Local 450

LOCAL 450 437 dlers, powerhouse helpers, tractor operators-heavy, oilers, janitors, and standby operators-inspectors, excluding condenser operators, in- side and outside water operators, compressor operators, well operators, instrument men, boiler cleaners and power area oilers, all other em- ployees, office clerical employees, professional employees, guards, and supervisors as defined in the Act.' 5. The Employer asserts that since the cessation of hostilities in Korea it has reduced its working force of power department employees from 118 to 51, that operations are on a standby basis and that no election should be directed at the present time. We find no merit in this contention. The record shows that, although the power depart- ment has been reduced, a substantial number of employees are still working and apparently will be retained for at least another year and the Employer has no current plans for increasing production. In these circumstances we believe that the policies of the Act will be effectuated by the direction of an election at this time.9 [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above Decision and Direction of Election. 8 The Employer agrees that this description includes all classification of the power department. In its brief however the Employer also attacks the appropriateness of the requested power department unit on the giound that it does not seek to include 10 main- tenance employees These employees work out of a shop in powerhouse No. 2 and repair boilers. They perform no powerhouse duties, are separately supervised by a maintenance superintendent, and are not classified as power department employees but are classified as maintenance department employees . We will therefore exclude them . See E I. du Pont de Nemours & Company, supra. 9 See If. I. du Pont do Nemours and Company , use, Construction Division, Savannah River Plant, 107 NLRB 734 and cases cited therein. Local 450, International Union of Operating Engineers, AFL and W. J. Hedrick and H . W. Marschall, Jr., d/b/a Industrial Paint- ers and Sand Blasters. Case No. 39-CD-14. April 25, 1955 DECISION AND DETERMINATION OF DISPUTE 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 de- termine the dispute out of which such unfair labor practice shall have arisen. . . ." On September 13, 1954, W. J Hedrick and H. W. Marschall, Jr., doing business as Industrial Painters and Sand Blasters, herein called the Employer, filed with the Regional Director for the Sixteenth 112 NLRB No. 60. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region a charge alleging that Local 450, International Union of Operating Engineers, AFL, herein called the Operating Engineers, has engaged in and is engaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act, in that (a) it ". . . caused and attempted to cause painter employees of Industrial Painters and Sand Blasters to engage in a strike . . . to force Industrial Painters and Sand Blasters to assign work to members of Local 450 rather than to employees in another labor organization or in another trade, craft or class," and that (b) "Industrial Paint and Sand Blasters employed one member of Local 450 and Local 450 engaged in a strike to force and require the employer to hire additional members of Local 450 rather than to assign the work in question to other employees." 1 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 a hearing upon due notice to all parties. The hearing was held on November 2 and 22, 1954, at Houston, Texas, before Evert P. Rhea, hearing officer of the Board. All parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer are free of prejudicial error and, except as modified hereinafter, are hereby affirmed? The Operating Engineers filed a brief with the Board. At the close of the hearing, the Operating Engineers moved to dis- miss the charge on the ground that it fails to state a violation of Section 8 (b) (4) (D) of the Act. The motion is hereby denied for the reasons hereinafter stated. ' 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 (4) to engage in, or to induce or encourage the employees of any employer to engage 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 deter- mining the bargaining representative for employees performing such work. . . . 2 At the hearing , the Employer offered to pi ove , among other things, that on the par- ticular job in dispute the fueling of the compressors was assigned to one of its regular employees , that the starting and stopping of the compressors was assigned to the laborer who was nearest to the machine , and that the Employer refused to employ Operating Engineers' members because it preferred to continue assigning these tasks as in the past, especially as the staiting and stopping operations took no more than 15 minutes a day The hearing officer rejected the offer of proof, relying on the limited character of the notice of hearing For the reasons hereinafter stated, we find that the proffered evidence was pertinent to the issues raised by the charge , and therefore reverse the hearing officer's ruling However, as the record contains other evidence which we find hereinafter suffi- cient to warrant a finding that there is reasonable cause to believe that the Respondent engaged in activities proscribed by the Act , we conclude that the rejection of the offer of proof was not prejudicial LOCAL 450 FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER 439 W. J. Hedrick and W. H. Marschall, Jr., d/b/a Industrial Painters and Sand Blasters, is a partnership which operates a plant at Texas City, Texas, for the purpose of providing painting and sand blasting services to industrial concerns. During the year ending July 30, 1954, the Employer performed services totaling $750,000 in value, of which 90 percent was rendered to major oil and industrial firms engaged in commerce, including Gulf Oil Corporation, The Texas Company, Cities Service Oil Company, Continental Oil Company, Republic Oil Corporation, Monsanto Chemical Company, and Con- solidated Vultee Corporation. We therefore find that the Employer is engaged in commerce within the meaning of the Act.' II. THE FACTS For its painting operations the Employer uses paint sprayers powered by air compressors. The instant dispute concerns the opera- tion of the air compressors which, because of their fully automatic character, consists of 3 simple steps to start the compressor engines and 1 simple step to stop them. Because of the relatively insignificant character of the work involved, the Employer does not customarily assign the starting and stopping of the compressors to any one person, but rather to whichever of its laborers happens to be nearest them .4 The instant dispute arose while the Employer was commencing operations under a contract to paint oil tanks at Fauna, Texas, for Cities Service Oil Company. Between September 2 and 6, 1954, the Employer moved the 12 employees needed for the work to the job site, together with the requisite equipment, including 3 or 4 paint sprayers, with air compressors. The work commenced on Monday, September 6, 1954. On September 7, Earl E. Ford, business repre- sentative for the Operating Engineers, asked the Employer's fore- man, Vincent, to hire 1 man for each of the 3 compressors then in use or about to be used. Vincent told Ford that he would hire only one compressor operator and asked Ford to send him to the job site.' On Wednesday, September 8, a member of the Operating Engineers reported for work and was employed by the Employer from 9 a. in. to a Jonesboro Grain Drying Cooperative, 110 NLRB 481 • The compressor automatically responds to variations in air pressure in the line The operations require punching a button to start the engine on gasoline , flipping a lever, after a minute, to run the engine on diesel fuel , and turning a clutch screw to engage the engine with the hydraulic assembly . Stopping operations merely involve pulling a choke. The Employer contracts with an outside firm for the regular maintenance of the spraying and compressor equipment , which is performed during nonworking hours. 6It is not clear whether or not the compressors were in operation on September 6 and 7 The fueling of the compressors had been assigned to a single employee prior to September 7. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4: 30 p. in. on that day as well as on the next day, September 9. He started the 3 compressors in the morning on both days. During the same 2 days, 1 of the Employer's regular employees turned off the compressors ; during those days, the Employer's other employees worked from 9 a. in. to 7 p. in. On Wednesday, September 8, Ford also told Hedrick, 1 of the partners of the Employer, that he should employ 2 more compressor operators on the job. When asked why, Ford stated that if Hedrick did not employ them, he would "get his job messed up." On Thursday, September 9, Ford demanded that the Employer hire another man for the compressors and that it also pay overtime to the member of the Operating Engineers it had already hired for the 2 days worked for the reason that he was not allowed to work overtime from 4: 30 to 7 p. in. on each day. He further asked the Employer whether it would be willing to hire 1 man to operate 2 compressors, that had been banked, i. e., placed side by side so that 1 operator would have ready access to both compressors. The de- mands and the request were not granted. On Friday, September 10, the Operating Engineers established a picket line at the job site with signs reading "Local 450, Operating Engineers, in dispute with Industrial Painters and Sand Blasters." Work ceased at the job site due to the strike. During the following week, Ford reiterated his demand that the Employer hire a member of the Operating Engineers for each compressor. In the latter part of October 1954, Cities Service Oil Company canceled the Employer's contract. Only 20 percent of the work had been completed by that time. The Operating Engineers stipulates that it "would picket the employer's job if a similar instance arose." III. THE CONTENTIONS OF THE PARTIES The Employer, the Charging Party herein, asserts that by the above conduct the Operating Engineers, the Respondent herein, violated Section 8 (b) (4) (D) of the Act. The Respondent contends, in substance, that its conduct as charged did not constitute a violation of Section 8 (b) (4) (D) as the strike was occasioned by the Employer's refusal to pay overtime, not by the Employer's refusal to assign the disputed work tasks. IV. 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, and the Re- gional Director was satisfied on the basis of such investigation that there was reasonable cause to believe that a violation of Section 8 (b) (4) (D) of the Act had been committed. It is clear that at the time the Operating Engineers made its initial demand that the Employer hire its members on the basis of one oper- LOCAL 450 441 ator for each compressor, the Employer had assigned, or was about to assign, the starting and stopping operations on the compressors to whichever of its own laborers was working nearest to the compressors. The record further shows that the Operating Engineers made repeated demands during the entire course of the dispute to require the Em- ployer to hire its members to operate the air compressors to the exclu- sion of the Employer's own employees who customarily performed the simple operations necessary to start and stop these machines. The Operating Engineers does not claim that it is the collective-bargain- ing representative under a Board certification for employees perform- ing the work task in dispute. Although there was evidence that the demand by the Operating Engineers for the placement of one operator on each air compressor was in accord with an agreement between the Operating Engineers and the Houston Chapter of A. G. C., it is clear from the stipulation of the parties that this Employer was not a party to or bound by any contract with the Operating Engineers. Indeed, the record affirmatively establishes that the Employer was neither a member nor an associate member of the Houston Chapter of A. G. C. The Operating Engineers contends, however, that the dispute was limited to a demand and a refusal to let the member of the Operating Engineers earn overtime pay from 4: 30 to 7 p. in. on the 2 successive days that he worked for the Employer. The Operating Engineers also contends that the Act was not violated in the respects charged because the Employer had actually already made an assignment of the disputed work to one of its members. In light of the entire record and the evi- dence adduced at the hearing, we cannot agree with so narrow a view of the character of the dispute in this case. We note that the Operat- ing Engineers on September 9, after the Employer's limited acqui- escence to its demands, by hiring one operator, requested that the Employer hire an additional member of that Union, and that when the Employer refused to agree to this, established a picket line at the job site on the very next morning, September 10. Moreover, following the establishment of the picket line, the Operating Engineers returned to its original demand that the Employer employ one operator for each air compressor, and, in addition, pay its member "for the over- time that he was prevented from earning." That the Employer tem- porarily acquiesced in the demands did not in any way diminish the essential nature of this dispute.6 Clearly, within the next 24 hours, the dispute was again very much alive when the Operating Engineers renewed its demand that the Employer hire only its members to do work which the Employer insisted belonged to its own employees. 6In Direct T>ansst Lines, Inc., 92 NLiIB 1715, there was such temporary acquiescence, but this did not alter the essential nature of the controversy or the character of the dispute which was that the Employer insisted on the right of its own employees to perform the work tasks in dispute 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The facts of this case are essentially like those in Empire State Painting and TVaterproo fing Co. Inc.,7 where the Employer assigned the work of starting, stopping, and occasionally oiling an air com- pressor to one of its laborers who spent approximately 90 percent of his time at other manual work, and the Operating Engineers de- manded that the Employer hire 1 of its members on a full-time basis to operate the air compressor. The Board found in that case that there was "reasonable cause to believe that the Respondents engaged in activities proscribed by [Section 8 (b) (4) (D) ] with the object of forcing or requiring the Employer to assign work on the air compressor to members of [Operating Engineers] rather than to the Employer's own employees who were members of other labor organizations." That the Employer's own employees here did not belong to other labor or- ganizations does not change the result because Section 8 (b) (4) (D) of the Act is phrased in terms of "employees in another labor organ- ization or in another trade, craft, or class." (Emphasis added.) It is obvious that the laborers of this Employer belonged to another "class" of employees, and that the activities of the Operating Engineers there- fore fell within the proscriptions of the Act as it did in the Empire State case. Thus, whether we regard this dispute as a narrow one, i. e., a controversy over the reassignment of overtime work to the members of Operating Engineers, as apparently the Regional Director did, or as a broader one, i. e., a controversy over the entire operation of the compressors, as the record appears to support, we are of the opinion that the Regional Director's conclusion that there is reasonable cause to believe that Section 8 (b) (4) (D) was violated is fully war- ranted. Under the circumstances, and for the reasons herein stated, we find that, even apart from the Employer's offer of proof, which the hearing officer erroneously rejected, the record supports the above finding. In view of this result, we further find that the hearing of- ficer's ruling was not prejudicial. We also find no merit in the Operating Engineers' second conten- tion that there was no actual assignment of the work. We have al- ready called attention to the facts of this case which clearly show that the work of starting and stopping the air compressors was a function regularly performed on a part-time basis by the Employer's own laborers, and that such work was either assigned to them or about to be assigned. The real crux of this dispute, in our opinion, was the insistence by the Operating Engineers that the Employer utilize a member of the Union on a full-time basis for a work-function that could be performed, and had in fact been performed, by one of the Employer's own laborers on the basis of less than one-half hour a day. The record in this case amply supports this finding. 'International Union, of Operating Enginee>s, Locals 17, 17A, and 17B (Empire State Painting and Waterproofing Co Inc ), 99 NLRB 1481. LOCAL 450 443 Accordingly, on the record before us, we find that there is reasonable cause to believe that the Operating Engineers engaged in activities proscribed by Section 8 (b) (4) (D) of the Act, with the object of forcing or requiring the Employer to assign work on the air com- pressors to members of its Union rather than to the Employer's own employees who were not members of that labor organization. V. THE MERITS OF THE DISPUTE It is clear from the record that the dispute was over an employer's assignment of work to members of one labor organization rather than to employees of the employer who were not members of that labor organization. The Board stated in Juneau Spruce Corporation: 8 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 em- ployer's freedom to hire, subject only to the requirement against discrimination as contained in Section 8 (a) (3). It is also well established that an employer is free to make such assignment without being subjected to the pressures proscribed by Section 8 (b) (4) (D) "unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work." 9 It is clear that the Operating Engineers does not claim that it is the certified bargaining representative for employees performing Work on the Employer's air compressors.lo We find accordingly that the Operating Engineers were not law- fully entitled to require the Employer by methods proscribed by Section 8 (b) (4) (D) to assign Work on the Employer's air com- pressors to the Respondent's members rather than to the Employer's own employees who were not members of that labor organization. VI. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the en- tire record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act : 1. The Respondent, Local 450, International Union of Operating Engineers, AFL, is not, and has not been, lawfully entitled to force s Juneau Spruce Corporation, 82 NLRB 650 ° United Brotherhood of Carpenters and Jotiners of America, Local 581 et al (Ora Collard), 98 NLRB 346 10 We find no merit in the Operating Engineers' contention that this controversy stems from the alleged refusal by the Employer to pay one of its members pay for overtime not worked, which it contends n as discriminatory. This contention is predicated on a dis- regard of the essential nature of the dispute which was to force the Employer to employ full-time members of the Operating Engineers for work that the Employer assigned on a part-time basis to its employees who were not members of that labor organization 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or require W. J. Hedrick and W. J. Marschall, Jr., d/b/a Industrial Painters and Sand Blasters, to assign air compressor work to its members rather than to the employees who are not members of that labor organization. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, the Respondent shall notify the Regional Direc- tor for the Sixteenth Region, in writing, as to what steps the Re- spondent has taken to comply with the terms of this Decision and Determination of Dispute. MEMBER LEEDOM took no part in the consideration of the above Decision and Determination of Dispute. Maxon Construction Company, Inc. and Brotherhood of Paint- ers, Decorators and Paperhangers of America, Local Union No. 437, AFL, and its agent, Edgar A. Peterson and Ray Lunsford, Roy E. Stephens, Kenneth J. Weaver, William H. Kaiser, Jr., Omer F. Waldrop, Charles R. Scruggs, Charles O. White, Roy E. Bates, Tom A. Holt, Calvin L. Gaskey and Frank L. Weaver. Cases Nos. 10-CA-1905, 10-CA-1932, 10-CB-185, and 10-CB-207. April 25, 1955 DECISION AND ORDER On September 21, 1954, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in any unfair labor practices and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent Company and the Respondent Union each filed a reply brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. 112 NLRB No. 62.