned that the independent contractor had "laid off" his men.7 He telephoned Alder who told him that the Company had decided to go ahead using its own employees. Hill, accompanied by the business agent of Teamsters Local 685, arrived about 9: 30 at the job site where he found the foreman, four other company employees laying tile, and Stovall, but none of Stovall' s men." Hill then asked the workers whether they were going to quit "till, the dispute was settled" or whether he would have to "call his wolves out." 9 He re- ceived no reply and left promptly, only to return an hour later with a dozen or more men. Again addressing himself to the company em- ployees, Hill asked them, "Aren't you going to quit?" Receiving no reply, he said, "If you don't, we'll have to carry you out." 10 The foreman telephoned Alder who again told him to take the men off the job, which he did. At the time of the hearing two-thirds of the job remained un- completed. Alder testified that the Company could complete the project, using its own employees exclusively, in 3 weeks working time; but had not attempted to do so because its men, fearing for their safety, had been reluctant to return to the job site. b. Bargaining history The record shows no bargaining history between the Company and the Hod Carriers, either with- respect. to the conduit project or any other operation of the Company. As indicated above, the hod car- riers on the project were employed by an independent contractor who recognized the Hod Carriers as their contract representative. The Company, on the other hand, had recognized the IBEW as the sole collective bargaining agent for all plant, traffic, and clerical em- ployees "at or on" the Company's telephone properties at Pekin, G Hill testified that he asked the foreman and men "if they were going to leave work in question until settled with Internationals ," and that the foreman had agreed to do so. Hill's testimony , as noted below, is consistent with this version of the episode of May 19. We need not , for the purposes of this proceeding, resolve these conflicts in testimony. P Under their contract with Stovall, his employees were on call only, but received call-in pay unless he notified them, as he did on May 21, that they were not to report. Alder testified that the Company had not canceled the Stovall contract but that Stovall had not been ordered to report for work on May 22. s Stovall had used two or three men on the job. Hill testified that he merely asked the foreman whether he "was as good as his word and if he was going to leave the work alone until we could get something more definite (from the Internationals)." 10 Hill testified that he directed his remarks to the group , in general , and the foreman, in particular, an i asked the foreman , "if he would settle it the way we had agreed on or would we have to find a different way." 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Havana, and Lacon, Illinois , under a contract effective August 1, 1948, and expiring August 1, 1950, subject to automatic renewals. The Company agreed to recognize the IBEW in all matters relating to "employment for all employees employed on work covered by this agreement;" The contract contains a valid union-security provision which, by its terms, became effective on April 1, 1949, when the IBEW was certified to bargain for such a clause pursuant to a consent elec- tion in Case No. 13-UA-2344. Except for describing the employees covered by the agreement, it contained no specific description of the work the "plant employees ," named in the agreement, were to per- form; but a provision for traveling time to jobs outside the city limits, indicates that the agreement was intended to apply to work other than the operation of the Pekin plant. The record contains no evidence which would permit us to determine whether the contract had been automatically renewed since the hearing. c. The contentions of the parties The Company , the charging party, contends that the Respondents violated Section 8 (b) (4) (D) by encouraging its employees to engage in a work stoppage in order to compel the Company to assign conduit laying to Hod Carriers rather than to its own employees . The Com- pany and the IBEW contend that the Company had an absolute right to assign the work to its own employees , who were, in addition, better qualified for the job, having received special training. The Respondents argue that the Hod Carriers were historically , entitled to work (other than pulling cables ), by their constitutional jurisdiction and the Company's prior practice of subcontracting in toto such work to independent contractors who employed members of the Hod Carriers . The Respondents further contend that the Build- ing Trades Department of the AFL and the IBEW and Hod Carriers Internationals had awarded this type of work to the Hod Carriers Unions. In support of the latter contention, the Respondents intro- duced in evidence a telegram dated July 12, 1950, stating that the Joint Board created for settling jurisdictional disputes in the Build- ing and Construction Trades Department of the AFL had voted, on July 10, 1950, "to direct contractor to proceed with work as originally assigned which was to laborers. Both Trades are directed to respect this assignment." The IBEW, on the other hand, introduced a tele- gram of the same date; which it had received from its international president, interpreting the award as affecting only laborers working for the contractor Stovall, thereby reaffirming the Company's position that Stovall's men were to do only such work as the Company assigned INTERNATIONAL HOD CARRIERS, BUILDING, ETC., UNION 603 to Stovall. In any event, it is clear from the• record that the Com- pany was not a party to the proceeding resulting in this award. d. Applicability of the statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8 (b) (4) (D) and the record before us establishes that there is reasonable cause to believe that the Hod Carriers induced and encouraged employees to cease work in order to compel the Company to assign certain work to members of the Hod Carriers rather than to its own employees who belonged to the IBEW. We therefore find that the dispute in question is prop- erly before us 11 e. The merits of the dispute It is clear from the record- that the members of the Hod Carriers were not employees of the Company, but of Stovall, who had been engaged, under contract, by the Company to assist on the conduit project. The Company had assigned the work in dispute to its own employees. These facts are determinative of the present dis- pute. We have specifically held that Sections 8 (b) (4) (D) and 10 (k) "do not deprive an employer of the right to assign work to his own employees, nor were they intended to interfere with, an em- ployer's freedom to hire, subject only to the requirement against discrimination as contained in Section 8 (a) (3)." 12 Moreover, where, as here, a union with no bargaining or representative status makes demands on an employer for the assignment of work tb the exclusion of the employer's own employees who are performing the work, we have held that the question of tradition or custom in the industry is not a governing factor.13 None of the contentions here advanced impels us to reach a different conclusion in this case. The Company had no collective bargaining agreement with the Hod Car- riers concerning the employees involved. The fact that Stovall, an- other contractor on the project, was operating under an agreement .with the Hod Carriers, does not subject the Company to any of the u Moore Drydock Company, 81 NLRB 1108; see Ship Scaling Construction Association, 87 NLRB 92, and Winslow Bros . & Smith Co., 90 NLRB 1434. ss Juneau Spruce Corporation, 82 NLRB 650, 660 ; Los Angeles Building and Trades Council, A. F. L. (Westinghouse Electric Corporation), 83 NLRB 477, 479, 481-482; United Brotherhood of Carpenters and Joiners of America , Millwrights Local No. 1102 (Stroh Brewery Company ), 88 NLRB 844. 13 Irwin-Lyon Lumber Company, 82 NLRB 916; Los Angeles Building and Construction Trades Council, A. F. L. (Westinghouse Electric Corporation ), supra; United Brotherhood of Carpenters and Joiners of America, Millwrights Local No. 1102 (Stroh Brewery Com- pany ), supra. Such factors are material only where , as in the Winslow case (supra, foot- note 11 ), the dispute is between two contracting unions both representing employees of the employer in question. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligations of that agreement. It is clear that the contract between the Company and Stovall did not impair the Company's freedom to use its own employees for work on the project, including the laying of conduit, despite the fact that Stovall used Hod Carriers' members. And, as the Company was not a party of any A. F. of L. awards of jurisdiction, we find no merit in the Hod Carriers' contention that such awards in its favor are determinative of this case.14 We find, accordingly, that the Hod Carriers is not lawfully entitled to force or require the Company to assign the work in dispute to members of the Hod Carriers rather than to employees of the Com- pany who are members of the IBEW. However, we are not by this action to be regarded as "assigning" the work in question to the IBEW.15 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 dispute, pursuant to Section 10 (k) of the amended Act : 1. International Hod Carriers, Building, and Common Laborer's Union of America, Local #231, AFL, and its agents, are not, and have not been, lawfully entitled to force or require Middle States Telephone Company of Illinois to assign work laying conduit in connection with the North Pekin, Illinois, exchange to members of Hod Carriers rather than to employees of the Company who are members of International Brotherhood of Electrical Workers, Local 399, AFL. 2. Within ten (10) days from the date of this Decision and De- termination of Dispute, each of the Respondents may notify the Regional Director for the Thirteenth Region, in writing, as to what steps the Respondents have taken to comply with the terms of this Decision and Determination of Dispute. MEMBER MURDOCK took no part in the consideration of the above Decision and Determination of Dispute. 14 Los Angeles Building and Construction Trades Council, A. F. L. (Westinghouse Electric Corporation ), 83 NLRB 477, 479, at footnote 7. Nor is there "satisfactory evidence that they . . . agreed upon methods for the voluntary adjustment of the dispute." See United Brotherhood of Carpenters and Joiners of America , Millwrights Local No. 1102 (Stroh Brewery Company ), supra. 15 See cases cited .supra, footnote 13.