Brthd. of Painters, Local 751

National Labor Relations Board - Board Decisions

Feb 26, 1970

181 N.L.R.B. 318 (N.L.R.B. 1970)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Painters , Decorators and
Paperhangers of America , Glaziers Local Union
751, AFL-CIO and Harrisburg Glass, Inc. and
Brotherhood of Painters , Decorators and
Paperhangers of America , Glaziers Local Union
125, AFL-CIO. Case 6-CD-287
February 26, 1970
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following charges filed on July 7 and September 15,
1969, by Harrisburg Glass, Inc., herein referred to
as the Company, alleging violations of Section
8(b)(4)(D ) by Brotherhood of Painters , Decorators
and Paperhangers of America , Glaziers Local Union
751, AFL-CIO. A duly scheduled hearing was held
September 30, 1969, before F. J Surprenant,
Hearing Officer. All parties appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce
evidence bearing on the issues. Thereafter, Local
751 and the Company filed briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three- member panel.
The Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds that
they are free from prejudicial error . The rulings are
hereby affirmed.
Upon the entire record, the Board makes the
following findings:
1. The parties stipulated and we find that
Harrisburg Glass, Inc., is an employer engaged in
interstate commerce within the meaning of Section
2(6) and (7) of the Act.
2. The parties concede and we find that Glaziers
Local Unions 125 and 751, Brotherhood of Painters,
Decorators and Paperhangers of America,
AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. The dispute:
A. The Facts
The Company, a Pennsylvania corporation, is
engaged in the sale and service of flat glass. Since
approximately 1957, it has had a series of
collective-bargaining contracts with Local 125, and
has recognized Local 125 as the bargaining
representative of its employees. At times the
Company has assigned its employees to work in
Centre County, Pennsylvania, the site of buildings
constructed for Penn State University. In July 1968,
the Company assigned employees Kemberling and
Weaver to work at that site, and they did so without
interruption until around the middle of 1969.
In May 1969, McClone, Local 751's business
representative, told Allan Little, the Company's
general manager, that Local 751 had jurisdiction
over the building and that the Company, as an
outside employer, would have to post a $1,000 bond
to ensure the customary payments to Local 751's
pension and welfare fund if it wanted to continue
working in the area. McClone did not tell Little that
Local 751 sought reassignment of the work to its
members.
On June 24, McClone told Kemberling and
Weaver that they were working in Local 751's
territory but had not registered with Local 751, that
they should have called in and registered, and that
they were subject to charges by Local 751 for
working without having done so. McClone also told
them that the Company had not posted a bond and
that until the bond was posted they could not work
on the job. Kemberling and Weaver accordingly
informed Little by telephone that Local 751 had told
them they would be unable to work on the job
unless the Company posted the bond. Little told the
employees that a work stoppage would be
considered a wildcat strike. Nevertheless,
Kemberling and Weaver left the jobsite in the
afternoon before quitting time, but they returned to
work on the following day.
McClone explained at the hearing that in most
cases within the Local 751 area, employees of
outside employers were expected to register so that
Local 751 could represent them for work within the
area and be sure that they received the prevailing
wages and other benefits. McClone further explained
that Local 751 has no objection to such employees
working in the area, and that they have usually
registered and been allowed to work in the area.
Kemberling and Weaver heard nothing further
from McClone until June 30, when McClone again
visited the jobsite. According to Kemberling,
McClone threatened to bring charges against the
men if they stayed on the job and told them that
they "had to quit and shut the job down, and this
bond had still not been posted, and nobody was
going to man the job until this bond was posted."
Kemberling and Weaver decided that if McClone
told the superintendent on the job that he was
shutting the job down, they would leave the job,
because in this manner they would not be breaking
the no-strike agreement. Weaver claimed that
McClone said "I see you still haven't left the job
. you guys must be looking for charges;" and
asked why the men hadn't registered with Local 751.
Weaver replied that he had never been informed
that he had to report to anyone in the area.
McClone stated that the charges would be more
severe if the men did't leave the job. Kemberling
and Weaver then quit working, walked of the job,
and remained off until 2 weeks later.
181 NLRB No 54
BRTHD . OF PAINTERS , LOCAL 751
Under date of September 19, 1969, Local 751
advised its parent that it had decided to impose a
fine of $625 each on Kemberling and Weaver for
failing to register with it while working in its
jurisdiction.
B. The Applicability of the Act
Section 10(k) of the Act provides in part that the
Board is empowered and directed to hear and
determine a so-called jurisdictional dispute only
when the Board has reasonable cause to believe that
the person against whom the charge has been filed
has engaged in an unfair labor practice within the
meaning of Section 8(b)(4)(D). Section 8(b)(4)(D)
provides in part that it is an unfair labor practice
for a labor organization to engage in coercive action
where an object is:
forcing or requiring any employer to assign
particular work to employees in a particular labor
organization or in a particular trade, craft, or
class rather than to employees in another labor
organization or in another trade, craft, or class . .
The evidence in this case does not give us cause to
believe that Local 751 had any object proscribed by
Section 8(b)(4)(D). On the contrary, the record
clearly shows that Local 751 did not seek to force or
require the Company to assign the work involved to
one group of employees "rather than" to the group
of employees then performing the work. The record
further shows that the Company is seeking to have
the Board arbitrate the question of Local 75l's
attempts to impose certain requirements on the
Company and its employees.
It is true that Local 751 claimed territorial
jurisdiction over the Centre County work being
319
performed by Kemberling and Weaver. But neither
Section 8(b)(4)(D) nor Section 10(k) was designed to
prohibit Local 751 from seeking to advance its
jurisdictional claim by imposing requirements on the
Company or its employees while performing the
work here involved. We are not called on to
determine whether or not these requirements were
lawful under other provisions of the Act, because in
any event they do not bring the dispute within the
statutory definition of a Section 10(k) proceeding.
As we held in Safeway Stores. 134 NLRB 1320,
1322, the statutory provision applies only to disputes
between "two or more employee groups claiming the
right to perform certain work tasks," and not to
"disputes between a union and an employer where
no such competing claims" between rival groups of
employees are involved. We further held (at page
1323) that to regard such a controversy as a
"jurisdictional dispute in the statutory sense, i.e., as
a dispute between competing groups of employees
claiming the right to perform certain work tasks, is
to distort plain Congressional intent."'
Accordingly, we find that there is no jurisdictional
dispute within the meaning of Section 8(b)(4)(D)
and Section 10(k) of the Act. We shall therefore
quash the notice of hearing.
ORDER
It is hereby ordered that the Notice of Hearing
issued in this case be, and it hereby is, quashed.
' In the brief it filed with the Board, the Company argues principally that
neither it nor its employees should "be subject to the kind of coercion
practiced here by Local Union 751 " As noted above, however , neither
Section 8 (b)(4)(D) nor Section 10(k) makes it an unfair labor practice for a
labor organization to engage in such practices