Local 595

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the letter in issue herein is merely an expression of the Employer's opinion and argument and electioneering propaganda privileged under Section 8 (c) of the Act. Moreover, it does not appear to us that the portion of the letter specifically adverted to by the Petitioner is such as to influence the employees improperly or to prevent their exer- cise of a free choice 2 Accordingly, as we have found no merit in the Petitioner's objec- tions, and, as the tally shows that a majority of the ballots has not been cast for the Petitioner, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for Local No. 49, International Union of Operating Engineers, A. F. L., and that the said Union is not the exclusive representative of the employees at the operations of L. G. Everist, Inc., Dell Rapids, South Dakota.] a Stewart-Warner Corporation, supra. Local 595, International Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., and Its Business Agent, W. B. Sanders, Iron Workers Association, Inc. and W. B. Sand- ers, Resident Agent and Bechtel Corporation. Case No. 14- CD-39. May 20,1955 DECISION AND ORDER On December 15, 1954, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding finding that the Respondents had not engaged in and were not engaging in any unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. Accordingly, he recommended that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with this Decision and Order. 1. Pursuant to Section 10 (k) of the Act, the Board issued a Deci- sion and Determination of Dispute on May 11, 1954.1 It found that Respondents, Local 595 and W. B. Sanders, were not lawfully entitled 1 Local 595, International Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., and its Business Agent, W. B. Sanders , 108 NLRB 823. 112 NLRB No. 110. LOCAL 595 813 to induce and encourage employees of Bechtel Corporation, as pro- scribed by Section 8 (b) (4) (D), for the object of forcing or requir- ing Bechtel to assign the work of the ironworker's trade in connection with the Joppa Steam Electric Generating Plant project to members of Local 595 rather than to nonmembers of Local 595 or to members of Local 758, International Association of Bridge, Structural and Ornamental Iron Workers, AFL. In the determination the Board stated, inter alia, that "within ten (10) days from the date [thereof] , the Respondents . . . shall notify the Regional Director for the Fourteenth Region, in writing, as to what steps [they] have taken to comply with the terms of this Decision and Determination of Dispute." The principal issue for consideration here is whether the Respond- ents, Local 595 and Sanders, have complied with the Decision and De- termination of Dispute. The General Counsel contends that the failure of these Respondents to send a letter to the Regional Director within the time specified in the notice provision constitutes noncom- pliance by them and justifies his issuance of the instant 8 (b) (4) (D) complaint. The Trial Examiner in recommending dismissal of the complaint relies upon the Board's order 2 and decision 3 in the West- inghouse case as dispositive of the issue. In the Westinghouse case, the Board held (1) that the intent of Congress was that the General Counsel should allege and prove non- compliance with a 10 (k) determination in the 8 (b) (4) (D) proceed- ing; (2) that the particular respondents were not proven by substan- tial evidence to have engaged in any strike or other compulsive activity that could constitute noncompliance with the terms of the de- termination; and (3) that because no affirmative action was required by the Board's determination, the failure to notify the Regional Direc- tor of what was or was not clone did not alone establish noncompliance. In our opinion, for the reasons which will be hereinafter given, the present case is clearly distinguishable from Westinghouse. However, before discussing the substantial difference between these two cases, some observations appear appropriate as to how Sections 10 (k) and 8 (b) (4) (D) fit into the statutory scheme and as to the nature of compliance with a 10 (k) determination. The substantive matter presented by this complaint proceeding is whether the Respondents engaged in unfair labor practices within the meaning of Section 8 (b) (4) (D) by certain conduct occurring before the filing of the charge on which the complaint is based. Section 8 (b) (4) (D) alone defines the unfair labor practice and it makes no reference to compliance. Such reference is to be found in Section 10 (k) which states, in relevant part, that "upon compliance by the 0 Los Angeles Building and Construction Trades Council , A F. L, et at., 88 NLRB 1101. 3 Los Angeles Building and Construction Trades Council, A. F. L, et at, 94 NLRB 415. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Respondents] . . . with the [10 (k) ] decision of the Board . . [the 8 (b) (4) (D) ] charge shall be dismissed." Section 10 (k) must be viewed as a part of the whole procedural machinery prescribed in Section 10 for the prevention of all unfair labor practices. The heart of this machinery is Section 10 (b) which provides for investigation of a charge and issuance of a complaint based thereon by the General Counsel. For a charge alleging an unfair labor practice other than one involving 8 (b) (4) (D), if investigation discloses reason to be- lieve that it is true, formal proceedings are initiated by an unfair labor practice complaint. For an 8 (b) (4) (D) charge, Section 10 (k) in- terposes an intermediate formal step between the completion of inves- tigation of the charge and the issuance of a complaint based thereon.. It provides for a hearing and a declaratory ruling by the Board on. the question of legal entitlement to force or require the work assign- ments involved in the underlying dispute, which is designed to facili- tate settlement of the dispute and to obviate the need for further pro- ceedings. If the 10 (k) procedure has failed to produce a settlement or acceptance by the parties of the Board's determination of the under- lying dispute, then the further proceedings-the issuance of a coin- plaint based on the charge followed by the traditional procedure for determination and redress of all unfair labor practices-are spelled out in Section 10 (b), not 10 (k). Once the procedural conditions, precedent to the invocation of Section 10 (b) have been met and a com- plaint has been properly issued, the only substantive matter then to be decided in an 8 (b) (4) (D) proceeding is whether an unfair labor practice was committed within the meaning of that section as of the time alleged and, if so, what the appropriate remedy should be. As previously indicated, Section 10 (k) requires that if the respond- ents have complied with the Board's determination, the charge must be dismissed. Unlike other complaint cases where the Board's decision is implemented by a remedial order which is subject to judicial review or enforcement, this is the only sanction supporting the Board's in- terim declaration of the rights of the parties. It is clear therefore,. that, before any consideration can now be given to the merits of the alleged 8 (b) (4) (D) violation here, we must first decide whether the Respondents have complied with our 10 (k) determination. In order to arrive at such a decision, we must explicate what we believe constitutes compliance, or the want of it. Obviously, the criterion for assessing compliance must perforce give due recognition to the basic purpose of Section 10 (k), which is to attempt to resolve by effective voluntary action jurisdictional disputes that otherwise would have to be remedied by the compulsory processes of the Act. In the 10 (k) proceeding involved herein the Board determined that the Respondents, Local 595 and Sanders, were not lawfully entitled to engage in certain conduct. If that had been an 8 (b) (4) (D) pro- LOCAL 595 815 ceeding and the Board found that the Respondents had violated the Act, the remedy would have been an order restraining them from doing that which we held they might not lawfully do. However, Section 10 (k) gives a respondent union the opportunity to forestall such an order by complying with the Board's determination. But since the ultimate objective of a 10 (k) and an 3 (b) (4) (D) pro- ceeding is the same-to obtain cessation of the particular conduct- the measure of compliance should likewise be the same. Otherwise, compliance would be meaningless and the statutory purpose of pro- viding an effective voluntary substitute for compulsory remedial ac- tion would be thwarted and frustrated. In our opinion, the minimal requirement for a finding of compli- ance with a 10 (k) determination ought to be a manifested good-faith intent by the particular respondents to accept and abide by the Board's determination and to refrain then and in the future from doing that which the determination has stated may not rightfully be done. It should include performance by the respondents of substantially the same kind of acts as would be required for a showing that they were intending to abide by a remedial order of the Board, such as indicating a willingness to confer with the Regional Director regarding imple- mentation of their avowed inten( to accept the Board's determination, furnishing appropriate notices to employees and/or the particular employer, if considered advisable by the Regional Director, and giv- ing such additional assurances as the Regional Director might require to insure adherence to the determination. We believe that a refusal or unwillingness so to abide by and accept the Board's determination constitutes evidence of noncompliance warranting issuance of a complaint. We turn now to a consideration of the situation in the instant case in the light of the foregoing standard which we have set forth and the Board's decision in the Westinghouse case. In Westinghouse, the Board alluded in passing to the absence of "any strike or other com- pulsive activity" by the respondents subsequent to the 10 (k) deter- mination. The Trial Examiner seizes upon this language as standing for the proposition that evidence of such conduct is a sine qua non for a finding of noncompliance. We do not accept this interpretation of the Trial Examiner. In our opinion, the Board was merely giving illustrative and not exclusive examples of the types of conduct which would constitute noncompliance. Of course, engaging in the same or similar conduct which constituted the basis for the Board's 10 (k) determination affords the most patent proof of noncompliance. But this does not mean there can be no other. Indeed, in the Juneau Spruce case,' the Board in finding a failure of compliance specifically 4Internatmuai Lonry,horen(en's and IVarehouscmer'n Union, Local No 16, CIO, et al, 90 NLRB 17:13 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD referred to an express statement by the respondent union that it "did not elect . . . to comply" and its continued adherence to the jurisdic- tional claim as well as its continued picketing after the 10 (k) determination. The record in this case fails to show any strike or other compulsive activity independently violative of Section 8 (b) (4) (D) engaged in by the Respondents after the date of the 10 (k) determination. Nor is there evidence of any express declaration by the Respondents that they refused to comply before issuance of the complaint. In our opinion, the compliance issue must be resolved by answering the question whether the failure of the Respondents to notify the Re- gional Director within the time prescribed by the notice provision in the 10 (k) determination, what steps they had taken to comply, justi- fied a presumption that the Respondents did not intend to abide by and accept the Board's determination, which warranted issuance of the complaint. In the Westinghouse case, the Board held that the union's failure to, furnish the Regional Director with written notice, standing alone, was insufficient to establish noncompliance with the terms of the Board's 10 (k) determination. The General Counsel contends that the situation there was different in that the notice provision in the 10 (k) determination was a permissive one 5 (". . . the Respondents. may notify the Regional Director . . . what steps [they] have taken to comply. . . .") whereas in the 10 (k) determination here it was. mandatory or imperative (". . . the Respondents shall notify the Re- gional Director. . . ."). The Trial Examiner is of the opinion that the Westinghouse decision does not turn upon whether the respondents might or must give written notice to the Regional Director, but rather on the broad principle that the General Counsel has the burden of proving noncompliance and the mere failure to furnish notice is in- adequate to support a finding of noncompliance. With respect to the change in the notice provision from the "may"' used in Westinghouse to the "shall" used here, we think that the posi- tion taken by the General Counsel is a meritorious one. Thus, in Westinghouse, in referring to the notice provision, the Board said "... because no affirmative action was required by the Board's deter- mination," [emphasis supplied], the failure to notify the Regional Director of what was or was not done did not establish noncompliance. But, here the notice provision called for affirmative action by the Respondents. They were directed to furnish written notice within a specified period of time. The word "shall" in its common and ordi- nary meaning always has a compulsory sense.' Regarding inferences °Los Angeles Building and Construction Trades Council, A F L, et al., 83 NLRB 477- 0 See for example, City of Madison v Daley, 58 Fed 751 , 753, Clark v. Patterson, 21- Ill 539 LOCAL 595 817 which may be made from a failure to furnish notice within the pre- scribed time, there is a considerable difference between inaction in the Westinghouse case where there was no duty to act and a failure to respond here where affirmative action was required. Not giving notice where one is under no obligation to do so may signify nothing. Fail- ure to supply such notice in the face of a positive requirement is equitable to a refusal. We do not think it too much to expect that a union having a good-faith intent to accept and abide by a 10 (k) determination will comply without hesitation with a formal require- ment of notice to the Regional Director. In our opinion, an inference of lack of such intent is reasonably to be drawn from a respondent's failure to comply with the terms of the notice requirement. We agree with the Trial Examiner that the Westinghouse case places the burden of proving noncompliance upon the General Counsel. However, we believe that the General Counsel should be deemed to have satisfied his obligation when he shows that the respondents were given an opportunity to comply before the complaint issued and on the basis of all the evidence brought to his attention, including any failure of the respondents to supply information which they were under a duty to submit, he reasonably concluded that the respondents failed to comply satisfactorily with the 10 (k) determination. In view of the foregoing, we hold that the failure of the Respond- ents, Local 595 and Sanders, to furnish written notice to the Regional Director as required by the determination gave rise to a presumption of noncompliance which warranted the General Counsel in issuing the complaint. Furthermore, we find that by the evidence which the General Counsel has presented, particularly with respect to the failure of the Respondents to supply information which they were under a duty to submit, the General Counsel has sustained his burden of proving noncompliance. At the hearing in this case on October 18, 1954, the attorneys for the Respondents, Local 595 and Sanders, presented to the General Counsel a letter stating that since the date of the temporary restraining order issued by the U. S. District Court in October 1953, the Respondents have not attempted to refer any members to the Joppa project, nor caused any work stoppage, and since May 11, 1954, they have com- plied with the Board's determination and have not attempted to force or require Bechtel to assign work of the ironworker's trade to Local 595 rather than to nonmembers or to members of Local 758. The General Counsel asserts that the letter contains no assurances against future violations. Respondents' counsel offered to rephrase the letter to overcome this objection of the General Counsel 4 and con- tended that the case was thereby rendered moot. 7 In his brief the General Counsel contends that this finding of fact by the Trial Examiner is incorrect. However, it is supported by the record. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In our opinion , neither the letter nor the offer can affect the com- pliance issue . The Respondents were given 10 days after the 10 (k) determination within which to furnish the required information. We believe that it is necessary, in order that the policies of the Act may best be effectuated, that some time limitation be imposed upon a union within which it must declare its position on compliance. For, under Section 10 (k) an administrative decision, which is contingent upon compliance or noncompliance, must be made as to whether the charge should be dismissed or a complaint issued. This decision, which is pro- cedural in character and involves an administrative discretionary judg- ment, must be made by the General Counsel or the Regional Director on his behalf prior to issuance of the complaint. Its validity must be tested on the basis of available facts as of that time. As the Respond- ents' letter and offer were not submitted until after the complaint is- sued-indeed, about 5 months after the 10 (k) determination-they were too late to have any impact upon the compliance question. For, as we have indicated, compliance is a procedural platter having relevance only with respect to the propriety of the issuance of the complaint and in this type of situation must be determined on the basis of the facts as they existed at the time the complaint issued. Regarding the conten- tion of the Respondents that their letter and offer render the case moot, it is clear under well-settled principles of both 'Board and court, law that any possible change since issuance of the complaint in the position of the Respondents with respect to forcing Bechtel to assign work of the ironworker's trade to Local 595 does not make the Respondents' substantive violations moot.8 Having found that the Respondents, Local 595 and Sanders, have not complied with the Board's 10 (k) determination, we turn now to the merits of this complaint proceeding which, as we have indicated, is concerned with whether the Respondents, Local 595 and Sanders, have engaged in unfair labor practices in violation of Section 8 (b) (4) (D). All the factors essential for a finding of a violation of this section of the Act are present here : it is clear from the record that Local 595 and Sanders were responsible for the work stoppage and picketing at Bechtel Corporation's Joppa job; by such conduct these Respondents induced and encouraged the employees of Bechtel to engage in a concerted refusal to perform services for the Bechtel Cor- poration; their object was to force Bechtel to assign the work of the ironworker's trade to members of Local 595 rather than to nonmembers or to members of Local 758; and Bechtel was not failing to conform to any order or certification of the Board determining the bargaining 8 Sec for example. Yaninan & Erbe Mfg Co , 89 NLRB 991 ; N L. R B. v United Brother- hood of Carpenters and Joiners of America, et al, 184 P 2d 60, 63 (C A 10 ), cert denied 341 U S 947 LOCAL 595 819 representative for the employees performing the work in dispute. Accordingly, we conclude that Local 595 and Sanders violated Section 8 (b) (4) (D) of the Act. 2. In the complaint in this case the General Counsel has joined Iron Workers Association, Inc., and W. B. Sanders, resident agent, with Local 595 and W. B. Sanders, business agent, as Parties Re- spondent. The General Counsel contends that the Association is in purpose and in fact an alter ego of Local 595 established by Sanders and the officers of Local 595 to avoid the inescapable consequences of their having caused the work stoppage at the Bechtel project. At the hearing the General Counsel adduced no evidence that the Association had ever engaged in or was engaging in any conduct disapproved of by the Board in the 10 (k) determination. The Trial Examiner found that the Association had not engaged in any unfair labor prac- tices and, since the record failed to disclose that the Association car- ried on any of the normal functions of a labor organization, he did not find that it was a labor organization as defined in the Act. The Trial Examiner's holding that the Association, under the cir- cumstances involved here, is not a labor organization is contrary to Board precedent.9 Thus, under Section 2 (5) of the Act, it is the purpose for which the organization exists that is controlling and not whether the organization has actually functioned. The articles of incorporation of the Association which set forth its purpose 10 satisfy the statutory definition and we find that the Association is a labor organization within the meaning of the Act. The record clearly supports the General Counsel's contention that the Association is the alter ego of Local 595. However, in view of the failure of the General Counsel to show that the Association has engaged in any conduct disapproved of in the 10 (k) determination and in view of the fact that as an alter ego the Association is covered prospectively by the cease and desist order which we shall issue against Local 595, Sanders, and their agents for their violation of Section 8 (b) (4) (D), we find it unnecessary to include the Association specifically by name in that order. THE REMEDY Having found that the Respondents, Local 595 and Sanders, have violated Section 8 (b) (4) (D) of the Act, as set forth above, we shall order them to cease and desist from such conduct. We shall also order that these Respondents take certain affirmative action de- signed to effectuate the policies of the Act. ° See for example, 11(odern Cleaners Company, 100 NLRB 37 10"4 To maintain and to help others maintain union principles wages, and hours as spon,med by the international Association of Bridge, Structural, and Ornamental Iron- workei s " P,,W)023-50-vol 112-- i3 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAw 1. Local 595 and Local 758, International Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., Iron Workers Association, Inc., and International Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., are each labor organizations within the meaning of Section 2 (5) of the Act. 2. By engaging in a work stoppage and picketing and by inducing and encouraging the employees of Bechtel Corporation to engage in a concerted refusal in the course of their employment to perform services with an object of forcing or requiring Bechtel Corporation to assign the work of the ironworker's trade to members of Local 595 rather than to nonmembers or to members of Local 758, the Respondents, Local 595 and Sanders, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Local 595, Inter- national Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., and its Business Agent, W. B. Sanders, their repre- sentatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing and encouraging the employees of Bechtel Corporation to engage in, a strike or a con- certed refusal in the course of their employment to perform services, where an object thereof is to force or require Bechtel Corporation to assign the work of the ironworker's trade to members of Local 595 rather than to nonmembers or to members of Local 758, unless and until Local 595 is certified by the Board as the bargaining representa- tive of the employees performing such work. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at their business office copies of the notice attached hereto marked "Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by their official representatives, be posted by the Respond- ents immediately upon receipt thereof, and maintained for a period of sixty (60) consecutive days thereafter, in conspicuous places in- cluding all places where notices to members of Respondents are cus- 11 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " LOCAL 595 821 toinarily posted. Reasonable steps shall be taken by said Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourteenth region, in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. MEMBIEII Muanocx, dissenting : Because the Decision and Determination of Dispute did not state what would constitute compliance, I would find, under the circum- stances here, that the cessation of the proscribed conduct was suffi- cient to constitute compliance with the determination. I assume that the Board is interested in the substance of compliance rather than particular forms. Therefore, the mere fact that the Respondent did not write a letter to the Regional Director informing him that it had ceased engaging in the proscribed conduct cannot detract from the fact of actual compliance by reason of the cessation of the proscribed conduct. I note that my colleagues state that the failure of the Respondent to furnish the written notice to the Regional Director "gave rise to a presumption of noncompliance." 12 If this is true, I take it that such presumption is at least rebuttable and I would find that the Re- spondent did rebut it at the hearing. At that time, attorneys for the Respondent tendered a letter to the General Counsel stating that since May 11, 1954, they have complied with the Board's determination and have not engaged in any of the proscribed conduct. Respondent's counsel answered an assertion by the General Counsel that the letter contained no assurances against future violations by offering to re- phrase the letter to take care of this objection. Particularly, in the light of this circumstance, it seems to me that my colleagues are exalting technicalities over the fact of compliance in finding non- compliance with the Board's determination. I note that the majority opinion states that the minimal require- ment for a finding of compliance with a 10 (k) determination "ought to be a manifested good faith intent by the particular respondents to accept and abide by the Board's determination and to refrain then and in the future from doing that which the determination has stated may not rightfully be done." If this is what the Board now considers constitutes compliance, then it should so state in its determination in 10 (k) proceedings and in future cases provide for the furnishing of a statement containing such language to the Regional Director in- stead of the present ambiguous direction to notify the Regional Di- rector "as to what steps [they have] taken to comply with the terms of" the determination of dispute. I would be pleased in future 10 (k)- determinations to join in providing that the respondent, in order to, No other evidence to show noncompliance was adduced by the General Counsel 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comply, file a statement with the Regional Director within a stated period to the effect that the respondent accepts the Board's deter- mination that it is not entitled by means proscribed by Section 8 (b) (4) (D) to force or require the assignment of work to it, and that it has ceased and will not resume the proscribed conduct in the future. I am not willing, however, to penalize this Respondent for not providing a statement of this character when the Board has not previously made known that this is what it requires as compliance with a 10 (k) determination. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL 595, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, A. F. L. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in, or induce or encourage the employees of Bechtel Corporation to engage in, a strike or concerted refusal in the course of their employment, to perform services, where an object thereof is to force or require Bechtel Corporation to assign the work of the ironworker's trade to members of Local 595 rather than to nonmembers or to members of Local 578, Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., unless Bechtel Corporation fails to conform to an order of the Board certifying us as the representative of em- ployees performing such work. LOCAL 595, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, A. F. L., Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) By ------------------------------------- (W B. Sanders ) (Business Agent) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding arises under Sections 8 (b) (1) (A), 8 (b) (4) (D ), and 10 (k) of the Labor Management Relations Act of 1947, 61 Stat. 136 (herein called the Act), and was heard in St. Louis, Missouri, on October 18, 1954, pursuant to due notice to all parties . The amended complaint issued on July 8, 1954, by the Gen- LOCAL 595 823 eral Counsel of the National Labor Relations Board,' based on charges, as amended, duly filed by Bechtel Corporation (herein called Bechtel or the Company), and served upon the parties, alleges in substance that Local 595, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, A. F. L. (herein called Local 595), and its Business Agent, W. B. Sanders, and Iron Workers Association, Inc. (herein called the Association), and W. B. Sanders, Resident Agent, having failed and refused to comply with the Board's Decision and Determination of Dispute (108 NLRB 823) regarding the assignment of certain work, thereby engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (4) (D) of the Act. The answer of the Respondents admits certain allegations of the complaint but denies the commission of any unfair labor practices.2 At the outset of the hearing the Trial Examiner granted the motion for leave to intervene by International Association of Bridge, Structural and Ornamental Iron Workers (herein referred to as the International or Intervenor), parent of Local 595. All parties were present and represented at the hearing and were afforded op- portunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. Counsel waived oral argument and thereafter the General Counsel and counsel for the Respondents filed briefs which have been duly considered. Upon the entire record in the case the Trial Examiner makes the following: FINDINGS OF FACT I. THE COMPANY'S BUSINESS The complaint alleges and the answer admits that Bechtel, a Delaware corpora- tion, maintains its principal office in San Francisco, California, and is engaged in general building, construction, and engineering throughout the United States, and in the course of its operations during the past year its gross receipts exceeded $100,000,000. Since on or about August 15, 1953, Bechtel has been engaged by Electric Energy Inc., an Illinois corporation, as general construction contractor to complete the construction of a steam electric generating plant at Joppa, Illinois, for the generation of electric power and energy to be used by the Paducah Atomic Energy plant of the Atomic Energy Commission in the production of fissionable material which is essential to the defense of the United States. The Trial Examiner finds that Bechtel is engaged in commerce as defined in the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 595, International Union, and Local 758, International Association of Bridge, Structural and Ornamental Iron Workers (herein called Local 758) are each labor organizations within the meaning of Section 2 (5) of the Act. At all times material Sanders was and is business agent for Local 595. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of events On October 6, 1953, Bechtel filed a charge with the Regional Director alleging that Local 595 and Sanders, since September 14, 1953, had induced and encouraged employees of Bechtel to engage in a strike, the object thereof being to force or re- quire Bechtel to assign particular work to employees in a particular labor organiza- tion rather than to employees in another labor organization, trade, or class, in viola- tion of Section 8 (b) (4) (D) of the Act. Thereafter, pursuant to Section 10 (k) of the Act and the Board's Rules and Regulations (Series 6, as amended, effective June 3, 1952), a hearing was duly held on November 9, 10, 11, and 12, 1953, and on May 11, 1954, the Board issued its Decision and Determination of Dispute. In the meantime, on October 12, 1953, the Regional Director filed a petition for an injunction under Section 10 (1) against Local 595 and Sanders in the United I The General Counsel and the staff attorney appearing for him at the hearing are referred to as the General Counsel and the National Labor Relations Board as the Board 2 The Respondents withdrew their second grounds of defense, namely, that the Board has previously considered the same matters and dispute between the same parties in Case No 14-CB-211, lOS NLRB 1070, wherein it issued an order based upon Section 8 (b) (1) (A) and (2) violations of the Act It is clear from the record that the Respondent in that case filed a petition for review of the order in the Circuit Court of Appeals for the Sixth Circuit, but later withdrew its petition. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD States district court and the same day the court issued a temporary restraining order prohibiting the Respondents from inducing or encouraging the employees of Bechtel to engage in a strike or a concerted refusal to work or perform services an object thereof being to force or require Bechtel to assign certain work to members of Local 595, rather than to employees of the Company to whom such work is to be assigned, who are members of other locals of the International, unless it is certified by the Board as the bargaining representative for the employees performing such work.3 At the same time the court issued a rule, returnable October 16, to show cause, if any there be, why the Respondents should not be enjoined and restrained as prayed for in the petition. On October 16, the Regional Director filed a petition to adjudge the Respondents in civil and criminal contempt for having knowingly, wilfully, and intentionally violated the terms of the above restraining order. That same date, counsel for the parties executed a stipulation, which was approved by the court, whereby it was agreed that the temporary restraining order be continued in effect until such time as the Board decided the controversy and that the hearing on the contempt peti- tion be continued to October 23, and from week to week thereafter, until the matter pending before the Board had been heard and determined. On October 16, the court entered an appropriate order, which is still in force and effect. B. The Section 10 (k) proceeding The facts concerning the dispute are fully set forth in the Board's decision which proceedings including the record, under the Board's Rules and Regulations, become a part of the record herein. In that case the Board found that about July 31, 1953, Electric Energy, Inc., terminated the construction contract of Ebasco Services Inc., at the Joppa project and all employees of Ebasco were laid off including about 100 ironworkers who were members of Local 595 Thereafter, Electric Energy, Inc , executed a contract with Bechtel for completion of the plant and Bechtel began operations about September 1, 1953. In line with its policy to hire men through the local building trade unions in new areas, Bechtel, between September 1 and Sep- tember 11, hired about 33 ironworkers, all of whom were referred and cleared by Local 595. On September 11, Bechtel requested Sanders to refer six named iron- workers, all of whom were members of the International Union but not members of Local 595. Sanders refused to refer the individuals requested but instead sent four members of Local 595 and former employees of Ebasco. When the Company re- fused to hire the 4 men all of the ironworkers, except 1 man, walked off the job. On September 15, officials of the Company and representatives of the Interna- tional Union met with Sanders at which time the general secretary of the Interna- tional directed Sanders to furnish the six men named by Bechtel and to replace the ironworkers who had walked off the job. On September 15, 1953, a picket line was placed at the plant which resulted in a complete shutdown of operations. About October 13, following the issuance of the temporary restraining order and the petition to adjudge in contempt, operations were resumed. On September 16, the Company asked Sanders for 39 unnamed men and he re- ferred the 33 who had left the job, the 4 who had been refused employment, and 2 additional men. The Company refused to employ the 33 men but hired the 6 individuals, each of whom was given a half-day's pay and told they would be advised when the plant would be reopened and to report for work. On September 17, the International Union notified Sanders that unless he com- plied with the instructions previously given, the International would take appropriate action. On September 21, the general executive board of the International estab- lished Local 758, with jurisdiction over the Joppa project. Local 595 and Sanders still claimed jurisdiction over ironworkers on the job. The Board found that Local 595 and Sanders were responsible for the work stop- page and that neither Local 595 nor Sanders had any immediate or derivative rights under any existing contract upon which they could predicate any lawful claim to the work in question. In its determination of dispute the Board held that Local 595 and Sanders: 1. . are not and have not been lawfully entitled to force or require Bechtel Corporation to assign the work of the iron worker's trade in connection with the Joppa Steam Electric Generating Plant project to members of Local 'V. Lee McMahon, etc v International Association of Bridge, Structural and Orna- mental Ii on Woi loei s, Local 595, and IV I3 Sanders, business agent, U S D C E D. Ill 33 LRR\I 2273. LOCAL 595 825 595 rather than to non-members of Local 595 or members of Local 758, Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL. 2. Within ten ( 10) days from the date of this Decision and Determination of Dispute, the Respondents (Local 595 and Sanders) shall notify the Regional Director for the Fourteenth Region in writing as to what steps the Respondents have taken to comply with the terms of this Decision and Determination of Dispute. The Trial Examiner is bound by the decision and determination of the Board and accepts its findings of fact therein contained. In accordance with the decision and de- termination the Tiial Examiner finds that Local 595 and Sanders are not, and have not been, lawfully entitled to force or require Bechtel to assign work in the iron- worker's trade to Local 595, rather than to nonmembers or members of Local 758. C. The issues The complaint alleges that the Respondents have failed and refused to comply with the Board's determination of May 11, 1954 , and thereby violated Section 8 (b) (4) (D) and (1) (A) of the Act . The answer denies the commission of any unfair labor practices. Section 8 (b) (4) (D) declares it an unfair labor practice for a labor organization or its agents 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 perform any services , where an object thereof is 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 certi- fication of the Board determining the bargaining representative for employees perform- ing such work. It is undisputed that neither Local 595 nor Local 758 have been certified by the Board as the representative of the employees in the trade in question. The principal issue, therefore , is whether the Respondents Local 595 and Sanders have complied with the decision and determination . A secondary question arises as to whether the Association is the alter ego of Local 595. Concluding Findings The essential facts in this case are not disputed The General Counsel offered no evidence whatever to establish noncompliance on the part of the Respondents , except that they failed to submit written notice to the Regional Director within the time stated in the determination. Respondents Local 595 and Sanders admit that no writ- ten notice was furnished the Regional Director until the day of the hearing, October 18, 1954, when their attorneys presented to the General Counsel a letter stating that since the date of the temporary restraining order 4 they have not attempted to refer any members to the Joppa project, nor caused any work stoppage, and since May 11, 1954, they have complied with the Board 's determination and have not attempted to force or require Bechtel to assign work of the ironworker 's trade to Local 595 rather than to nonmembers or to members of Local 758. The General Counsel asserts that the letter was not timely filed, that it contains no assurance against future violations and that it amounts to no more than a state- ment that the Respondents have not violated the terms of the temporary restraining order. Respondents' counsel offered to rephrase the letter to overcome the second objection The General Counsel contends the foregoing evidence supports the allega- tions of his complaint. In the past the Board has had occasion to resolve the matter of compliance wtih Section 10 (k) determinations in two cases . In the first instance, the Board, in the Westinghouse case,5 laid down the rule that "the intent of Congress was that the General Counsel should allege and prove noncompliance with our 10 (k) determina- tion in 8 (b) (4) (D) proceedings" and, since no evidence had been adduced concern- ing compliance or noncompliance , remanded the case to allow the General Counsel to amend his pleadings and "to introduce evidence to sustain his burden of proof." After hearing on remand, the Trial Examiner found that the Respondents had failed to comply with the determination and thereby engaged in certain unfair labor prac- 4 As appears above this order was entered on October 12, 1953 On October 16 , follow- ing the filing of the contempt petition , the order was continued indefinitely. It may be that the letter refers to the latter date 5 Los Angeles Building and Construction Trades Council, AFL , et at, 88 NLRB 1101. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tices. The Board, in reversing the Trial Examiner (94 NLRB 415), held the Respond- ents were not proven by substantial evidence to have engaged in any strike or other compulsive activity that could constitute noncompliance with the terms of the de- termination, which imposed no obligation upon them to take any particular steps to achieve the desired result of compliance. Speaking upon that provision of the de- termination with respect to furnishing written notice as to the steps taken by the Respondents, the Board stated: (p. 417) Their failure to furnish the Regional Director with a notice survives as the only fact upon which the Trial Examiner could have relied. But this failure, standing alone, is hardly sufficient to establish noncompliance with the terms of the Board's determination. We believe that, because no affirmative action was required by the Board's determination, the failure to notify the Regional Di- rector of what was or was not done does not alone establish noncompliance. Accordingly, we find, contrary to the Trial Examiner, that the General Counsel has failed to prove that the Respondents have not complied with the Board's decision and determination of dispute. Because Section 10 (k) directs that the case be dismissed upon compliance with the determination, we shall dismiss the complaint in its entirety. In the second case, Juneau Spruce,° the Board entered its decision and determina- tion wherein it found that the union was not lawfully entitled to force or require the company to assign its longshore work to members of the union rather than to the employees of the company who were members of another labor organization, or members of any other labor organization. Thereafter, the Board found (90 NLRB 1753) that the union and certain of its agents by picketing the company's premises induced and encouraged its employees to engage in a concerted refusal in the course of their employment to perform services for the company, the object thereof being to force the company to assign longshore work to members of the union or workers dispatched by it instead of to employees of the company and thereby failed to comply with the decision and determination and engaged in unfair labor practices as defined in Section 8 (b) (4) (D) of the Act. The General Counsel seeks to distinguish this case from the Westinghouse case on three grounds: (1) In that case the determination stated the Respondents "may" furnish written notice to the Regional Director whereas here the Board used the word "shall"; (2) the present illegal conduct ceased as a result of the injunctive process of the Court and in Westinghouse no such order was entered against the Respondents; and (3) the Board should adopt the minority view expressed in the Westinghouse case, namely, that the matter of compliance is an affirmative defense and the burden of proving it is upon the Respondents. The Trial Examiner cannot accept these arguments. Clearly, the decision in the Westinghouse case does not turn upon any strict interpretation of limited terms of the determination or whether the Respondents might or must give written notice to the Regional Director but rather on the broad principle that the General Counsel has the burden of proving noncompliance and the mere failure to furnish notice was inadequate to support a finding of noncompliance. Moreover, the Trial Examiner is of the opinion that the record herein would not justify placing such a narrow and fine construction upon the language in the determination in order to sustain a violation of the Act. With respect to the second grounds, it strikes the Trial Examiner that it is immaterial what motives prompted the Respondents to cease their unlawful conduct, so long as they did not engage in such acts subsequent to the determination. Further, it might be pointed out that a temporary restraining order was entered in the Westinghouse case 7 and also in Juneau Spruces Lastly, the fact that the decision in the West- inghouse case may not have been unanimous on all points does not affect the validity and finality of the same. In view of the foregoing authorities the Trial Examiner concludes and finds that there is no evidence indicating that the Respondents, subsequent to the Section 10 0International Longshoi mien's and 1i'arehoitsenien's Union, Local No 16, 82 NLRB 650. 7 94 NLRI; 415, 422 , LeBai on, etc v. Los Angeles Building and Construction Trades Council, et at , 84 h Sapp. 629. 8 The respondents continued picketing for 39 days after the issuance of the determina- tion and discontinued this action shortly before the Regional Director filed his petition for injunctive relief (90 NLRB 1753, 1754, footnote 5; Giaham, etc. v. International Long- shoremen's Union, at al, 24 LRRM 2105.) LOCAL 595 827 (k) decision and determination, engaged in any strike or other compulsive activity that could constitute noncompliance with the determination and that the bare failure of the Respondents to submit timely written notice to the Regional Director is insuf- ficient to establish noncompliance with the terms thereof, in violation of Section 8 (b) (4) (D) of the Act. Accordingly, the General Counsel has failed to sus- tain his statutory burden of proving noncompliance with the determination. It is, therefore, recommended that the complaint be dismissed in its entirety. The Respondents Association and Sanders, its Resident Agent The General Counsel contends that the Association was established by Sanders and officers of Local 595 as the alter ego of that local in order "to avoid the in- escapable consequences of their having caused the work stoppage at the Bechtel project." Briefly, the record shows that about October 9, 1953, Sanders and some 15 of- ficers and members of Local 595 signed articles of incorporation and on October 14, a certificate of incorporation was issued by the Commonwealth of Kentucky. One of the purposes of the Association, as set forth in the articles of incorporation, is "to maintain principles, wages, and hours as sponsored" by the International union. The minutes of Local 595 disclose that at its regular meeting on October 17, 1953, Sanders read the articles to approximately 500 members, who unanimously voted "to adopt" the Association and to "donate" $30,000 to it. Sanders related, and the minutes of Association also show, that the Association received a check in the above amount from Local 595 about December 9, 1953. Counsel for the parties stipu- lated that the Association held only four meetings, the last one being on March 31, 1954. The association minutes for these meetings indicate that, apart from the election of officers and trustees, no business was transacted other than retaining counsel to represent its interest in certain court litigation. There is no evidence that the Association ever functioned or carried out any of the objectives for which it was formed, except the receipt of the $30,000 donation. After the issuance of the Section 10 (k) decision and determination, the General Counsel filed a motion to reopen the record, on substantially the same facts set forth above, for the purpose of ascertaining whether the determination should be amended to include the Association. On June 16, 1954, the Board denied the motion because there was no allegation that the Association had engaged in or was engaging in any conduct disapproved in the decision and determination. At this hearing the General Counsel adduced no evidence that the Association had ever engaged in any such acts or conduct As a corollary to the findings with respect to Local 595 and Sanders, the Trial Examiner further finds that the Associa- tion has not engaged in any conduct disapproved by the Board in its decision and determination. It has not, therefore, engaged in any unfair labor practices. Since the record fails to disclose the Association carried on any of the normal functions of a labor organization the Trial Examiner will not find that it is a labor organization as defined in the Act Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the ;ollowing- CONCLUSIONS OF LAW 1 The operations of Bechtel Corporation at its Joppa, Illinois, project occur in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 595 and Local 758, International Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., and International Association of Bridge, Struc- tural and Ornamental Iron Workers, A. F. L., are each labor organizations within the meaning of Section 2 (5) of the Act 3. The Respondents, Local 595, International Association of Bridge, Structural and Ornamental Iron Workers, A. F. L., and its Business Agent W. B. Sanders; Iron Workers Association, Inc , and W. B. Sanders, its Resident Agent, have not engaged in unfair labor practices as alleged in the amended complaint within the meaning of Section 8 (b) (4) (D) and.(1) (A) of the Act. [Recommendations omitted from publication.]