Pipeline Dehydrators, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pipeline Dehydrators, Inc. and Keith Culpepper and Bruce Murley. Cases 15-CA-6241 1 and 15 CA 6241-2 November 1, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS. MURPHY. AND TRUESDALE On September 16, 1977, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and an answering brief and brief in support of cross-exceptions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. MEMBER MURPHY. concurring: In agreement with my colleagues I find that Re- spondent was faced with a bona fide jurisdictional dispute when it reassigned the work of its field crews to employees who are represented by the Operating Engineers, and thereby denied certain work opportu- nities to its own unrepresented employees. Also in agreement with them I find that Respondent did not violate Section 8(a)(3) and (1) in reassigning the work in question to the employees represented by the Op- erating Engineers. I further agree with them that this case falls squarely within the doctrine set forth in With respect to our colleague's comments, we note that this is not an issue of first impression. Indeed, the Board has long recognized the inappli- cability of 8(aH3) pnnciples to sections of the Act that are designed to protect employer rights. As far back as 1968 in [ucal No 447. United Associ- ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industrr of the United States and Canada, AFLCIO i(Malbaf Landscape Construc- lion), 172 NLRB 128, 129, the Board stated: "an employer does not discrim- inate against employees within the meaning of Section 8(a)(3) hb ceasing to do business with another employer because of the union or nonunion activi- ty of the latter's employees." Similarly, an employer would be caught in a revolving door if 8(a)(3) principles were applied to jurisdictional disputes covered by Sec 8(bX4)(D) and Sec 10(k) of the Act: the employer would violate Sec. 8(aX3) whatever rival group is assigned the work Hence the Board recognizes that the IO(k) determination governs. Brady-Hamilton Stevedore Company, 198 NLRB 147 (1972), namely, that where there is a bona fide juris- dictional dispute, an employer does not violate Sec- tion 8(a)(3) and (1) when it chooses one group of employees over another. Heretofore, I have not had occasion to consider the holding of that decision and the validity of its rationale. Having now done so, I have concluded that Brady-Hamilton was correctly decided and that I shall adhere to its principles. And inasmuch as I have not previously had an opportuni- ty to state my own rationale, I wish to do so now, notwithstanding that some other Members of the Board have done so in the past. Employers, as in the case here, are frequently pre- sented with claims from competing groups of em- ployees for particular work. Of necessity, the em- ployer must then choose one group of employees over another to do the work in dispute. Whichever group is not chosen will lose either the work and/or the opportunity to do it, depending on whether the group which loses already had the work or was seek- ing initially to obtain it. Thus where, as here, the employer changes the assignment following a claim by a competing group, the group originally perform- ing the work is deprived of it due to their being part of the group which was not ultimately selected to perform the disputed work rather than because of any intent to discriminate against them because of their union membership or lack thereof-unless, of course, there is evidence of a discriminatory motive proscribed by Section 8(a) of the Act, in which event we have a different case. Consequently, it is clear that in situations of this kind we are faced with a conflict between two competing groups for disputed work and that we must look to Section 8(b)(4)(D) and 10(k) of the Act as the route to resolve the dis- pute rather than the 8(a)(3) avenue, which was de- signed to deal with an entirely different type of prob- lem. That being so, the employer does not convert the situation from one involving a jurisdictional dis- pute to one concerning discrimination within the meaning of Section 8(a)(3) merely because, in choos- ing between the competing groups of employees to perform the disputed work, he brings about a loss of employment due to the change in assignment. The total scheme of the Act demonstrates that Congress did not intend jurisdictional disputes to be cognizable under Section 8(a)(3) and (1) of the Act. As the Board noted in Bradi-Hamilton, Congress was no doubt aware of the complex issues and considera- tions involved in determining such disputes and of the many factors, often closely balanced, supporting separate and distinct claims to the same work by var- ious groups of employees. To the contrary, rather than have the Board deal with such issues in the con- 172 PIPELINE DEHYDRATORS, INC. text of Section 8(a)(3) and (1), it set up a special pro- cedure for the Board to deal with such matters. Thus, Congress provided in Section 10(k) of the Act the mechanism for the Board to determine the underly- ing dispute and make an award of the work, and created in Section 8(b)(4)(D) of the Act a basis for finding an unfair labor practice by a union who uses certain proscribed means to force an employer to as- sign the particular work to a particular group of em- ployees. Since it is clear that Congress intended Sec- tions 10(k) and 8(b)(4)(D) to dictate the procedure the Board is to follow in jurisdictional dispute situa- tions, any such disputes must be resolved pursuant to those sections of the Act rather than any other. Therefore, were the Board to determine such dis- putes under Section 8(a)(3), it would be acting in conflict with clear congressional intent. Indeed, it is difficult to conceive of a jurisdictional dispute situation which would not involve a putative 8(a)(3) violation if that section of the Act were deemed applicable here. The result would be that these disputes would be presented to the Board in an 8(a)(3) context, and the Board would thus be dealing with jurisdictional disputes under a section of the Act other than Sections 10(k) and 8(b)(4)(D) and their procedures, which, as indicated above, I deem to be improper. Furthermore, if Section 8(a)(3) were used to resolve work disputes, an employer would run the risk of acting unlawfully every time he was faced with competing claims for the same work if he chose one group over another. To require such an employer to run that substantial risk of committing an unfair labor practice because he resolved a jurisdictional dispute would be in direct conflict with Congress' intent as summarized above. It might be argued that Section 8(a)(3) can be re- stricted to work disputes in which the employees originally assigned the work lose it to a competing group's claim, and an employer could avoid the pos- sible 8(a)(3) violation by adhering to the original as- signment regardless of any competing claim. I per- ceive no validity to an argument that an employer in such a situation should await the ripening of the dis- pute to the stage where an 8(b)(4)(D) charge may be filed and a resulting 10(k) proceeding would bring it before the Board for determination. This breeds liti- gation by inviting violation of the Act in order to get a favorable award of the work. Further, it locks the employer into an existing situation even if a change of circumstances (other than the competing claim it- self, for example) would justify or even require a dif- ferent assignment of the work. If these problems were cognizable under Section 8(a)(3), a change of assignment in the face of a competing claim, even if made for reasons other than union affiliation-e.g., the availability of the rival group of employees might well make available additional skills and economy of operations would lead to the filing of 8(a)(3) charges regarding every such change, alleging unlaw- ful motives for such reassignment of the work, and would place such an employer in the position of hav- ing to litigate virtually every reassignment. I cannot subscribe to such an inflexible approach. For all of the above reasons, I adhere to the Brady- Hamilton doctrine. Accordingly, I join my colleagues in dismissing the complaint. DECISION STATEMENT OF THE CASE DAVID S DAVIDSON, Administrative Law Judge: Pursuant to charges filed on October 7, 1976. by Keith Culpepper and Bruce Murley, a complaint issued on December 9, 1976, alleging that on or about October 7, 1976, Respon- dent, Pipeline Dehydrators, Inc.,' terminated the employ- ment of the Charging Parties and thereafter refused and failed to reinstate them because they were not members of a labor organization, thereby violating Section 8(a)(3) and (1) of the Act. In its answer Respondent denied the com- mission of any unfair labor practices.2 A hearing was held before me in this proceeding on Feb- ruary 24, 1977, at Houston, Texas. At the conclusion of the hearing the parties waived oral argument. The General Counsel and Respondent have filed post-hearing briefs. Upon the entire record in this case, including my obser- vation of the witnesses and their demeanor. I make the following: FINDING;S OF FAT- i. THE BUSINESS OF THE RESPONDENI Respondent has its principal office in Houston. Texas. and provides cleaning and dehydration services to owners and operators of pipelines in the petrochemical industry. During a representative 12-month period, Respondent per- formed services valued in excess of $50,000 for customers located outside the State of Texas. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction herein. i I he name of Respondcnt appears ai amended at the hearing 2 Respondcnt filed its answer in )Decemnber 311. 197h in \ hi h it admitted that It terminated the ( hargine Parlie, hut denied that thes were barred from future emplosment and that their termination was caused hb their nonmembership in a labor organlzatiin Alt the heanng Repotndent filed its amended and substituted answer wilthout objection bh the (ieneral ( Counsel in which it denied that it terminated the Charging Parties. repeated its other denials and aaverred that it had remioved the (Charging Parties frnm a joh Itcation and had sent them hack to its offices without ternilnating their emploht! enI 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent's business is highly specialized. Typically, its services are utilized by pipeline operators to clean and dry lines after construction and testing for leaks has been completed. The method used by Respondent to clean and dry lines is known as "pigging." With compressed dry air as a propellant, "pigs," or lightweight missiles with either absorbent or abrasive exteriors, are propelled through pipelines over considerable distances scraping dirt or scale from the pipe and absorbing moisture. Typically Respon- dent utilizes aboveground valve sites for the introduction and removal of "pigs" from the lines. The valve sites are often not readily accessible through ordinary means. The source of compressed dry air used in these opera- tions is a sophisticated portable self-contained compression and dehydration plant on which Respondent holds patents and which it transports to each jobsite. Respondent usually works in conjunction with a general contractor on each project who moves Respondent's equipment into place, re- moves valves from the pipeline, makes necessary modifica- tions to the line for Respondent's crews to attach its equip- ment, and sometimes attaches Respondent's equipment to the line. Respondent operates in the field with two four-man work crews which work back-to-back 12-hour shifts around the clock. Each crew has two equipment operators who maintain and operate the compression and dehydra- tion plant and two technicians who operate the equipment which launches the "pigs" and retrieves them from the pipeline. In 1974, Union Carbide, Respondent's principal custom- er, embarked on a $500 million capital improvement pro- gram which included construction of a $71 million pipeline system between Seadrift, Texas, and Taft, Louisiana, where Union Carbide was constructing new processing fa- cilities. Union Carbide contracted with Associated Pipeline Contractors for new construction of portions of the line and for conversion of other portions from a different previ- ous use. Associated had agreements with four labor organi- zations, including the Operating Engineers covering its construction crews. For the cleaning and drying of the new line, Union Car- bide entered into a contract with its subsidiary, Nitrogen Service Company. Nitrogen Service was required to clean and dry portions of the pipeline which were being convert- ed from other uses by a process called "sand jetting," but it was permitted to clean and dry the newly constructed por- tions of the line by "pigging," and it subcontracted that work to Respondent. Nitrogen Service also subcontracted general contractor's work in connection with the cleaning and drying operations to two contractors. Tri-Tex Con- struction Company, a nonunion contractor, was retained to perform necessary auxiliary work to assist Nitrogen Ser- vice and Respondent at all locations on the pipeline west of Beaumont, Texas. Mott Construction Company, which had agreements with the same labor organizations as Asso- ciated, was retained by Nitrogen Services Company to per- form that work east from Beaumont, Texas, to the terminal of the line at Taft, Louisiana. In bidding for the subcontract from Nitrogen Services, Respondent submitted a figure for the work to be per- formed in Louisiana which was 10 cents per foot more than for the work in Texas because of the possibility that it might have to utilize a union contractor to assist it on the Louisiana portion of the job. Before Nitrogen Services en- tered into the subcontract with Respondent, a meeting was held between representatives of Union Carbide, Nitrogen Services, and Respondent to discuss Respondent's ability to operate without labor problems in Louisiana. At the meeting, Union Carbide's project manager, Allsen, voiced concern about Respondent's ability to complete the work and about the safety of Respondent's employees and equipment and of Union Carbide's pipeline and facilities in the light of prior experiences with labor problems in Louisiana. Allsen also expressed concern over the cost of any delay in completion of the work in the light of Union Carbide's financial commitments on the project. Allsen asked Respondent's president, Powers, whether he had ever worked in Louisiana and had been confronted with union problems. Powers explained that he had worked there on some occasions without any problem but that on other occasions, when unions had demanded work, he had resolved the problem without a work stoppage or violence by putting on a union crew if necessary. After Respondent obtained the contract, Powers told Respondent's vice president and field operations manager, Johnny Stowers, that he had given Union Carbide a com- mitment that he would not permit the possibility of vio- lence, damage, or delay to develop because of Respon- dent's employment of nonunion help. On August 27, 1976, Respondent hired Keith Culpepper and Bruce Murley to work as technician-trainees or helpers on its field work crews. Because one of Respondent's com- pressors broke down shortly after they were hired, they worked only a few days between August 27 and October I. The first 3 days in October they worked at a jobsite in Texas, and at that time Stowers and others told them that on October 5 they would be going to work on the Union Carbide pipeline in Louisiana where they could expect to stay for approximately 2 months.3 On October 5, 1976, Respondent sent Stowers, two work crews, and its equipment to a location near Jeanerette, Louisiana, to begin performing its cleaning and drying op- erations on the Louisiana portion of the Union Carbide piepline. The technician-trainees for the two crews were Culpepper, Murley, Bill Hodge, and Joe Williams, who also served as administrative manager for Respondent in its office but occasionally worked in the field. Respondent had planned that the work crews would arrive at the jobsite in the early afternoon, set up their equipment with the as- sistance of the general contractor, Mott Construction Company, and begin cleaning and drying operations by that evening. Culpepper, Murley, and others arrived at the jobsite on the afternoon of October 5, and they started to set up equipment. They were soon approached by Tommy Wil- Before October I they were notified when work was available by opera- tor Terry Sterk who in turn was contacted by Stowers and told to call them. 174 PIPELINE DEHYDRATORS, INC. lis 4 and another man who asked for Stowers. Murley con- tacted Stowers by radio, and Stowers came to the jobsite. After Stowers came to the jobsite, Roy Trahan, an Oper- ating Engineers steward employed by Mott, asked Stowers if Respondent had operators for its equipment and if they were members of the Operating Engineers Union. Stowers said that they did not belong to the Union and explained that Respondent had specialized equipment and that its operators had been trained and were experienced in oper- ating it. Trahan told him that did not matter, that it was a union job, and that Respondent would have to do all its work with union members. Stowers told Trahan that he would check on it. Stowers told Culpepper and Murley that there might be some kind of trouble and that the Union was threatening to put up a picket line. Stowers told them that he was going off the site to try to settle the argument and that they should wait at the jobsite until the rest of the crew arrived and then go to a motel where he would talk to them later that night or the next morning. Stowers then met with Mel Lee, Mott's general superin- tendent, and Tommy Willis, who advised Lee as to what the unions would permit and what they would not. Lee expressed concern that the unions would put up a picket line at any moment if the matter was not straightened out. Willis observed that picketing could start at any time and commented that Respondent's equipment looked like it cost a lot of money. According to Stowers, "It was obvious to me after Tra- han had made his demands that we were going to have to work union there, that the history of violence on pipeline jobs in Lousiana and with the agreements we had made with Union Carbide to avoid any problems, that I was going to have to reassign the work to union people as op- posed to using the people that we had taken over there and intended to use .... I was between a rock and a hard place. It was a problem. I did, I think, the only thing I could do. I don't have any experience in negotiating with unions, and neither does Marvin or anybody else with our company. So I didn't want to have to get into that. Yet time was important. We were a few days late getting in there. We needed to get started. So I had to do something immediately, and the only thing I could do was to go to the Mott supervisors who had arrived there and ask them if they would contract with us to supply union labor on that job for us. They said that they could and we negotiated a price of their cost plus 40 percent. I told them how many people we would need and had to leave it up to them to negotiate with the unions as to how many people we would subsequently be assigned." Stowers discussed with Mott the responsibility of having his own employees continue to work by taking on some token union employees, but Mott's representatives said that would not be possible and that Stowers could only keep supervisors who would not be able to perform any work. 4 Culpepper identified Willis as a union steward. Stowers identified him as a job superintendent for Mott who carried an Operating Engineers card. I find it likely that Stowers was better informed as to Willis' capacity than Culpepper. Stowers decided, and was permitted, to keep Respon- dent's four operators at the jobsite to demonstrate the op- eration of Respondent's equipment and to instruct Mott's employees in its operation. On the next morning, October 6, Stowers met Culpepper, Murley, and Hodge at the motel and told them that he was sorry but they were going to have to be sent back to Hous- ton because of union pressures and Respondent's fear of picketing or violence on the jobsite. Culpepper asked Stow- ers if that meant that they were fired, and Stowers replied that Respondent would have to let them go and that when- ever Respondent finished the work in Louisiana and had other work, it would call them.5 After speaking to the others, Stowers told Williams to call Houston, to tell Respondent President Powers what had happened, and to check with Warehouse Manager Gary Smith to see if there was any work for the others to do. Williams called Smith in Houston, told him of the situa- tion, asked him to tell Powers that he was on his way back with the other three men, and asked Smith to look around and see if there was anything he could do to make a terri- ble situation a little better. Smith said he would do so.6 Smith testified that Williams asked if there was any work available at the office and that Smith told him he could use one man in the warehouse and that he would make efforts to see if Tri-Tex needed anyone in the field. According to Smith, he told Williams to tell the men that he wanted them to come in and talk to him when they returned to Houston. Whether or not Smith told Williams what was available, Williams testified, as set forth below, that he did not tell the men that there was any job available in Hous- ton. Williams drove back to Houston taking Culpepper, Mur- ley, and Hodge with him. Enroute Williams told them that he had called Houston and that Gary Smith had been noti- fied and asked to check to see what work was available. The others expressed unhappiness with the prospect of working in the warehouse because pay and working condi- tions were different. Williams did not mention that there was an opening but only told them to check with Smith or Tri-Tex, and said that if there was any work Smith would proceed from there.7 After their return to Houston, Culpepper and Murley stayed at Respondent's office a while and left without The testimony of Culpepper. Murley. Stowers. and Williams is in gener- al agreement as to the substance of what Stowers said. although not as to detail. Stowers and Williams testified that Stowers specifically told the men to check. after they returned to Houston. on the possibility of other employ- ment with Respondent or with Tn-Tex Construction with which Respon- dent shared offices. However. on cross-examination. Stowers testified that he thought he did tell the men that when other work came up Respondent would call them. This testimony is consistent with that of Culpepper. which I credit. that Stowers indicated that Respondent would take initiative in finding further employment for the displaced men. Stowers also testified contrar; to Culpepper that he specifically told the men they were not dis- charged. Whether or not he did so. even under Culpepper's version Stowers conveyed only that the men were being removed from the Louisiana job because of union pressure and not that they were discharged. 6Williams so testified Williams was the only witness who testified to the conversation in the car 175 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speaking to Smith.8 Hodge spoke to Smith, and was given work in Respondent's warehouse. Over the course of the next several days, Culpepper and Murley visited Respon- dent's office several times seeking their paycheck for the time spent in Louisiana. They asked Williams each time about the availability of work with Respondent or Tri-Tex. Each time Williams told them there was nothing.9 After several days, Culpepper and Murley made no further in- quiries, and Respondent made no attempt to contact them about further employment. Hodge worked in Respondent's warehouse for an indefi- nite period of time after which Hodge was put to work on one of the Tri-Tex crews when work was available. Several days after the men returned from Louisiana, Tri- Tex had some openings. Smith, who dispatched men to Tri-Tex as a courtesy, did not offer the work with Tri-Tex to Culpepper and Murley at the time because he had sev- eral others who periodically wanted work. He generally dispatched those who came to him and asked for work, and Culpepper and Murley had not come to him to seek work. B. Concluding Findings The General Counsel contends that the facts in this case present a clear-cut denial of work opportunities to Culpep- per and Murley by Respondent because they were not members of the Operating Engineers Union. Respondent, in defense, places initial stress on its contention that Re- spondent was confronted with a jurisdictional dispute as a result of which it reassigned the work initially assigned to Culpepper and Murley. Respondent argues that the loss of work to Culpepper and Murley, as a consequence of that reassignment, is not cognizable under Section 8(a)(3) of the Act. In Brady-Hamilton Stevedore Company, 198 NLRB 147 (1972), as a result of a work stoppage the employer reas- signed work from members of the Operating Engineers to members of the Longshoremen's Union. The Operating Engineers filed charges of violation of Section 8(bX4)(D) and Section 8 (aX3). In the ensuing 10(k) proceeding the Board awarded the work to the Operating Engineers. Thereafter, the General Counsel issued a complaint alleg- ing that by reassigning the work to the Longshoremen's members, the employer had violated Section 8(a)(3) of the Act. Reversing its Trial Examiner, the Board dismissed the complaint, stating in pertinent part: In finding an 8(a)(3) violation, the Trial Examiner concluded Respondent discharged the eight employ- ees for no other reason than that they were members of Local 701 and were not members of Local 50. In making this finding, the Trial Examiner apparently overlooked the fact that this would be the normal situ- Although there is disputed testimony as to the length of their stay, there is no dispute that they left without speaking to Smith. 9 Culpepper so testified. Although Williams testified that he recalled no conversation about employment with Culpepper or Murley after their re- turn to Houston, he displayed considerable discomfort when examined on this subject, contradicted himself as to whether he met with them in person after their return to Houston, was evasive at times, and tended to try to justify his answers to questions about what he had or had not done. I have credited Culpepper in this regard and not Williams because of the strong indications that Williams' testimony lacked candor and concealed the truth. ation, with the usual considerations attendant, where two unions are competing for a particular work assign- ment. The background of this case is the conflict be- tween two union groups for the disputed work of oper- ating whirly-type floating barge cranes. Accordingly, we must, in applying the Act, determine whether Sec- tion 8(a)(3) is applicable in situations where the ac- tions of all parties are part and parcel of an acute, bona fide jurisdictional work dispute.' ° After examining the statutory design, the Board concluded that it would not implement its 10(k) determinations "via the 8(aX3) route, which was designed to deal with an en- tirely different type of problem." Shortly thereafter, in J. L. Allen Co., 199 NLRB 675 (1972), the Board followed Brady-Hamilton dismissing 8 (aX3) and 8(b)(2) allegations where the employer reas- signed unskilled work from members of one union to mem- bers of another following a demand for the work and an implied threat to refuse to furnish craftsmen by the de- manding union. There, insofar as appears, no 8(b)(4)(D) charge had been filed and consequently the Board had made no award of the work. The Board nonetheless con- cluded: In its determinative aspects, the instant case falls squarely within the doctrine expressed in Brady-Ham- ilton, supra. Indeed, the stated reasons for the Admin- istrative Law Judges' 8(a)(3) findings in both cases are precisely the same; i.e., that the employees were dis- charged because of an employer's change in work as- signment resulting from a rival jurisdictional claim. There can be no question that the present case, like Brady-Hamilton, supra, is a bona fide jurisdictional dispute. The facts recited by the Administrative Law Judge, including the Respondent Trades Council's de- mand for work previously performed by laborers and the implied threat that the Respondent Trades Coun- cil would furnish craftsmen only if they were allowed to perform both skilled and unskilled work, provide sufficient evidence upon which to find reasonable cause to believe that the Trades Council engaged in conduct in contravention of Section 8(b)(4)D). Since the facts of this case present the classic dispute cogniz- able under the provisions of Sections 8(b)(4XD) and 10(k), and for the reasons expressed in the majority opinion in Brady-Hamilton, supra, we shall dismiss the 8(a)(3) and (I) allegations of the complaint against Re- spondent Allen." In deciding whether this case falls within the Brady- Hamilton line, the controlling question is whether the facts of this case show that Culpepper and Murley were reas- signed as a consequence of a bona fide jurisdictional dis- pute. A jurisdictional dispute cognizable under Section 8(bX4)(D) arises when a labor organization induces or en- courages a withholding of services or threatens, coerces, or restrains any person with an object of "forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, o0 Id at 148. N 199 NLRB 675 676. 176 PIPELINE DEHYDRATORS, INC. or class rather than to employees in another labor organi- zation or in another trade, craft, or class." Here the facts show that the Operating Engineers through its steward Trahan claimed the work normally per- formed by Respondent's unrepresented work crews and sought its reassignment to members of the Operating Engi- neers. Although Respondent's employees were unrepre- sented and Respondent had no prior agreement with the Operating Engineers, the dispute here nonetheless was over assignment of work to members of a particular labor orga- nization rather than to employees in another class within the meaning of Section 8(bX4)(D). 2 With respect to whether the facts show that the Operat- ing Engineers threatened, restrained, or coerced Respon- dent to achieve reassignment of the work, the evidence is undisputed that Respondent's field operations manager Stowers told the affected employees that trouble in the form of a picket line or violence had been threatened. However, there is no evidence that any agent of the Oper- ating Engineers made such a threat. Stowers testified only that Operating Engineers Steward Trahan told him that Respondent would have to use members of the Operating Engineers to do its work and that Mott official Willis, a member of the Operating Engineers, talked of the likeli- hood of picketing and suggested the possibility of sabatoge of equipment. Whether Stowers' statements to Respon- dent's employees were based on what Willis had said, in- ferences Stowers drew from Powers' report of his meeting with Union Carbide and Nitrogen Services officials, or in- ferences he drew from what he had heard from other sources about job conditions in Louisiana is unclear. I find that the evidence falls short of establishing that the Operat- ing Engineers through any reponsible agent threatened, re- strained, or coerced Respondent within the meaning of Section 8(bX4XD). Nonetheless, I conclude that the ab- sence of such evidence is not fatal to the contention that a bona fide jurisdictional dispute exists within the meaning of the Brady-Hamilton decision. In Cornell-Leach, Gibson Project, 212 NLRB 495 (1974), Administrative Law Judge Robert E. Mullen considered the necessity to application of the Brady-Hamilton decision of establishing that the labor organization claiming the work engaged in or threatened to engage in illegal conduct. In his Decision, which the Board affirmed, he stated: From the above, it is evident that the General Counsel would urge that unless the facts disclosed clearly illegal conduct, or the threat of such, on the part of the Respondent Union there is no basis on which to hold that the Iron Workers here had precipi- tated "an acute, bona fide jurisdictional dispute." To meet this argument the Respondent Employer con- tends that Section I of the Act must be read in con- junction with Section 8(b)(4)(D) and that, when keep- ing in mind that the overall purpose of the Act, as set forth in Section I(b), is to prevent industrial strife it does not seem reasonable to assume that Congress could have intended that Section 8(b)(4XD) would be- 12 International Brotherhood of Electrical Workers. A FL CIO. etc. (Bendir Radio Division of The Bendix Corporation). 138 NLRB 689 (1962) come operative only when one party to a work assign- ment dispute had resorted to threats, work stoppages, and other illegal conduct. There is merit to this argument of the Respondent Employer. Many years ago, in construing the term "concerted activities" as used in Section 7 of the Act, it was urged that the protection accorded by the stat- ute would not be available if the activities in question were only preliminary to concerted activity or concert- ed activity in its initial stages. In rejecting this argu- ment the Court of Appeals for the Third Circuit stated "The language of the Act does not require and its pur- pose would not be served by holding that dissatisfied workmen may receive its protection only if they exert the maximum economic pressure and call a strike." N.LR.B. v. Kennametal, Inc., 182 F. 2d 817, 819 (C.A. 3, 1950). Similarly, in this instance it would not seem that the application of Brady-Hamilton should be withheld until a jurisdictional dispute had generated threats, strikes, and other forms of industrial unrest. As Administrative Law Judge Mullin's decision suggests, it would be anomalous to find that an employer and union violate Section 8(a)(3) and 8(bX2) when an employer yields to the demands of a union in what is essentially a work assignment dispute before the exertion of unlawful pres- sure by the union but that neither violates these sections if the employer waits to yield until after the union has made a single threat to picket. Moreover, dismissal of 8(a)(3) allegations in the circum- stances of this case leaves the parties in the same position as in the Allen case. In Bradv-Hamilton the Board stated: Our decision herein does not indicate that the Charging Party is without an effective remedy. As the successful union in the 10(k) proceeding, Local 701 is free to engage in economic pressure against the Re- spondent to enforce the award without running afoul of Section 8(b)(4)(D), and to this extent, at least, the Respondent is bound by the 10(k) determination. Al- though this economic pressure may not be as effective as an unfair labor practice finding and an order to reinstate, we view the policies and purposes of the 10(k) procedures as controlling. Accordingly, we shall dismiss the complaint here.'3 In J. L. Allen Co., supra, the Board reached the same result although there had been no 10(k) determination, evi- dently on the theory that even absent such a determination the Charging Party could engage in economic pressure which would either lead to a 10(k) determination in the event a charge were filed or be equivalent to the economic pressure described in the passage from Brady-Hamilton quoted above should no charge be filed. Even absent initial unlawful conduct by the labor organization obtaining reas- signment of the work, the same practical consequences of the application of the Brady-Hamilton decision ensue. For these reasons, I conclude that Respondent was faced with a bona fide jurisdictional dispute when it reassigned the work of its field crews to Mott's employees who were members of the Operating Engineers and that the com- "1 198 NLRB at 148 149 177 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint accordingly should be dismissed. I find it unneces- sary therefore to consider Respondent's other defenses. CONCLUSIONS OF LAW 1. Pipeline Dehydrators, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The General Counsel has failed to establish that Re- spondent has engaged in unfair labor practices as alleged in the complaint. Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 14 The complaint is dismissed in its entirety. 14 in the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 178