Operative Plasterers', Etc., Local 526

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Necessarily, their constitutions reflect this basic purpose . In a sense, virtually all union rules affect a union member's employment. But the Board has not been empowered by Congress to police a union de- cision that a member is or is not in good standing or to pass judgment on the penalties a union may impose on a member so long as the penalty does not impair the member's status as an employee. Our dissenting colleague's view should require the Board to sit in judgment on union standards of conduct for its members even though such standards are not enforced by threats affecting the member's job tenure or job opportunities . Whether or not the Union's rule in this case is desirable or equitable is a matter we need not and do not decide. It is sufficient, in our view, that the Union deliberately restricted the enforcement of its rule to an area involving the status of a member as a member rather than as an employee. I find, in short , that the General Counsel has failed to demonstrate by a pre- pondei ance of the evidence that ( 1) Respondents restrained or coerced employees in the exercise of their rights guaranteed in Section 7 within the meaning of Section 8(b)(1)(A ), and (2 ) assuming , without finding, that such restraint or coercion existed, that they were not protected in their right to prescribe their own internal rules. Upon the basis of the foregoing factual findings and conclusions , I come to the following: CONCLUSIONS OF LAW 1. Respondent 248 and Respondent 401 are labor organizations within the mean- ing of Section 2(5) of the Act 2. The Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Neither Respondent 248 nor Respondent 401 has engaged in or is engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A) and Section 2(6J and (7 ) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record of the case , I recommend that the amended complaint be dismissed in its entirety. Operative Plasterers' and Cement Masons' International Asso- ciation of United States and Canada Local 526, AFL-CIO; International Union of Operating Engineers , Local 66, AFL- CIO; Bricklayers, Masons and Plasterers' International Union of America, Bricklayers, Masons and Cement Finishers Local No. 62, AFL-CIO; International Hod Carriers', Building and Common Laborers' Union of America, Local No. 323, AFL-CIO; United Association of Journeymen and Apprentices of the, Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 356, AFL-CIO; United Brotherhood of Carpenters and Joiners of America , Local 500, AFL-CIO; Building and Construction Trades Council of Butler and Butler County, Pennsylvania and National Storage Company, Inc., and Walters & Haas, Inc. Cases Nos. 6-CD-153 and 6-CD- 154-1, 2, 3, 4, 5, 7, and 8. October 23, 1964 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the Act following charges filed by National Storage Company, Inc., and Walters & 149 NLRB No. 11. OPERATIVE PLASTERERS', ETC., LOCAL 526 79 Haas, Inc. (herein referred to as National and Walters respectively), alleging that Operative Plasterers' and Cement Masons' International Association of U.S . and Canada, Local 526, AFL-CIO; International Union of Operating Engineers, Local 66, AFL-CIO; Bricklayers, Masons and Plasterers' International Union of America , Bricklayers, Masons and Cement, Finishers Local No. 62, AFL-CIO; Interna- tional Hod Carriers', Building and Common Laborers' Union of America, Local No. 323, AFL-CIO; United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , Local Union No. 356 , AFL-CIO; United Brotherhood of Carpenters and Joiners of America, Local 500, AFL-CIO; and Building and Construction Trades Council of Butler and Butler County, Pennsylvania (herein called Cement Ma- sons, Engineers, Bricklayers , Hod Carriers, Plumbers, Carpenters, and the Council , respectively ), had induced or encouraged individuals employed by Bell Telephone Company of Pennsylvania as well as employees of National and Walters and other persons engaged in commerce or in an industry affecting commerce , to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform services, and threatened, coerced, and restrained the Bell Telephone Company, National, Wal- ters, and other persons engaged in commerce or in an industry affect- ing commerce , where an object thereof is to force or require Walters to assign the work of excavation , scaling, drainage, and installation of sanitary sewers, concrete and roadway construction , installation of electrical lines, and installation of water supply systems to employees who are members of or who are represented by the Respondents rather than to employees who are members of or represented by As- sociated Trades and Cra fts. A duly scheduled hearing was held be- fore Hearing Officer Francis J. Surprenant, on November 13 and 14, 1963. All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross -examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the Hear- ing Officer made at the hearing are free from prejudicial error and are hereby affirmed. 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- menmber panel [Members Fanning, Brown , and Jenkins]. Upon the cut ire record, the Board makes the following findings : 1. National is a Pennsylvania corporation engaged in the under- ground storage of records and various supplies and materials. Dur- ing the past 12 -month period , it has received in excess of $100,000 for the rental of space, $25,000 of which was received from employers di- 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rectly engaged in commerce. During this same period, $50,000 worth of services was derived from companies directly engaged in com- merce. In addition, much of the space is rented to the United States Government for the storage of records. The testimony also shows that Walters is a Pennsylvania contrac- tor that has performed services in excess of $50,000 for other com- panies which are directly engaged in interstate commerce. Accord- ingly, we find that the Employers are engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.'- 2. The record shows that Associated Trades and Crafts exists in whole or in part for the purpose of collective bargaining and that it admits to membership employees of Walters, as well as employees of other employers in the same area. In addition, the parties stipulated that the various Respondents are labor organizations within the meaning of the Act. Accordingly, we find that Associated Trades and Crafts and the various Respondents herein are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. The dispute : Facts National is engaged in storing materials and records of various natures in an underground facility located in Butler County, Penn- sylvania. During 1963 National secured a contract for storage of cer- tain medical supplies which required extensive construction work. Walters obtained the contract to perform the necessary structural changes, subcontracting the actual work to Underground. Commencing sometime in July 1963, the Unions, individually and collectively through the Council, made several contacts with National and Walters. Their admitted purpose was to have the employer do- ing the construction work enter into a contractual relationship with the Unions. In each instance, the business agents of the various locals sought to have either National or Walters sign contracts covering em- ployees that would normally fall within their respective jurisdic- tions.2 Not having achieved any success, the Unions, through Can- zian, business agent for the Cement Masons, told Walters by tele- phone that since no progress had been made, forceful action would 1 Walters, to carry on the actual construction work, formed a new corporation , Under- ground Contractors , Inc. (herein called Underground ). Ownership of Underground was held by the officers and stockholders of Walters. 2 In addition, Walters testified that on two separate occasions , the business agents of the Bricklayers and the Laborers stated that they would like to have some of their members on the job. OPERATIVE PLASTERERS', ETC., LOCAL 526 81 have to be taken. Thereafter, on September 30, 1963, pickets showed up at the worksite and continued picketing until October 24, 1963. The picket signs read "Walters and Haas is Not in Signed Agree- ment with AFL-CIO," with a similar text relating to National on another sign. The picketing caused some deliveries not to be made and a Bell Telephone employee refused to cross the picket line to do repair work. Contention of the Parties National, Walters, and Associated Trades and Crafts contend that the Unions picketed the construction work at National's storage fa- cility for the express purpose of securing work assignments for their members. The Unions argue , on the other hand, that no jurisdic- tional dispute exists, that they only sought to have Walters enter into contracts with the various Locals , and that their picketing was di- rected solely toward this goal of recognition. Applicability of the Statute We are of the opinion that the record in its entirety does not estab- lish that a jurisdictional dispute exists in this proceeding. We ac- cordingly find that there is no dispute herein which is cognizable under Section 10 (k) of the Act. The record shows that neither the Council nor the Locals acting as a group demanded or sought the assignment of work to their mem- bers rather than to the employees currently working on the job. It is clear from the testimony of all of the witnesses that the goal sought by the Council and the Locals was recognition and collective bargain- ing. Even the picket signs, which were totally silent as to any in- ducement to strike on behalf of work assignments, supports this conclusion. We are also of the opinion that the individual requests of the Bricklayers and the Laborers that some of their members be put to work did not give rise to a jurisdictional dispute within the meaning of Section 8 (b) (4) (D ) of the Act. The record is devoid of any evi- dence that would indicate that these demands were in any way com- municated to any employees so as to constitute an inducement to strike or withhold their services within the meaning of Section 8 (b) (4) (i) (D). At the same time, the record also fails to show that these demands were accompanied by any threats or any words or deeds that would constitute restraint or coercion within the meaning of 8(b) (4) (ii) (D), or that the two Locals thereafter renewed their demands or attempted in any way to tie their demands to the picketing thereafter 770-076-65-vol. 149-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commenced and carried on by the Council. In the absence of any evi- dence to show that the Council was aware of these individual requests by the Bricklayers and the Laborers, or during the course of the picketing adopted or ratified these requests as a goal to be achieved through the picketing, we likewise are of the opinion that the desires of the two Locals cannot be imputed or assessed against the Council which was conducting the picketing. Based on the entire record, we find that the facts herein do not present a jurisdictional dispute with- in the purview of Sections 8(b) (4) (D) and 10(k) of the Act. We shall therefore quash the notice of hearing. [The Board quashed the notice of hearing.] The Columbus Building and Construction Trades Council, AFL- CIO and Merchandise Properties, Inc. Operative Plasterers' and Cement Masons' International Asso- ciation of the United States and Canada , Local No. 49, AFL- CIO and Merchandise Properties, Inc. International Association of Bridge , Structural and Ornamental Iron Workers, Local No. 172, AFL-CIO and Merchandise Properties, Inc. United Brotherhood of Carpenters and Joiners of America, Local Union No. 200, AFL-CIO and Merchandise Properties, Inc. International Brotherhood of Electrical Workers, Local Union No. 683, AFL-CIO and Merchandise Properties, Inc. Cases Nos. 9-CC-337-1, 9-CC-337-3, 9-CC-337-4, 9-CC-337-5, and 9-CC-337-6. October 23, 1964 DECISION AND ORDER On March 10, 1964, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. He further found that the Respondents had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 149 NLRB No. 13.