Stone & Webster Engineering Corp.

STONE & WEBSTER ENGINEERING CORP Stone & Webster Engineering Corporation and Earl R. Sellers. Case 5-CA-5891 December 12, 1974 . DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on December 1, 1972; by Earl R. Sellers, an individual,' against the Respondent, Stone & Webster Engineering Corporation,' and served on Respondent on or about December 12, 1972, the General Counsel of the National Labor Relations Board,' by the Regional Director for Region 5, issued a complaint on October 27, 1973,° alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the complaint and notice of hearing were served on the Respondent and the Charging Party. Thereafter, Respondent filed a timely answer admitting certain fac- tual allegations of the complaint but denying the com- mission of any unfair labor practices. A hearing before an Administrative Law Judge was scheduled for November 20, was rescheduled to November 29 at the request of the Respondent, and was again rescheduled to November 30 at the request of the General Counsel. On November 30, all parties herein agreed that the instant proceeding be transferred to the National Labor Relations Board without a hearing before an Adminis- trative Law Judge and that the entire record consist of the formal papers and certain facts stipulated by the parties. The parties waived a hearing, findings of fact and conclusions of law, and the issuance of a Decision by an Administrative Law Judge. By an order issued on December 13, the Board approved the parties' stipula- tion of facts and transferred the proceeding to the Board. Thereafter, the Respondent and the General Counsel filed briefs and the General Counsel filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act,' as amended, the Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, the Board makes the following findings: Hereinafter referred to as Sellers 2 Hereinafter referred to as the Respondent 3 Hereinafter referred to as the General Counsel All dates hereinafter refer to 1973, unless otherwise noted 5 Hereinafter referred to as the Act I JURISDICTION 517 The complaint alleges, and the answer admits, that Respondent is a Massachusetts corporation engaged in the construction of a power plant at Mt. Storm, West Virginia, and that during the 12 months preceding the filing of the complaint the Respondent purchased and re- ceived materials and supplies valued in excess of $50, 000 which were shipped in interstate commerce from points located outside the State of West Virginia. The answer further admits, and we find, that at all material times herein Respondent was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and we find that at all material times herein Local Union No. 947, International Brotherhood of Painters and Allied Trades,6 is a labor organization within the meaning of Section 2(5) of the Act. The said stipulation provides, and we find, that at all material times herein Local Union No. 453, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America,' is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICE A. The Issue The primary issue presented by the complaint in the case at bar is whether the Respondent violated Section 8(a)(1) and (3), of the Act by discharging Sellers be- cause he engaged in picketing which was in violation of a no-stnke clause in an agreement between the AFL-CIO's Building and Construction Trades De- partment and the National Constructors Association. B. Stipulated Facts The facts of this case, which are undisputed, are as follows. On a Saturday, November 11, 1972,8 the teamsters, pursuant to orders by Respondent, painted hardhats which were worn during the week by mem- bers of various crafts who were employed at the Re- spondent's Mt. Storm, West Virginia, jobsite. The paintwork, which was performed by spraying the hats with aerosol cannisters, was for the purpose of facilitat- ing identification of various craft members. Sellers, who served as vice president and a job stew- ard for the Painters, learned on Monday morning, November 13, that teamsters had painted the hats. The 6 Hereinafter referred to as Painters r Hereinafter referred to as Teamsters 8 All dates hereinafter refer to 1972, unless otherwise noted 215 NLRB No. 94 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same evening,he reported,this'fact to the Painters Busi- ness Agent Campbell . The following morning , Novem- ber 14,- Sellers and Campbell met with the Respon- dent's labor relations supervisor , Purdy, and then with the Respondent's Mt. Storm superintendent of con- struction, Otwell . Sellers and Campbell claimed, in their discussion with Purdy and Otwell , that the paint- ing work which the teamsters had performed properly belonged to the painters . Sellers and Campbell further asserted that, by assigning such work to the teamsters, the Respondent violated its commitment to the Paint- ers to abide by the terms of an agreement between the Painters and the Respondent . Otwell promised to in- vestigate the matter. That same day, Purdy, after checking with the Respondent's headquarters, in- formed the Painters that the Respondent considered the matter to be a jurisdictional dispute and suggested that the Painters contact the Teamsters . The Respond- ent and the Painters had agreed to abide by the terms of the April 1, 1971, "Jurisdictional Agreement and Work Rules Agreement" between the AFL-CIO's Building and Construction Trades Department and the National Constructors Association.' That same eve- ning, instead of contacting the Teamsters , the president of the Painters , Mercer, prepared picket signs which read "Informational Picket . Stone & Weber Unfair to Local 947, Painters, Cumberland, Maryland. Violation of Contract." The next morning, November 15, beginning about 6 a.m., Sellers carried one of the two signs and picketed in support of the Painters jurisdictional claim at the main entrance to the Respondent's jobsite. After ob- serving the picketing , Otwell consulted with other supervisors of the Respondent and, at or about 1:40 p.m., decided to terminate Sellers' employment. Ac- cordingly, Otwell sent a telegram to Sellers' home which stated, "Please be advised that effective this date you have been terminated due to stoppage of work on job site by appearing at job entrance with picket sign. Your final check will be mailed ." In the afternoon of the same day, when Sellers picked up his paycheck, he received a "payroll removal slip" which was effective November 14 and which stated , as the "reason for removal," "Stoppage at work on jobsite by appearing at job entrance with picket sign." The slip was dated November 15 and was signed by Otwell . On the same day the Respondent's home office in Boston sent a telegram to the AFL-CIO's Building and Construction Trades Department which gave notification of the dis- pute between the Painters and the Teamsters and re- 9 Art II,B , 3, thereof provides that The Department and each of its affiliated International Unions agree that the establishment of picket lines and/or stoppage of work by rea- son of a contractor's assignment of work are prohibited No Local Union of an affiliated International shall institute or post picket lines for jurisdictional purposes quested that the department instruct the employees who were employed at the site to "return to work and cease honoring this illegal picket." On the following day, November 16, an unfair labor practice charge was filed by the Respondent which alleged that "Since on or about November 15, 1972, the [Painters] struck the [Respondent] on its job at the Mt. Storm , West Virginia Power Station with an object of forcing [the Respondent] to assign work to employees represented by that Union rather than to' employees represented by other unions or other crafts." During the next several days, the Respondent made further attempts to end the picketing by seeking to invoke a determination by an umpire pursuant to the jurisdic- tional agreement, but no determination was ever made. Subsequently, the Board held a hearing pursuant to Section 10(k) of the Act and issued a Decision and Determination of Dispute.` Thereupon, the Painters complied with the Board's decision and the 8(b)(4)(D) charge was dismissed . Thereafter, on November 20, 1972, the Respondent brought a civil action against the Painters pursuant to Section 303 of the Labor Manage- ment Relations Act, and a U.S. district court subse- quently held the Union liable for damages as a result of the work stoppage which occurred." As noted above, the Union and Respondent are bound by the terms of the "Jurisdictional Agreement and Work Rules Agreement" between the AFL-CIO's Building and Construction Trades De- partment and the National Constructors Association. That agreement prohibits unions from establishing a picket line or engaging in a work stoppage by reason of a contractor's assignment of work. There is no question but that Sellers did engage in picket activity to protest the Respondent's assignment of work. The General Counsel contends the Jurisdictional Agreement is not applicable here since the Teamsters, the other party to the work assignment dispute , is not bound by the Juris- dictional Agreement. We do not agree. Here Respond- ent, in exchange for the Union's agreement not to strike, agreed to make work assignments in accordance with the rules of the National Joint Board and to abide by awards made under the agreement . There is nothing in the agreement to indicate that these commitments are limited to situations where both unions seeking the work assignment are parties to the agreement. In our view, the agreement is applicable to this work assign- ment. Sellers, by picketing on November 15, 1972, in violation of the agreement, was engaged in activity which is unprotected by the National Labor Relations Act. Under these circumstances , Respondent did not 10 203 NLRB 498 (1973) 11 Stone & Webster Eng Corp v Local 947, Painters, CA-72-168-E (D C W Va , 1973) STONE & WEBSTER ENGINEERING CORP. act unlawfully in discharging him.'Z Accordingly, we shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW 1. Stone & Webster Engineering Corporation, is, and at all times material has been , an employer within the meaning of Section 2(2) of the Act, engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 947, International Brotherhood of Painters 12 N.L.R.B. v. Rockaway News Supply Company, Inc., 345 U.S. 71 (1953); N.L.R.B. v. The Sands Manufacturing Company, 306 U.S. 332 (1939). Be- cause of this conclusion we find it unnecessary to consider and express no opinion as to whether Sellers' picketing was unprotected because of Sec. 8(b)(4)(D) of the Act or in view of the district court's decision pursuant to Sec. 303 of the Labor Management Relations Act. 519 and Allied Trades, is a labor organization within the meaning of Section 2(5) of the Act. 3. Earl B. Sellers, an individual, at all times material herein was a member of Local 947 and an employee of Respondent. . 4. The Respondent has not, as alleged in the com- plaint, engaged in unfair labor practices within the meaning of Section 8(a)(1) or (3) of the Act. Upon the foregoing stipulated facts, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, we hereby issue the following: ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety.