Int'l Union of Operating Engineers, Local 12

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless the employer is thereby failing to conform to an order or cer- tification 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 Painters has no order, certification, or valid contractual claim to the disputed work herein Accordingly, we find that Painters is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Seville and/or Carillon Hotels to assign the disputed work to members of Painters 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 Hotel Employees 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 Brotherhood of Painters, Decorators, and Paper Hangers of America, Local 365, AFL-CIO, is not, and has not been, lawfully entitled to force or require the Seville Hotel to assign the work of maintenance painting to employees who are members of Painters, rather than to the Seville Hotel's own employees 2 Brotherhood of Painters, Decorators, and Paper Hangers of America, Local 365, AFL-CIO, is not, and has not been, lawfully entitled to force or require the Carillon Hotel to assign the work of maintenance painting to employees who are members of Painters, rather than to the Carillon Hotel's own employees 3 Within 10 days from the date of this Decision and Determina- tion of Dispute, Painters shall notify the Regional Director for the Twelfth Region, in writing, whether or not it will refrain from forc- ing or requiring the Seville and Carillon Hotels, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the disputed work to members of Painters, rather than to the Seville and Carillon hotels' own employees International Union of Operating Engineers , Local Union No. 12, AFL-CIO and Tri County Association of Civil Engineers and Land Surveyors International Union of Operating Engineers, Local Union No. 12, AFL-CIO and Tri-Counties Association of Civil Engineer- ing Employees Cases Nos 21-CC-319 and 21-CC3,02 , Febru- ary 17, 1960 DECISION AND ORDER On a charge and amended charge duly filed on March 26, 1959, and April 8, 1959, by Tri County Association of Civil Engineers and Land 126 NLRB No 87 INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 689 Surveyors, herein referred to as Tri County, and upon a charge duly filed on April 7,1959, by Tri-Counties Association of Civil Engineer- ing Employees, the General Counsel for the National Labor Relations Board, herein referred to as the General Counsel, by the Regional Director for the Twenty-first Region, issued a complaint dated May 22, 1959, against International Union of Operating Engineers, Local Union No. 12, AFL-CIO, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (A) and (B) of the National Labor Relations Act, as amended. Copies of the order consolidating the cases herein, the con- solidated complaint, and notice of hearing were duly served upon the Respondent and the Charging Parties. The Respondent filed an answer to the consolidated complaint denying the commission of the alleged unfair labor practices and asserting certain matter by way of a separate defense. On July 31, 1959, the parties entered into a stipulation setting forth an agreed statement of facts. In a joint motion to transfer proceed- ings to the Board, also dated July 31, 1959, the parties requested that the proceedings be transferred to the Board. In said motion, the parties agreed that the charges, complaint, notice of hearing, answer, and the aforesaid stipulation constituted the entire record in these cases and that no oral testimony was necessary or desired. The parties agreed further to waive a hearing before a Trial Examiner, findings of fact and conclusions of law, and the issuance of an Intermediate Report and Recommended Order. By order dated August 12, 1959, the Board granted the joint motion of the parties and made it a part of the record herein. Pursuant to such motion, the Board transferred the proceedings to, and continued it before, the Board. The Board fixed a time for the filing of briefs and directed that any requests for oral argument be made in writing to the Board simultaneously with the filing of the briefs. Thereafter, only the General Counsel filed a brief. None of the parties requests oral argument. Upon the basis of the aforesaid stipulation and the entire record in these cases, including the charges and amended charges, the com- plaint and answer, and briefs, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES INVOLVED Tri County Association of Civil Engineers and Land Surveyors is composed of various employers including Pacific Engineers & Sur- veyors, Inc., and Kenneth W. Wright, herein respectively referred to as Pacific and Wright, who are engaged in civil engineering and land 554461-60-vol 123-45 ,'690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surveying work in the State of California. Tri County exists for, and engages in, collective bargaining and the negotiation of collective- bargaining agreements on behalf of its members, including Pacific and Wright. During the 12-month period ending March 31, 1959, members of Tri County, including Pacific and Wright, sold products and performed services valued at more than $50,000 to firms and in- dividuals who shipped goods from and performed services outside the State of California valued at more than $50,000. Accordingly, we find that Tri County is an employer within the meaning of Sec- tion 2 (1) and (2) of the Act, that Tri County and its employer- members at all material times herein have been and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local Union No. 12, AFL-CIO, and Tri-Counties Association of Civil Engineering Em- ployees are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As set forth in the stipulation of the parties, at all times material herein, the Respondent has been engaged in a program and campaign to obtain recognition as collective-bargaining representative of the employees of the employer members of Tri County, including among others the employees of Pacific and Wright. At such times, William C. Wyckoff & Son, Sinton & Savage, Guido O. Ferrini, L. E. Webb Construction Co., and M. J. Hermreck, herein respectively called Wyckoff, Sinton, Ferrini, Webb, and Hermreck, were, and each of them was, engaged in construction work, and each employed members of Respondent to operate his construction power equipment. Also at the same time Sinton, Lindero Investment Co., Inc., herein called Lindero, and Rancho Estates, herein called Rancho, were, and each of them is, a company or person engaged in the land development business, in connection with which Lindero and Rancho use and have used during the months of March and April 1959, the services of Wyckoff, Ferrini, Webb, and Hermreck. On or about March 26, 1959, the Respondent, by its agents Holman and Smith, induced and encouraged the employees of Wyckoff to engage in a strike on work being performed by Wyckoff for Lindero by directing such employees to stop their work and telling them that they were not to work because the surveyors on the same jobsite, who were employees of Pacific,. performing work pursuant to a contract between Lindero and Pacific, were nonunion. Similarly, on or about March 31, 1959, the Respondent by its agent, Neal, induced and en- couraged the employees of Ferrini, Webb, and Hermreck to engage INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 691 in a strike or strikes on work being performed by Ferrini, Webb, and Hermreck for Rancho, telling some of the employees that they were not to work because the surveyors on the same jobsite, who were em- ployees of Wright, performing work pursuant to a contract between Rancho and Wright, were not union men. Also, on or about April 3, 1959, Respondent by its agent, Neal, induced and encouraged the employees of Sinton to engage in a strike on work being performed by Sinton as a developer and general contractor telling such employees that they could not work for Sinton as long as the surveyors on the same jobsite, who were employees of Pacific, performing work, pur- suant to a contract between Sinton and Pacific, were working on the project. The matter at issue concerns the legality of the Respondent's con- duct in inducing and encouraging employees of Wyckoff, Ferris i, Webb, Hermreck, and Sinton to engage in a strike at the various j obsites because employees of Pacific and Wright were performing work as surveyors on the jobsites. In justification, the Respondent relies on the terms of collective-bargaining agreements with the afore- mentioned firms containing a provision regulating subcontracting. Specifically the agreements provide in article I: D. If the CONTRACTORS, parties hereto, sub-contract job- site work falling within the recognized jurisdiction of the Union, provisions shall be made in each sub-contract for the compliance by said sub-contractor with terms not less than those contained herein. A sub-contractor is defined as any person, firm or corpo- ration who agrees, under contract with the general contractor or his sub-contractor, to perform on the jobsite any part or portion of the work covered by this Agreement, including the operation of equipment, performance of labor, and the installation of materials. It appears that for comparable classifications of employees, wage rates paid by Pacific and Wright for surveyors were appreciably lower than those prescribed by the Respondent's contract. It also appears that on March 26, 1959, Respondent's agent, Smith, told Wyckoff that it was closing down his job and was standing on its subcontracting clause; on March 31, Respondent's agent, Neal, told Hermreck that his men could not work on the Rancho job because his subcontractor clause applied, and on April 1, the Respondent's agent Neal similarly informed Sinton that his men could not work on the Sinton job be- cause the subcontractor clause applied. The Respondent is not, nor has it been at any time material herein the certified bargaining repre- sentative of any of the employees of Tri County employer-members. Section 8(b) (4) (A) of the Act, so far as relevant, provides that it shall be an unfair labor practice for a labor organization to engage in or induce or encourage the employees of any employer to engage in a strike where an object thereof is to force or require any employer 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or other person to cease doing business with another person. Section 8(b) (4) (B) provides that such conduct is an unfair labor practice if the object thereof is to force or require any other employer to recognize or bargain with a labor organization as the representative of its employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9. Inducement is conceded by the Respondent. The only question is whether the Respondent's objectives were unlawful within the mean- ing of Section 8(b) (4) (A) and (B) as charged. We are of the opinion that the Respondent violated Section 8(b) (4) (A) because it induced the work stoppages in question with the object of causing Wyckoff and the other employer contractors to cease doing business with Lindero and Rancho, in order to cause Lindero and Rancho to cancel their contracts with Pacific and Wright. We are also of the opinion that the Respondent violated Section 8(b) (4) (B) because its inducement of the work stoppages had the further objective of forcing Pacific and Wright to recognize or bargain with the Respondent on behalf of their employees who were performing work on the construc- tion sites which the Respondent regarded as falling within its jurisdiction. Indicative of this objective is the fact that at the construction sites where the work was being performed by the contractors for Lindero and Rancho the Respondent told the employees of the contractors that they were to stop working because the employees of Pacific and Wright were nonunion. In view of the fact that the Respondent had been carrying on a campaign to organize the employees of all employer members of Tri County including Pacific and Wright, it is reasonable to infer that by causing the work stoppages for the reasons given, the Respondent hoped thereby to compel Wyckoff and the other contrac- tors to cease doing work for Lindero and Rancho thereby forcing the latter to cancel their agreement with Pacific and Wright and thus ultimately to force Pacific and Wright to recognize and bargain with the Respondent. We find no merit in the Respondent's contention that by striking the employees of Wyckoff and the other contractors it was merely seeking to compel compliance with a subcontract clause in its agree- ment with the Contractors. There is nothing in the record to suggest that any conduct on the part of Wyckoff, Ferrini, Webb, or Hermreck could have been the object of the Respondent's activities since none of the aforesaid employers had violated its agreement with the Re- spondent by entering into a contract with Pacific or Wright. In view of the fact that 'their employees were nevertheless induced to strike, the conclusion is inescapable that the true object of the Re- spondent's conduct was to force a cancellation of Pacific's and Wright's contracts. Since such was the true objective of the Respond- INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 693 ent, as manifested by its actions on March 26 and 31, we are equally of the opinion that in striking Sinton's employees on April 3, it had the same objective, that is to cause Sinton to cancel its contract with Pacific. Such object is clearly in violation of the Act. Moreover; the fact that Sinton may have breached its agreement with the Re- spondent in entering into a subcontract with Pacific cannot avail the Respondent as a defense to its otherwise unlawful conduct.' Accord- ingly, we conclude on the basis of the entire record and the conduct hereinabove described, the Respondent violated Section 8 (b) (4) (A) and Section 8 (b) (4) (B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, as set forth above, occurring in connection with the operations of Pacific and Wright and other em- ployers 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. V. THE REMEDY We have found that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(b) (4) (A) and (B) of the Act. In part, we have found that the fact that Sinton may have breached its agreement with the Respondent, relating to work to be done on the site of the construction projects, cannot avail the Respondent as a defense to its unlawful conduct. Since the com- mission of the unfair labor practices herein, however, Congress has enacted the Labor-Management Reporting and Disclosure Act of 1959, which added in Title VII, Section 704(b), an amendment to Section 8 of the National Labor Relations Act. The amendment reads in material part as follows : (e) It shall be an unfair labor practice for any labor organiza- tion and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, trans- porting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, 'Bangor Building Trades Counoil, AFL-CIO (Davison Construction Company, Inc.), 123 NLRB 484. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alteration, painting, or repair 2 of a building, structure, or other work.... We are of the opinion that Congress in enacting the foregoing proviso in Section 8(e) did not intend thereby to grant immunity to a labor organization for practices which the Board has heretofore held to be in violation of provisions of Section 8(b) (4) (A) and (B), or in- tended in any way to limit the Board's authority to provide an appro- priate remedy in such instances. Thus, in reporting on the effect of the said proviso of Section 8 (e), the committee of conference stated : ... The committee of conference does not intend that this pro- viso should be construed so as to change the present state of the law with respect to the validity of this specific type of agreement relating to work to be done at the site of the construction project or to remove the limitations which the present law imposes with respect to such agreements. Picketing to enforce such contracts would be illegal under the Sand Door case (Local 1796, United Brotherhood of Carpenters v. N.L.R.B., 357 U.S. 93. To the extent that such agreements are legal today under section 8 (b) (4) of the National Labor Relations Act, as amended, the proviso would prevent such legality from being affected by section 8(e). The proviso applies only to section 8(e) and therefore leaves unaffected the law developed under section 8(b) (4). In the circumstances, we shall issue the customary order in this case, directing the Respondent to cease and desist from engaging in the unfair labor practices found herein and to take affirmative action designed to effectuate the policies of the Act. Since it is apparent that the Respondent is engaged in a program and campaign to obtain recognition as collective-bargaining repre- sentative, not only of the employees of Pacific and Wright, but of the employees of other employer members of Tri County, it may rea- sonably be anticipated that it will engage in similar unlawful con- duct as that herein which will involve employees of other secondary employers. We shall, therefore, enter a broad order against the Respondent. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent International Union of Operating Engineers, Local Union No. 12, AFL-CIO, its agents, officers, representatives, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging the employees of William C. Wyckoff & Son, Sinton & Savage, Guido . 2 With respect to the final proviso in Section 8 (e), it is clear from the language of the statute and the legislative history that it is applicable only to the clothing and apparel industry. INT'L UNION OF OPERATING ENGINEERS , LOCAL 12 695 0. Ferrini, L. E. Webb Construction Co., and M. J. Hermreck, or any other employer, to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials or commodi- ties, or to perform any services for their respective employers where an object thereof is to force or require said employers to cease doing business with Pacific or Wright, or with Lindero or Rancho, or any other employer or person, or to force and require Lindero or Rancho to cease doing business with Pacific or Wright or any other employer member of Tri County; or where an object thereof is to force and require Pacific or Wright or any other employer member of Tri County to recognize or bargain with the Respondent as the repre- sentative of any employees of Pacific or Wright or any other employer member of Tri County, unless the Respondent has been certified as the representative of such employees under the provisions of Section 9 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting halls in Los Angeles, California, copies of the notice attached hereto marked "Appendix." I Copies of said notice to be forwarded by the Regional Director for the Twenty-first Region shall, after being duly signed by an author- ized representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecu- tive days thereafter in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Twenty-first Region signed copies of the aforesaid notice for posting on the jobsites of Wyckoff, Sinton, Ferrini, Webb, and Hermreck in places where notices to their employees are customarily posted, if the said firms are willing to do so. Copies of said notice to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by an authorized representative of the Respondent, be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith. MEMBER FANNING took no part in the consideration of the above Decision and Order. S In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 12, AFL-CIO, AND TO ALL EM- PLOYEES OF WILLIAM C. WYCKOFF & SON, SINTON & SAVAGE, GuIDO 0. FERRINI, L. E. , WEBB CONSTRUCTION CO., AND M. J. HERMRECS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in, or induce or encourage employees of William C. Wyckoff & Son, Sinton & Savage, Guido O. Ferrini, L. E. Webb Construction Co., and M. J. Hermreck, or any other employer to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform any services for their respective employers, where an object thereof is to force or require said employers to cease doing business with Pacific Engineers & Surveyors, Inc., or Kenneth W. Wright, or with Sinton, Lindero Investment Co., Inc., or Rancho Estates, or any other employer or person, or to force and require said Sinton, Lindero Investment Co., Inc. or Rancho Estates to cease doing business with Pacific Engineers & Surveyors, Inc., or Kenneth W. Wright or any other employer member of Tri County Association of Civil Engineers and Land Surveyors; or where an object thereof is to force and require said Pacific Engineers & Surveyors, Inc. or Kenneth W. Wright or any other employer member of Tri County Association of Civil Engineers and Land Surveyors to recognize or bargain with us as the representative of any employees of Pacific Engi- neers & Surveyors, Inc., or Kenneth W. Wright or any other employer member or Tri County Association of Civil Engineers and Land Surveyors, unless we have been certified as the repre- sentative of such employees under the provisions of Section 9 of the Act. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 12, AFL-CIO, Local Union. 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.