Int'l Union of Operating Engineers, Local 12

.520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate coercively our employees concerning their union activities or the circulation and signing of union petitions, nor will we threaten to close the plant or to cut the work hours if the union is brought in. WE WILL NOT discourage membership in International Union of Operating Engineers, Local Union #925, or in any other labor organization of our em- ployees, by discharging employees or failing to reinstate them, nor will we discriminate in any other manner in regard to hire or tenure of employment or any term or condition of employment to discourage membership in a labor organization. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to form , join, or assist said Interna- tional Union of Operating Engineers, Local Union #925, or any other labor organization, to bargain collectively through representatives of their own choos- ing, or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer to Emil Adkins, Ernest Powell , and Montieth Pulver imme- diate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges , and make them whole for any loss of pay they may have suffered as a result of our discrimina- tion against them. All our employees are free to become , or to refrain from becoming , members of the above union or any other labor organization. R. E. SMITH AND FLORENCE B. SMITH A PARTNERSHIP, D/B/A SOUTHERN DOLOMITE, 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 Union No. 12, AFL-CIO and Tri-Counties Association of Civil Engineer- ing Employers and Vandenberg Development Corp., and Utah Construction & Mining Co., Parties to the Agreement. Case No. 91-CE-5. May 15, 1961 DECISION AND ORDER On October 4, 1960, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 131 NLRB No. 75. INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 521 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBER BROWN took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was initiated on charges filed by the Tri-Counties Association of Civil Employees and tried in Los Angeles, California , on June 29 , 1960. The question presented is whether International Union of Operating Engineers, Local Union No. 12, AFL-CIO, herein called Respondent, violated the hot -cargo section of the Act as now contained in Section 8(e).' In general terms the claimed viola- tion stems from what the General Counsel characterizes as an agreement made in 1959 between Vandenberg Development Corporation and Respondent which called for excluding from work at the construction site an employer who had in his em- ploy members of the Charging Union rather than members of the Respondent Union. Upon the entire record and consideration of briefs submitted by the General Counsel and Respondent I make the following: FINDINGS OF FACT 1. THE COMPANIES INVOLVED Vandenberg Development Corporation ( herein called Vandenberg ) and Utah Construction & Mining Company (herein called Utah) for the purposes of this proceeding I find to be a single employer. The correspondence set forth herein reflects the labor relations of Vandenberg were carried on by Utah and that Van- denberg is a subsidiary to Utah' It is also found that the activities of Penfield and Smith (herein called Penfield), Utah, and Vandenberg are in commerce and affect commerce within the meaning of the Act 2 'Section 8(e)- It shall be an unfair labor practice for any labor organization 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 un- enforcible 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 , alteration, painting, or repair of a building, structure, or other work:. . . 2 See Dearborn Oil and Gas Corporation et al., 125 NLRB 645; where the Board stated : "Centralized control of labor relations Is a factor frequently stressed by the Board in finding common control of separate legal entities. See, e.g., Morelli Brothers, et al., 123 NLRB 635; Aeousta Engineering of Alabama, Inc., 114 NLRB 1415; National Electronic Manufacturing Corporation , et al., 113 NLRB 620." 8 Penfield is engaged at Santa Barbara , California, in the business of civil engineering and land surveying . In 1959 Penfield , in the course of its operations , performed services for Utah valued at $49,810.44, for, Standard ' Oil Company of California , a firm which annually ships . goods and - materials valued in excess of $50 ,000 in California to other 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local Union No. 12, AFL-CIO and Tri-Counties Association of Civil Engineering Employees, herein called Employees Association are labor organizations within the meaning of the Act.' III. THE ALLEGED UNFAIR LABOR PRACTICES A. The events and related factors, Vandenberg purchased a tract of land near Lompoc, California, and during 1959, subdivided and developed the land by having streets, curbs, gutters, sewers, and utility installations constructed. The unit of the tract here in question had approxi- mately 200 residential building sites. Penfield was engaged by Vandenberg to make a land survey of this tract in January of 1959. On this date Penfield had a collective-bargaining contract with the Employees Association. Penfield proceeded to do the necessary land surveying work on the tract to complete a plan showing the lot boundaries, streets, curbs, and other facilities requisite for approval by the appropriate local governmental office. This approval was obtained in approximately July 1959. Vandenberg then entered into several contractual arrangements with building contractors calling for the in- stallation of streets, curbs, gutters, and the other facilities required by the county in ,connection with a proposed subdivision. Thereafter Penfield's survey crews located the grades and lines to be used by the contractors' employees then engaged on the project and drove the necessary stakes -to mark the location and grades of the roads, curbs, and facilities, and the corners of each lot to be established. Penfield's survey crews worked immediately ahead of the employees of the several contractors on the job in accordance with the usual practice so that their stakes would not be disturbed. Cement finishers, laborers, truckdrivers, and earth-moving equipment operators graded, excavated, and built streets, curbs, gutters, sewers, et cetera, to the grades, lines, and points established by Penfield's field survey crews. Neither Vandenberg nor Utah through its own employees had performed or is performing work at the Vandenberg Village project. During this period Vandenberg and Utah had in effect the following contractual provisions with Respondent: ARTICLE I Scope SECTION 1 . This agreement shall be in effect within the boundaries of the United States and covers only field construction work. States valued at about $600 , and for the United States Navy valued at about $8,700. Penfield Is a member of Tri-Counties Association of Civil Engineers and Land Surveyors, herein called Tri-County, an employer association existing for and engaging In collective bargaining and negotiations of collective -bargaining agreements on behalf of Its members, „including Penfield, all of whom are engaged in civil engineering and land surveying work .In the State of California. Members of Tri-County annually sell products and perform services valued at more than $50 ,000 to firms and individuals who annually ship goods ,and perform services outside the State of California , valued at more than $50,000 Utah Construction and Mining Company, Is a Utah corporation , engaged in business as general contractor in the heavy construction industry , with principal office and place of business at Ogden, Utah, and a district office at San Francisco , California . Utah is en- gaged in construction work in seven or more western States of the United States, Mexico, and other foreign countries. During the past year, Utah furnished materials and services , valued in excess of $1,000,000 on such projects originating from points outside the States where such projects were located Also during the same period , Utah furnished materials and services valued at in excess of $100,000 to firms themselves engaged in interstate commerce , each of which annually ships goods outside the State where it is located valued at in excess of $50;000. Vandenberg Development Corporation Is a California corporation organized for the purpose of and engaged In the business of acquiring, owning, subdividing and developing a large tract of land near Lompoc, California , known as Vandenberg Village, and in the ' sale of lots thereon to builders and others for residential construction. ' This finding is'based on the admitted allegations in the complaint. INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 523 ARTICLE V. Wages and Working Conditions SECTION 1. When the Employer enters an area where no wages or working conditions have been established, the Union and the Employer will negotiate the wages and such working conditions as are necessary and reduce their under- standing to writing. SEC. 2 . When the Employer enters an area where wages and working con- ditions have been negotiated through bona fide collective bargaining , the Em- ployer will be presented with such evidence by the Union and the Employer will conform his operations accordingly. 1-D. If the CONTRACTORS, parties hereto, sub-contract job site work falling within the recognized jurisdiction of the UNION, provision shall be made in such sub-contract for the compliance by said sub-contractor with terms not less than those contained herein . A sub-contractor is de- fined as any person, firm or corporation who agrees , under contract with the general contractor or his sub-contractor, to perform on the job site any part or portion of the work covered by this Agreement, including the op- erating of equipment, performance of labor, and the furnishing and installa- tion of materials. It is found that the language of the above-quoted contractual provisions contem- plates that articles I and V of the national agreement and section 1-D of the South- ern California Associated General Contractors agreement should be read together. The uncontradicted and credited testimony of James Twombley, the president of Respondent Union, establishes that it was common practice to treat the national agreement and the local A.G.C. agreement as one in construing the rights and obligations of the parties. The correspondence set forth herein reflects that Utah was a signatory to the national agreement of the International Union of Operating Engineers AFL-CIO. On or about October 1, 1959 , E. C. Mower, Utah's director of personnel relations telephoned Charles Hackler, Respondent's attorney, and told him that: (a) Utah did not consider the national contract to apply to the Vandenberg Village and De- velopment ; (b) Penfield was hired to perform the survey work on unit 1 only and would be terminated on that portion of the work which was expected to be com- pleted within 2 or 3 weeks ; and (c) Utah and Vandenberg were not aware that Penfield did not have a contract with a building trades union. This telephone conversation was actuated by a complaint from Respondent that Utah and Vandenberg were not honoring their contractual obligations. Respond- ent's attorney then replied as follows: SEPTEMBER 3, 1959. Air Mail UTAH CONSTRUCTION COMPANY, 100 Bush Street, San Francisco, California. GENTLEMEN: As attorney for Local No. 12 of International Union of Op- erating Engineers, I am writing in regard to a labor dispute which exists between this Local Union and Your Company arising from activities at the Vandenberg City Construction Project located on Highway No. 1 near Lompoc , California. According to the Union's records, the Utah Construction Company and the International Union of Operating Engineers are parties to a written collective bargaining agreement, Article V, Section 2, of which provides as follows: When the Employer enters an area where wages and working conditions have been negotiated through bona fide collective bargaining, the Em- ployer will be presented with such evidence by the Union and the Employer will conform his operations accordingly. The negotiated area wages and working conditions applicable to the Vanden- berg City Project are covered by the Master Labor Agreement between South- ern California General Contractors and Local No . 12, a copy of which is herewith presented to you in accordance with the provisions of the above quoted section of the National Agreement. Article I-D. of the Southern California Agreement provides: If the CONTRACTORS, parties hereto, sub-contract job site work fall- ing within the recognized jurisdiction of the UNION, provision shall be made in such 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 corporation who agrees, under contract with the gen- 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral contractor or his sub-contractor, to perform on the job site any part or portion of the work covered by this Agreement, including the operating of equipment, performance of labor,' and the furnishing and installation of materials. Your Company is utilizing the services of the civil engineering firm of Pen- field & Smith to do the field survey work on the above described Vandenberg City job. The employees of this firm are working under wages and working conditions substantially less than those provided in the Southern California Master Labor Agreement for field survey crew employees. (See Article XIV R, page 28, and Wage Scales shown on pages 30 and 31 of the enclosed con- tract.) The continued use of the field survey services under sub-standard wage and working conditions is a violation of the Local 12 area agreement. Mr. James Twombley, President of the Local Union, demanded a correction of this contract violation to the official of your Company in charge at the con- struction project but, to date, no steps have been taken by your Company to correct this situation. The Union has instructed me to prepare and file an injunction and damage suit against your Company unless the contract violation is promptly corrected. Such correction may be accomplished either by your Company contacting the Santa Maria office of Local 12 for the direct dispatchment of survey crews to the job site, or by your use of a survey firm which is under contract with Local 12. You may obtain a list of such firms by contacting the main office of Local 12 at 2323 West Eighth Street, Los Angeles 57, California-Telephone DUnkirk 8-3361. I trust that this matter will have your prompt attention and, if you so de- sire, I will be pleased to discuss the legal basis of the Union's position with your attorney if he cares to contact me before further steps are taken. Yours very truly, CKH:wll CHARLES K. HACKLER. Enc. cc: Mr. R. B. Bronson Business manager Local Union No. 12 2323 West Eighth Street Los Angeles 57, California On November 5, 1959, Respondent's Counsel sent the following letter: Air Mail UTAH CONSTRUCTION COMPANY, 100 Bush Street, San Francisco, California. NOVEMBER 5, 1959. GENTLEMEN: On September 3d I advised you by letter that I had been in- structed by Operating Engineers Local 12 to file an injunction and damage suit seeking relief from a contract violation by your Company arising out of the use of Penfield and Smith for field survey work on your Vandenberg City job. I pointed out that this was in direct violation of the valid subcontracting clause contained in the area Master Labor Agreement. I withheld suit upon the representation of your representative that Penfield and Smith had only been engaged to do a small amount of preliminary boundary field survey work in connection with a small portion of the entire .housing proj- ect and that this firm was expected to complete its contract within a matter of 2 to 3 weeks. I was given the express commitment that all the remaining field survey work, whether connected with subdivision or with construction, would be done either by your own employees in accordance with the Agreement or by a sub-contractor meeting the requirements of the Labor Agreement. I am now advised that Penfield and Smith continue to perform field survey work on the project despite your assurances to the contrary. Unless this matter is corrected within the next 10 days in accordance with our earlier understanding, I will have no alternative except to file suit and, if suit is filed, it is our intention to carry the matter through to a damage award. Yours very truly CKH:wll CHARLES K. HACKLER. cc: Mr. J. J. Twombley, President I.U.O.W. Local No. 12 2323 West 8th Street Los Angeles 57, California INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 525 On November 12, 1959, Utah 's director of personnel relations sent the following letter to Respondent: NOVEMBER 12, 1959. Mr. CHARLES K. HACKLER, Stevenson, Hackler & Ansell, 1616 West Ninth Street, Suite 515, Los Angeles 15, California. DEAR MR. HACKLER: I was somewhat surprised to receive your letter of November 5, 1959 relative to an alleged contract violation by Utah Construction & Mining Co . in connection with work being performed at Vandenberg Village. In my last discussion with you, I informed you that Utah Construction & Mining Co. is not a general contractor at Vandenberg Village. Vandenberg Village, Inc., is a subsidiary corporation presently engaged in subdividing land for sale to builders. Vandenberg Village, Inc., entered into a direct or prime contract with Penfield and Smith for certain field survey work in connection with the subdivision and development of Unit 1 of Vandenberg Village. Since this corpo- ration is engaged wholly in land development and since Utah Construction & Mining Co . is not connected with this development as a contractor, I frankly fail to see where there has been any violation of the subcontracting clause con- tained in the area Master Labor Agreement. Notwithstanding the foregoing, it has always been the policy of this com- pany to maintain harmonious relations with the unions in those areas in which it operates. Because of this, I informed you in my last telephone conversation that regardless of the fact that we felt we had committed no violation of the National Agreement with the Operating Engineers we would instruct our sub- sidiary corporation to dispense with the services of Penfield and Smith at the earliest practicable time. This the subsidiary corporation agreed to do and we were informed that as soon as their contract with Penfield and Smith for survey work on Unit 1 was completed they would no longer use them in connection with their subdivision work, but would obtain the services of a firm employing union help. Upon receipt of your letter , I checked with Mr. Mackie of Vandenberg Village, Inc., and was informed that the work being performed by Penfield and Smith is on Unit 1 , that no additional work has been contracted and that they will definitely be off the job by the end of this month. He also informed me that delays in the completion of the work have been encountered because of delays in getting County approval . In other words, they have not given any additional work to Penfield and Smith since my last conversation with you, but their estimate as to the time it would take to complete the work in Unit 1 was considerably on the optimistic side. If it would serve to clarify this situation in your mind , I would be happy to meet with you at the jobsite at your convenience. I am confident that you would find that we have not departed from our original representations to you. Very truly yours, [S] E. C. Mower, E. C. MOWER, Director of Personnel Relations. EMC: siw On or about November 28, 1959, Vandenberg notified Penfield it would be re- moved from the job December 5 , 1959, and its employees did not work after Decem- ber 3, 1959. At this time there was still about 15 to 20 percent of the work to be done which was completed by an engineering firm having a collective -bargaining agreement with Respondent. The record reflects that the collective-bargaining contract that Penfield had with the Employees Association provided lower wages than the collective -bargaining con- tract Respondent had with the company that succeeded Penfield. B. The Issues It is the General Counsel's contention that the letter of Respondent's counsel dated November 5 , 1960, stating it would sue Utah unless it complied with the "sub- contracting clause" in 10 days constituted in legal effect an offer to enter into a new agreement contemplating a possible acceptance after the effective date of the amended Act. The letter from Utah received by Respondent's counsel on Novem- 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 13, 1960, constituted acceptance by Utah and Vandenberg and an "entering into" an agreement on the first effective day of the Act interdicted by Section 8(e).5 The General Counsel also contends that the work performed by Penfield's survey crews was not covered by the proviso of Section 8(e) which reads in part as follows: 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, alteration, painting, or repair of a building, structure, or other work: .. . The General Counsel contends the 8(e) proviso does not apply to the facts in this case on the theory that the field survey crews of Penfield did not work on structures or buildings to be erected above ground level even though their work was conducted at the construction site involved. He contends also that Utah and Vandenberg were not employers in the construction industry as contemplated by the Section 8(e) proviso inasmuch as they were engaged in preparing a subdivision for the sale of lots to other contractors who would build homes on those lots. Respondent points out that the correspondence in this record reflects that it was not attempting to enter a new agreement but merely trying to have Vandenberg and Utah live up to existing contractual obligations, and the statement that a lawsuit would be filed unless the claims of Respondent were met with respect to claimed existing obligation cannot reasonably be construed as contemplating a new agree- ment. Respondent contends also that the last action that it took was in connection with its letter of November 5, 1959, addressed to Utah and that to apply Section 8(e) of the amended Act would be contrary to the provisions of Section 707 of the Labor-Management Reporting and Disclosure Act which would have November 13, 1960, as the earliest date that Respondent could be held for committing a violation of the amended Act. Finally and persuasively, Respondent claims the evidence in this record supports its contention that the field survey personnel here involved are an integral part of the construction industry and meet the requirements of the Section 8(e) proviso relating to the construction industry. C. Concluding Findings The record reflects that Utah is a major construction company and that through its subsidiary Vandenberg was engaged in improving land in the vicinity of Lompoc, California, in order to sell residential building sites to other contractors. Through subcontractors, streets, sewers, gutters, and utility installations were installed or constructed at this site. It is found that Vandenberg and Utah are employers in the construction industry. In this connection it is noted the testimony of Respond- ent's business representative, James Twombley, establishes that employer signatories to the collective agreement of Respondent frequently engaged in subdivision work and employed personnel on the same terms and under the same contract as employ- ers in the erection of above ground structures. That Respondent is a labor organization engaged in the construction industry is manifestly clear from the facts of this record and an examination of the collective- bargaining agreements in evidence. The so called "agreement" relied on by the General Counsel to establish a viola- tion of Section 8(e), related to work to be done "at the site of the construction." The correspondence which has been set forth herein is the basis for finding Respondent was attempting to have Utah and Vandenberg honor an existing collec- tive-bargaining agreement. Whether in such circumstances a statement of an intention to file a lawsuit followed by the employer's action requested by the labor organization might constitute an express or implied agreement need not be decided` here. It is apparent that Respondent had a sound basis for claiming an existing, contract as well as taking the position that it was in the construction industry. This finding is based on the evidence of the actual work done by the field survey crews. 6In Stan-Jay Auto Parts and Accessories Corporation, 127 NLRB 958, the Board stated the effective date of the amended Act was November 13, 1960 It is noted that the letter from Utah was dated November 12, 1960, and assuming that it was mailed on that date the question is suggested as to whether even if the General Counsel's theory of offer and acceptance were here adopted the agreement would not have been consummated on November 12, 1960, 1 day prior to the day the Board has stated that the amended Act became effective. Because of other controlling factors it is unnecessary to resolve this question, or to consider the arguments advanced by Respondent in support of the-- proposition that the effective date of the amended Act was November 14, 1960 LA PRENSA, INC. 527 as well as on the determinations of the Department of Labor in connection with the Davis Bacon Act in setting wages for field survey crews as well as the inclusion of this type of employee in the wage schedules the County of Los Angeles has in connection with its public works program and the institution of an apprenticeship program in the State of California including personnel of field survey crews. To accept the General Counsel's theory that the 8(e) proviso does not apply to construction activities in connection with structures below ground level would exclude from the construction industry such projects as the Federal highway pro- gram, pipelines, and tunnels. Nothing has been discovered evidencing the intent of Congress to exclude construction below or at ground level and since there does not appear to be any basis for excluding the type of construction here involved from the proviso of Section 8(e) it is found that all the requirements of the 8(e) proviso relating to the construction industry are present in this controversy and further that there was no agreement entered into after the effective date of the amended Act.6 CONCLUSIONS OF LAW Utah, Vandenberg, and Penfield are engaged in commerce and activities affecting commerce within the meaning of the Act. Respondent has not engaged in activities violating Section 8(e) of the Act. [Recommendations omitted from publication.] 6 Whether or not an attempt to enforce a preexisting agreement violative of Section 8(e) is an unfair labor practice also is not necessary to resolve. General Counsel stated on the record that he placed no reliance on the contractual provisions relating to the sub- contract clause set forth above and the finding that all of the requisites of the 8(e) proviso have been met make it unnecessary to resolve whether an attempt to compel adherence to a hot-cargo agreement executed before the effective date of this section is an unfair labor practice. La Prensa, Inc. and Frank Carrion. Case No. 3-CA-7353. May 15, 1961 DECISION AND ORDER On November 9, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions. The Board i has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief and the entire record in the case, and finds merit in the Respondent's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with the following. There are two issues posed by this case: (1) Whether in Decem- ber 1959, the Charging Party, Frank Carrion, was an employee of '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 [Members Rodgers, Leedom, and Fanning]. 131 NLRB No. 73.