International Union of Operating Engineers

INTERNATIONAL UNION OF OPERATING' ENGINEERS 53 is not now renewing its request for the broader, alternative unit. In any event, as the appropriateness of such unit was not litigated at the hearing, we do not now pass upon that issue. [The Board dismissed the petition in Case No. 21-RC-5021.] [Text of Direction of Election omitted from publication.] International Union of Operating Engineers, Local Union No. 12, AFL-CIO and West Coast Masonry Contractors, Inc. Case No. 21-CD-46. March 6, 1958 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, which provides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of 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 August 2, 1957, West Coast Masonry Contractors, Inc. (herein- after called the Employer) filed with the Regional Director for the Twenty-First Region a charge alleging that Local No. 12, Inter- national Union of Operating Engineers, AFL-CIO (hereinafter called Local 12) had engaged in and was engaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act. It was charged in substance that Local 12 had induced and encouraged employees of the Employer to engage in a,concerted refusal to work with an object of forcing or requiring the Employer to assign certain duties to members of Local 12, rather than to the employees of the Employer who are members of 'Local 800, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO (hereinafter called Local 300). Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for a hearing upon due notice to all the parties. The hearing was held before Ernest L. Heimann, hearing officer, on September 25 and 26, 1957, in Los Angeles, California. All the 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 issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. 120 NLRB No. 5. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 [Members Rodgers, Bean, and Jenkins]. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. The Employer is engaged in commerce within the meaning of the Act. 2. Local 300 and Local 12 are labor organizations within the meaning of the Act. 3. The dispute : a. The facts This case involves the conflicting claims of Local 12 and Local 300 concerning the operation of a forklift, a mechanical device for con- veying building materials at a building site. The Employer entered into a contract with Local 12 on January 17, 1955. This contract was renewable on May 1, 1955, and ran there- after for yearly periods in the absence of 60 days' termination notice. In pertinent part, the contract required the Employer to recognize Local 12 as bargaining representative for those employees coming within Local 12's job jurisdiction, as such jurisdiction is defined by the Building and Construction Trades Department of the AFL; one of the jobs specifically covered by the agreement was the operation of the forklift; and all jurisdictional disputes were to be submitted to the National Joint Board for the Settlement of Jurisdictional Disputes, whose decisions were to be binding on the signatories. On February- 23, 1956, approximately 1 year after the contract between the Employer and Local 12 was executed, the Mason Con- tractors Exchange of Southern California, of which the Employer is a member, entered into a contract with various Hod Carriers locals, including Local 300. This contract became effective May 1, 1956, with a termination date of April 30, 1959. The terms of this contract re- quired member employers to recognize the signatory locals as ex- clusive bargaining representatives for employees over whom the locals claimed job jurisdiction. In this connection, the contract specifically stated that the contracting Hod Carriers locals asserted jurisdiction over the operation of forklifts, an operation which is defined to cover the conveyance of materials used by brickmasons "from the first point of delivery ..: whether done manually or -by a piece of machinery or equipment devised to replace the wheelbarrow or buggy." On July 29, 1957, the Employer, acting pursuant to a contract with Malcolm Paving Company, began masonry work on Malcolm's build- ing project at 18215 Napa Street, Los Angeles. The Employer as- INTERNATIONAL UNION OF OPERATING ENGINEERS 55 signed the operation of a forklift at the job site to employees classified as bricktenders. These employees were members of Local 300. On that day, Local 12 requested Malcolm to prohibit the Employer from working on the site unless a member of Local 12 was employed to operate the forklift. Malcolm, relying on the aforementioned con- tract between the Contractors Exchange and Hod Carriers locals, refused to interfere with the Employer's work assignment. Local 12 then demanded directly of the Employer that a member of Local 12 be employed to operate the forklift. Upon refusal of this demand, Local 12 began to picket the job on July 29,1957, thus forcing the Employer to shut down temporarily.' After a few days, the Employer resumed work on the job. On August 9,1957, Local 12 ceased picketing, and the Napa Street job has since been completed by employees of the Employer, members of Local 300. Sometime during the dispute, Local 12, acting pursuant to the jurisdictional dispute clause in its 1955 contract with the Employer, invoked the jurisdiction of the National Joint Board. On September 9,1957, the Joint Board awarded operation of the forklift at the Napa Street job site to operating engineers. b. Contentions of the parties Local 12 contends that the charges against it must be dismissed because all parties are contractually bound to observe a voluntary method of adjustment of jurisdictional disputes, that is, Joint Board procedures. Alternatively, Local 12 contends that under its January 1955 contract with the Employer it is entitled to the work in question, and that therefore its picketing was lawful as a concerted measure to compel observance of a valid claim. The Employer contends that both contentions are without merit. It argues that Local 12's claims are based on a contract which has been abandoned through mutual inaction over the past 21/2 years; and that, therefore, the Employer is privileged to assign the disputed work without reference-to the January 1955 contract. c. Applicability of the statute As noted, Local 12 contends that the charge must be dismissed under that clause of Section 10 (k) which prohibits the Board from de- 'After the picketing began, a representative of Local 300 informed the Employer that in his opinion the operation of the forklift properly belonged to members of Local 12. He pulled the bricktenders off the job for a few days, thus supporting Local 12's picketing. Local 300's support of Local 12's picketing is clearly inconsistent with its later position At the hearing that it was, by contract, entitled to operation of the forklift. Its action may be partially explained by an agreement between the Hod Carriers' and Operating Engineers' Internationals, executed February 3, 1954, whereby operation of the forklift was awarded to the Operating Engineers. Evidence at the hearing indicated that the Internationals have attempted to carry out this agreement with varying degrees of success. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termining a dispute when there is evidence that the parties have agreed upon methods for the voluntary adjustment of the dispute 2 If, as contended, Local 12 and the Employer are so bound, it, is by the provisions of their contract of January 17, 1955, requiring both to observe jurisdictional awards made by the National Joint Board. In view of the Employer's contention that the contract of January 1955 has been abandoned, it therefore becomes necessary to determine the operative effect of that agreement. We find that over the past 21/2 years the Employer and Local 12 have acted in a manner totally inconsistent with the cognizance of a valid and subsisting obligation. Thus, the record shows that Local 12 has repeatedly asked the Employer to sign new agreements with respect to the work in question, yet without any reference to the 1955 contract. These requests for a new contract have- been made by Local 12 periodically over the past 18 months, the last occurring but 2 weeks before the hearing. At the same time, though declining these requests, the Employer itself has never referred to the 1955 contract in so declining. Moreover, neither Local 12 nor the Employer has ever sought to modify the wage schedule appended to the 1955 contract. In addition, the Employer has not forwarded monthly wages and hours reports to the trustees (of the health and welfare fund) as it was required to do under the contract; nor has Local 12 ordered an audit of the Employer's books for failure to provide this information, as it clearly might have done under the contract for breach of this duty. Indeed, at the hearing Local 12 asserted that the existence of the contract had been forgotten until a week before the hearing, when, desiring to survey the number of such agreements it had with other employers, Local 12 cleaned out its files and discovered the contract. Based on the foregoing, and our analysis of the record as a whole, we find that the Employer and Local 12 have, through mutual inac- tion, abandoned their 1955 agreement.3 It follows that the Employer is not currently bound to an agreed-upon method for the adjustment of this dispute,4 and the statutory prohibition to our determination of the dispute is inapplicable. 2 Section 10 (k), in pertinent part, provides that the Board shall hear and determine a dispute out of which an unfair labor practice within the meaning of Section 8 (b) (4) (D) has arisen "unless, within ten days after notice that such charge has been filed , the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of the dispute " 8 A similar holding has obtained , for example , where an automatically renewable con- tract has been urged as a bar in a representation proceeding , yet the contract has not been implemented in any respect after the initial 1 -year period . Farm Tools, Inc, 88 NLRB 606, 607 For other examples of contractual abandonment in representation proceedings, see A . 0. Smith Corp., 111 NLRB 1042 ; Sound Timber Company, 8 NLRB 844. But cf. National Association of Broadcast Engineers etc. (N B. C ), 105 NLRB 355. 4In view of our finding that the Employer is not bound ny Joint Board procedures, it becomes unnecessary to determine in this proceeding whether the locals involved are so bound INTERNATIONAL UNION OF OPERATING ENGINEERS 57 Moreover, we find that since the contract is not a valid and subsist- ing agreement for the purposes of the instant proceeding under Section 10 (k),5 Local 12 had no contractual justification for its con- certed activities at the job site herein involved.' On this record, we further find there is reasonable- cause to believe that Local 12's picket- ing, conducted for the purpose of inducing and encouraging employees to refuse to perform services in order to compel the Employer to assign work to its members rather than to the Employer's employees, was violative of Section 8 (b) (4) '(D) of the Act. We also find that the dispute involved is properly before us for determination under Section 10 (k) of the Act. 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 from a labor organiza- tion, unless the employer is failing to conform to an order or certifica- tion of the Board, or unless the employer is bound by an agreement to assign the disputed work to the claiming union .8 Since, as found above, Local 12 has no valid contractual claim of right to assert against the Employer, we find that Local 12 is not entitled by means proscribed in Section 8 (b) (4) (D) to force or require West Coast Masonry to assign the disputed work to Local 12's members, rather than to the Employer's own employees. - 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 12, International Union of Operating Engineers, AFL- CIO, and its agents are not and have not been entitled, by means pro- scribed by Section 8 (,b) (4) (D) of the Act, to force or require West Coast Masonry Contractors, Inc., to assign operation of the forklift at the building site at 18215 Napa Street, Los Angeles, California, to its members rather than to employees of West Coast Masonry Contractors, Inc. 5 We express no opinion on the validity of this contract for any other purpose 6 See Local Union No 9 , Wood, Wire & Metal Lathers International Union, AFL ( Anning-Johnson Company ), 113 NLRB 1237, 1241. 7 To the extent that our decision herein may be in conflict with the recent decision of the Court of Appeals for the Third Circuit , N L. R B. v. United Association of Journey- men and Apprentices etc, Locals 420 and 428 , AFL (Frank W Hake), 242 F 2d 722 (C A 3), we must respectfully disagree with the decision of that court See Local 16, International Longshoremen's and Warehousemen's Union (Denali-McCray Construction Company), 118 NLRB 109 , footnote 4. 8 General Drivers, Warehousemen and Helpers, Local Union No. 968 etc (Farnsworth & Chambers Co . Inc.), 115 NLRB 617, 620. 58 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD 2. Within ten ,(10) days from the date of this Decision and Deter- mination of Dispute, Local 12, International Union of Operating Engineers, AFL-CIO, and its agents shall notify the Regional Direc- tor for the Twenty-first Region in writing whether or not they will refrain from forcing or requiring West Coast Masonry Contractors, Inc., by means proscribed by Section,8 (b) (4) (D) of the Act, to assign the- work in dispute to members of Local 12, International Union of Operating Engineers, AFL-CIO, rather than to employees of West Coast Masonry,Contractors, Inc. Mattison Machine Works 1 and United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-AFL-CIO, Petitioner. Case No. 13-RC-5405. March, 6, 1958 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Board Decision and Direction of Election 2 an election by secret ballot was conducted on July 23, 1957, under the direction and supervision of the Regional Director for the Thirteenth Region of the National Labor Relations Board among the employees in the unit therein found appropriate. Following the election, the parties were furnished a tally of ballots which showed that of approximately 342 eligible voters, 157 cast ballots for the Petitioner, 141 cast ballots against, 18 ballots were challenged, and 1 ballot was held void. On August 8, 1957, the Employer filed objections to conduct affect- ing the results of the election. After investigation the Regional Director on November 19, 1957, issued his report on objections and challenges in which he recommended that the objections be overruled and that eight of the challenges be sustained. As the remaining 10' challenges which he recommended be overruled could not affect the results of the election, the Regional Director further recommended that the Petitioner be certified as the bargaining representative of the employees in the appropriate unit. No exceptions were filed with respect to the Regional Director's recommendation that 10 challenges be overruled. Accordingly, the Board overrules the challenges to the ballots of Albert Johnson, Malte Johnson, John B. Martin, William Russell, Roger Ryan, Adelbert Webb, Bert Thomas, Joseph Stadalius (challenged envelope 1In its exceptions the Employer states that its name is not Mattison Machine Manu- facturing Co as it has appeared in other formal papers, but Mattison Machine Works 2 Unpublished. 120 NLRB No. 3.