Local 1, Bricklayers, Masons and Plasterers, Etc.

LOCAL 1, BRICKLAYERS, MASONS AND PLASTERERS, ETC. 119 affecting commerce , to cease doing business with Mercury, the Respondents have violated Section 8(b) (4) (i) and (ii ) (A) and (B) of the Act.22 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] '-'I shall specifically name these "persons" in my Recommended Order. The complaint named certain additional persons but these were not identified at the hearing and, there- fore, are not specifically listed in the Recommended Order. Local 1, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO ; Cement Masons Local 43, United Ce- ment, Lime and Gypsum Workers International Union, AFL- CIO; Local 28, International Brotherhood of Electrical Work- ers, AFL-CIO; Local 37, International Union of Operating Engineers, AFL-CIO; Local 16, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO; Local 48, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Local 122, International Asso- ciation of Sheet Metal Workers, AFL-CIO; Local 29, Inter- national Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO; Steamfitters Local 438, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Baltimore Building and Construction Trades Council, AFL-CIO and Consolidated En- gineering Co., Inc. Cases Nos. 5-CD-53 through 5-CD-63. March 4, 1963 DECISION, DETERMINATION OF DISPUTE, AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10 (k) of the Act following charges filed by Consolidated Engineering Co., Inc., herein called Consolidated, alleging that Baltimore Building and Construction Trades Council, AFL-CIO, herein called the Council, and a number of local unions affiliated with it, had induced or encouraged employees to strike for the purpose of forcing Chevrolet Division of General Motors Corporation, herein called Chevrolet or the Company, to assign particular work to members of these local unions, rather than to General Motors' direct employees, who are represented by Local No. 678, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW, AFL-CIO, herein called the UAW or Local 678. A duly scheduled hearing was held before Joseph I. Nach- 141 NLRB No. 8. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man, hearing officer, on various dates from June 15 through July 20, 1961. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the UAW, the Council and Local 48, United Association of Journeymen and Apprentices of the Plumbing,and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Plumbers Local 48, filed briefs which have been duly considered by the Board.' Upon the entire record in the case, the Board makes the following findings : 1. The parties stipulated and we find that General Motors and Consolidated are engaged in commerce within the meaning of the Act. 2. The parties also stipulated and we find that the Council and each of the nine local unions affiliated with it and named as Respond- ents in the charge are labor organizations within the meaning of Section 2(5) of the Act? 3. The dispute. A. The work in dispute The work dispute which gave rise to this proceeding occurred at Baltimore, Maryland, where the Company, in order to expand its facilities, is having a large building constructed as an addition to its automobile assembly plant. A general contract was awarded to Consolidated to erect this structure in three phases, at a cost of ap- proximately $16 million. Consolidated subcontracted various seg- ments of the overall job to a number of specialized construction con- tractors, each of whom traditionally uses journeymen craftsmen who are represented by certain locals of AFL-CIO International unions. Certain plumbing and pipefitting work was subcontracted to Lloyd E. Mitchell, Inc., whose employees are represented by Plumbers Local 48, and Steamfitters Local 438, herein called Local 438, both affiliated with the United Association of Journeymen and Apprentices of the 1 The UAW's request for oral argument is denied, as in our opinion , the record and the briefs adequately present the positions of the parties. 2 Local 1 , Bricklayers , Masons and Plasterers International Union of America, AFL- CIO ; Cement Masons Local 43, United Cement , Lime and Gypsum Workers International Union, AFL-CIO ; Local 28, International Brotherhood of Electrical Workers, AFL-CIO ; Local 37, International Union of Operating Engineers , AFL-CIO ; Local 16 , International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO ; Local 48, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO ; Local 122, International Associa- tion of Sheet Metal Workers, AFL-CIO ; Local 29, International Association of Marble, Slate and Stone Polishers , Rubbers and Sawyers , Tile and Marble Setters Helpers and Marble Mosaic and Terrazzo Workers Helpers , AFL-CIO; Steamfitters Local 438 , United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United Stales and Canada , AFL-CIO. LOCAL 1, BRICKLAYERS , MASONS AND PLASTERERS , ETC. 121 Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and both named Respondents as members of the Council. The electrical work under Consolidated's contract was awarded to Blumenthal-Kahn Electric Company, whose employees are represented by Local 28, International Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW Local 28, and also a Respondent in this proceeding. Consolidated's contract with the Company provides for the installa- tion of main product lines which carry paint, oil, antifreeze, and other materials from source tanks to certain locations within the new plant; it further provides for the placing of T-valves at certain points in these product lines. These valves are the termination points of the general plumbing, steamfitting, or pipefitting work to be performed under Consolidated's contract. As to electrical work, the contract provides for the installation of principal or central electrical wires, which ter- minate at certain stops or outlets. Once the T-valves were installed, the Company began to use its own pipefitter maintenance employees, from the maintenance department, to extend the pipes by installing 1-inch pipe, or "drop lines," from the T-valves to the assembly room floor. Rubber adaptor hose was then attached to the drop lines, so as to make them ready for use on auto- mobiles as they passed through the assembly lines. In the same fashion, after the electrical outlets had been placed by subcontractors' employees, the Company utilized its own electrical maintenance de- partment employees to run conduits or wiring from the outlets to the machines or equipment requiring electricity. At this auto assembly plant collective bargaining for the employees has long been predicated on the basis of an industrial unit, with UAW Local 678 representing an overall unit of production and maintenance employees . Included in the single unit are all the employees in the maintenance department. As the electricians, pipefitters, and plumb- ers working for the construction subcontractors completed their as- signed work, as described above, and the maintenance department em- ployees started to extend pipes beyond the T-valves and wiring beyond the electrical outlets, a question arose as to whether the employees of the construction contractors should carry the piping and electrical work further, so as to perform also the lesser work being done by the inside employees. The Company took the position that the latter group had a right to do that work because it had not been awarded to Consolidated Engineering in the general contract but instead reserved by Chevrolet to its regular employees. The work in dispute in this entire proceeding is, therefore, only the installation of the "drop lines" from the overhead T-valves down to the assembly line locations, and the necessary wiring from the larger cutoffs to the machines or equip- ment requiring electricity. This work is claimed by the Council on 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of journeymen craftsmen represented by UA Locals 48 and 438, and by IBEW Local 28; no specific claim for work is advanced on behalf of any other category of craftsmen. B. Evidence of illegal conduct by the Respondents The charge names as Respondents the Baltimore Building & Con- struction Trades Council, AFL-CIO, and nine of its constituent local unions, each a chartered local of an AFIr-CIO International union. On or about April 10, 1961, while construction of the new facility was in progress, and after the Company had assigned certain of its maintenance employees to perform the disputed work, the Council established a picket line at the premises and the employees of all the construction subcontractors ceased work. It is conceded that the picketing was authorized by the Council, that eight of the charged lo- cal unions participated in the picketing, and that the object of the picketing was to force the Company or Consolidated, or both of these Employers, to assign the disputed work to members of the appropriate craft local union of the Council rather than to employees of the Com- pany's maintenance department. Local 29, International Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO, did not participate in the picketing. By agreement of the parties, the picket- ing ceased on about April 20 and work was resumed. C. Contentions of the parties The Council contends that the work in question must be assigned to its pipefitters and its electricians because it is part and parcel of "new" construction , as distinguished from any comparable pipe- fitting and electrical work that might be performed by employees engaged in the production process or running maintenance of any processing or manufacturing plant. It draws a line of demarcation separating the new building construction industry from all other work, and argues that craftsmen traditionally engaged in such oc- cupation are entitled to continue in its performance to the exclusion of all other workmen. In justification of this broad claim, the Coun- cil relies upon an asserted past practice of this Company and through- out the area generally. More particularly, the Council points to the "Miami Agreement," discussed below, as conclusive evidence that the UAW, which represents the Company's production and maintenance complement to which it chose to assign the work, has agreed to cede jurisdiction over "new building construction" to craft unions, and that the work in dispute is "new" construction under the terms of the Miami agreement. LOCAL 1, BRICKLAYERS, MASONS AND PLASTERERS , ETC. 123 U AW Local 678 contends that the Company has long assigned work of this type to employees in its maintenance department; that it is only one aspect of the maintenance department's repetitive and long-standing duties ; that the work is expressly covered by the collective-bargaining agreement between UAW Local 678 and the Company ; and that for these reasons the Board should award the work in keeping with the assignment already made by the Company. The Company was duly served in advance of the hearing with a notice of hearing and a copy of the charge, in which it was specifically named as the Employer involved, as well as with several notices of adjournment of the hearing, but did not appear. Its choice of assign- ment in the matter, however, is affirmatively indicated by the fact that it assigned the work to the maintenance employees in the first instance, and that, despite the picketing and the consequent strike which delayed work on the addition to its plant, it does not appear to have altered is initial assignment or otherwise changed position? D. Applicability of the statute The record shows clearly, and the Council and its constituent locals concede, that these Unions picketed the jobsite, and thereby succeeded in inducing a work stoppage by their members, for the purpose of forcing the Company or Consolidated Engineering, or both, to assign the work in dispute to one group of pipefitters and electricians instead of to the Company's maintenance department em- ployees performing the work. We therefore find that there is reason- able cause to believe that a violation of Section 8(b) (4) (D) has occurred. Accordingly, we also find that the dispute is properly before the Board for determination under Section 10 (k). Local 29, International Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO, is a member of the Baltimore Council, and, apparently, was for this reason named a Respondent in the charge. There is no evidence that this Union, or any person acting on its behalf, either participated in the decision of the Council to picket the construction project, or took part in any way in the picketing which occurred. Absent any evidence pointing to any illegal conduct by Local 29, we find that there is not reasonable cause to believe that this Union engaged in conduct violative of Section a We find no merit in the Respondents ' contention that because the Company and the UAW were not formally designated "parties" to this proceeding the hearing must be set aside and a new one held Both the Company and the UAW were served with and acknowledged receipt of the notice of hearing , the UAW appeared and participated fully in the hearing. On or about July 18, while the hearing was in progress , the Company was again advised by telegram that it could participate ; it did not appear. The purposes intended in hearings under Section 10 (k) of the Act are adequately served when all parties to the dispute aie nerved with notice of hearing and afforded opportunity to participate and to introduce evidence We hereby deny the Respondents' motion for a new hearing. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b) (4) (D ). We shall therefore quash the notice of hearing with respect to Local 29. E. Merits of the dispute A clear understanding of the nature of the quarrel over work pre- sented for resolution in this case requires at the outset some comment concerning those factors or considerations to which the Board, in keep- ing with the principles set out in the Supreme Court's CBS decision, has accorded considerable weight in making affirmative work assign- ments under Section 10 (k) 4 In terms of the training , skill, or experi- ence required to perform the disputed work in this instance , neither of the rival claiming groups has advanced any persuasive evidence that the other is less qualified to perform it. Concededly the work demanded by the construction industry pipefitters is pipefitting in character, such as ordinarily falls within the responsibilities of jour- neymen pipefiters or plumbers ; similarly, the electrical wiring work sought on behalf of the electricians normally employed by Consoli- dated's subcontractor, is clearly included in what electricians do throughout American industry . The employees to whom the Respond- ents would have us award the work are, without question, pipefitters and electricians ; in turn, the maintenance department employees to whom the Company has assigned the work, are also classified as pipefitters, with their helpers and leaders, and as electricians, with their helpers and leaders. The testimony of Henry Holt , super- intendent of plant engineering, and Lewis Jefferies, Local 678 shop chairman, shows that the Company's maintenance department consists of skilled groups, such as carpenters and millwrights , as well as electricians . These specifically trained employees are the subject of special and individual reference within the current TJAW contract with the Company. They are separately listed in the agreement under "Skilled Classifications ," with varying wage rates depending upon their classification as journeymen, helpers, or leaders. Thus the dispute is not one which sets one classification or craft category of employees against a different and unrelated type of workman. It presents instead two groups of electricians who advance conflicting claims to perform the electrical work in dispute, and two groups of pipefitters, or plumbers, each of whom claims exclusive right to do the straight pipefitting work involved. The extensive assembly plant operation carried on by Chevrolet at this location is without question comparable in mechanical com- plexity and diversification of work functions to other such plants in the automobile industry and to like large manufacturing processes in other industries generally. That the maintenance department elec- ' N.L R.B. v. Radio & Television Broadcast Engineers ' Union, Local 2 12 (Columbia Broadcasting System ), 346 U. S. 573; J. A. Jones Construction Company, 135 NLRB 1402. LOCAL 1, BRICKLAYERS, MASONS AND PLASTERERS, ETC. 125 tricians and pipefitters are not substantially distinguishable, with re- spect to their journeymen craft status, from their counterparts on whose behalf the Respondents claim, is persuasively indicated by the fact that in other manufacturing assembly plants in this industry maintenance electricians and maintenance pipefitters are members of and are represented in collective bargaining by the same International unions which caused this proceeding to come to the Board 5 And of course, electricians and pipefitters of this kind are represented by these International unions throughout industry as evidenced by Board cer- tifications without number. The primary grounds urged by the Respondents as a reasonable basis for this Board to award the disputed work to one group of pipe- fitters and electricians instead of to another is the difference between "new" construction and what they refer to as maintenance or opera- tional work. As to why the Board, should deem this difference suffi- cient, the Respondents rest primarily upon an assertion that the UAW, which represents the maintenance employees, has agreed to such a division of work. We are asked to consider the Miami agree- ment, together with whatever opinion may have been expressed by a two-man team operating pursuant to that agreement, as proof of this underlying factual assertion. The Miami agreement was made in 1958 between the presidents of the Building & Construction Trades Department, and the Industrial Union Department, subordinate groups within the AFL-CIO, in which the Respondents and the UAW are respective members. Its purpose was to achieve harmonious and, peaceful reconciliation of a longstanding disagreement as to which AFL-CIO International unions or which of their constituent locals should represent workmen in the building and construction industry, as distinguished from em- ployees occupied in operation or maintenance of production plants. This agreement consists of a letter of understanding, in pertinent part reading as follows : There are two areas in which the jurisdictional lines between the building trades craft unions and the industrial unions are clear. New building construction, on the one hand, should be the work of the workers represented by the building trades craft unions; pro- duction and running maintenance work, on the other hand, should be the work of the workers represented by industrial unions. Be- tween the two clear areas set forth above there is a doubtful area. 6 There have been numerous cases wherein locals of these same craft international unions have sought units of either maintenance electricians or maintenance pipefitters, and the Board has directed elections in such units For example, see General Motors Corporation, Delco Remy Division, 53 NLRB 110 ; General Motors Corporation, Harrison Radiator Division, 71 NLRB 757; Cadillac Motor Car Division, Cleveland Tank Plant, General Motors Corporation, 94 NLRB 217; Ford Motor Company, Aircraft Engine Division, 96 NLRB 1075; Ford Motor Company, 100 NLRB 813; Buick Motor Division, General Motors Corporation Jet Plant, Willow Springs, 105 NLRB 488. 126 DECISIONS Or NATIONAL LABOR RELATIONS BOARD In this doubtful area, decisions should be made on the basis of established past practices on a plant, area or industry basis. As to the mechanics for implementing this understanding, the two groups also provided as follows: The AFL-CIO will place on its staff three (3) persons sug- gested by the Industrial Union Department and three (3) persons suggested by the Building and Construction Trades Department. These six (6) persons will be divided, into three teams of two men-one from the Building and Construction Trades Depart- ment and one from the Industrial Union Department on each team. These teams will work under the direction of the President of the AFL-CIO and will devote their full time to adjusting dis- putes between building trades unions and industrial unions in keeping with the policy stated above. Disputes that are not settled by the two-man teams will then be referred to a Committee consisting of the President of the Building Trades Department, the Director of the Industrial Union Department and one person representing the President of the AFL-CIO. In the event this three-man Committee cannot settle the dispute, it will then be referred to the Special Com- mittee established by the AFL-CIO Executive Council. At the request of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, the machinery of the Miami agreement was invoked when Chevrolet started to assign the disputed work to its maintenance department employees. A two-man team, consisting of James C. Gildea of the industrial union department, and Anthony J. Smith, of the building and construction trades department, was sent to Baltimore. They met with the interested parties on February 2, 1961, at the UAW local office, where the disagreement was aired. The two-man team was unable to persuade local representatives of the Respondents and of the UAW to settle their differences and reported back to the president of the AFL-CIO on February 7. Kirkwood, the president's executive assistant, testified that the dispute was then submitted for second-step consideration in accordance with the pro- cedure set out in the Miami agreement, and that a supplementary re- port was requested from the two-man team. This report, prepared by Smith but unsigned, reads in part as follows : "The team has no doubt that the work involved is within the new construction provision of the Miami Agreement." Clearly, the Miami agreement does not represent a firm contract for arbitration that would be binding upon the participating parties. It does provide a significant forum for discussion among disputants and LOCAL 1, BRICKLAYERS, MASONS AND PLASTERERS, ETC. 127 a conciliation or settlement procedure rising to the top level of the organization, but with no promise by any party to abide by any con- clusion that might be reached between the members of the initial on- the-spot investigating team of two men, or even by the AFL-CIO executive council itself. Therefore, the council's insistence in its brief that this dispute was "settled" within the procedures set out in the Miami agreement, misconceives both the arrangement, and its intended objective. Had the ultimate and the salutary goal of that agreement been reached in this instance, the contending labor organizations would be in "agreement" now, and, presumably, the dispute having thus been settled would not be before this Board for consideration. Notwithstanding this clear purport of the Miami agreement, the council insists that the two-man team agreed with its contention that the work in dispute belonged to building craft employees and that therefore this Board must award the work accordingly. SeN eral wit- nesses, called by the Respondents, testified that Gildea, of the indus- trial union department, voiced the opinion at the February 2 confer- ence that the work belonged to the local craft minions. The council then argues that this opinion was also reflected in the March 15 sup- plementary report. However, Gildea, also a witness, denied having made such a statement, and in support, correctly pointed to the fact that under the Miami agreement his function was limited to advising and attempting to induce the disputants to reach their own amicable agreement. In any event, the opinion of one team member, even as- suming it was expressed, cannot in these circumstances supplant the statutory duty resting upon this Board to make the affirmative aNv ard. In our opinion, the record as a whole leaves no doubt that, as Kirk- wood himself testified, this dispute has not been settled by the com- peting groups, either within or apart from the framework of the Miannn agreement. The UAW never yielded iii its position that the disputed work is not "new" construction; as a constituent Member of the industrial union department it n cold necessarily have c'anceded this point if in fact the objectives of the Miami agreement had been achieved.6 The council and its affiliated local unions further contend that Impart from the Miami agreement, the Board should award the disputed cork to the craft locals on the ground that the craft unions have pre- viously performed it, both at the Chevrolet plant here involved and in the Baltimore area generally. Extensive portions of the record are devoted to the testimony of members of both Pipe Fitters Local 438 and Plumbers Local 48, as well as of Local 28, IBEW, in support of this assertion. There is also, however, ofFsetting testimony of other Cf Tri-County Building and Countsuctson Tsodes Council of l b on and V.anstsi, IFL- C10 (The John G Rulslsn Construct , on Company), 137 \LRL' 1444 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses clearly establishing that plant maintenance employees have also been used for the same or comparable duties. Alfred Christopher and Alfred Biel, journeymen pipefitters and foremen, testified that during the reconversion of the Chevrolet plant in 1945-46, trunk lines and drop lines were installed by outside build- ing tradesmen rather than by the Company's maintenance employees. Again in 1950, according to Robert Waggoner, Local 438 journeyman steamfitter, installation of powerglide fluid trunk lines and drop lines was done by building tradesmen. Biel also testified that during a plant expansion program in 1958 practically all the piping work was performed by members of the craft unions. As to area practice, Vincent Bonadio, business agent of Local 438, testified that at the Davison Chemical Company in Baltimore, product lines for steam, water, and other products were installed by building tradesmen. The evidence also shows that outside construction trades- men installed similar piping at the Glidden Paint Company and at Westinghouse Electric Company in Baltimore, where air, gas, and water lines were erected. The testimony of Thomas Cobb, another journeyman pipefitter, further indicates that similar piping work was performed at the Potomac-Edison Company. Other testimony shows that similar plumbing work by craft union journeymen was performed at the Glen L. Martin Company, Inc., and the Bendix Corporation, both in the Baltimore area. Paul Ziegler, journeyman electrician and shop steward of Local 28, testified that at the Westinghouse expansion project in 1951, all new wiring, lights, feeders, and similar electrical installations were put in place by craft union electricians. Charles Burkhart, another journeyman craft electrician, stated that at Westinghouse Electric in 1956 craft union electricians installed all the feeders, lights, and other electrical wiring rather than that company's maintenance elec- tricians. Joseph Beckhardt, business manager of Local 28, added that at the Revere Brass and Copper Company craft union employees ran wire and installed lights and additional runs as well as different types of electrical equipment. Against the foregoing, a number of UAW, Local 678, members, em- ployees of Chevrolet, testified that during the course of the year, when automobile models are changed in the regular course of business, or when other changes in the assembly process require relocation of drop lines, they are called upon, and often do install additional drop lines and move existing ones to new places in the production areas. There is similar direct evidence that during both the post war conversion of the plant and during the 1958 expansion of the facilities, part of the drop line installation was reserved to the maintenance department employees and in fact performed by them. There is other substantial LOCAL 1, BRICKLAYERS, MASONS AND PLASTERERS, ETC. 129 supporting testimony by Michael J. Christ, a maintenance electrician, that electrical work, of the kind here in dispute, has been performed both in relocation of Chevrolet plant machinery and in the installa- tion of new equipment. The foregoing is but a sampling of the detailed testimony set out in the extended record, which, in its totality, leads only to the conclu- sion that the type of work in di'pute has been performed, as a matter of past practice, by both groups of employees now claiming it. There- fore, the Council's claim that its employees are entitled to it now be- cause of persuasive precedent is not adequately supported in fact. On this pertinent factor of practice we deem it particularly significant that the maintenance department craftsmen perform the disputed work as a routine portion of their regular duties in the normal oper- ation of the plant and that presumably they will continue to do it in the future. On the basis of the record as a whole, and on appraisal of all the relevant considerations, we believe that the maintenance department employees are entitled to continue performing the work in dispute in keeping with the Company's assignment. The skill and training requisite for proper performance of the work has not been shown to differ between the two claiming groups of workmen.' The con- struction contract awarding the work to Consolidated, and, of course, the igreer_ient subcontrac Ong part of such work to the pipefitter and electrical subcontractors, do not cover the work in dispute. The agree- ment with UAW Local 678 recognizes the craft categories, with appropriate wage scales provided, of the maintenance department employees to whom the specially skilled work was assigned. And finally, evidence of past practice reveals a mixed experience instead of a consistent pattern in favor of the outside workmen such as to warrant a departure now from the assignment which the Company wishes to continue. And the Miami agreement between the Building and Construction Trades Department and the Industrial Union Department of the AF.i - C1O, which is urged as the Respondents' principal supporting argu- ment, itself recognizes a gray, or "doubtful" area between outright "new" building construction and production and running maintenance work. That the dispute here falls within that middle area must be conceded from the very fact that the parties to the agreement them- 'Plumbers Local 48 contends that under Maryland and Baltimore City statutes, Local 678, UAW, maintenance employees are not qualified to perform the disputed plumbing work, and that any award to the UAW or its members would encroach upon the pre- rogatives of State or local authorities . However, an extended discussion of this position is not warranted in the instant case, since we are not justified in finding, on the basis of this record , that the Company's employees , who are members of UAW , are not qualified under applicable State or local law to perform the disputed work Moreover, our award is not to the UAW or its members, but to the employees of Chevrolet who are presently members of the UAW. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selves were unable to agree upon its proper allocation. Indeed, were the officials charged with responsibility to implement the Miami agree- ment to decide this issue, they would have no choice but to look to the very factors which we use in making the affirmative determination which the statute requires. In these circumstances, we shall determine the jurisdictional dispute by deciding that the Company's maintenance department employees are entitled to perform the disputed work. Our present determination is limited to the particular controversy which gave rise to this proceed- ing. In making this determination, we are assigning the disputed work to employees represented by Local 678, UAW, but not to 678, UAW, or to its members. Accordingly, we find that the Council and its affiliated local mem- bers are not and were not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require Chevrolet or Consolidated Engineering to assign the disputed work to construction employees represented by the Respondent Unions rather than to the Company's own employees in the maintenance department. DETERMINATION OF DISPUTE On the basis of the foregoing findings, and upon the entire record in the case, the Board makes the following determination of dispute pursuant to Sec} ion 10 (k) of the Act : 1. Maintenance department employees of the Chevrolet Division of the General Motors Corporation, who are represented by Local No. 678, United Automobile, Aircraft and Agricultural Implement Work- ers of America, UAW, AFL-CIO, are entitled to perform the plumbing, pipefitting, and electrical work reserved to them by the Company in the construction of the assembly plant at t'ie Company's Chevrolet plant in Baltimore, Maryland. 2. Baltimore Building and Construction Trades Council, AFL- CIO; Local 1, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO; Cement Masons Local 43, United Cement, Lime and Gypsum Workers International Union, AFL-CIO; Local 28, International Brotherhood of Electrical Workers, AFL-CIO, Lo- cal 37, International Union of Operating Engineers, AFL-CIO; Local 16, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; Local 48, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Local 122, International Association of Sheet Metal Workers, AFT.-CIO; Steamfitters Local 438, United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL- CIO, are not and have not been lawfully entitled to force or require OIL CITY BRASS WORKS 131 the Company, or' asiy other employer to-'assign the disputed work to construction employees represented by these unions. 3. Within 10 days from this decision and determination of dispute the Baltimore Building and Construction Trades Council, AFL-CIO, and each of its above-named members shall notify the Regional Direc- tor for the Fifth Region, in writing, whether or not they will refrain from forcing or requiring Chevrolet by means proscribed by Section 8(b) (4) (D) to assign the work in dispute directly or indirectly to construction trades workers, rather, than to Chevrolet's own= employees in its maintenance department. [The Board quashed the notice of hearing in this case insofar as it applies to Local 29 of the International Association of Marble, Slate, and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Marble Mosaic and Terrazzo Workers Helpers, AFL- CIO.] Oil City Brass Works and International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers and Help- ers, Local 587, AFL-CIO . Case No. 23-CA-1416. March 5,1963 DECISION AND ORDER On November 29, 1962, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding , finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a supporting brief. 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 McCulloch and Members Leedom and Brown]. 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 entire rec- ord in this case, including the Intermediate Report and the Respond- ent's exceptions and brief, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner.' 1 We agree with the Trial Examiner's conclusion that the Respondent discriminatorily laid off six employees on March 9, 1962. We do not, however, rely on the finding that the Respondent had, during prior slack periods, followed a policy of reducing working hours instead of laying off employees , and of considering seniority in selecting employees 141 NLRB No. 12. 708-006-64-vol. 141-10