Clerks and Checkers Local Union No. 1692, Etc.

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD public purpose would be served by finding that this employer has violated the Act .6 Accordingly, I shall recommend dismissal of the complaint. CONCLUSIONS OF LAW 1. Deeco, Inc., Huntington Park, California, is engaged in, and at all times material herein has been engaged in, commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. Local 976, International Union, Allied Industrial Workers of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees , including shipping and receiving employees and truckdrivers , employed at Respondent's Huntington Park, Cali- forma, plant, exclusive of plant clerical employees, office clerical employees , guards, watchmen, professional employees, and supervisory employees , constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union was, on September 16, 1959 , and at all times material herein has been and still is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. The Respondent has not engaged in the alleged unfair labor practices violative of Section 8 (a) (1) and (5) of the Act. [Recommendations omitted from publication.] 9 N.L.R B. v. Arthur A. Borchert, d/b/a West Fork Cut Glass Company, 188 F. 2d 474 (C.A. 4). Clerks and Checkers Local Union No. 1692, International Long- shoremen's Association, Independent, and International Long- shoremen's Association, Independent and J & R Contractors, Inc. Case No. 23-CD-39. May 9, 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 labor practice shall have arisen. . . ." On September 14, 1959, J & R Contractors, Inc., herein called the Company, filed with the Regional Director for the Twenty- third Region an amended charge alleging that Clerks and Checkers Local Union No. 1692, International Longshoremen's Association, In- dependent, and International Longshoremen's Association, Independ- ent, herein called the ILA, had engaged in and were engaging in cer- tain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. It was charged in substance that the ILA had induced and encouraged employees of the Company to engage in a strike and a concerted refusal to work with the object of forcing or re- quiring the Company to assign certain work to members of the ILA rather than to the Company's employees who were not members of that labor organization. 127 NLRB No. 78. CLERKS AND CHECKERS LOCAL UNION NO. 1692, ETC. 677 Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.79 and 102.80 of Board Rules and Regulations, Series 7, the Regional Director investigated the charge and provided for a hearing upon due notice to all of the parties. The hearing was held before John F. Burst, hearing officer, on November 3, 1959. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine the witnesses, and to adduce evidence bearing on the issues. At such hearing, the parties stipulated that the official tran- script of testimony taken at a hearing on a petition for injunction under Section 10 (1) of the Act before the United States District Court for the Seventh District of Texas, Corpus Christi Division, in Civil Actions Nos. 1885 and 1886, be received in evidence and be made part of the record herein. Such stipulation is hereby approved and made part of the record herein. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. The Company filed a brief 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 Bean and Jenkins]. On the entire record in this case, the Board makes the following : A. The facts I. THE BUSINESS OF THE EMPLOYER J & R Contractors, Inc., is a Texas corporation with its principal place of business in Houston, Texas. It is engaged in furnishing and operating shiploading and unloading facilities. Since August 17, 1959, the Company, pursuant to an agreement with the Aluminum Company of America, herein referred to as Alcoa, has been engaged in unloading ships carrying bauxite, an ore used in the manufacture of aluminum, from foreign ports to Port Aransas, Texas. The services thus furnished by the Company to Alcoa have been valued in excess of $36,000 a month. Furthermore, the parties do not dispute the fact that Alcoa is engaged in interstate commerce within the meaning of the Act. In view of the foregoing, we find that the Company is en- gaged in activities which affect interstate and foreign commerce within the meaning of the Act, and that it will effectuate the policies of the Act for the Board to assert jurisdiction herein.' II. THE LABOR ORGANIZATIONS INVOLVED Clerks and Checkers Local Union No. 1692 and its parent organi- zation International Longshoremen's Association, Independent, are labor organizations within the meaning of the Act. 2 Siemone Mailing ,Service, 122 NLRB 81. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE DISPUTE A. The facts On August 17, 1959, the Company entered into an agreement with Alcoa to unload at Port Aransas, Texas, bauxite ore from ships oper- ated by Alcoa Steamship Company. The ore is discharged by crane and deposited in barges, which are hauled by tug by Federal Barge Lines, under contract with Alcoa, to Point Comfort, Texas, where Alcoa maintains an aluminum plant. The ships carrying the bauxite ore are towed from open waters to anchorage in channel waters at Port Aransas by tugs of the G & H Towing Company, also pursuant to contract with Alcoa. On August 10, 1959, E. Jack Walton, president of the Company, although the fact was not then known to the ILA, undertook to ob- serve unloading operations aboard one of the Alcoa ships. The ore was then in the process of being unloaded by the Corpus Christi Stevedoring Company, the Company's predecessor in interest. While aboard ship, Walton was approached by Joe Blair and Clarence Vandever, president and business agent, respectively, of ILA Local 1224. According to Walton's testimony, the union representatives stated that the purpose of their visit was to find out if Walton would employ ILA men when and if he took over the unloading operations? Walton replied that he would try to make a deal with the Union. Walton specifically denied that on such occasion he promised to hire two timekeepers working out of Local 1692's hiring hall who were then employed by Corpus Christi Stevedoring Company. Walton testified that although he was approached that day by Horace Butler, one of the timekeepers, who asked him for a job, Walton told Butler that if he hired ILA men he saw no reason for not hiring Butler. It is undisputed that nothing more of substance was discussed on that occasion and that the union representatives and Walton agreed to meet at 10 o'clock the next morning in Vandever's office in Corpus Christi for the purpose of exploring the possibility of hiring ILA men. At the meeting on August 11, at which Blair, Vandever, and repre- sentatives of Local 1225, another interested Local, were present, the talk centered around the men Walton might need and be willing to hire when he took over operations. At this meeting, which was also attended by Walton's son, Roland, and his superintendent, Dick Olm- sted, Walton indicated that he would agree to hire a number of deck- hands, a walking foreman, dozer operators, and possibly some "extra men" instead of ILA hatch tenders whom he did not wish to hire. At 2 Vandever claimed to, have standing authority to look after the interest of Local 1692 and, in such-sifuatiens«as presented here, to undertakectd n2gotiate a'contract on behalf of Local 1692. CLERKS AND CHECKERS LOCAL UNION NO. 1692, ETC. 679 the same time, Walton informed the union representatives that he would not use ILA timekeepers, giving as his reason the opinion that they would not perform the kind of duties he had in mind for his timekeepers. Walton maintained, a position confirmed by the testi- mony of his superintendent and his son, that the meeting ended with the understanding that nothing definite had been settled between the parties. At this meeting, according to Walton, he learned for the first time of the separate interest of Local 1692 as the representative of the timekeepers. That matter was brought out when, as the meeting was ending, Vandever said in response to Walton's assertion that he would not hire ILA timekeepers, "Well, now, I don't think that Local 1692 is going to like that." No further meetings between the parties were scheduled. On August 17 and 18 Walton proceeded to hire, independently of ILA sources, a number of employees including timekeepers. On the morning of August 19 Walton directed his superintendent to hire from Local 1224 a number of deckhands, a walking foreman, and the extra hands whom he had expressed a willingness to hire. Appar- ently, dissatisfied over Walton's refusal to hire hatch tenders and timekeepers, Blair and G. A. Eddy, vice president of Local 1692, told Olmsted that they wished to speak to Walton. When the parties met later that morning, Walton reiterated his intention of not using either ILA hatch tenders or timekeepers, although Blair stated that his men would not work without ILA timekeepers. The meeting ended with Blair nevertheless promising to inform Walton by midafternoon whether he would furnish the men Walton had requested. Some time between 6:30 and 7:30 that afternoon Local 1692 established a picket line at a point on a road leading to an old ferry landing commonly used by the employees of the Company and others going to and from work. The picket sign displayed merely read : "Unfair to ILA Local 1692." On or about August 22, and thereafter, Local 1692 picketed by boat while unloading operations were in progress. The sigh car- ried by the boat was the same as that placed by the roadside. On its part, ILA claimed that it entered into an,,agreement on August 10 with Walton to hire timekeepers and that Walton confirmed the agreement on August 11. According to Vandever's testimony, on August 10, after visiting with Walton aboard the ship where Walton was observing unloading operations, and as he and Blair were in the act of leaving the ship, Walton turned to them and asked whether he could have "Butler and Dupree" as timekeepers, and that Vandever agreed. This brief conversation, according to Vandever, concluded the meeting on August 10, with the understanding that Walton would meet with them the next morning for further discussions on the questions of concluding a collective-bargaining agreement. Vandever, °680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted that he contemplated that the August 11 meeting would in- ^clude further discussion with respect to Local 1692. Vandever also admitted that at the meeting of August 11 Walton informed the union representatives present that he had no need for ILA timekeepers but, Vandever maintained , that, after further dis- cussion and before the meeting terminated , Walton experienced a change of heart and stated that "he was not going to change a main on the job," meaning, according to Vandever , that Walton would keep on the full crew of ILA men then employed by Corpus Christi Stevedoring Company. Vandever claimed not to have heard Walton's son, Roland , say to his father, as the meeting of August 11 broke up, that nothing was settled , or heard Walton senior affirm that state- ment. Notwithstanding Vandever's contention that an agreement to hire Local 1692 timekeepers had been consummated , Vandever con- ceded that the next morning on August 12, he called Walton to point out to him that they had not discussed wages or pension and welfare benefits for any of the ILA locals. Blair's testimony corroborated Vandever 's testimony in its essential points. Blair also maintained that Walton on August 10 asked whether he could hire Butler and Dupree by name , and on August 11 had confirmed his intention to hire all ILA men after having initially expressed a disinclination to use ILA timekeepers. Blair, however, also admitted that neither on August 10 or 11 was there any discussion of wages, vacations, or fringe benefits, and that Walton had not been asked to sign a written agreement although written agreements were -customarily executed covering the type of operations involved. Blair testified that he was informed on August 18 that Walton was not going to hire either hatch tenders or timekeepers and that Walton adhered to his position then and on August 19 when they again met in person. ILA did not dispute the fact that a picket line was established by Local 1692 on August 19,1959. The uncontradicted evidence of Philip Mundy, press and cargo handling manager for Alcoa Steamship Company in the city of New York, shows that the dispute between the ILA locals and the Company was brought to his attention and, as a result , on August 19 Mundy undertook to discuss the matter by telephone with an ILA organizer in Texas and with Captain Bradley, ILA president in New York. According to Mundy, Captain Bradley told him that the ILA was having trouble with "J & R Contracting Company" and with the oilers and timekeepers , and in a three-way telephone conversation shortly thereafter in which an ILA representative in Texas partici- pated, Bradley stated that "unless the trouble in Texas was put right, he [Bradley] would picket all ships arriving down here as soon as she [sic] arrived." Bradley also stated that he would picket the Company's ship ,; in the North. Mundy further testified that Captain CLERKS AND CHECKERS LOCAL UNION NO. 1692, ETC. 681 Bradley called him the following day and informed him there was still trouble in Texas and "unless it was put right, we [Alcoa Steam- ship Company] would have trouble on all our ships the next day." B. Contentions of the parties Although it submitted no brief to the Board, the ILA's position appears to be that the present dispute is not a jurisdictional dispute within the meaning of Section 8(b) (4) (D) on the ground that it had a contractual claim to the work, and that its picketing was simply an attempt to publicize the dispute which resulted when the Company allegedly reneged on its agreement. The Company on the other hand denies that it had ever contracted with ILA to employ its timekeepers and asserts that the true object of ILA's picketing was to compel the assignment of the particular work to members of ILA. It therefore alleges that ILA violated Section 8 (b) (4) (D) of the Act. C. Applicability of the statute After an investigation of the charge herein, the Regional Director concluded that there was reasonable cause to believe that a violation of Section 8 (b) (4) (D) was committed. 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 determination of the dispute in a Section 10(k) proceeding, the Board must find 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, to engage in a strike or concerted refusal to perform services for the unlawful objective.4 The record contains ample evidence showing that ILA induced and encouraged employees of the Company to cease work for the purpose of forcing the Company to assign the job of timekeeping to members of ILA rather than to the Company's own employees. Indeed, the ILA concedes that on August 19 and about August 22 it established picket lines on land and off shore because of its claimed dispute with the Company over the alleged breach of the Company's agreement to assign the work of timekeeping to ILA's members. ILA did not dis- pute that the object of its picketing was to force the Company to, assign the job of timekeeping to ILA members, although it knew at the time the picket line was established that the Company had as- a Local Union No. 1, Sheet Metal Workers International , et al. (Meyer Furnace Com- pany), 114 NLRB 924, 927. ' Ibid. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed the work of timekeeping to its own employees, who were not members of the ILA.' The Board has held that such circumstances are sufficient to invoke the Board's jurisdiction to hear and determine a dispute within the meaning of Sections 8(b) (4) (D) and 10(k) of the Act.' On the basis of all the evidence in the record, we find that there is reasonable cause to believe that the Respondents induced and encour- aged employees of the Company to engage in a strike or concerted refusal to perform services with an object of forcing the Company to assign the particular work being performed by its own employees to members of ILA, and that ILA thereby violated Section 8(b) (4) (D) of the Act. We find, therefore, that the dispute in this proceeding is properly before the Board for determination under Section 10(k) of the Act. D. Merits Of the dispute It is well settled that an employer is free to make work assignments without being subject to strike pressures by a labor organization seek- ing work for its members unless the employer is thereby failing to conform to an order or certification of the Board determining the bar- gaining representative for employees performing the disputed work, or unless the employer is bound by an agreement which assigns the particular work to a striking organization. The ILA claims no order or certification of the Board; nor do we find, on the basis of the evi- dence in the record, that it is a party to a contract with the Company which binds the Company to assign the work of timekeeping to mem- bers of ILA. Thus, the record shows, by the testimony of ILA's own representatives, that even on August 11, 1959, at which time it was claimed that Walton lead committed himself to a binding agreement to employ ILA members, there had been no discussion between the parties on such important items as wages, pension and welfare bene- fits, and other terms of employment which customarily make up a collective-bargaining agreement. In our opinion, the conversations on August 10 and 11 were merely exploratory in nature, and we find that the parties had not come to a meeting of the minds on the ques- tion of a labor contract. In view thereof, we conclude that ILA's claim to the disputed work of timekeeping is not supported by any agreement binding upon the Company which assigned such work to ILA members. We find, therefore, that the ILA is not lawfully 6 At the August 19 meeting, Walton told ILA member Horace Butler in the presence of Blair and Eddy that he had already hired timekeepers and was paying them a sum which, Butler remarked , was considerably less than his union rate 6 Local 26, International Fur and Leather Workers Union of the United States and Canada ( Winslow Bros S Smith Co ), 90 NLRB 1379 , 1382; Radio and Television Broad- casting Engineers Union, Local 1212, et al (Columbia Broadcasting System, Inc ), 114 NLRB 1354, 1359. DALLAS GENERAL DRIVERS, ETC., LOCAL UNION NO. 745 683 entitled by means proscribed by Section 8 (b) (4) (D) to force or require the Company to assign the disputed work to ILA members rather than to the Company's own employees who are not members of that organization. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and upon the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act. 1. Clerks and Checkers Local Union No. 1692, International Long- shoremen's Association, Independent, and International Longshore- men's Association, Independent, are not, and have not been, entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require J & R Contractors, Inc., to assign the work of timekeeping and related duties to members of said Local 1692 rather than to said Company's own employees who are not members of said labor organization. 2. Clerks and Checkers Local Union No. 1692 and its parent organi- zation, International Longshoremen's Association, Independent, shall within 10 days from the date of this Decision and Determination of Dispute, notify the Regional Director for the Twenty-third Region, in writing, whether or not it will refrain from forcing or requiring J & R Contractors, Inc., by means proscribed by Section 8 (b) (4) (D), to assign the particular work in dispute to members of said Local 1692 rather than to said 'Company's own employees who are not members of said labor organization. Dallas General Drivers, Warehousemen and Helpers Local Union No. 745 and Macatee, Inc. Dallas General Drivers, Warehousemen and'Helpers Local Union No. 745, affiliated with international Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Macatee, Inc. Cases Nos. 16-CB-158 and 16-CP-1. May 11, 1960 DECISION AND ORDER On February 16, 1960, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- 127 NLRB No. 93.