Building Service Employees International Union

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinery Erectors Local Union No. 575, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. 2. Within 10 days from the date of this Decision and Determina- tion of Dispute, the Millwrights and Duncan, shall notify the Re- gional Director for the Seventh Region in writing, whether or not they will refrain from forcing or requiring General Riggers and Erectors, Inc., by means proscribed by Section 8(b) (4) (D) of the Act, to assign the disputed work to its members rather than to mem- bers of the Riggers. Building Service Employees International Union, Local 324, AFL-CIO and Hewitt-Robins, Inc. Case No. 2-CD-177. April 5, 1960 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE 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 practice shall have arisen...." On August 17, 1959, Hewitt-Robins, Inc., herein called Hewitt- Robins, filed with the Regional Director for the Second Region a charge alleging in substance that Building Service Employees Inter- national Union, Local 32-J, AFL-CIO, herein called the Respondent, had engaged in, and induced and encouraged the employees of several employers other than Hewitt-Robins to engage in, a strike for the purpose of forcing or requiring Hewitt-Robins to assign particular work to members of Respondent rather than to employees of Hewitt- Robins who are not members of Respondent. Thereafter, pursuant to Section 10(k) of the Act and Sections 102.89 and 102.90 of the Board's Rules and Regulations (Series 8, 1959), the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to all parties. The hear- ing was held before James J. Graham, hearing officer, on various dates between October 29 and November 23, 1959. Hewitt-Robins and Respondent appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. No briefs were filed by any of the parties. 127 NLRB No. 7. BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION 31 Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. Hewitt-Robins, Inc., is a New York corporation which designs, produces, installs, and services materials-handling systems and manu- factures industrial rubber and foam rubber products. Its gross reve- nue in 1958 exceeded $50,000,000, of which more than $25,000,000 was derived from direct sales to customers located outside New York State. We find that Hewitt-Robins 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. Building Service Employees International Union, Local 32-J, AFL-CIO, is a labor organization within the meaning of the Act. 3. The dispute : Hewitt-Robins rents office space in a building at 157 Chambers Street in New York City. Under its lease, Hewitt-Robins is respon- sible for the cleaning of its leased premises. For many years, this cleaning was done under contract by an independent company, Metropolitan Window and Office Cleaning Corporation, herein called Metropolitan. The actual cleaning work was done by three women employees of Metropolitan-Blanche Motiuk, Anna Mae Jones, and Anna Holka. Early in 1959, Hewitt-Robins became dissatisfied with the quality of service performed by Metropolitan and with its cost; it decided to do the cleaning work itself through hired employees. For this purpose, it employed two men, one on March 23 and the other on May 14, 1959, in anticipation of the expected cancellation of the contract with Metropolitan. Neither of these men was at the time a member of the Respondent. On May 20, 1959, Hewitt-Robins noti- fied Metropolitan that it was canceling the cleaning contract with the latter, effective as of May 31, 1959. Several days before the effective date of the cancellation, the Respondent was notified of Hewitt-Robins' action. A union repre- sentative thereupon called Hewitt-Robins and discussed the contem- plated change with a company official. As a result of the discussion, the union representative mailed to Hewitt-Robins a list of cleaning contractors with whom Respondent had contractual relations, and a proposed collective-bargaining agreement to be executed by Hewitt- Robins in the event the latter decided to do the cleaning work with its own employees. Hewitt-Robins refused to accept either of the alter- natives offered by Respondent. Instead, it permitted its contract with Metropolitan to lapse and had its two recently hired men cleaners do the work formerly done by the three women cleaners employed by Metropolitan. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 4, 1959, Respondent began picketing the Chambers Street building with signs reading : "Office Cleaners Union on strike . . . Hewitt-Robins Engineers, Inc. 157 Chambers Street ... Displaced our members by hiring non-union employees. Help us gain better conditions ... Local 32-J." The picketing was later extended to another building occupied in part by Hewitt-Robins, but not involved in this dispute. The picketing continued until September 15, 1959, when it was discontinued in accordance with a stipulation by the Union in a pending Section 10 (1) injunction proceeding. On`July 21, 1959, representatives of Hewitt-Robins and Respond- ent met to discuss their difficulties. According to Burke, spokesman for Hewitt-Robins, President Perry of Respondent complained that the Company had displaced or replaced union people with nonunion help. Burke denied that there ever had been such replacement be- cause Hewitt-Robins had never previously employed cleaners. Perry then said that he would like to negotiate a collective-bargaining con- tract. Burke replied that he could not because the male cleaners were not members of Respondent and did not want to join. There is no dispute that at this time Respondent did not represent the men. Ac- cording to Perry, he asked Burke to continue in Hewitt-Robins' em- ploy the three women who had formerly done the cleaning work as employees of Metropolitan, but he denied asking for the discharge of the two men who were then doing the cleaning work. The meet- ing was unsuccessful in resolving the dispute. At a second meeting held on August 18, Perry made three proposals for settling the dis- agreement between the parties. According to Burke, Perry proposed that Hewitt-Robins should : (1) Eliminate the two male employees and give the cleaning work to a union contractor; (2) if either of the male employees should quit or be discharged, replace them with union members; and (3) employ an industrial engineering firm to make an analysis of the cost of cleaning the Hewitt-Robins premises. In his testimony as to this meeting, Perry agreed that he had made three proposals; but he described the first one differently. According to Perry, his first proposal was that Hewitt-Robins retain the three women in its employ and make a collective-bargaining agreement with Respondent. He denied asking for the discharge of the men in- cumbents. None of the Respondent's proposals were acceptable to Hewitt-Robins. On October 23, 1959, after Respondent had ceased its picketing of the Hewitt-Robins premises, the two men cleaners joined Respondent. Contention of the Parties The parties did not set forth their precise contentions with respect to this dispute. It is apparent, however, that Hewitt-Robins con- BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION 33 tends, and Respondent denies, that by the foregoing conduct Re- spondent violated Section 8 (b) (4) (D) of the Act. Applicability of the Statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8(b) (4) (D) of the Act, and the Re- gional Director was satisfied, on the basis of his investigation, that a violation of the section had been committed.' In a proceeding under Section 10(k) of the Act, the Board is re- quired to find only that there is reasonable cause to believe that Sec- tion 8 (b) (4) (D) has been violated before proceeding with a determi- nation of the dispute out of which the unfair labor practice has arisen. There is no dispute that Respondent established picket lines in front of the two buildings in New York City where Hewitt-Robins leased office space. The Board has held that, apart ffom the literal appeal of picket signs, the picket line itself constitutes an act of inducement or encouragement of employees not to perform services for the pick- eted employer, and that such picketing for unlawful purposes, 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) .2 Moreover, apart from the picketing there is affirmative evidence of the active solicitation of employees to respect the picket lines. The remaining question is whether an object of. the picketing was to force or require Hewitt-Robins to reassign cleaning work from its own employees to members of Respondent.3 Hewitt-Robins had never previously employed the three women who had done the cleaning work at the Company's premises as employees of Metropolitan.4 It had hired two men with the expectation that, after the termination of the contract with Metropolitan, they would do its cleaning work. Respondent was aware of the company's plan and its actual execution before the start of the picketing. Based upon the foregoing, and Respondent's various proposals to settle the dispute with Hewitt- 1 Section 8 (b) (4),(D) at the time of the events in question provided that it was an unfair labor practice for a labor organization or its agents "to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to . . . perform any services where an object thereof is: (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work." 2 Local 4 72, International Laborers Union, Heavy and General Construction, AFL-CIO, et at. (Ernest Benda Contracting Company, Inc.), 123 NLRB 1776. 3 J bid 'In this important respect, the facts in the present case differ from those in Interna- tional Brotherhood of Electrical Workers, Local 292, AFL-CIO ( Franklin Broadcasting Company), 126 NLRB 1212. 560940-61-vol. 127-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robins, there is reasonable cause to believe than an object of Respond- ent's picketing was to compel Hewitt-Robins to reassign the cleaning work from its own nonunion employees to members of Respondent. Accordingly, we find that the dispute is properly before the Board for determination under Section 10(k) of the Act. Merits of the Dispute The record shows that the dispute was over Hewitt-Robins' assign- ment of the cleaning work to its own employees rather than to mem- bers of Respondent. It is well established that an employer is free to make work assignments without being subject to strike pressure by a labor organization 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 agree- ment to assign the Rvork in dispute to the claiming union.5 As Respondent is not the beneficiary of such order, certificate or contract claim to the disputed work, we find that it is not lawfully entitled by means proscribed by Section 8(b) (4) (D) to force or require Hewitt- Robins to reassign work being performed by its own employees to members of Respondent.' DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and from the entire record in the case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. Building Service Employees International Union, Local 32-J, AFL-CIO, is not and has not been lawfully entitled to force or require Hewitt-Robins, Inc., to assign cleaning work to its members rather than to Hewitt-Robins' own employees who are not members of that labor organization. 2. Within 10 days from the date of this Decision and Determination of Dispute, Building Service Employees International Union, Local 32-J, AFL-CIO, shall notify the Regional Director for the Second Region in writing, whether or not it will refrain from forcing or requiring Hewitt-Robins, Inc., by means proscribed by Section 8(b) (4) (D) to assign the work in dispute to members of Building Service Employees International Union, Local 39 J, AFL-CIO, rather than to Hewitt-Robins' own employees who are not members of Respondent. MEMBERS JENKINS and FANNING took no part in the consideration of the above Decision and Determination of Dispute. 5 31arkwell & Hartz Contractors, 120 NLRB 610, 623. 9 By this action, however, we are not to be deemed as making an "assignment" of the disputed work Local 472, International Laborers Union, Heavy and General 'Construe- tion, AFL-CIO, et at. (Ernest Renda Contracting Company, Inc ), 123 NLRB 1776.