Pile Drivers, Bridge, Wharf and Dock Builders

5 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing bargaining unit with respect to rates of pay, wages , hours of employment , and other conditions of employment , and, if an understanding is reached , embody such understanding in a signed agreement: All employees at our Hartford, Wisconsin, place of business , excluding salesmen, foremen , and office clerical employees as defined in the Act. WE WILL NOT in any manner interfere with the efforts of District No. 48 , International Association of Machinists , AFL, to negotiate for or represent the employees in the afore- said unit as their exclusive bargaining agent. P. A. MUELLER AND SONS, INC., Employer. Dated ................ By............................................................ ..................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered. defaced, or covered by any other material. PILE DRIVERS, BRIDGE, WHARF AND DOCK BUILDERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 34 , AFLi and SAMUEL A. AGNEW , d/b/a KLAMATH CEDAR COMPANY . Case No. 20-CD-33 . June 12, 1953 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, which provides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of para- graph 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 March 17, 1953, Samuel A. Agnew, d/b/a Klamath Cedar Company, hereinafter called the Company, filed with the Regional Director for the Twentieth Region of the Board a charge, and on March 24, 1953, an amended charge , against Pile Drivers, Bridge , Wharf and Dock Builders , United Brother- hood of Carpenters and Joiners of America , Local Union No. 34, AFL, hereinafter called the Respondent , alleging that it had engaged in and was engaging in certain activities , proscribed by Section 8 (b) (4) (D) of the Act. It was alleged , in substance, that the Respondent had induced and encouraged the employees of the Company to engage in a concerted refusal to work in the course of their employment with the object of forcing or requiring the Company to assign particular work to members of the Respondent rather than to employees of the Company. Thereafter , pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board ' s Rules and Regulations, the Regional Director investigated the charge and provided for an t The Union's name appears as corrected at the hearing. 105 NLRB No. 64. PILE DRIVERS, BRIDGE, WHARF AND DOCK BUILDERS 563 appropriate hearing upon due notice to both parties . A hearing was held before M . C. Dempster , hearing officer , on April 9 and 13, 1953 . The Company and the Respondent 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 . Although the parties were afforded an opportunity to file briefs with the Board , they did not do so. Upon the entire record in the case , the Board= makes the following: FINDINGS OF FACT 1. The Company' s business The Company is engaged in the logging and sawmill business near Klamath, California. During 1952, sales of approximately $700,000 were made, consisting mostly of lumber, over 50 percent of which, by value, was shipped to points outside the State . We find that the Company is engaged in interstate com- merce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case. 2. The dispute a. The facts The Company ' s plant borders on the Klamath River. About January 17, 1953, part of the plant was washed away during a flood . A substantial amount of machinery and equipment was swept into the river , and it was necessary to cease production entirely at the plant . To salvage the equipment , pile driving was instituted around February 1, 1953, in order to build a staging from which salvage operations could be conducted. Approximately six men were employed at this task .' Other employees were assigned to repair and salvage work. On Monday , February 16, a business agent of the Respondent, later identified as Glenn Ackerman, appeared at the Company's office . He spoke to Mrs. Motschman , bookkeeper and office manager of the Company .4 He told her that he wished to see either Agnew, the owner , or Cochran , the plant superintendent. She testified that he said he wanted to see them because pile driving "was their [the Respondent's] job." As neither man was in, Ackerman gave her his business card and told her to have 2Pursu.int to the provisions of Section 3 (b) of the Act the Board has delegated its powers in connection with this case to a three- nieniber panel [Members Murdock, Styles, and Peterson). 3 Two of the men were specialists at pile driving They had been employed by another company in which Samuel Agnew, the owner of the Company involved herein, is a partner. The rest were normally engaged in production work. 4 Mrs. Motschrtian has authority to sign collective-bargaining agreements for the Company. and did in fact sign the contract with Local No. 598. G 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Agnew contact him. This testimony was uncontradicted. Ackerman did not appear or testify at the hearing. The next day, Tuesday, pickets appeared at the plant, carry- ing banners stating "AFL Picket Line. Construction WorkOnly. Local 34." On Wednesday morning Agnew directed the plant superintendent to find out why the pickets were there. The superintendent, accompanied by the chief engineer , spoke to the apparent leader of the picketers; he found out later that the person to whom he spoke was Ackerman, the business agent who had visited the Company's office earlier in the week. The superintendent testified that Ackerman said "he was going to put their [the Respondent' s] men on that- -pile driver." In turn, the chief engineer also testified that Ackerman stated that the superintendent "would have to get the scab qs ... off that job, and they [the Respondent] would take over, and after the pile driving was done, that they would also take over the construction work." None of this testimony was contradicted. Williams, business representative of the Respondent, in his testimony at the hearing, admitted that his organization had engaged in the picketing beginning on February 17, 1953. The men employed at pile driving ceased work at this task Thursday noon, February 19, 1953. Some of the employees engaged in salvage work also ceased temporarily. It appears that the pile drivers were later reassigned to repair and salvage work along with the other employees. At the time of the hearing, pile driving had not resumed and the picketing was continuing. It is clear from the record that the Respondent has no con- tract with the Company and neither is, nor claims to be, the bargaining representative of any of the Company's employees. The Company did have an agreement with Lumber and Sawmill Workers Union, United Brotherhood of Carpenters and Joiners of America, Local Union No. 598, AFL, which was executed October 13, 1951, and supplemented February 20, 1952, covering all employees engaged in sawmill and logging operations. This agreement expired April 1, 1953. Local No. 598, although it was served with notice, did not appear at the hearing.5 b. Contentions of the parties The Company contends that the Respondent, by its conduct in attempting to force or require it to replace its employees engaged in pile driving by members of the Respondent and by instituting picketing in furtherance of this objective, violated Section 8 (b) (4) (D) of the Act. The Respondent contends that it has picketed the plant only for the purpose of bringing about discussions with the Company in order to have the Company pay the local prevailing wage 5 Redwood District Council with which Local No 598 is affiliated sent a letter to the Regional Office indicating that it did not assert jurisdiction over pile-driving work. However, it does not appear from the record that the employees engaged in pile driving were members of Local No 598. Indeed, at least two of the employees assigned to pile driving had been working for another company elsewhere on the West Coast. PILE DRIVERS, BRIDGE, WHARF AND DOCK BUILDERS 565 scales for pile driving ; that the picketing was peaceful; that the Respondent customarily pickets in order to protect the wage scales and working condition of its members ; that the pile -driving employees have continued to work for the Company and have not been induced or forced to leave such employment; and that the Company is free to continue to employ its present employees at pile-driving work. c. Applicability of the statute The charge , which was duly investigated by the Regional Director , alleges a violation of Section 8 (b) (4) (D ) of the Act. The Regional Director was satisfied that , upon the basis of such investigation , a violation of Section 8 (b) (4) (D) has been committed . On the record before us , we find that there is reasonable cause to believe that the Respondent engaged in activities proscribed by that section of the Act, with the object of forcing or requiring the Company to assign work in connec- tion with the pile-driving operations to members of its union rather than to the Company ' s employees. The Respondent , admitting that it has engaged in the picket- ing in question , asserted that the purpose of the picketing was to attempt to bring about discussions toward establishing prevailing rates of wages for the particular work on that particular job. However , it is clear from the record that the Respondent ' s business agent who spoke to the Company's representatives specifically claimed the pile-driving work for the Respondent ' s members, and that the picketing was for that stated purpose . Moreover , Williams, the Respondent ' s business representative , who attempted to show in his testimony that the Respondent had a policy of picketing jobs in order to establish wage rates , admitted on cross-examination that at no time had his organization discussed or considered the application of such policy to this particular job.6 Under all the circumstances , we find that the dispute in ques- tion is properly before us for determination in a proceeding under Section 10 (k). d. The merits of the dispute It is clear from the record that at the time the Respondent demanded of the Company the pile-driving work for its mem- bers, the Company had assigned such work to its own em- ployees. The Company neither then nor at any other time had 6 We find no merit in the Respondent 's other contentions : the nature of the picketing is immaterial (See N. L. R. B. v International Brotherhood of Electrical Workers, 341 U S 694); contrary to the Respondent , the record shows that pile- driving work did cease within 2 days after the picketing began; and even on the date of the hearing pile- driving work had not resumed. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any bargaining relationship with the Respondent . The dispute was therefore over an employer ' s assignment of work to its own employees rather than to members of a labor organization. The Board stated in Juneau Spruce Corporation:' 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 require- ment against discrimination as contained in Section 8 (a) (3). It is also well established that an employer is free to make such assignments without bein ubjected to the pressures proscribed by Section 8 (b) (4) (D ) s , "unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees per- forming such work."s It is clear that the Respondent does not claim to be the certified bargaining representative for em- ployees performing pile driving work. We find, accordingly , that the Respondent was not lawfully entitled to force or require the Company to assign pile -driving work to its members rather than to the Company ' s employees. DETERMINATION OF DISPUTE 9 On the basis of the foregoing findings of fact, and upon the entire record in this case , the Board makes the following determination of dispute , pursuant to Section 10 (k) of the Act: 1. Pile Drivers, Bridge , Wharf and Dock Builders, United Brotherhood of Carpenters and Joiners of America, Local Union No. 34, AFL, is not and has not lawfully been entitled to force or require Samuel A. Agnew, d/b/a Klamath Cedar Company to assign the pile-driving work to its members rather than to employees of the Company. 2. Within ten (10) days from the date of this Decision and Determination of Dispute , the Respondent shall notify the Re- gional Director for the Twentieth Region in writing as to what steps the Respondent has taken to comply with the terms of this Decision and Determination of Dispute. 7Juneau Spruce Corporation, 82 NLRB 650 8United Brotherhood of Carpenters and Joiners of America, Local 581 et al. (Ora Collard), 98 NLRB 346. 9 The Respondent, on April 20, 1953, requested that the decision in the instant matter be postponed as it intended to file forthwith a motion before the Board At the date of this deter - initiation of dispute, however , no motion had been filed.