International Association of Machinists

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the roving timekeeper, but excluding all other employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] DISTRICT No. 9, INTERNATIONAL ASSOCIATION OF MACHINISTS , A. F. L. and ANHEUSER-BUSH, INC. Case No. 14-CD-937. November 18, 1952 Decision and Order STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, which pro- vides 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 deter- mine the dispute out of which such unfair labor practice shall have arisen . . . 21 On April 8,1952, Anheuser-Busch, Inc., herein called the Employer, filed with the Regional Director for the Fourteenth Region a charge alleging that District No. 9, International Association of Machinists, A. F. L., herein called the IAM, has engaged in and is engaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act by "... inducing and encouraging the employees of Anheuser-Busch, Inc., . . . to engage in a strike . . . with the object and purpose of forcing and requiring Anheuser-Busch, Inc., and those contracting with it for the purpose of performing construction work, to assign, and to cause to be assigned, particular work to employees who are members of and represented by said District No. 9, International Asso- ciation of Machinists, rather than to employees, members of and represented by other labor organizations...." Thereafter, pursuant to Section 10 (k) of the Act and applicable sections of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for a hearing upon due notice to all the parties. The hearing was held on July 9 and 10, 1952, before Harry G. Carlson, hearing officer of the Board. All parties appeared 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 agents- to engage In, or to induce or encourage the employees of any employer to engage (4) in, a strike . . . 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 employees in another labor organization or In another trade, craft , or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work... . 101 NLRB No. 87. INTERNATIONAL ASSOCIATION OF MACHINISTS 347 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. The Em- ployer and the IAM filed briefs with the Board. At the close of the hearing the IAM moved to quash the notice of hearing and to dismiss the charge on the ground that the evidence did not establish a violation of Section 8 (b) (4) (D) as alleged in the charge. The hearing officer referred the motion to the Board for ruling. The IAM's motion to quash the notice of hearing is hereby granted for the reasons hereinafter indicated. The IAM's request for oral argument is hereby denied as the record and briefs 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 EMPLOYER Anheuser-Busch, Inc., a Missouri corporation with its principal office at St. Louis, Missouri, is engaged in the operation of breweries in St. Louis, Missouri, and Newark, New Jersey. This proceeding re- lates only to the Employer's operations at its St. Louis plant. During the year 1951, the Employer received at its St. Louis plant raw mate- rials valued in excess of one million dollars from points outside the State of Missouri. During the same period, the Employer shipped from its St. Louis plant finished products valued in excess of one mil- lion dollars to points outside the State of Missouri. We find that the Employer is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED District No. 9, International Association of Machinists, affiliated with the American Federation of Labor, is a labor organization within the meaning of the Act. HI. THE ALLEGED DISPUTE A. The facts The Employer, Anheuser-Busch, operates its St. Louis brewery with about 6,000 workers, including employee members of the United Brotherhood of Carpenters and Joiners of America and of the IAM. Both of these labor organizations have had contracts with the Em- ployer. From about 1939, when the Carpenters struck to protest the Employer's assignment of millwright work to the IAM, until 1951, the Carpenters and the Employer had no collective-bargaining agree- 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. In 1951, the Employer and Carpenters District Council affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL, executed a contract covering the Employer's carpenters. That contract is still in effect. On June 22, 1948, the IAM was certified as the representative of the Employer's machinists who, among other things, engage in the "making, assembling, erecting, dismantling, repairing of all machinery of all descriptions and parts thereof," commonly known as millwright work. Frequently the Employer has need for additional or improved operating facilities. For this purpose, the Employer through inde- pendent contractors engages in projects requiring installation or repair of machinery. These projects "constantly reoccur." For the year 1949 the IAM had a contract with the Employer, which, among other things, provided in substance that, when the Employer contracted out projects requiring repair or installation of new or replacement machinery, the contracts for such millwright work may be entered into only with contractors having collective- bargaining agreements with the IAM. The Employer refused to enter into a contract containing such a provision for the year 1950, and, as a result, the IAM had no contract for that year. However, the Employer and the IAM entered into a contract containing such a provision for the year 1951. Both before and after execution of the IAM's 1951 contract, in 1950 and 1951, the AFL Building and Construction Trades Council of St. Louis and the Carpenters District Council notified the Employer that neither the Carpenters nor any other union affiliated with the Building and Trades Council would sign agreements with the Em- ployer unless the Employer eliminated the contract provision requir- ing it to subcontract millwright work only to contractors having contracts with the IAM or refused to enter into such a contract, as, the case might be; they also notified the General Contractors Associ- ation, an employers' association whose membership consisted of building contractors in the St. Louis area, that no work would be performed for Association members on Anheuser-Busch projects by members of the AFL Building and Trades unions unless all work on, such projects, including millwright work, was done by AFL Building Trades' craftsmen. Also, in 1950 and 1951, work stoppages occurred on Anheuser-Busch projects when the Carpenters refused to permit its members to work for contractors on such projects, and work was not resumed on such projects until the Employer assured the Car- penters District Council in writing, under date of March 8, 1951,, that the Employer would not, upon expiration of its 1951 contract with the IAM, enter into another contract with the IAM requiring the INT)IINATIONAL ASSOCIATION OF MACHINISTS 349 Employer to ^ sibc ont;ract millwright work only to contractors having collective-bargaining,agreements with IAM. The 1951 caRtract with the IAM expired in December 1951. During contract bargaining negotiations, which extended from about Decem- ber 1951 to April -1952, the IAM demanded that the Employer agree to continue in effect article VII of the 1951 contract, which provided as follows : Section 1:Jurisdiction: The Employer agrees that all turning, boring, fitfing,filing, planing, shaping, babbitting, chipping, saw- ing, and machinery repairing on gasoline, deisel and electric trucks and automobiles in the plant and the making, assembling, erecting, and repairing of all machinery of all descriptions and parts thereof performed within the Employer's plant by the employer shall be performed by employees within the bargaining unit as set forth in 'Section 1 of Article 1 of this agreement, either under its own supervision or such other supervision as the employer s1 l select. 2: In the event it becomes necessary to have such work here- inbefore described contracted out, the Employer shall let out such work to and select contractors who have with the Inter- national Asciation of Machinists collective bargaining agree- ments which contain provisions corresponding to or consistent with the aforesaid jurisdictional limitations. The Employer refased to agree to paragraph 2 of article VII. Be- fore an impasse was reached, the IAM offered to modify paragraph 2 by limiting it to repair or replacement contracts, thus leaving the Employer free to select any contractor for the installation of new machhmery. The Employer also rejected this proposed modification; and tlxe IAM thereupon reinstated all its original demands. On April 7, 1952, the JAM called a strike of the Employer's ma- chinistan end established a picket line at the Employer's plant. The record clearly establishes that the disagreement over inclusion of paragraph I of article VII in the proposed contract was one of the causes, if not the principal cause, of the strike. On April JI, 1952, upon the Employer's application, a Missouri court issued a temporary order against the IAM restraining the strike and the }picketing. At ;the time of the strike, only one of several contractors then en- gaged a Anhe3aser-Busch projects was performing a contract which required millwright work, and such work was being performed by empl m 9I that cvntim for who were covered by a contract with the IAM, 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The contentions of the parties The Employer contends that the IAM induced and encouraged the Employer's employees and others to engage in a strike for the purpose of forcing the Employer and independent contractors per- forming construction work for the Employer to assign, and to cause to be assigned, particular work to employees represented by the IAM, rather than to employees represented by other labor organizations, notwithstanding the fact that neither the Employer nor such inde- pendent contractors were not failing in this regard to conform to an order or certification of the Board determining the bargaining repre- sentative for employees performing such work. The IAM contends in substance, inter atria, that it has not violated Section 8 (b) (4) (D) of the Act (1) because that section does not preclude a union from bargaining for contractual limitations on an employer's power to subcontract work; and (2) because there was no work in dispute actually being performed at the time of the strike or demand for the clause in question. C. Nature of the dispute; applicability of the statute In the decided cases under Sections 8 (b) (4) (D) and 10 (k) of the Act, the Board has had before it situations where an employer had assigned work, and two or more labor organizations or groups of employees claimed the work as theirs to the exclusion of other labor organizations or groups. Here, it is clear that no controversy exists with respect to the assignment of work to any of the Employer's employees. The Employer has coexisting contractual relationships both with the IAM and the Carpenters. Each of the contracts covers separate groups of employees, and neither union has any overlapping jurisdictional claim with respect to the employees represented by the other. The disagreement here arose over the IAM's demand, in the course of the 1952 bargaining negotiations between the Employer and the IAM, that the new contract, like the 1951 contract, include the provision pursuant to which the Employer, when subcontracting pro- jects requiring millwright work, "shall let out such work to and select contractors" who have collective-bargaining agreements with the IAM containing provisions such as those covering the Employer's own employees. The Employer contends in substance that a jurisdictional dispute as to millwright work exists now and has existed for some time. The Employer argues that the demand for the provision in question is in fact one phase of an over-all jurisdictional controversy; that, realistically, for economic reasons, the Employer has found it more INTERNATIONAL ASSOCIATION OF MACHINISTS 351 feasible to contract out rather than to assign this work to its own employees; and that, if the Employer continues to operate its busi- ness as in the past by contracting out work of this type, as it has a right to do, to grant the IAM's demand would necessarily cause the assignment of millwright work to JAM members to the exclusion of members of the Carpenters. Viewed in this light, the Employer further argues, the demand for the provision in question should be regarded as tantamount to a demand for the assignment of this par- ticular work under circumstances proscribed by the Act. We do not agree. As already indicated, at the time of the strike only one of several contractors then engaged in projects for the Employer was performing under a contract which required millright work. That contractor had in his employ employees who were cov- ered by a collective-bargaining contract with the IAM. Because of that fact, namely, that contractor's collective-bargaining contract with the IAM, there was actually no dispute between the IAM and the Employer as to the assignment of work in existence at the time of the strike. This was the factual situation, it may be noted, also at the time the Employer was asked by the IAM to incorporate the 1951 contractual limitation on subcontracting in the proposed 1952 contract. Moreover, it seems clear from the record that the IAM, at the times in question, was not demanding the assignment of any particular work, as that term is used in the Act, in that the IAM made no demand upon any contractor doing millwright work for the Employer that such work be done by employees covered by an IAM contract. Under these circumstances, there was no work assignment contro- versy affecting the Employer's employees-as to them the parties concede the absence of a dispute-nor was there a work assignment controversy as to the employees of a contractor doing millwright work for the Employer. The disagreement in this case relates only to the incorporation of the 1951 contractual provision, or a modified counterpart of it, in the 1952 contract then under negotiation-a provision intended to limit the Employer's selection of contractors. Such disagreement, viewed in the context of the contract negotiations, the desire on the part of the IAM to continue in effect the existing limitation on sub- contracting, and all the surrounding factual circumstances, cannot, in our opinion, be equated with a present demand for the assignment of work such as is contemplated by Section 8 (b) (4) (D) of the amended Act. Accordingly, we conclude that no dispute within the meaning of the Act was created either when the strike action was taken or when the incorporation of the provision in question was demanded. 352 DECISIONS OF NATIONAL LABOR RELATiOI1TS BOARD As we have found on the record before us no "lisp te" within the meaning of Sections 8 (b) (4) (D) and 10 (k), we shall quash the notice of hearing issued in this proceeding. Order On the basis of the foregoing findings of fact and conclusions of law, and on the entire record in this case, the National Labor Relations Board hereby orders that the notice of hearing heretofore issued in this proceeding be, and it hereby is, quashed. MEMBER HausTON took no part in the consideration of the above Decision and Order. GOODMAN'S, INC. and LOCAL 1430, INTERNATIONAL BROTHERHOOD or, ELECTRICAL WORKERS, AFL, PETITIONER. Case No. 2-RV-4141. November 18, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National La- bor Relations Act, a hearing was held May 13, 1952, before Lewis Moore, hearing officer. Pursuant to Board Orders on June 19 and August 27, 1952, the proceeding was reopened and remanded for further hearings, which were held on July 31 and September 15, 1952. The hi+aring officer's rulings made at the three hearings are free from prejudicial error and are hereby affirmed. pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Houston and Murdock]. The Employer, Goodman's, Inc., does business in Jersey City, New Jersey, where it is engaged in the retail sale of electrical appliances and the installation and servicing of radio and television sets. Be- cause the volume of its interstate operations, if considered alone, falls short of the Board's established jurisdictional minima, it is neces- sary to decide whether the Board should, for jurisdictional purposes, consider also the operations of certain related corporations. The Employer is a wholly owned subsidiary of Baycull Trucking Company, Inc., a holding and real estate managing corporation owned by five families. This five-family group also owns a 90-percent inter- est in Goodman Warehouse Corporation. The Warehouse Corpora- 1 During the 12 months preceding the original hearing, the Employer 's out-of-State purchases were approximately $49,000, and its out-of-State sales amounted to approximately $2,000. 101 NLRB No. 89.