Local 16

LOCAL 1'6 109 2. Local 47 and the International Union are labor organizations within the meaning of Section 2.(5) of the Act. 3. By entering into, maintaining, and enforcing agreements, arrangements, or practices requiring membership in, or referral from, Local 47 as a condition of em- ployment, members receiving preference , and by otherwise discriminating in favor of Local 47 members over nonmembers in conditions of employment, Respondent Company and the Employer Association have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and Local 47 and the International Union have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of. the Act. 4. By discriminating in regard to the hire and tenure of employment of Robert Eley, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 5. By causing Respondent Company to discriminate against Robert Eley in the hire and tenure of his employment , Local 47 and the International Union have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Local 16, International Longshoremen 's and Warehousemen's Union and Denali-McCray Construction Company. Case No. 19-CD-P6. Juke 7, 1957 DECISION AND DETERMINATION OF DISPUTE 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 determine the dispute out of which such unfair labor practice shall have arisen...." On September 27, 1956, Denali-McCray Construction Company, herein called Denali-McCray, filed a charge with the Regional Director for the Nineteenth Region alleging that Local 16, International Long- shoremen's and Warehousemen's Union, herein called the ILWU, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. It was charged in substance that the ILWU had induced and encouraged employees of Denali-McCray to engage in a strike or a concerted refusal to work with an object of forcing or requiring the Company to. assign certain duties to members of the ILWU rather than to the Company's own employees who are members of the AFL-CIO Building Trades Unions, 'including the International Union of Operating Engineers, Local 302, herein called the Operating Engineers, which intervened in the instant proceeding on behalf of the Building Trades Unions. 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 118 NLRB No. 12. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director investigated the charge and provided for a hearing upon due. notice to all the parties. The hearing was held before Charles M.. Henderson, hearing officer, on November 1, 1956, at Juneau, Alaska.. All the parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce new evidence bearing on the issues; The rulings of the hear- ing officer made at the hearing are free from prejudicial error and. are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members. Rodgers and Bean]. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. The business of Denali-McCray Denali-McCray, a joint venture of Elmer H. Elwin, d/b/a Denali Engineering Company, and A. Walter McCray, d/b/a McCray Marine Construction Company, is engaged in the construction of the Juneau- Douglas High School at Juneau, Alaska. During the year ending July 2, 1957, Denali-McCray and its subcontractors plan to purchase from points outside the Territory of Alaska materials valued at $500,000 and $400,000, respectively. We find that Denali-McCray is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. 2. The labor organizations The ILWU and the Building Trades Unions are labor organizations within the meaning of the Act. 3. The dispute a. The Facts The dispute we are asked to determine concerns the conflicting claims of the ILWU and the Building Trades Unions over the work of unloading a barge at two sites on the Gastineau Channel. As noted above, Denali-McCray is constructing a high school in the Juneau area.' Virtually all the materials for this project have been transported by barge. The Lemon Creek Sand & Gravel Company, a subcontractor of Denali-McCray, unloaded the first two barges at the Juneau subport with employees who were members of the ILWU. For reasons of economy, Denali-McCray decided to bring the third barge 1 The construction site, which is located in the northerly portion of the city of Juneau, north of the bridge connecting Juneau with Douglas Island, is bounded by Glacier Ave- nue and the Gastineau Channel. LOCAL 16 111 to the construction site and have the unloading done by its own employees who belong to the Building Trades Unions which have a collective-bargaining contract-the Alaska Master Labor Agree- ment-with the Associated General Contractors of America of which Denali-McCray is a member.2 However, when the third barge ar- rived at the port of Juneau on or about Tuesday, September 11, 1956, the barge was drawing too- much water to permit it to proceed to, the Douglas Island side of the Gastineau Channel where there is an improvised ramp of the Glacier Concrete Products, Inc., herein called Glacier, a subsidiary of the Denali Engineering Company. Accord ingly, in order to have its load lightened, the barge was placed at the Juneau city dock where the city dock superintendent informed Ed- ward C. Reiter, project engineer for Denali-McCray, that the city's contract with the ILWU required the use of employees who were members of that organization to "offload" any vessels tied up at the city dock. Thereupon Reiter on Thursday, September 13, with the permission of Ferrall W. Campbell and Bob Yaden, officials of the Building Trades Unions, arranged with Joseph M. Guy, president of the ILWU, to have that organization provide longshoremen on Friday, September 14, to transfer a part of the deckload from the: large oceangoing barge to a small wooden barge. The longshoremen were paid off on Saturday morning for the previous day's work, ant! on Monday afternoon, September 17, the small barge was brought to the Glacier location. Guy testified that it was his "understanding" that the longshoremen would be called by Reiter to finish the unloading of the barge but "couldn't say for sure"' that Reiter actually made a statement to that effect. Guy then indicated that after learning of a rumor that mem- bers of the Building Trades Unions would be used instead of ILWU members, he asked Reiter whether or not the latter planned to hire the longshoremen and was given the reply, "Maybe. We'll see." How- ever, according to Reiter's testimony it would appear that Guy was informed of Reiter's intent not to use longshoremen beyond Friday and that Denali-McCray was bound by the Alaska Master Labor Agree- ment to use its own Building Trades employees for the unloading that remained once the barge was removed from the Juneau city dock.' On Tuesday morning, September 18, the ILWU, with the purpose of having Denali-McCray "give . . . back" the jobs to the longshoremen, commenced picketing at Glacier, displaying signs reading in substance, "ILWU Local 16 locked out by Denali-McCray." Some employees refused to cross the picket line. The work of partially unloading the barge at Glacier was done with Denali-McCray employees by 2 The Building Trades Unions have not been certified by the Board as the bargaining agent of the employees of Denali -McCray. 3 The ILWU has not been certified as the bargaining agent for the employees of Denali. McCray and does not have a collective-bargaining contract with this Company. 112 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Friday, September 21. The picketing by the ILWU was transferred across the Gastineau Channel to the construction site when the barge was brought there for the completion of the unloading by Denali- McCray's employees on Monday, September 24. Upon the departure of the barge from the site that day, the signs were changed to read, "Denali-McCray unfair to ILWU Local 16," and the picketing con- tinued until Wednesday, September 26, at which time the ILWU was served with a restraining order from Territorial court in Juneau .enjoining the picketing which thereupon was discontinued. b. Contentions of the Parties Denali-McCray contends that by the above conduct the ILWU violated Section 8 (b) (4) (D) of the Act. Both Denali-McCray, which denies that it orally agreed with the ILWU to have members ,of that organization complete the unloading at Glacier and the con- .struction site, and the Operating Engineers take the position that this work was assigned to members of the Building Trades Unions in .accordance with general practice based on the terms of the Alaska Master Labor Agreement. They rely particularly on article I wherein the signatory contractors recognize the Building Trades Unions "as exclusive representatives of all laborers and mechanics employed on all their construction work in the Territory of Alaska." The ILWU contends that the Agreement applies to construction work but not to longshore tasks which are usually performed by ILWU members. The ILWU argues further that Denali-McCray orally agreed with the ILWU that its longshoremen members would complete the un- loading which they began at the city dock. c. Applicability of the Statute In the present proceeding under Section 10 (k) of the Act, the Board is required to find that there is reasonable cause to believe that Section .8 (b) (4) (D) has been violated before proceeding with a determina- tion of the dispute out of which the alleged unfair labor practice has arisen. It is clear that the ILWU, by means of its picketing, induced and .encouraged employees to cease work in order to compel Denali-McCray to assign the disputed work to ILWU members rather than to Denali- McCray's own employees who belong to the Building Trades Unions. We therefore find there is reasonable cause to believe that the ILWU thereby violated Section 8 (b) (4) (D). We further find that the :dispute involved in this proceeding is properly before us for deter- mination under Section 10 (k) of the Act.' 6 To the extent that our decision herein may i•c in conflict with the recent decision of the Court of Appeals for the Third Circuit. l'. 1, R. U. v. United Association of Journey- men and Apprentices etc. (Frank W. Hake ), 39 LRRDI 2629 ( March 1957 ), we must respectfully disagree with the decision of that court. LOCAL 16 113 d. Merits of the Dispute It is well established that an employer is free to make work assign- ments without being subject to strike pressure of a labor organization seeking work for its members, unless the employer thereby is failing to conform to an order or certification of the Board, or unless the em- ployer is bound by an agreement to assign the disputed work to the claiming union.' As the ILWU has no such order or certification, there remains for consideration in determining this dispute the ILWU's contention that it had a right to the disputed work by virtue of custom as well as its oral agreement with Denali-McCray. As noted above, the testimony of Reiter, the Denali-McCray project manager, and Guy, the ILWU representative, is in conflict concerning their discussion with respect to the disputed work. The Board has held that a written contract offered as a defense by a respondent in a 10 (k) proceeding must be unambiguous in its terms.' In the instant case, accepting_ Guy's version of his conversation with Reiter, without, however, re- solving the conflict in testimony, we are unable to conclude that the ILWU and Denali-McCray had reached an unambiguous understand- ing with regard to the unloading of the barge after it was moved from the Juneau city dock. A fortiori, the requirement that a written con- tract be unambiguous is equally applicable to any oral understanding. Moreover, where, as here, a union with no bargaining or representa- tive status makes demands on an employer for the assignment of work to the exclusion of the employer's own employees who are performing the work, we have held that the question of tradition or custom in the industry is not a governing factor.' We therefore find that the ILWU is not entitled by means pro- scribed by Section 8 (b) (4) (D) to force or require Denali-McCray to assign the disputed work to its members. However, we are not by this action to be regarded as "assigning" the work in question to the Building Trades Unions as we are not passing on their rights under the Alaska Master Labor Agreement .8 s General Drivers, Warehousemen and Helpers, Local Union No. 968, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO; and Houston Building and Construction Trades Council , AFL-CIO ( Farnsworth & Cham- bers Co., Inc.), 115 NLRB 617, 620. e Local 675, International Union of Operating Engineers, AFL-CIO, and its Interna- tional Representative, D. B. Hudson (Port Everglades Terminal Company, Inc.), 116 NLRB 27. 7 See International Hod Carriers, Building and Common Laborer's Union of America, Local .#231, AFL, and Harold Hill, its Business Representative (Middle States Tele- phone Company of Illinois ), 91 NLRB 598, 603, and cases cited in footnote 13 therein. 8 International Hod Carriers, Building and Common Laborer's Union of America, Local #231, AFL, and Harold Hill, its Business Representative (Middle States Telephone Com- pany of Illinois ), supra, at 604. 4 5 05 5 3-5 8--vol. 118-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Upon 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. Local 16, International Longshoremen's and Warehousemen's Union and its agents are not and have not been entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require Denali-McCray Construction Company to assign the work of unload- ing barges at the sites on the Gastineau Channel to its members rather than to Denali-McCray's own employees who are members of the Building Trades Unions. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, Local 116, International Longshoremen's and Warehousemen's Union and its agents shall notify the Regional Di- rector for the Nineteenth Region in writing whether or not they will refrain from forcing or requiring Denali-McCray Construction Com- pany, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute to members of Local 16, International Longshoremen's and Warehousemen's Union rather than to employees of the Denali-McCray Construction Company. Borden's Dairy Delivery Company, a Division of The Borden Company, d/b/a Borden's Capital Dairy; Carnation Company; Challenge Cream & Butter Association , a co-operative; Frank Inderkum, d/b/a Inderkum's Dairy; Warren A. and Fred A. Taylor, d/b/a Taylor's Dairy; Crystal Cream & Butter Com- pany and Office Employees International Union , Local 29, AFL- CIO, Petitioner Carnation Company and Office Employees International Union, Local 29, AFL-CIO, Petitioner Challenge Cream & Butter Association , a co-operative and Office Employees International Union, Local 29, AFL-CIO, Petitioner Borden's Dairy Delivery Company, a Division of The Borden Company, d/b/a Borden's Capital Dairy and Office Employees International Union , Local 29, AFL-CIO, Petitioner. Cases Nos. 20RC 3237, 2O-RC-3238, 2O-RO-3239, and 20-RC-3240. June 7, X957 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act,. a hearing* was held before Robert J. Scolnik, hearing 118 NLRB No. 10.