Int'l Union of Operating Engineers, Local 926

INT'L UNION OF OPERATING ENGINEERS, LOCAL 926 1057 be affected by an agreement in conformity with Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. BORG-WARNER CONTROLS, BORG- WARNER CORPORATION, Employer. 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. International Union of Operating Engineers, Local 926, AFL- CIO and Tip Top Roofers, Inc.' Case No. 10-CD-138. August 26, 1960 DECISION AND ORDER Upon a charge filed on December 4, 1959, by Tip Top Roofers, Inc., herein called the Company, the General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for the Tenth Region, issued a complaint dated April 18, 1960, against International Union of Operating Engineers, Local 926, AFL-CIO, herein called the Respondent, alleging that the Respond- ent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(b) (4) (D) and Section 2(6) and (7) of the Act. Copies of the complaint, the charge, and notice of hearing were duly served upon the Respondent and the Company. With respect to the unfair labor practices, the complaint alleged that : Pursuant to Section 10 (k) of the Act, the Board heard and made a determination of dispute out of which the charged unfair labor practice arose; the determination of the Board was that the Respond- ent was not lawfully entitled to force or require the Company to assign the work of operating the mechanical hoist, known as a laddervator, to its members rather than to the Company's employees who are members of Local 136; 2 the Respondent has not complied with the terms of the Board's Decision and Determination of Dispute; the Respondent since on or about December 2, 1959, by means proscribed by Section 8 (b) (4) engaged in conduct an object of which was to force or require the Company to assign the disputed work tasks to employees who are members of the Respondent rather than to employees who are mem- bers of, or represented by, Local 136; and by such conduct, the Re- i The name of the Company appears as corrected by stipulation of the parties. 2 United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Associa- tion, AFL-CIO, Local 136, herein called Local 136. 128 NLRB No.. 121. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent thereby engaged in unfair labor practices within the mean- ing of Section 8(b) (4) (i) and 8(b) (4) (ii) (D) of the Act. On or about April 28, 1960, the Respondent filed an answer to the complaint denying the commission of the alleged unfair labor practices. Thereafter, on May 31, 1960, all parties entered into a stipulation setting forth an agreed statement of facts. The stipulation provides that the parties waive their rights to a hearing, to the issuance of a Trial Examiner's Intermediate Report and Recommended Order, and to the filing of exceptions and oral argument before the Board, but reserves the right to file briefs and proposed findings of fact and con- clusions of law with the Board on or before June 20, 1960. It also provides that the entire record in the proceeding shall consist of the stipulation, the Decision and Determination of Dispute issued by the Board on March 23, 1960,3 the complaint and the charge, and the notice of hearing; the Respondent's answer, the proof of service of the foregoing documents, and the entire record in the 10 (k) proceed- ing, including the transcript, and all formal documents. The stipu- lation further provides that, upon such stipulation and the record as therein provided, the Board may make findings of fact and con- clusions of law, and may issue an appropriate Decision and Order which shall have the same force and effect as if made after full hearing and presentation of evidence. On June 9, 1960, the aforesaid stipulation was approved and ac- cepted by the Board and made a part of the record in this case. In accordance with Section 102.45 of the National Labor relations Board Rules and Regulations, Series 8, as amended, this proceeding was duly transferred to and continued before the Board. Upon the basis of the aforesaid sitpulation, the record and proceed- ing in the Section 10 (k) proceeding, and the entire record in this case, the Board having duly considered the briefs filed by the General Counsel, the Company, and the Respondent, makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a Georgia corporation, with its principal office and place of business at 1984 Cheshire Bridge Road, Atlanta, Georgia, is engaged in the roof-repairing and construction business. In the course and conduct of its business, the Company annually purchases and re- ceives directly from outside the State of Georgia goods valued in excess of $50;000. The parties agree, and we find, that the Company is en- gaged 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 in the case. 3International Union of Operating Engineers, Local 926, etc., AFL-CIO (Trop Top Roofers), 126 NLRB 1277. INT'L UNION OF OPERATING ENGINEERS, LOCAL 926 1059 II. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local 926, AFL-CIO, and United Slate, Tile and Composition Roofers, Damp and Water- proof Workers Association, AFL-CIO, Local 136, are labor organiza- tions within the meaning of the Act. III. THE RESPONDENT'S UNFAIR LABOR PRACTICES In the Board's Decision and Determination of Dispute herein, the Board determined that the Respondent was not lawfully entitled to force or require the Company to assign the work in dispute (operation. of the mechanical hoist) to members of the respondent rather than to employees of the Company's choice (members of Local 136) by' means proscribed by Section 8(b) (4) (D). The Board directed the, Respondent to notify the Regional Director in writing of its intention' to comply with the Board's determination. The Respondent did not comply. Section 10(k) of the Act requires that if the Respondent has com-: plied with the Board's determination, the 8(b) (4) (D) charge must; be dismissed. As the Respondent has not complied with the Board's 10(k) determination, we turn now to the merits of this complaint pro- ceeding which, as we have indicated, is concerned with whether the Respondent has engaged in unfair labor practices in violation of Sec- tion 8 (b) (4) (D). All the factors essential for a finding of a violation of this section of the Act are present here: it is clear from the record in the 10(k) proceeding that the Respondent was responsible for the work stoppage and picketing at the Company's Emory University Food Center job, indeed, the Respondent does not deny the picketing or the purpose thereof; by such conduct the Respondent sought to in- duce and encourage employees of the Company, and other employers,, to engage in a concerted refusal to perform services for the Company, its object being to force the Company to assign the operation of the mechanical hoist to members of the Respondent rather than to non- members or to members of Local 136; and the Company was not failing to conform to any order or certification of the Board determining the bargaining representative for the employees performing the work in dispute. Accordingly, we conclude that the Respondent violated Sec- tion 8 (b) (4) (D) of the Act. In its brief, as indicated above, the Respondent does not deny the, picketing or the purpose thereof, but contends, in effect, that pursuant to Section 10(k) the Board is required to make an affirmative award of the work in dispute, and, having failed to do so, the Board's Decision and Determination of Dispute herein is invalid and unenforceable. As indicated in the earlier decision herein, and in numerous other 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cases,4 we find no merit in this contention. Moreover, as stated in our Decision and Determination of Dispute herein, the Board had deter- mined to seek Supreme Court review of the Radio and Television Broadcast Engineers case relied on by parties hereto and, on May 31, 1960, the Supreme Court granted the Board's petition for certiorari in that case.5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, 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 Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent, International Union of Operating Engineers, Local 926, AFL -CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By engaging in a strike and by inducing and encouraging em- ployees of the Company, and other employers, to engage in strikes or concerted refusals in the course of their employment to use, proc- ess, or otherwise handle or work on certain goods, articles, or ma- terials, or to perform services with an object of forcing and requiring the assignment of the operation of the mechanical hoist to a member of the Respondent who had not been assigned and was not then lawfully entitled to such work rather than to another employee who had been assigned to and was performing such work, the Respondent engaged in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. * N.L R.B. v. Local 4 50, International Union of Operating Engineers, AFL-CIO (Slane Industrial Painters ), 275 F. 2d 408; Local 173, Wood, Wire and Metal Lathers' Inter- national Union, AFL-CIO, at al. (Newark and Essex Plastering Co ), 121 NLRB 1094; Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System, Inc .), 121 NLRB 1207; Local 169, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, at al., (W. H. Condo, at al.), 121 NLRB 308. 5 363 U.S. 802. INT'L UNION OF OPERATING ENGINEERS, LOCAL 926 1061 ORDER Upon the entire record in the case, 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 926, AFL-CIO, and its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, process or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Tip Top Roofers, Inc., to assign the operation of the mechanical hoist to a member of the Respondent rather than to a member of another labor organization, except insofar as any such action is permitted under Section 8(b) (4) (D) 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 office copies of the notice attached hereto marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by its official representatives, be immediately posted and main- tained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBER FANNING took no part in the consideration of the above Decision and Order. "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." APPENDIX A NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 926, AFL-CIO 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 the employees of Tip Top Roofers, Inc., or any other employer, to engage in, 5 7 7 684- 61-vol. 12 8-6 8 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a strike or concerted refusal in the course of their employment to use, process, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Tip Top Roofers, Inc., to assign the work of operating the mechanical hoist to members of International Union of Operating Engineers, Local 926, AFL- CIO, rather than to nonmembers or to members of United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO, Local 136, or any other labor organiza- tion, except insofar as such action is permitted under Section 8 (b) (4) (D) of the Act. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 926, AFL-CIO, Labor Organization. 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. Kohler Co. and Local 833, UAW-AFL-CIO, International Union, United Automobile, Aircraft & Agricultural Implement Work- ers of America. Case No. 13-CA-1780. August 26,1960 DECISION AND ORDER On October 15, 1956, Trial Examiner George A. Downing issued his opinion and order granting motion to dismiss in which he granted the Respondent's motion to dismiss the complaint in the instant pro- ceeding on the ground that the Charging Union, herein called the Union, was not in compliance with Section 9(h) of the Act because its International's trustees where "officers" of that, organization, and admittedly had not filed the non-Communist affidavits required of "officers" by Section 9 (h).1 On February 6, 1957, in Kohler Co., 117, NLRB 321, the Board overruled the Trial Examiner's order;, denied the Respondent's motion to dismiss the complaint; and remanded the case to the Trial Examiner for the preparation of an Intermediate Report 2 'I Section 9 (h) of the Act was repealed on September 14, 1959, by Section 201(d) of the Labor-Management Reporting and Disclosure Act of 1959. 2In exceptions filed to the Intermediate Report, the Respondent excepts to the ruling of the Board reversing the Trial Examiner 's dismissal of the complaint. The Board finds no merit in this exception . The Chairman and Members Rodgers and Bean adhere to their earlier opinion in this matter. Members Jenkins and Fanning, who succeeded to the Board after the earlier Decision and Order issued, are in agreement with that Decision and Order. 128 NLRB No. 122.