Local 59, Wood, Wire, & Metal Lathers Int'l Union

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 59, Wood, Wire & Metal Lathers International Union, AFL-CIO, and its agents and Jacksonville Tile Company, Inc. Jacksonville Building Trades Council, its President, John Bowden, and agents ; Local 19, Bricklayers and Masons, and its agents ; Local No. 2, Bricklayers and Masons, and its agents ; Local No. 177, International Brotherhood of Electri- cal Workers, and its agents ; Local 597, International Associa- tion of Bridge, Structural, and Ornamental Iron Workers, and its agents ; Local No. 673, International Union of Operat- ing Engineers, and its agents ; Local No. 401, Operative Plasterers and Cement Masons, and its agents ; Local No. 234, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and its agents ; Local No. 435, Sheetmetal Workers International Association, and its agents and Jacksonville Tile Company, Inc. Cases Nos. I0-CD-6 and 10-CD-7. Novem- ber 13, 1959 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF TFIE 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 deter- mine the dispute out of which such unfair labor practice shall have arisen . . . ." On July 16, 1959, Jacksonville Tile Company, Inc., herein called Jacksonville, filed with the Regional Director for the Twelfth Region charges alleging that Local 59, Wood, Wire and Metal Lathers Inter- national Union, AFL-CIO, and its agents, herein called the Lathers; and Jacksonville Building Trades Council, herein called the Council, its president, John Bowden, and agents; Local 19, Bricklayers and Masons, and its agents; Local No..2, Bricklayers and Masons, and its agents; Local No. 177, International Brotherhood of Electrical Work- ers, and its agents; Local 597, International Association of Bridge, Structural, and Ornamental Iron Workers, and its agents; Local No. 673, International Union of Operating Engineers, and its agents; Local No. 401, Operative Plasterers and Cement Masons, and its agents; Local No. 234, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and its agents; and Local No. 435, Sheetmetal Workers International Association, and its agents, herein referred to 125 NLRB No. 13. LOCAL 59, WOOD, WIRE & METAL LATHERS INT'L UNION 139 as the unions affiliated with the Council, 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 the Lathers, the Council, and the named affiliated unions had induced and encouraged employees of S. S. Jacobs Company, general contractor, and its various subcontractors to engage in a strike or concerted re- fusal to work with the object of forcing or requiring Jackonsville to assign certain work to members of the Lathers, rather than to its em- ployees, who were represented by Carpenters Local Union No. 627, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, herein called the Carpenters. Thereafter, pursuant to Section 10(k) of the Act and Sections 102.79 and 102.80 of the Board's Rules and Regulations, Series 7, the Regional Director investigated the charges and provided for a con- solidated hearing upon due notice to the parties.' The hearing was held before Norman A. Cole, hearing officer, on August 12, 1959. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Lathers and Jacksonville filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. Upon the entire record in this case, the Board makes the following : FINDINGS OF FACT 1. The Employer, Jacksonville, is engaged in the business of in- stalling tile of various types, including acoustical tile ceilings. Dur- ing the 12-month period immediately preceding the hearing in the instant case, it had purchased and received directly from outside the State of Florida, wherein its operations are located, materials valued at approximately $342,000. We find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein 2 ' Although Carpenters, through inadvertence, did not receive its notice of hearing 10 days, or more, prior to the date of the hearing, as required by the Board's Rules and Regulations, it had actual knowledge of the scheduling of such proceedings more than 10 days before said date. In addition, Carpenters, at the hearing, waived any rights it might have as a result of the untimely service. Under these circumstances, and inasmuch as there is no indication that the dispute could have been adjusted during the 10-day period prior to the date of hearing, we find that the failure to make timely service upon Carpenters, while constituting error on the part of the Regional Director, was not an error requiring the quashing of the notice of hearing. Cf. Bay Counties District Council of Carpenters, etc. (Associated Horne Builders of San Francisco, Inc.), 115 NLRB 1757, 1758-1759. 2 Siemons Mailing Service, 122 NLRB 81. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local 59, Lathers; Local 627, Carpenters ; the Council; and the affiliated members of the Council are labor organizations within the meaning of the Act. 3. The dispute : a. The facts For a great many years Jackonsville 's employees have been repre- sented by the Carpenters . The last contract between Jackonsville and the Carpenters expired on May 1, 1959 , and no new contract has been executed nor has the expired contract been extended. In March of 1959, Jacksonville was awarded a subcontract by the S. S. Jacobs Company, the prime contractor , for the installation of acoustical tile on two construction projects , referred to herein as the Jacobs Building and the City Hall jobs. When work commenced on the first of these projects , the Jacobs Building , Jacksonville assigned its own employees, who are members of the Carpenters and who work full time for Jacksonville, to do the work . Thereafter, on May 28, 1959, John F. Mack, business agent of the Lathers, asked Jacksonville to assign to members of the Lathers the work of installing primary metal furring, one of the initial steps in the installation of acoustical tile. When Jacksonville informed Mack that the work had been as- signed to its own employees, Mack stated that he would file his juris- dictional claim with the National Joint Board . Subsequently, the Joint Board awarded the disputed work at both the Jacobs Building and City Hall jobs to Lathers. On July 10, Mack again requested that Jacksonville use members of the Lathers. Jacksonville again refused, and Mack threatened to "take steps." On July 15, 1959, the Lathers began picketing at the Jacobs Build- ing with signs reading : THE JACKSONVILLE TILE CO. Refuse to abide by National Joint Board decision , as of June, 1959 on this job LATHER'S 59 This same day, the president of the Council, John Bowden, and busi- ness agents of unions affiliated with the Council appeared at the con- struction site. At that time, Bowden told officials of Jacksonville and the S. S. Jacobs Company that the Lathers' picket line would be honored by the other crafts. Subsequently, all employees left the Jacobs Building site, with the exception of the Carpenters. Such picketing and refusal to cross the picket lines continued until July 17, 1959, at which time Jacksonville's employees left the jobsite, having completed as much of their work as was possible prior to the return to work of the other crafts. LOCAL 59, WOOD, WIRE & METAL LATHERS INT'L UNION 141 b. Contentions of the parties Jacksonville contends that the Lathers picketed the jobsite and that the other Respondents engaged in a work stoppage against the S. S. Jacobs Company and other subcontractors with the object of inducing Jacksonville to award the installation of primary metal furring to members of the Lathers. Lathers admits that its picketing was intended to cause Jackson- ville to award the disputed work to its members. It contends, how- ever, that Jacksonville had agreed to a method of satisfactorily adjusting the dispute and that, therefore, the notice of hearing should be quashed and the charge herein should be dismissed. Lathers asserts that the agree-upon method of adjustment was the submission of the dispute to the National Joint Board and that Jacksonville is bound by the decisions of the Joint Board because of a contract with the Carpenters and because Jacksonville submitted to the processes of the Joint Board. The Council and its affiliated members contend that they had not authorized employees working on the Jacobs Building to cease work and that they are not responsible for the work stoppage. They also contend that they had not attempted to induce Jacksonville to award the disputed work to members of the Lathers. They further contend that Jacksonville had agreed to be bound by the decisions of the Joint Board. APPLICABILITY OF THE STATUTE Section 10(k) of the Act empowers and directs the Board to hear and determine disputes out of which 8(b) (4) (D) charges have arisen. However, before the Board may proceed to a determination of the dispute in 10(k) proceedings, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been vio- lated. In order to conclude that reasonable cause exists, the Board must find some evidence in the record showing a strike or concerted refusal, or an inducement or encouragement of employees to engage in a strike or concerted refusal, to perform services for their employer for the purposes proscribed by that section of the Act.' It is admitted, and we find, that the picket line was established by the Lathers with the intent to induce or encourage employees not to perform services for their employers in an attempt to force or require Jacksonville to assign the installation of primary metal furring to members of Lathers. Such picketing for this purpose is within the proscription of Section 8(b) (4) (D) ; and, accordingly, a dispute exists within the purview of Section 10(k) .' $Local 4 50, International Union of Operating Engineers, AFL-CIO (Painting and Decorating Contractors of America , Houston Chapter, etc.), 119 NLRB 1725, 1729. 4 Samuel A . Agnew, d/b/a .Klamath Cedar Co., 105 NLRB 562. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the responsibility of the Council and its affiliated members for the work stoppage, there is no such admission. John Fox, vice president and general manager of Jacksonville, and James A. Credle, S. S. Jacobs Company's superintendent on the Jacobs Building job,5 testified that about 10 a.m. on the morning of July 15, 1959, the first day of the picketing, John Bowden, president of the Council, and business agents of various unions affiliated with the Council appeared at the Jacobs Building jobsite. According to Fox and Credle, Bowden stated that: He was speaking for the Council; he and the others had just held a meeting; they had unanimously voted to support the Lathers' claims; they would honor the picket line; and the other crafts would not return to the jobsite until the disputed work was given to the Lathers in accordance with the deci- sion of the Joint Board. Bowden admitted that he may have stated that the other crafts would honor the picket line, but he denied hav- ing made any further statements other than one in which sympathy for the Lathers' position was expressed. In all of these circumstances, and without resolving conflicting testi- mony,s we are persuaded that there is reasonable cause to believe that the work stoppage took place under the authority and with the knowl- edge and consent of the Council, its president, John Bowden, and its agents, as well as under the authority and with the knowledge and consent of each of the named unions, and its agents, individually, and that an object thereof was the reassignment of the disputed work from Jacksonville's employees, who were members of the Carpenters, to members of the Lathers. Such conduct is plainly prohibited by Section 8(b) (4) (D) ; and, therefore, the dispute with respect to the Council and its named affiliates is properly before us for determina- tion under Section 10 (k) of the Act. The Respondents assert that the notice of hearing herein should be quashed and the charges dismissed on the ground that the parties had agreed upon a method for voluntary adjustment of the dispute- i.e., submission to the Joint Board. In particular, they urge that Jacksonville had agreed upon such method by reason of a contract with the Carpenters and also by reason of its submission to the proc- esses of the Joint Board. The contract referred to contained a clause which provided : "It is agreed that there shall be no work stoppages by the Local because of jurisdictional disputes and that such disputes shall be referred to the National Joint Board for 5It should be noted, with respect to the testimony of Credle, that the S . S. Jacobs Company, for whom he works, is not a party to the dispute and that said Company, on July 7, 1959, sent a telegram to Jacksonville which stated, in part : "Expect your organi- zation to take immediate necessary action to man subject job [Jacobs Building ] in accord- ance with Jurisdictional (sic) decision rendered by the National Joint Board." 6Local 4 50, International Union of Operating Engineers, AFL-CIO (Painting and Decorating Contractors of America, Houston Chapter), supra. LOCAL 59, WOOD, WIRE & METAL LATHERS INT 'L UNION 143 Jurisdictional Disputes for settlement." As noted above, however, this contract expired on May 1, 1959, prior to any claim to the dis- puted work by the Lathers, and no new contract has as yet been exe- cuted. Moreover, it is uncontradicted that there will be no such clause in any future agreement between Jacksonville and the Car- penters. In such circumstances, we are unable to find that Jackson- ville, because of any contract with the Carpenters, had agreed to the Joint Board's settlement of jurisdictional disputes. Furthermore, there is no evidence of the existence of any agreement between Jacksonville and the S. S. Jacobs Company binding the former to accept decisions of the Joint Board. As indicated above, the Respondents also contend that Jacksonville, by its conduct, submitted to the Joint Board's processes. In support of this position, they note that Jacksonville had supplied certain "information" to the Joint Board in conjunction with the instant dispute. With respect to the character of the "information" sub- mitted, however, the record is silent. Nor does the record reveal under what circumstances the "information" was submitted. We are not convinced that the mere submission of unidentified "information," under unknown circumstances, is sufficient to establish that Jackson- ville agreed to an adjustment of the work dispute by the Joint Board? The facts in the present case are plainly distinguishable from those in the Lee and Meyer Furnace cases,8 which are urged upon us for a contrary result. In the Lee case, this Board found that the employer had submitted to the Joint Board's processes because, among other things, the employer had fully complied with the Joint Board's deci- sion, requested the Joint Board to intervene to halt the union's work stoppage, requested it to reconsider its initial decision, and previously acquiesced in the Joint Board's control of its job. In the Meyer Furnace case, the employer submitted to the Joint Board's processes by itself submitting the dispute to the Joint Board for its determination. It is clear that the facts which persuaded the Board to find a voluntary submission in the decided cases are absent in the instant case. We do not find it necessary to pass upon any agreement which may exist under which the Carpenters might be considered to have agreed upon the submission of disputes to the Joint Board, inasmuch as we find that the record does not contain satisfactory evidence of Jack- sonville's having agreed to any method for voluntary adjustment of disputes within the meaning of Section 10(k) of the Act. 7 Local 450 , International Union of Operating Engineers , AFL-CIO ( Painting and Decorating Contractors of America, Houston Chapter), supra. 8 A. W. Lee, Inc., 113 NLRB 947; Local Union No. 1, Sheetmetal Workers International Association, AFL, et at. ( Meyer Furnace Company ), 114 NLRB 924. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE MERITS OF THE DISPUTE As indicated above, there is evidence that the dispute involved Jacksonville's assignment of the installation of the primary metal furring to its own employees, who were members of the Carpenters, rather than to members of the Lathers. It is well established that an employer is free to make work assignments without being subject to pressures by a labor organization seeking the work for its members, unless the employer is thereby failing to conform to an order or certi- fication of the Board determining the bargaining representative for employees performing such work, or unless an employer is bound by an agreement to assign the work in dispute to other employees. Lathers has no order, certification, or contractual claim to the work. Accordingly, we find that neither the Lathers nor the Council and its affiliated members are entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require Jacksonville to assign the disputed work to members of the Lathers rather than to its own em- ployees. However, we are not by this action to be regarded as assign- ing the work in question to members of the Carpenters. DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. Local 59, Wood, Wire & Metal Lathers International Union, AFL-CIO, is not, and has not been, lawfully entitled to force or re- quire Jacksonville Tile Company, Inc., to assign the work of install- ing primary metal furring to employees who are members of Lathers, rather than to Jacksonville Tile Company's own employees, who are members of Carpenters Local Union No. 627, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 2. Jacksonville Building Trades Council, its president, John Bowden, and agents; Local 19, Bricklayers and Masons, and its agents; Local No. 2, Bricklayers and Masons, and its agents; Local No. 177, International Brotherhood of Electrical Workers, and its agents; Local 597, International Association of Bridge, Structural, and Ornamental Iron Workers, and its agents; Local No. 673, Inter- national Union of Operating Engineers, and its agents; Local. No. 401, Operative Plasterers and Cement Masons, and its agents; Local No. 234, United Association of Journeymen and Apprentices for the Plumbing and Pipefitting Industry of the United States and Canada, and its agents; and Local No. 435, Sheetmetal Workers International Association, and its agents are not, and have not been, lawfully en- titled to force or require Jacksonville Tile Company, Inc., to assign the work of installing primary metal furring to members of Lathers, rather than to Jacksonville Tile Company's own employees, who are GENERAL ELECTRIC COMPANY 145 members of Carpenters Local Union No. 627, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 59, Lathers, the Council, and each of the affiliated members of the Council respondent herein shall notify the Regional Director for the Twelfth Region, in writing, whether or not it will refrain from forcing or requiring Jacksonville Tile Company, Inc., by means proscribed by Section 8(b) (4) (D) of the Act, to assign disputed work to members of Lathers rather than to Jackson- ville's own employees, who are members of Carpenters Local Union No. 627. General Electric Company and Hanford Atomic Metal Trades Council (AFL-CIO) federated with the American Federation of Labor, Petitioner. Case No. 19-RC-208. November 13, 1959 SECOND SUPPLEMENTAL DECISION On February 24, 1949, after an election conducted pursuant to a stipulation for certification upon consent election, the Board issued a Decision and Certification of Representatives in the above-entitled proceeding in which the Council was certified as the collective- bargaining representative of the following unit of the Employer's employees : All weekly salaried production and maintenance employees in and about Hanford Works of General Electric Company, Rich- land, Washington, excluding clerical employees, patrolmen, fire- men, medical division employees, health instrument division employees, laboratory assistants, technologists, technical gradu- ates, electrical division dispatchers, "P" and "S" division chief operators, glass blowers classified as instrument mechanics, messengers and motor messengers, transitmen, axemen, chain and rodmen, draftsmen, designers, and engineering assistants, all persons on the exempt salary payroll and no other constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. On February 2, 1959, the Employer and the Council filed with the Board a joint petition for a decision "as to whether certain General Electric employees classified as `specialists-instrument development' in the Irradiation Processing Department are excluded from the bar- gaining unit described in the certification or are engaged in produc- tion and maintenance work and therefore included in the unit." 1 On I On November 30, 1956, the Employer and the Council filed similar joint petitions for the clarification of the same certification as to the unit placement of 13 engineering assistants . 118 NLRB 1108. 125 NLRB No. 14.