United Brotherhood of Carpenters & Joiners of America

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C NOTICE TO ALL MEMBERS OF LOCAL UNION No. 1 OF THE BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, AFL-CIO, AND ITS AGENT JAMES M. LEONARD Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage the employees of Leo Spear Construction Co. Inc., Hampden Construction Company, W. J. Quinn Con- struction Company, or of any other employer to engage in .a strike or a con- certed refusal in the course of their employment to perform services for their respective employers where an object thereof is to force or require the towns of Southwick or West Springfield or any other town , employer, or person to cease doing business with Rogers Heating and Engineering , Company or Valley Electric and Heating Service or with any other employer or person. LOCAL UNION No. 1 OF THE BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMER- ICA, AFL-CIO, AND ITS AGENT JAMES M. LEONARD, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL-CIO; International Hod Carriers, Build- ing & Common Laborers Union of America , Local No. 676, AFL- CIO ; International Union of Operating Engineers , Hoisting and Portable Local No. 16-16B, AFL-CIO ; United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U. S. & Canada, Local No. 178, AFL-CIO and Kenneth Markwell and William Hartz, Partners, d/b/a Mark- well & Hartz Contractors. Case No. 17-CD-25. April 25, 1958 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 deter- mine the dispute out of which such unfair labor practice shall have arisen... " On October 4, 1957, Markwell & Hartz Contractors, herein referred to as the Company, filed charges with the Regional Director for the Seventeenth Region, alleging that United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL-CIO, herein called the Carpenters; International Hod Carriers, Building & Common Laborers Union of America, Local No. 676, AFL-CIO, herein called the Laborers; International Union of Operating Engineers, Hoisting 120 NLRB No. 77. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 611 and Portable Local No. 16-16B, AFL-CIO, herein called the En- gineers; and United Association of Journeymen &-, Apprentices of the Plumbing and Pipefitting Industry of the U. S. & Canada, Local 178, AFL-CIO, herein called the Plumbers, had engaged in and were en- gaging in certain unfair labor practices within the meaning of Sec- tion 8 (b) (4) (D) of the Act. It was charged, in substance, that on or about August 23 and 26,1957, and thereafter the above labor organi- zations through their officers, agents, and representatives by picketing and otherwise have induced or encouraged the employees of various contractors to engage in a concerted refusal to handle any goods or materials in the course of their employment with an object of forcing the Company to assign particular work at its Springfield, Missouri, sewage treatment plant project to employees in a particular labor organization rather than to employees in another labor organization or in another class and that by the above acts and other conduct the said labor organizations have violated Section 8 (b) (4) (D) of the Act. 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 charges and provided for an appropriate hearing upon due notice. The hearing was held at Springfield, Missouri, on October 17 and 18, 1957, before Charles A. Fleming, hear- ing officer. 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 issues. The rulings of the hearing officer made at the hearing, except as otherwise indicated below, are free from prejudicial error and are hereby affirmed. A brief was filed by the Respondents. At the close of the General Counsel's case the Respondents moved to quash the notice of hearing on the ground that the subject matter of the present dispute has been investigated by the Regional Director in Case No. 17-CC-69 involving an alleged violation of Section 8 (b) (4) (A) and (B) of the Act; that the Regional Director refused to issue a complaint in that case and that for the General Counsel to initiate under such circumstances a 10 (k) proceeding upon new charges arising out of the same factual situation would be prejudicial to the rights and interests of the Respondents. We find no merit in the Respondents' contention. The Employer filed two charges against the Respondents. The first charge, alleging a violation of Section 8 (b) (4) (A) and (B), was filed on August 27, 1957, was docketed as Case No. 17-CC-69 and was assigned for investigation to a field examiner. Before the field ex- aminer completed his investigation of this charge, the Company, on October 4, filed its second charge alleging a violation of Section 8 (b) (4) (D). This charge was docketed as Case No. 17-CD-25. On 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . October 15 the Regional Director advised the Respondents that fur- ther proceedings in Case No. 17-CC-69 were not warranted and that a complaint would not issue "inasmuch as the facts and evidence iii support of [the charges] will be introduced and considered in a hear- ing pursuant to Section 10 (k) of the Act." The Regional Director's refusal to issue a complaint became final when the Charging Party failed to take an appeal from this action to the General Counsel. In the light of these facts we fail to see how the Respondents were preju- diced by the Regional Director's initiation of the 10 (k) proceeding. All that happened was simply that pending an investigation of the first charge and before it was completed, the Company filed another charged based upon the same facts but alleging a violation of a differ- ent section of the Act. Confronted with two charges against the same Respondents arising out of the same factual situation, the Regional Director concluded that the facts disclosed by the investigation war- ranted proceeding on the Section 8 (b) (4) (D) charge and not on the Section 8 (b) (4) (A) and (B) charge. We cannot see how the Regional Director's election to proceed under Section 10 (k) of the Act prejudiced the Respondents in any manner.' Moreover, it is well established that the disposition of charges filed and the question whether a complaint should be issued, litigated, and brought to judgment is a matter which, by statute, is within the ex- clusive province of the General Counsel. Section 3 (d) of the Act confers upon the General Counsel "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of com - plaints under Section 10, and in respect of the prosecution of such complaints before the Board." The Board, therefore, may not review the General Counsel's administrative determinations as to the issuance, refusal to issue a complaint upon unfair labor practice charges, or as to his election to proceed upon one charge rather than upon an- other against the same respondent.2 Respondents' motion to quash is, accordingly denied. Upon the entire record in the case the Board finds: 1. Markwell & Hartz Contractors are engaged in commerce within the meaning of the Act. 2. The Carpenters, the Laborers, the Engineers, and the Plumbers are labor organizations within the meaning of the Act. 3. The dispute : The principal office of the Company, which is engaged in the busi- ness of general contracting, is in Memphis, Tennessee. On July 23, 1 Cf Local 562, United Association of Journeymen , et al (Northwest Heating Company (Charles N Myles)), 107 NLRB 542, where the Board held that the fact that the Charg- ing Party might have had a remedy under Section 8 (b) (4) (A) in no way deters the Board from proceeding under Sections 8 (b) (4) (D) and 10 (k) of the Act, and that the sections are not mutually exclusive 2 Times Square Stores Corporation, 79 NLRB 361 , 364; Colonial Provision Company, Inc., 112 NLRB 1056. Hughes Tool Company, 104 NLRB 318, 323. YJNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 613 1957, the Company was awarded a contract for the construction of sewage treatment plant for the city of Springfield, Missouri. A few days later one of the Company's partners, Hartz, received a long-distance call from Cline, secretary of the Springfield Building Trades Council and business agent for the Engineers. Cline told Hartz that he had been informed that the Company was awarded the contract and that he would like Hartz on his next visit to Springfield to meet with him and other craft representatives to discuss his labor requirements for the project. Hartz said that he would, and on his .next trip to Springfield, about August 10, Hartz met with the labor representatives. Present at the meeting, in addition to Cline and Hartz, were: Business Agent Pauley of the Carpenters, Business Agent Shipley of the Laborers, and Murray, the representative of the Ironworkers. Cline stated that the AFL unions have had long- standing agreements with the local building contractors and heavy construction industry providing for 100-percent AFL craft union labor. Hartz replied that he did not operate a closed shop and inquired as to the unions' policy with respect to contractors bringing their own keymen into the area, which he intended to do. He fur- ther stated that he would call upon the AFL unions to furnish the balance of his crew. The labor representatives observed that they had no objection to Hartz bringing in a limited number of keymen. Cline, however, stated that his consent to Hartz's bringing in an operating engineer was "subject to reviewing the conditions [existing at the time] when [Hartz] actually got ready to start construction," that if at that time the Engineers had one of its members available for work, he might withdraw his consent. Cline also asked Hartz if his engineer had an Engineer's card, and Hartz replied that he did not know. Cline then said that if the engineer did not have the card, it would be necessary for him to apply to the Engineers for member- ship. Hartz offered no objection. The meeting concluded with Hartz stating that when he needed men in addition to his own keymen he would get in touch with the respective AFL business agents. Shortly after this meeting the Company began to move its equip- ment to the job site. By August 12 the Company had 3 or 4 of its so-called keymen working on the job site. On August 19, Gillmore, assistant business representative of the Engineers, visited the job site. Gillmore asked Hartz if he needed an operating engineer. Hartz said that he had one on the job and that that was all he needed at the present time, but that later he might need more. Gill- more said that the engineer then working would have to apply for membership in the Engineers and pay membership fees of $199. Hartz said that the would so inform the operator and that he would be willing to advance to the operator this sum for that purpose. Hartz also told Gillmore that he would let him know when he needed 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another operator. Two days later Gillmore again visited the job site and inquired of Hartz why his operator had not come down to the Union hall to fill in a membership application. Hartz replied that the man did not desire to join the Engineers and further asked Gillmore if the Engineers could furnish him with an operator without the operator presently on the job joining the Engineers. Gillmore replied that that would be impossible, that it was against the policy of the Engineers for its members to work on a project where some of the workers were not members of the Engineers or another AFL union. On August 20 Pauley of the Carpenters and Shipley of the Labor- ers visited the job site and met with Hartz in the Company's Trailer office.' Shipley asked Hartz about the men on the construction site running the wagon drill and Hartz assured him that they were Hartz men. Pauley and Shipley said that the men should have registered and cleared with the Unions. Hartz said that the men did not want to join the AFL unions, that they had already joined United Con- struction Workers. Hartz asked what would happen if the men did not join the AFL unions and Pauley replied that AFL workmen would not work with U. C. W. men on that project. Hartz then said that he would talk to his men again. On August 22 Hartz and Markwell visited the Carpenters' busi- ness office. They informed Pauley that their men refused to join the AFL unions. Pauley answered that he anticipated such a possi- bility, had been in touch with the Union's Kansas City office, and had been instructed to get the "banner" up immediately. Hartz and Markwell asked Pauley if the AFL unions would agree to furnish the Company with their members to work together with the men, who refused to join the AFL unions, and Pauley said that this could not be done. Hartz said that he had a U. C. W. contract lying on his desk and if the AFL unions would not agree to U. C. W. men Work- 'At the healing the Respondents obtained from the hearing officer a subpoena daces tecuoi requesting the production by the Company of a certain tape recording alleged to have been made of this conversation . Subsequently , counsel for the Company filed a petition to revoke the subpena on the ground that the tape recording was not the best evidence as all the parties involved were present in the hearing room and could be called upon to testify. The heating officer granted the Company's request The Respondents now contend that the hearing officer had no power to pass on the motion to revoke the subpena (citing N. L. R. B. v. Duval Jewelry Company of Miami, Ine, 243 F 2d 427 (C A. 5), cert granted 355 U. S. 809, that his failure to deny the motion to revoke the subpena was prejudicial to the Respondents and that therefore the notice of hearing should be quashed. We find it unnecessary to pass on the merit of the Respondents' con- tention that the hearing officer was without power to grant the petition to revoke the subpena as the foregoing account of whir transpned it the nieetin-, ui the Company s Trailer office is based upon mutually corroborative testimony of the Company's wit- ness, Hartz, and the Respondents' witnesses, rauley and Shipley, the only participants in that meeting, rather than upon the testimony of Ilaitz alone whose testimony the Respondents sought to impeach by the tape recording of the meeting As the Respondents are not prejudiced by the hearing officer 's ruling, the motion to quash the notice of hearing on the ground is hereby denied UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 615 ing on the project he would sign the contract. Pauley retorted that he would "use every possible legal means to obtain work for our people." The same morning Hartz and Markwell also talked to Shipley of the Laborers in the Laborers' office. They informed Shipley, as they did Pauley, that their men did not want to join the AFL unions and asked him whether it would be possible for these men to remain on the job and for the AFL to supply the additional crew to work with these men. Shipley replied that that would be impossible; that the Labor- ers' agreements with the local contractors required that they hire no one but members of the Laborers; that he could not let his men work on a job unless it was all an AFL job, and that he expected the Com- pany to follow the local agreements. Hartz said that he did not know what to do, that he had to work with these men when he re- turned to Memphis, Tennessee. Shipley replied that his problem would be solved if he moved his office to Springfield , Missouri. On August 23 at the request of the Respondents a meeting was held in the city manager's office. The meeting was attended by cer- tain city officials, Hartz, and Pauley of the Carpenters. Hartz stated that it was necessary for the Company to bring into the area from 6 to 10 keymen and that it wished to recruit additional workers from the AFL unions. * He stated that these key employees were members of U. C. W. and did not want to join the AFL unions, and that he "hoped the AFL men would work with the U. C. W. men." Pauley said that it could not be done, that the other crafts had been notified and that they would start picketing the job. Hartz suggested that Pauley and the other business representatives of the AFL unions talk to the U. C. W. men. That afternoon Pauley of the Carpenters, Shipley of the Laborers , and McCarthy of the Plumbers met with the Com- pany's employees on the job site . The union representatives invited the men to join their respective unions . Hartz informed the U. C. W. men that it was up to them whether they joined the AFL unions or remained members of U. C. W., and that the Company would be be- hind them 100 percent. Hartz also added : "We are aware that Mr. Pauley will exercise every means to try to stop us but we will do everything we can to keep the job rolling in the event that you decide to stay with U. C. W., at any rate, it is your decision." The men re- fused to join the AFL unions stating that they were satisfied with their own union. Towards the end of the meeting Pauley in the pres- ence of the other representatives told Hartz that they would put up a picket line on the job site the following Monday. Also, sometime on August 23 the Company's representatives signed a contract with U. C. W. The record does not show whether the Respondents learned of this fact before or after they established their picket line on August 26. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Picketing: An August 26 Hartz arrived at the job site about 8 a. in. At the entrance to the job site he found McCarthy of the Plumbers talking to a foreman of the utility crew who were members of the IBEW. This crew, which normally started work on the job site about 7 a. in., was not working. Hartz asked the foreman of the crew why the men were not working. The foreman replied that he had heard that there would be a picket line put up and that they were waiting to see what would happen. A few minutes later, however, the crew began working. Pauley of the Carpenters arrived at the job site around 8: 15 that morning. He had with him 6 inen and 2 picket signs. One of the men began picketing in front of the entrance to the job site with a sign reading as follows : "AFL CARPENTERS NOT EMPLOYED BY MARKWELL HARTZ CONSTRUCTION COMPANY- LOCAL UNION 976-KANSAS CITY DISTRICT COUNCIL OF CARPENTERS." As soon as the foreman of the utility crew noticed the picket line, the went over to Pauley, conferred with him, and then informed Hartz that he was pulling his men out. Hartz asked why,and the foreman replied that his men would be fined or expelled from the IBEW if they disregarded the picket line. The crew then left the job site. At about 9: 15 o'clock Copeland, an employee of the Southwest Plumbing Company arrived in a pickup truck to perform plumbing work for the Company. When Copeland saw the picket line he stopped the truck. Hartz came out and told Copeland to ask Pauley if he could cross the picket line. Copeland refused saying that he was not in the habit of crossing a picket line. Sometime later Cope- land's employer, Henry, arrived at the job site and asked Pauley to permit Copeland to cross the picket line but Pauley declined to give his permission. Henry also talked to Shipley of the Laborers, but with the same result. At 9: 30 the same morning a truck of Garret Construction Company with a load of ready mixed concrete for the Company arrived at the job site. When its driver, Dillard, saw the picket line he stopped the truck and asked Pauley if he could deliver the load across the picket line. Pauley replied that he would rather Dillard did not. Dillard did not make the delivery. At 10 a. m. the same day Moore, an employee of Aton Luce Electric Company arrived in the company's truck at the job site to perform work for the Company. When Moore saw the picket line he stopped his truck and refused to cross the picket line to perform the work he had been assigned by his employer. On September 19, a truck of Frisco Transportation Company with a load of material for the Company arrived at the job site. When its driver, Wilkinson, approached the entrance to the job site a picket came out to his truck and told Wilkinson that he could not go through , that this was a picket line. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 617 Wilkinson then stopped his truck and refused to make the delivery of the material. The picketing continued until about October 22, 1957, when the U. S. District Court issued a temporary injunction in a Section 10' (1) proceeding instituted against the Carpenters and the Laborers, but dismissed the petition as to the Engineers and the Plumbers. 4. Contentions of the Parties : The Company contends that the Respondents by picketing the job site of the Company on August 26 and thereafter induced and en- couraged employees of its subcontractors and suppliers to refuse to deliver to the Company supplies and materials, and/or to perform services for the Company for the purpose of forcing the Company to assign the jobs filled by the Company's keymen, members of United Construction Workers, to members of the Respondents. The Respondents contend that this is not a jurisdictional dispute under Section 8 (b) (4) (D) of the Act in that-at no time did the Respondents make a demand on the Company for the assignment of work to its members; that the Company at its prejob conference with the Respondents had agreed to call upon the Respondents to supply all of its needed personnel, and that the Company thereafter failed to live up to such agreement; and that the United Construc- tion Workers, rather than the Company or its key employees, is the real party in interest in this dispute and that as United Construction Workers is not in compliance with the filing requirements of Section 9 (f), (g), and (h), the Board is precluded from making an affirma- tive determination that United Construction Workers is entitled to the disputed work. The Respondents also contend that as the picket line was established and maintained by the Carpenters alone, Re- spondents Engineers, Laborers, and Plumbers are not responsible for the picketing. 5. Applicability of the Statute : Before the Board may proceed with a determination of a dispute pursuant to Section 10 (k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated by the Respondents. The first question for us to consider is whether there has been any "inducement" or "encouragement" by the Respondents, or any of them, of employees of any employer to engage in a concerted refusal in the course of their employment to handle any goods or perform any services for the Company. This question must be answered in the affirmative. The evidence shows that the Respondents have estab- lished and maintained for a number of days a picket line in front of the Company's project with a picket sign alleging that the Company was not 'hiring members of the Respondent Carpenters ; that as a result of such picketing employees of the Company's suppliers and 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subcontractors refused to cross the picket line to deliver materials and supplies consigned to the Company, or to perform services for the Company, and that in one instance public utility employees discon- tinued their work for the Company and left the job site. While the evidence is not entirely clear as to whether these employees were instructed or persuaded by the Respondents to refuse to cross the picket line, it indicates that some of the employees were requested not to do so. Such showing however is not indispensable to a finding of "inducement" within the meaning of Section 8 (b) (4) (D). It is now well established that, apart from the literal appeal of picket signs the picket line itself constitutes an act of inducement or en- couragement of employees not to perform services for picketed em- ployer, and that such picketing whether or not successful in bringing about a strike or refusal to perform services for the employer is within the proscription of Section 8 (b) (4) (D) of the Act.4 The evidence likewise leaves no doubt that the picket line was established and maintained by the Respondents for the purpose of forcing the Company to assign the jobs already filled by the Com- pany's keymen who were members of United Construction Workers, to members of the Respondent Unions. At the very first meeting with the Company, the so-called prejob conference, Cline, the secretary of the Building Trades Council in Springfield, made it clear that the Respondents have a long-standing agreement with the local building contractors requiring the contractors to hire no one but members of the AFL unions, and that the Respondents were "used to working 100% union." At a subsequent meeting with Hartz, Shipley, business agent for the Laborers, confirmed the existence of the same type of agreement between the Laborers and local contractors and stated that he, Shipley, "expected" Hartz to go along with such agreement. Shipley also made it clear that he could not let members of his union work on the project unless it was all AFL. Assistant business repre- sentative of the Engineers, Gillmore, took the same position and in- formed Hartz that it would be against the policy of the Engineers to have its members work on a project where some of the employees did not belong to the Engineers or to some other AFL union. The Company consistently took the position that it did not operate on a closed-shop basis and that, while it would be willing to call upon the Respondents for the referral of their members when needed, it wanted certain jobs on the project to be filled by the Company's own keymen. Later the Company did bring into the area a number of keymen and informed them that their acceptance or rejection of the Respondents' invitation to join Respondents would not affect their 4Local 50, Bakery and Confectionary Workers etc (Arnold Bakers), 115 NLRB 1333; Knit Goods Workers Union, Local 155 (James Knitting Mills, Inc. ), 117 NLRB 1468. Local 450, International Union of Operating Engineers etc. (Industrial Painters), 117 NLRB 1301. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 619 jobs with the Company. The Company thus served notice on the Respondents that it wanted to remain neutral in this matter and de- spite the threat of picketing would not force its key employees to join the Respondents against their will or replace them with members of the Respondents. With the positions of the Company and the Respondents thus sharply drawn, Pauley of the Carpenters reiterated to Hartz, in the presence of Shipley of the Laborers and McCarthy of the Plumbers, that he would put up a "banner" and start picketing the Company's job site. Although the Respondents did not specifically request Hartz to discharge his keymen and replace them with members of the Re- spondents, we are satisfied under all the circumstances that it was intention of the Respondents by means of the threat of picketing, and subsequently by the picketing itself, to force the Company either to compel its key employees to join the Respondents or to replace them with members of the Respondents.' That the dispute was over the jobs filled by the keymen clearly ap- pears from the testimony of Pauley of the Carpenters. Thus, when questioned about the reason for the picketing, Pauley testified that he left the prejob conference with the impression that a "gentleman's agreement" had been reached to the effect that the Company's project would be "all A. F. L.," and that when the Company breached this "verbal agreement" the Respondents decided to picket the Company's project. Pauley did not attempt to define in what manner the Com- pany broke the alleged agreement. The "breach" Pauley referred to obviously consisted of the Company's decision to remain neutral and retain its keymen despite their refusal to join the Respondents thereby making it impossible to operate the project on a closed-shop basis as he thought had been agreed. Also consistent with this interpretation is Pauley's statement to Hartz, after the keymen refused to join the Respondents, that he would use "every possible legal means to obtain work for our people." Considering that the Company at all times was willing to hire members of the Respondents when needed to work with its keymen, it is reasonable to infer that the "work" to which Pauley referred in this statement was the work being performed by the keymen. Upon all the evidence we are satisfied and find that the Respondents established and maintained the picket line in front of the Company's project in order to force the Company to assign the jobs or work performed by the keymen to members of their own unions, an objective specifically proscribed by Section 8 (b) (4) (D) of the Act.' 5 United Brotherhood of Carpenters, et al. ( Wendnagei & Company), 119 NLRB 1444; Local 562, United Association of Joni neymen, etc (Northwest Heating Company ( Charles E. Myles) ), 107 NLRB 542. 8 Cf United Brotherhood of Carpenters et at. (Wendnagel & Company), 119 NLRB 1444; Lodge 68 of the International Association of Machinists et at. (Moore Drydock Company), 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record is barren of any evidence that would justify a conclusion that the picketing might have been maintained for any reason other than the dispute over the jobs filled by the keymen. The Respondents did not ask the Company for recognition as the bargaining agent of its employees, or for a contract. Indeed, the Respondents did not repre- sent any of the employees of the Company. Nor did the Respondents advance any contention either at the hearing or in its brief that the picketing was for the purpose of organizing the Company's keymen and therefore permissible 7 Assuming, however, that the Respondents might have entertained as a remote possibility that the use of economic pressure would coerce the keymen to abandon their own union and to join the Respondent unions, such an objective would be but one of the several objectives intended to be accomplished by the picketing. The other, more important and a primary objective of the picketing was, as shown before, to force the Company to assign the jobs filled by the keymen to members of the Respondents. It is now well established that when one of the two objectives is proscribed by Section 8 (b) (4) (D), the fact that the other objective was not unlawful, would not preclude the Board from proceeding with the determination of the dispute .8 Responsibility of individual Respondent Unions: As indicated above, the Respondents contend that the picket line was established and 81 NLRB 1108, where the respondent union by picketing the employer sought preferential hiring of their members to the exclusion of members of other unions and where the respondent union did not claim to represent employees of the picketed employer. The Board found the dispute to be within the prohibition of Section 8 (b) (4) (D) ; Pile Drivers, Bridge, Wharf and Dock Builders etc. (Klamath Cedar Company), 105 NLRB 562, where the respondent union who did not represent any of the Company's employees established a picket line to force the company to replace Its employees engaged in pile driving by members of the respondent union ; Parkersburg Building & Construction Trades Council et at. ( Howard Price & Co.), 119 NLRB 1384, where the Board , Member Jenkins dissenting, found that the dispute was over the assignment of work within the meaning of Section 8 (b) (4) (D) rather than over recognition of the union , as the dissenting Board member would have found. No such request for recognition or for a contract has been made In the instant case, but the dispute was over the jobs filed by the Company's keymen . Member Jenkins is of the opinion that the facts In the present case are plainly distinguishable from those in the Parkersburg case. Here, unlike the situation in the cited case, the Respondents did not seek recognition and a union-security contract. Rather, I find, in agreement with my colleagues, that the Respondents picketed in order to obtain an assignment of the work of the Company 's keymen, if the keymen refused to join an AFL organization. 7 Cf. Communications Workers of America, AFL-CIO, et al. ( The Mountain States Tele- phone and Telegraph Co.), 118 NLRB 154, where the Board held that a demand for rec- ognition does not connote a demand for assignment of work to particular employees rather than to others. The Board has found In that case that the object of the picketing "was not to require the Company to take work from anyone or to assign it to one group of employees as against another. The union merely wanted the company to recognize It as continuing to represent whatever employees were assigned to the work." In the instant case, however, the Respondents did not ask for recognition as the bargaining representa- tive of any employees, but upon the refusal of the key employees to join the AFL, and the Company notice to the Respondents that such refusal would not affect the keymen's jobs with the Company , made it clear to the Company that they wanted their jobs taken away from them and filled by their own members. 8N. L. R B. v. Denver Building and Construction Trades Council, et al. ( Gould & Preisner), 341 U. S. 675, 689. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 621 maintained by the Carpenters alone, and as the other Respondent unions did not participate in the picketing, the responsibility for the picketing, if any, does not attach to Respondent unions other than the Carpenters. We do not agree. The record shows that representatives of all Respondent Unions participated in the negotiations with the Company which gave rise to the dispute and the picketing; that it was the Respondents' common objective, in accordance with their own policy, to make the project a 100 percent AFL job and thus to bring all the jobs on the project within the control of the Respondents; that after the keymen had refused to join the Respondent Unions, Pauley of the Carpenters, in the presence of Shipley of the Laborers and McCarthy of the Plumbers, warned Hartz that they would com- mence picketing. Moreover, there is testimony that Shipley of the Laborers and McCarthy of the Plumbers were at or near the picket line talking to pickets on August 26. At no time has the Laborers or the Plumbers disavowed the picketing. In view of the joint efforts of the Carpenters, the Laborers and the Plumbers to obtain control over all the jobs on the Company's project, their refusal to make any refer- rals to the project after the keymen refused to join the Respondent Unions, the failure of Shipley of the Laborers, and McCarthy of the Plumbers to dissociate themselves from Pauley's threat to picket, we are satisfied that there is reasonable cause to believe that the Laborers and the Plumbers ratified, if not actually authorized, the picketing by the Carpenters for a common objective, and that the Laborers and the Plumbers, together with the Carpenters, are responsible for the main- tenance of the picket line for an objective proscribed by Section 8 (b) (4) (1)) -9 Although the Respondent Engineers also had an interest in the ef- forts to secure control over all the jobs on the project, there is no evi- dence that its representative was present at the meeting at which the threat to establish a picket line was made or that any of its representa- tives were present on the picket line, or that it authorized or ratified such picketing. We find, therefore, that the record furnishes no basis for attaching responsibility for the picketing to the Engineers. Ac- cordingly, the notice of hearing in this proceeding as to the Respond- ent Engineers is hereby quashed. In the defense of the charges, the Respondents contend that the picket line was established and maintained because of the breach by the Company of a "gentleman's agreement" with the Respondents that the Company would hire no one but members of the AFL unions. However, the record does not show that the Company made any definite commitment that it would hire only members of the AFL unions. Indeed, at the prejob conference the Company made it clear BLocal 552, United Association of Journeymen etc (Northwest Heating Company" (Charles F, Myles) ), 107 NLRB 542. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Respondents that it intended to bring into the area its keymen. Although not without some reservations the Respondents agreed. Later on, when the Company began its operations and the keymen re- fused to join the AFL unions the Company took the position that it was up to the men themselves whether to join or not to join the AFL unions and that any decision they make would not affect their jobs. The Board has held that a written contract or an oral understanding offered as a defense in a 10 (k) proceeding must be unambiguous in its terms.1° On the evidence before us we are unable to conclude that the parties ever reached an understanding that the project would be 100 percent AFL. The Respondents , relying upon the decision of the Court of Appeals for the Third Circuit in N. L. R. B. v. Pipe fitters Local (Frank W. Hake ),` argue that in a 10, (k) proceeding the Board must make an affirmative determination or certification as to which of the competing unions is entitled to the disputed work, that inasmuch as the real party in interest in this case is United Construction Workers, a noncomply- ing union, no such affirmative determination could be made , and hence the notice of hearing in this proceeding must be quashed . However, ever since our decision in the Moore Drydock Company 12 case, where we considered this argument , it has become a well-established policy of the Board to limit our determination in a 10 (k) proceeding to the question of whether or not the respondent union is entitled to demand the assignment of the disputed work for its members.13 To the extent, therefore, that our decision herein may be in conflict with the decision of the court in the Hake case we must respectfully disagree with that decision. Nor do we agree with the Respondents' contention that the United Construction Workers is the real party in interest in this pro- ceeding. It is the Company , whose right to assign work to its em- ployees, and the keymen , who already occupy the jobs, that are directly affected by our determination of the dispute , not the United Construc- tion Workers . That United Construction Workers, a noncomplying union, may derive some incidental benefit from our determination, is no reason to refuse to determine the dispute. Upon the entire record, we find that there is reasonable cause to believe that the Respondents Carpenters , the Laborers, and the Plumbers by means of the picketing of the Company 's project have induced or encouraged employees of the Company 's various subcon- 10Local 675, International Union of Operating Engineers AFL-CIO , et al (Port Everglades Terminal Company Inc.), 116 NLRB 27; Local 16, Internattional Longshore- men's and Warehousemen's Union (Denals-McCray Construction Company), 118 NLRB 109 11 N L R B v. United Association of Journeymen and Apprentices etc, Locals 420 and 428 (Frank W. Hake), 242 F. 2d 722 (C A 3). 13 Lodge 68 of the International Association of Machinists , at al. (Moore Drydock Corn- paini ), 81 NLRB 1108. 13 Denaln-McC-ay Coast) action Company , 118 NLRB 109 ; International Longshoremen's Association Independent, etc (Bellco Industrial Engineering Co, at at ), 119 NLRB 59. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 623 tractors and suppliers to refrain from the delivery of materials and/or performing services for the purpose of forcing the Company to assign the jobs already filled by the Company's keymen, who are members of United Construction Workers, to members of the said Respondent Unions, and that the said Respondent thereby violated Section 8 (b) (4) (D) of the Act. We further find that the dispute in this proceed- ing is properly before us for determination under Section 10 (k) of the Act. MERITS OF DISPUTE When the Respondents Carpenters, Laborers, and Plumbers estab- lished their picket line at the entrance to the project for the purpose of forcing the Company to assign certain jobs on the project to mem- bers of the said Respondents, these jobs were being performed by the Company's own employees, who were either members of United Con- struction Workers, or employees in other trades, crafts, or classes. It is now well established that an employer has the right to make such assignments free of strike pressure by a labor organization, "un- less such an employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work," or the claimant union has an immediate or derivative right under an existing contract upon which to predicate a lawful claim to the work in dispute.14 As the said Respondents are not the beneficiaries of such order, certification, or contract claim to the disputed work, we find that they are not now lawfully entitled by means proscribed by Section 8 (b) (4) (D) to force or require Mark- well & Hartz Contractors to assign the jobs filled by the keymen or any of the work on the project to their members rather than to the Company's own employees, who are members of United Construction Workers. However, we are not by this action, to be regarded as "assigning" the work in question to United Construction Workers." 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 Longshoi eaten 's and Warehousemen's Union (Juneau Spruce Corp ), 82 NLRB 650, 660 , Bay Counties District Council of Carpenters, 115 NLRB 1757 ; Gen- eral Drivers, lVai ehouscmen and Hclpeis, Local Union No 968, etc (Farnsworth cC Chambers Co, Inc. ), 115 NLRB 617, 620 , International Longshoremen's Association Independent et at (Bellco Industrial Engineering Co ), 119 NLRB 59 '` To the extent that our decision herein may be in conflict with the recent decision of the Court of Appeals for the Thud District in N L 1? B v United Association of Jour- neymen and Apprentices, etc, Locals 420 and 428 (Frank W. Hake), 242 F. 2d 722 (C A 3) we must respectfully disagree with the decision of that court Local 16, In- ternational Longshoremen's and We,ehouscinen's Union (Denali-McCray Construction Company), 118 NLRB 109. C A. Twine, Constiaction Company and Hinote Electric Company, 119 NLRB 339 ; Belleo Industrial Engineering Co , et at, 119 NLRB 59. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL-CIO; International Hod Carriers, Building & Common Laborers Union of America, Local No. 676, AFL-CIO ; and United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U. S. & Canada, Local No. 178, AFL-CIO, and their agents are not, and have not been lawfully en- titled to force or require Markwell & Hartz Contractors to assign the -disputed work to their members rather than to the employees assigned .to that work by Markwell & Hartz Contractors, who are not mem- bers of the said Respondents. 2. Within ten (10) days from the date of this Decision and Determi- nation of Dispute, Respondents Local 978 of the Carpenters, Local 676 of the Laborers, and Local 178 of the Plumbers (Pipefitters) shall notify, in writing, the Regional Director for the Seventeenth Region of the National Labor Relations Board whether or not they will re- frain from forcing or requiring Markwell & Hartz Contractors, by -means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute on their projects in Springfield, Missouri, to their members rather than to employees assigned to that work by Markwell & Hartz Contractors, who are not members of the Respondent Unions. 3. Notice of hearing as to the International Union of Operating Engineers, Hoisting and Portable Local No. 16-16B, AFL-CIO, here- tofore issued herein, be, and it hereby is quashed. CHAIRMAN LEEDOM and MEMBER BEAN took no part in the considera- tion of the above Decision and Determination of Dispute. Drennon Food Products Co. and Local 60, Bakery & Confection- ery Union,' Petitioner. Case No. 10-RC-3832. April 25, 1958 DECISION AND ORDER Following an election conducted on May 9, 1957, pursuant to a ,stipulation for certification upon consent election, the Petitioner was certified on May 17, 1957, as the collective-bargaining representative of the Employer's employees in the agreed appropriate unit. There- after, under date of March 8, 1958, Local Union #60, American Bakery and Confectionery Workers International Union, AFL-CIO, herein called the Moving Party, filed with the Board its motion for amendment of certification, alleging in substance that on December 12, 1957, Bakery and Confectionery Workers International Union, herein called BCW, was expelled from the AFL-CIO which there- i The Board having been notified by the AFL-CIO that it deems the Bakery Workers' certificate of affiliation revoked by convention action, the identification of the Petitioner is hereby amended 120 NLRB No. 88. A