International Hod Carriers, Local no. 1149

INTERNATIONAL HOD CARRIERS', LOCAL NO 1149 753 the operations of Respondent's business, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of the Act, the Trial Examiner recommends that Respondent, to effectuate the policies of the Act, cease and desist therefrom and take the affirmative action hereinafter specified As noted above, the Charging Parties, except for Brown, were not recalled (after being laid off) for production work at Pleasant View because of their aggressive handling of grievances and Brown was not recalled for warehouse work for similar reasons To remedy the discriminatory action taken and restore the situation to that which would have existed but for the unfair labor practices, the Trial Examiner recomniende that Respondent offer to the Charging Parties employment at the Pleasant View site substantially equivalent to that which they would have had but for Respondent's unfair labor practices and that Respondent make whole these individuals for any loss of pay they may have suffered by reason of the discrimina- tions against them However, the Trial Examiner does not accept the General Counsel's recommendation that they be made whole from the dates of their layoffs. To the contrary, the Trial Examiner recommends that backpay be computed from February 13, 1958-the date Respondent commenced the regular production of coal at pleasant View While the Trial Examiner believes and finds that Respondent capitalized upon the layoffs to, rid itself of aggressive handlers of grievances he is not convinced that the layoffs themselves were motivated by this consideration The Trial Examiner believes the evidence adduced insufficient to establish that the layoffs were, without economic justification While it is true, as Respondent notes in its brief, that the complaint does not allege discriminatory refusals to hire the Charging Parties at Pleasant View, it is also true, as noted in Respondent's brief, that the primary matter involved herein (and litigated) concerns the manner in which Respondent selected its production employees at Pleasant View and its failure to select the Charging Parties Any contention that the Trial Examiner is precluded from considering the manner of selection and failure to .select and to fashion an appropriate remedy, because these matters were not pleaded, is hereby rejected See Carolina Mirror Corporation, 123 NLRB' 1712 (Recommendations omitted from publication I International Hod Carriers .', Building and Common Laborers Union of America, Local No. 1149 and dames R. Lang and Lloyd L. Lang, d/b/a Lang Brothers International Union of Operating Engineers, Local 132-A, B & C and James IL Lang and Lloyd L. Lang, d/b/a Lang Brothers. Cases Nos 6-CD-106 and 6-CD-107 December 15, 1959 DECISION AND DETERMINATION OF DISPUTE 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 deter- mine the dispute out of which such unfair labor practices shall have arisen 51 125 NLRB No 95 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 31, 1959, James R. Lang and Lloyd L. Lang, d/b/a Lang Brothers, herein called the Employer , filed charges with the Regional Director for the Sixth Region alleging that International Hod Car- riers', Building and Common Laborers Union of America, Local No. 1149, and International Union of Operating Engineers, Local 132-A, B & C, herein called the Respondents, or the Respondent Hod Car- riers and Respondent Operating Engineers, by their officers, agents, and representatives, had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act. It was charged, in substance, that from July 30, 1959, and thereafter, the Respondents, their officers, agents, and representatives, had induced and encouraged the employees of the Employer to engage in a strike or a concerted refusal in the course of their employment to perform services with an object of forcing or requiring the Employer to assign particular work to Respondents' members rather than to members of United Mine Workers of America, United Construction Workers, District 50, herein called District 50. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.79 and 102.80 of the Board's Rules and Regulations , the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to all parties. A hearing was held before Donald A. Romano, hearing officer, on September 15 and 29, 1959. 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 hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three -member panel [Chairman Leedom and Members Rodgers and Fanning]. Upon the entire record in these cases , the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER James R. Lang and Lloyd L. Lang, d/b/a Lang Brothers , is engaged in the business of road and other heavy construction work with offices in Bridgeport , West Virginia . During the calendar year of 1959, the Employer engaged in the construction of roads which are in the Federal highway system under contracts for providing services and/or materials valued at in excess of $500,000, which contracts were awarded pursuant to the Federal highway construction program whereby the Federal Government contributes 50 percent of the total cost. INTERNATIONAL HOD CARRIERS', LOCAL NO. 1149 755 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 in these cases. II. THE LABOR ORGANIZATIONS INVOLVED Operating Engineers, Hod Carriers, and District 50 are labor Organ- izations within the meaning of the Act. III. DISPUTE The dispute in issue concerns the performance of earth-moving work for the Employer at a project near New Martinsville, West Virginia. The Employer is a partnership consisting of James R. and Lloyd L. Lang, and was formed in 1950. In addition to the partnership, the Langs own controlling interests in. other enterprises, included among which is the Suburban. Contracting Company, Inc., herein called Suburban. In October 1958, the Employer commenced work on a, project in Cameron, West Virginia. On October 16, 1958, the Employer and District 50 executed a collective-bargaining agreement covering the former's employees which was to run for 1 year. On October 22, 1958, Suburban and the Respondents entered into a contract covering Subur- ban's employees. This contract, which contained a union-security clause, was to remain in effect until December 31, 1958, and was there- after to run for annual periods. On March 26, 1959, the Employer was awarded a contract to per- form earth-moving work at the approaches to the Ohio River bridge near New Martinsville. Work began on June 1, 1959. Most of the men assigned to this work had been employed at the Cameron project and all were members of District 50. On July 22, Beckner, a repre- sentative of Respondent Operating Engineers, visited the project and asked James Lang how the Employer intended to perform the work. Lang replied that the Employer had a contract with District 50 and that employees covered by that agreement were doing the work. On July 29, Beckner, in the company of Crawford, a representative of Respondent Hod Carriers, returned to the project and met with the Langs. In the conversation which ensued, the Respondents' repre- .sentatives asserted that the agreement which respondents had executed with Suburban covered the work being performed at New Martinsville. The Langs replied that Suburban was a corporation separate and distinct from the Employer, and that the Employer had a contract with District 50 which assigned the work at New Martins- ville to employees covered by District 50's agreement. The Respond- ents' representatives then stated that they represented road construe- 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion workers in the Ohio Valley, where the instant project was located; that the representative interests of District 50 lay in mining operations rather than in road construction; and that the Employer should therefore sign a contract with the Respondents covering the New Martinsville operation.' A discussion of such a contract then fol- lowed. The Respondents' representatives stated that the Employer's employees would be required to join Respondents within 30 days after execution of the contract or else they would be replaced, and that the Employer would be required to sign such an agreement by August 1. The Langs replied that it would be difficult to discharge their men, whereupon the representatives stated that it was not impossible to do. The Langs then suggested that either a private or a Board-conducted election should be held among their employees. The representatives declined an election on the ground that the project would have been completed before the election could be held. They then informed the Langs that Respondents would picket the project unless a collective- bargaining agreement was signed. Finally, Crawford sought to in- duce the Langs to extend the Suburban contract to this project, stating that "it would be a good thing for [the Employer] to do that, and [the Employer] would be better off if [it] did." The meeting then ended. At some time during this meeting, the Respondents unsuccess- fully solicited membership among the Employer's employees.' On August 3, the next working day, Respondents' representatives appeared at the jobsite with two pickets. The pickets carried signs bearing the legends "Laborers on this job are not members of Laborers' Local 1149" and "Engineers on this job are not members of Engineers Local Union 132," both having reference to the Respondents herein. The picketing continued until enjoined by a Federal court on Septem- ber 10, 1959. The picketing occurred at places and during times when the Employer's employees could, and did, observe it. IV. CONTENTION OF THE PARTIES The Employer asserts that the picket-line activity by the Respond- .ents was designed to force a change in the assignment of work to which they were not entitled and that they thereby violated Section .8(b) (4) (D) oftheAct. Respondents contend that this is not a jurisdictional dispute within the meaning of Section 8(b) (4) (D) because (1) it has a contractual claim to the work, and (2) its picketing was for the purpose of or- ganizing the Employer's employees and not to force an assignment of work from members of District 50 to Respondents' members. a It Is undisputed that the Respondents did not, at any of the times material herein, represent any of the Employer's employees. 2 The employees' unwillingness to join Respondents stemmed largely from the fact that dues and initiation fees which Respondents would exact were costlier than those which -District 50 received. INTERNATIONAL HOD CARRIERS', LOCAL NO. 1149 V. APPLICABILITY OF THE STATUTE 757 Section 10(k) of the Act empowers and directs the Board to hear and determine disputes out of which Section 8(b) (4) (D) charges have arisen. However, before the Board may proceed to a deter- mination of the dispute in Section 10(k) proceedings, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. 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 in the course of their employment to engage in a strike or concerted refusal to perform services for their employer for the object proscribed by that section of the Act 3 We believe that the record contains ample evidence that the Re- spondents induced and encouraged the Employer's employees to cease work. Whether such inducement was privileged, however, depends upon the validity of the Respondents' contentions as to its object. The Respondents initially contend that their picketing was intended to assert an existing contract claim to the work in dispute. The con- tract out of which this claim arose was executed by Respondents with Suburban, a company which was separate and distinct from the Em- ployer. The evidence establishes that the Respondents not only lacked a contract right to the disputed work but, in fact, the Employer had by contract awarded the work to members of District 50. Accordingly, we reject the Respondents' contention that its picketing was statu- torily permissible because it had a contract with the Employer which assigned the disputed work to them.' The Respondents further contend that their picketing was solely for organizational purposes. In our opinion, the evidence shows that the picketing had a different primary object, namely, to obtain the earthmoving work at New Martinsville for their own members. Thus, when Respondents' representatives visited the project on July 29, 1959, they were aware that the Employer had assigned the work to members of District 50 under contract with that union. They were also aware that the employees favored membership in District 50. Respondents nevertheless pressed their demand for a contract covering this work, stating that earthmoving work in the Ohio Valley had been traditionally assigned to AFL-CIO unions. When questioned as to the nature of such a contract, the Respondents made it clear that the agreement would contain a union-security clause and that the incumbent employees would be discharged if they refused to join Respondents. In view of the employees' antipathy for the Respond- 'Local 450, International Union o f Operating Engineers, AFL-CIO ( Painting and Decorating Contractors of America, Houston Chapter), 119 NLRB 1725, 1729. 4 John H. King d/b/a John M. King Co., 124 NLRB 1375. 535828-60-vol. 125- 19 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents, such a clause, as Respondents knew, would furnish the mech- anism for accomplishing the objective of having jobs taken from members of District 50 and assigned to members of the Respondents. When the Employer expressed its unwillingness to sign such an agree- ment, Respondents then demanded that their contract with Suburban be extended to the New Martinsville project. The extension of this contract to the project here involved, which also contained a union- security provision, would also have accomplished the replacement of members of District 50. It was only after these efforts failed that the Respondent commenced picketing and asserted its conduct as being organizational in character. On our review of the record and the foregoing facts, we are persuaded that the primary object of Re- spondents' picketing at New Martinsville was to force the assignment of earth-moving work to members of Respondents rather than to members of District 50 21 Accordingly, we are satisfied and find that there is reasonable cause to believe that the Respondents engaged in unfair labor practices within the meaning of Section 8 (b) (4) (D) and that the dispute here involved is properly before us for determination under Section 10(k). VI. THE MERITS OF THE DISPUTE As indicated above, there is evidence that the dispute involved the Employer's assignment of the work of earthmoving at its project in New Martinsville, West Virginia, to members of District 50 rather than to members of the Respondents. An employer is free to make work assignments without being subject to pressures by a labor or- ganization seeking the work for its members, unless the employer is thereby failing to conform to an order or certification 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 the claiming union. The Respondents have no order or certification. Nor do they possess a contract claim to the work. Accordingly, we find that the Respondents are not entitled, by means proscribed by Section 8(b) (4) (D), to force or require the Employer to assign the disputed work to the Respondents rather than to District 50. However, we are not by this action to be regarded as assigning the work in question to District 50. 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 : 8 See Parkersburg Building & Construction Trades Council, AFL-CIO; et al. (Howard Price d/b/a Howard Price & Co.), 119 NLRB 1384; United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL-CIO, at at. (Kenneth Markwell, at at., d/b/a Markwell & Hartz Contractors), 120 NLRB 610. INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ETC . 759 1. International Hod Carriers', Building and Common Laborers Union of America, Local No. 1149, and International Union of Op- erating Engineers , Local 132-A, B, & C, and their officers, agents, and representatives , are not, and have not, been entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require James R. Lang and Lloyd L. Lang, d/b/a Lang Brothers , to assign earth- moving work at its project in New Martinsville , West Virginia, to their members rather than to members of United Mine Workers of America, United Construction Workers, District 50. 2. Within 10 days from the date of this Decision and Determination of Dispute, the Respondents shall notify the Regional Director for the Sixth Region, in writing, whether or not they will refrain from forcing or requiring James R. Lang and Lloyd L. Lang, d /b/a Lang Brothers, by means proscribed by Section 8(b) (4) (D ) of the Act, to assign the disputed work to their members rather than to members of District 50. International Typographical Union , AFL-CIO and Members of Its Executive Council; International Typographical Union, AFL-CIO, Local 165, and its Scale Committee and Worcester Telegram Publishing Company, Inc. Case No. 1-CD-49. De- cember 16, 1959 DECISION AND ORDER On June 29, 1959, Trial Examiner Lee J. Best issued his Interme- diate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent filed exceptions and a supporting brief. The Charging Party filed a brief in support of the Intermediate Report. 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]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modifications. 1. Section 10 (k) of the Act requires that if the Respondents have complied with the Board's determination, the 8 (b) (4) (D) charge 125 NLRB No. 93.