Local 450

LOCAL 450 339 certification of representatives to the Petitioner if selected by a ma- jority of the employees in the pooled group, which the Board in such circumstances finds to be appropriate for purposes of collective bargaining. [Text of Direction of Election omitted from publication.] Local 450, International Union of Operating Engineers, AFL- CIO and C. A. Turner Construction Company and Hinote Elec- tric Company. Case No. 39-CD-23. November 5, 1957 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 determine the dispute out of which such unfair labor practice shall have arisen...." On March 20, 1957, C. A. Turner Construction Company, herein called Turner, filed with the Regional Director for the Sixteenth Region a charge alleging that Local 450, International Union of Operating Engineers, AFL-CIO, herein called the Engineers, had engaged in and was engaging in certain activities proscribed by Sec- tion 8 (b) (4) (D) of the Act. It was alleged, in substance, that, on or about March 7, 1957, and thereafter, the Engineers induced and encouraged employees of various contractors to engage in a strike or concerted refusal to work in the course of their employment with an object of forcing Hinote Electric Company, herein called Hinote, to assign the work of operating an A-frame winch truck used in the erection of an electrical substation for The Texas Company, at its Port Arthur, Texas, refinery, to members of he Engineers instead of to members of Local No. 479, International Brotherhood of Elec- trical Workers, AFL-CIO, herein called the Electricians. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and on March 28, 1957, duly issued and served on all parties a notice of charge filed and notice of hear- ing. A hearing was held before Edwin Youngblood, hearing officer, on May 14 and 15 and June 4, 1957. All parties appeared at the hearing' and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the 1 The Southeast Texas Chapter of the National Electrical Contractors Association, herein called the Intervenor, intervened at the hearing. 119 NLRB No. 44. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed 2 Briefs were filed by the Engineers, Electricians, and by Hinote and the Intervenor. Upon the entire record, the Board finds : 3 1. Turner and Hinote are engaged in commerce within the meaning of the Act. 2. Local 450, International Union of Operating Engineers, AFL- CIO, and Locals 390 and 479, International Brotherhood of Electrical Workers, AFL-CIO, are labor organizations within the meaning of the Act. 3. A dispute exists as follows : The Facts In March 1957, Hinote was engaged as a prime contractor in the construction of an electrical substation at the Port Arthur, Texas, re- finery of The Texas Company. Hinote was also performing other services elsewhere on the refinery premises as a subcontractor. On or about March 4, Hinote requested Local 390 of the Electricians to refer a lineman for employment. The Electricians referred journeyman lineman Bob Crisp, a member of its Local 479, whom Hinote hired to do lineman work and to operate an A-frame winch truck in connection therewith 4 A few days later Musgrove, business agent of the Engi- neers, contacted Rivet, manager of Hinote's Port Arthur branch, and asked him to remove the truck from the job because it was engaged in engineers' work. Rivet replied that the truck was being used in con- nection with electrician's work and referred Musgrove to the Elec- tricians for discussion of the matter.' Crisp continued to operate the truck on the job. Musgrove also brought the matter to the attention of Eisler, assistant superintendent of The Texas Company, stating that "the operation of the truck should be handled with operating engineers and not an electrician," that the truck "was not a line gang truck used by electricians, but was a winch truck used by engineers," and that "there should be an operating engineer on that type of truck." Musgrove further stated "his men were dissatisfied due to the 2 The hearing officer referred to the Board the Respondent's motion to quash the notice of hearing. For reasons given hereinafter, the motion to quash is denied. 8 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 Murdock and Rodgers]. ' The truck is a 1-ton vehicle with a cab , a winch , 2 toolboxes mounted on the sides, and a stiff-leg A-frame. Hinote's assignment of the operation of the truck to a lineman for work on the substation would appear to have been within the contemplation of the agree- ment between Local 390 of the Electricians and the Sabine Division of the Southeast Texas Chapter of the National Electrical Contractors Association . The Association is herein called NECA. This agreement is binding on Hinote because of its membership in the Intervenor and representation by the Intervenor for bargaining purposes. 5 Contrary to the Engineers , it is clear , and we find, that this conversation occurred before the work stoppage. LOCAL 450 341 fact that electricians were operating that truck." The record reveals that the Engineers thereafter instructed its stewards on the refinery premises to withdraw the engineers from their jobs, and the stewards did withdraw the engineers as instructed. Thus witness Barling, an employee of Turner, testified credibly that he was present at and heard a conversation between job stewards at which the steward on the Riley Stoker job stated he had instructions from Musgrove to pull the engi- neers from their jobs, that Shepherd, the steward for Turner, tele- phoned Musgrove and received confirmation of the instructions, and that he saw Shepherd stop the engineers on his job from working, tell- ing them "he had orders to knock them off over the winch truck deal, over the electrician driving the winch truck." During the aforesaid conversation the Riley Stoker steward stated : "The American Bridge is all going and everybody else is supposed to go." On or about March 7, all engineers employed by the various con- tractors at the refinery, including Turner, Trotti, and Thompson, American Bridge Division of the U. S. Steel Company, and Riley Stoker Company, walked off their jobs. They remained away from their jobs until approximately March 22. Hinote employed no engi- neers. Comeaux, superintendent for Turner, testified that Musgrove ascribed the reason for the walkout as "they couldn't stand to see the winch truck being operated by the electricians." On or about March 15, Musgrove again communicated with Rivet and asked him "to get the truck off of the job, it was engineers' work...." The dispute concerning operation of the truck was submitted to the National Joint Board for Settlement of Jurisdictional Disputes, here- in called the Joint Board, by Maloney, general president of the En- gineers. The Engineers and the Electricians appeared at the hear- ing, the latter, however, contesting the Joint Board's jurisdiction to consider the dispute. Hinote was requested by the Joint Board to submit information but declined to do so. Neither the Intervenor nor NECA participated. By letter dated April 16, 1957, the Joint Board made the following award : 8 At its meeting April 12, 1957, the Joint Board considered the jurisdictional dispute between the International Union of Oper- ating Engineers and the International Brotherhood of Electrical Workers, Texas Company Refinery Power Plant job, Port Ar- thur, Texas, Riley Stoker Company contractor, Hinote Electric Company subcontractor. The Joint Board voted to make the following job decision: The A-frame winch truck used to erect substation or switchyard steel 6 No appeal was taken from the award by the Electricians. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (sic) on the construction project site should be assigned to Oper- ating Engineers. This action of the Joint Board was predicated upon particular facts and evidence before it regarding this dispute and shall be effective on this particular job only. Very truly yours, (Signed) JOHN T. DUNLOP, Chairman. Hinote was advised of the Dunlop award, but refused to change its operations as a result. It continued to use the same electrician to operate the truck. At the time of the hearing, work was still in progress. Contentions of the Parties The Engineers argues, in effect : (1) Its conduct did not constitute a violation of Section 8 (b) (4) (D) of the Act because no demand was made that the work of operating the truck be assigned to the Engineers instead of the Electricians; and (2) the parties to the dis- pute have agreed upon methods for the voluntary adjustment of the dispute within the meaning of the Act, and the dispute is now, in fact, adjusted by the award of the Joint Board.7 The Electricians, Hinote, and the Intervenor argue, in substance, that the clear intent of the Engineers' conduct was to force or require Hinote to assign the work of operating the truck to the Engineers instead of the Electricians; that the assignment of the work was Hinote's prerogative, and, in addition, supported by the agreement referred to, supra, and by custom of contractors in the area; and that the Joint Board lacked jurisdiction to entertain the dispute and make an award, if, in fact, it ever really did make an award as to the particular matter herein involved. Applicability of the Statute In this proceeding under Section 10 (k) of the Act, the Board is required to find there is a reasonable cause to believe that Section 8 (b) (4) (D) has been violated before proceeding with a determination of the dispute out of which the alleged unfair labor practice has arisen. As heretofore noted, the Engineers contends that its conduct does not constitute a demand for the assignment of any particular work, and there is, therefore, lacking an essential element to a finding of reasonable cause to believe that Section 8 (b) (4) (D) has been vio- lated, namely, the existence of a work assignment dispute. This con- tention is grounded upon the alleged absence of an express oral or 7 The Engineers asserts no Board order or certification , or contract claim for the work in dispute or as justification for its activities. LOCAL 450 343 written demand that the work of operating the the truck be trans- ferred from the Electricians to the Engineers. However, it does not .follow that there was no demand for a reassignment of work because the demand was not spelled out in so many words.8 Indeed, the nature ,of the controversy is revealed by the fact that the Engineers saw fit to submit the dispute to the Joint Board. For such submission was tantamount to an acknowledgment that there existed a work assign- iment dispute rather than a mere question of whether a winch truck was rightfully on the job. Moreover, the Joint Board appears to have had no doubt that the Engineers was submitting a work contro- versy, judging from the tenor of its award of April 16, 1957. In addition, the demands upon Hinote for removal of the truck because Engineers' work was involved are implicitly demands to resolve the 'dispute by replacing the electrician operating the truck with an engi- neer inasmuch as Hinote had to use an A-frame winch truck in its work. Further, Musgrove's statement to Eisler that "there should be an operating engineer on that type of truck" coupled with his Lreference to dissatisfaction among the engineers can only be inter- preted as a demand for work reassignment. Similarly, the work :stoppages of the Engineers employed by the various contractors, real- istically viewed, constitute a demand that The Texas Company resolve the dispute by bringing pressure to bear on Hinote to replace the electrician with an engineer. Accordingly, we find that there -exists a controversy with respect to the assignment of work to any of the Employer's employees. It is also clear from the testimony of Barling, above, that there has been inducement of employees to engage in a strike to force the assignment of work herein to the Engineers. As heretofore noted, the Engineers further contends the parties 'have agreed upon methods for the voluntary adjustment of the dis- •pute, and the dispute is now adjusted. As to Hinote, the Engineers' position is that Hinote is bound by the award of the Joint Board be- cause of its membership in NECA. As to the Electricians, it argues that the award is binding because the Electricians is a party to the Joint Board. Hinote and the Intervenor contend there has never been an adjustment of the dispute because NECA had no authority to bind Hinote to an award of the Joint Board; and, in addition, the award did not cover the particular job involved. The Electricians admits the Joint Board has authority to bind it with respect to disputes 'within the Building and Construction Trades Department, but argues that the instant matter involves a dispute outside that department :and, therefore, the Joint Board has no jurisdiction over it. It is sufficient for the purpose of disposing of this issue that the evidence falls short of establishing that Hinote has ever submitted, 8 Cf. Anning-Johnson Company, 113 NLRB 1237, 1242. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or acquiesced in the submission of, the dispute to the Joint Board or is bound by its determination? Thus, although NECA admits it was one of the sponsors of the Joint Board, evidence is lacking that NECA was a party to the Joint Board during the critical period, or that it possessed authority to bind Hinote by virtue of its membership in NECA to an award of the Joint Board, and, as already shown, Hinote was requested, but refused, to submit evidence on the dispute to the Joint Board.10 Accordingly, we do not consider ourselves precluded from determining the dispute herein on the asserted grounds that the parties have agreed upon methods of voluntary adjustment and that the dispute is now adjusted." In the circumstances, we find there is reasonable cause to believe that the Engineers violated Section 8 (b) (4) (D). We further find that the dispute involved in this proceeding is properly before us for determination under Section 10 (k) of the Act." Merits of the Dispute It is well established that an employer is entitled to make work assignments free of strike pressure by a labor organization, unless the employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees per- forming such work, or the claimant union has an immediate or deriva- tive right under an existing contract upon which to predicate a lawful claim to the work in dispute.13 As the Engineers has no order, certi- fication, or contract claim to the work, we find that they are not en- titled, by means proscribed by Section 8 (b) (4) (D), to force or require Hinote to assign the disputed work to its members. However,. s It is unnecessary for us to determine whether the Joint Board 's award is controlling with respect to the particular job herein involved or another dispute concerning a job for- which IIinote was a subcontractor of Riley Stoker Company as the award states. We also find it unnecessary to determine whether , as the Electricians claims, the dispute- involves outside linework which is not encompassed by the authority of the Joint Board. to Provisions of the constitution and bylaws of NECA do not require a finding that it possessed authority to bind Hinote . Article I , section 3 of the bylaws of NECA provide that it shall "speak for the electrical contracting industry as a whole and represent its interests before legislative assemblies, governmental agencies and other bodies." We cannot infer- any authority from this general provision to bind Hinote to determinations of the Joint Board. 11 Nor do we find any merit in the Engineers' position that because the Charging Party sought to withdraw the charge herein , a request which the Regional Director denied, the, dispute should be deemed adjusted , In the light of the continued adherence of Hinote and the unions to their respective positions such a conclusion is clearly unwarranted. 12 Farnsworth & Chambers Co., Inc., 111 NLRB 1307, 1312 ; Bay Counties District Coun- cil of Carpenters, etc., 115 NLRB 1757, 1768. The cases of A. W. Lee, Inc., 113 NLRB 947, and Meyer Furnace Company ( Refrigeration and Air Conditioning Contractors As- sociation), 114 NLRB 924 , cited by the Engineers are distinguishable . In the Lee case, a. local union was considered bound by a determination of the Joint Board where its Inter- national Union was clearly bound and the local union had previously complied with de- cisions of the Joint Board. In Meyer Furnace Company it was clear there had been a voluntary submission of the dispute to the Joint Board by all the parties. 18 Bay Counties District Council of Carpenters , etc., supra ; Farnsworth & Chambers Co., Inc. supra. DETROIT NEWS 345 'we are not by this action to be regarded as "assigning" the work in question to electricians or to any other particular group of employees." Determination of Dispute Upon the basis of the foregoing findings and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act. 1. International Union of Operating Engineers, Local 450, AFL- CIO and its agents are not and have not been lawfully entitled to force or require Hinote Electric Company or any other employer to assign the work in dispute to members of the Engineers rather than to members of any other labor organization or to nonmembers of any labor organization. 2. Said Local 450 of the Operating Engineers shall, within ten (10) days from the date of this Decision and Determination, notify, in writing, the Regional Director for the Sixteenth Region of the Na- tional Labor Relations Board, whether or not it accepts the Board's -determination of this dispute, and whether or not it will refrain from forcing or requiring Hinote Electric Company, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute to members of Local 450 rather than to members of any other labor organization or to nonmembers of any labor organization. 14 The Engineers contends that the Board is obliged , if it finds the Engineers in viola- tion of 8 (b) (4) (D), to determine whether the work in dispute is in the work area ,of the Engineers or the Electricians . In our view it is not incumbent upon us to make such a determination . See Denali-McGray Construction Company, 118 NLRB 109, footnote 4. The Evening News Association, d/b/a Detroit News; Knight Newspaper, Incorporated, d/b/a Detroit Free Press ; Detroit Times, Division of Hearst Publishing Company, Inc.' and Inter- national Mailers Union, Petitioner. Case No. 7-RC-3335.2 November 5,1957 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Emil C. Farkas, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' l Although the Employers were referred to throughout this proceeding as the Detroit News, the Detroit Free Press, and the Detroit Times , the record indicates that their correct 'corporate names are as set forth . Accordingly, we hereby amend the names of the Em- ployers, as they appear in all formal papers , to reflect their correct corporate names. 2 Originally consolidated with Cases Nos . 7-RC-3336 and 3337 for purposes of hearing and thereafter severed by order of the hearing officer. 3 International Typographical Union and Detroit Mailers Union No. 40 , International Typographical Union, hereinafter referred to collectively as the Intervenors or individually 119 NLRB No. 46.