International Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Jan 29, 1954

107 N.L.R.B. 1004 (N.L.R.B. 1954)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department employees and hoistmen, but excluding all main-
tenance employees, electricians, office clerical employees,
plant clerical employees , professional employees , guards,
and supervisors as defined in the Act.
If a majority of the employees in the voting group select
Mine-Mill Workers, they will be taken to have indicated their
desire to be bargained for as part of a larger unit including
the Employer ' s maintenance employees , and the Regional
Director conducting the election ordered herein is instructed
to issue a certification of results of election to that effect.
If, however, a majority vote for Operating Engineers, they
will be taken to have indicated their desire to constitute a
separate unit, which, under thses circumstances, we find
appropriate, and the aforesaid Regional Director is instructed
to issue a certification of representatives to the labor organi-
zation thus selected for such unit.
[Text of Direction of Election omitted from publication.]
LOCAL 58, INTERNATIONAL BROTHERHOOD OF ELECTRI-
CAL WORKERS, AFL, AND ITS AGENT HUGH DORIAN;
DETROIT BUILDING TRADES COUNCIL, AFL, AND ITS
AGENT ANDREW DeFILIPE and LOCAL 909, INTERNA-
TIONAL UNION OF ELECTRICAL, RADIO & MACHINE
WORKERS, CIO. Case No. 7-CD-8. January 29, 1954
DECISION AND DETERMINATION OF DISPUTE
The present proceeding arises under Section 10 (k) of the
Act, which provides that whenever it is charged that any person
has engaged in an unfair labor practice within the meaning of
Section 8 (b) (4) (D) of the Act, the Board is ''empowered and
directed to hear and determine the dispute out of which such
unfair labor practice shall have arisen, . . . ...1
On September 9, 1953, Local 909, International Union of
Electrical, Radio & Machine Workers, CIO, herein called
IUE-CIO, filed a charge alleging that Local 58, International
Brotherhood of Electrical Workers, AFL, and its agent Hugh
Dorian, and Detroit Building Trades Council, AFL, and its agent
Andrew DeFilipe, herein respectively called Local 58, Dorian,
Council, and DeFilipe and collectively called the Respondents,
had engaged in and were engaging in certain activities pro-
'Section 8 (b) (4) (D) provides in part that it shall be an unfair labor practice for a labor
organization or its agents to induce or encourage employees of any employer to engage in a
strike, where an object is forcing any employer to assign particular work to employees in
one labor organization , trade, craft, or class rather than another , unless such employer is
failing to conform to a Board order or certification determining the collective- bargaining
representative for employees performing such work
107 NLRB No. 220.
LOCAL 58, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1005
scribed by Section 8 (b) (4) (D) of the Act. The charge, as
amended, alleged in part that the Respondents induced and en-
couraged the employees of various employers to strike, an
object thereof being to force or require Taylor Electric, Inc.,
herein called the Company , "and/or other ' employers " to assign
particular work to members of Local 58 rather than members
of IUE-CIO.
On October 12, 1953, the Regional Director for the Seventh
Region provided for an appropriate hearing upon due notice to
all the parties, pursuant to Section 10 (k) of the Act. On
November 24, 1953, the hearing was held before James V.
Constantine, hearing officer. The Respondents, the IUE-CIO,
and the Company appeared, were represented by counsel, and
were afforded full opportunity to be heard, to examine and
cross - examine witnesses , and to adduce evidence bearing on
the issues . The rulings of the hearing officer made at the
hearing are free from prejudicial error and are hereby
affirmed. The parties were thereafter afforded an opportunity
to file briefs with the Board, and Local 58 did so on behalf of
itself and the other Respondents.
Upon the entire record in the case and after full consideration
of the brief, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Since January 1, 1953, the Company has been engaged in the
business of electrical contracting principally for machine
tool builders but occasionally for building contractors at job
sites . During the first 10 months of 1953 the Company per-
formed services outside the State valued in excess of $25,000.
It also performed services valued in excess of $ 85,000 for
Wilson Automation Company , which in turn shipped its prod-
ucts outside the State valued in excess of $ 400,000 during
the first 8 months of 1953, and received raw materials from
outside the State valued in excess of $90,000 during the same
period. The Respondents do not dispute, and we find, that the
Company is engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to assert
jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 58, the Council , and IUE-CIO are labor organi-
zations within the meaning of the Act.
III. THE DISPUTE
A. The facts
Background: In the summer of 1951, R. W. Taylor, who then
operated the Company's business as an individual, asked Local
337593 O - 55 - 65
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
58 if it was interested inhis employees . Local 58 replied in the
negative . Thereafter , Taylor signed a consent - election agree-
ment with the IUE-CIO International , pursuant to which that
organization was certified April 22, 1952 , and established its
Local 909, the charging party, to effectuate the certification.
On or about July 1, 1953, IUE-CIO made a union-shop contract
with the Company , which was in effect at the time of the dispute
hereinafter set forth.
The dispute : In August 1953 the Company had a subcontract
from Beneicke & Lorenz to perform electrical work on a con-
struction job for Cardinal Manufacturing Company in a Michigan
suburb of Detroit. Because of the IUE - CIO contract, the
Company's employees working on this job were members of the
IUE-CIO and not of Local 58. On August 27 Dorian , representing
Local 58, and DeFilipe , representing the Council , together with
another Council representative named Powell , went to the. job
and learned that the IUE - CIO was certified for the Company's
employees and had a contract covering them, and that the
electricians were IUE-CIO members.
Thereupon , Respondents Dorian and DeFilipe said to the
electricians and to Klingensmith , the IUE-CIO representative
who was also present, that the electrical work fell within the
AFL's jurisdiction and that they would pull the others workers
(principally painters and plumbers ) off the job unless the
Company's employees stopped working there. Meanwhile, AFL
workers had gathered around to listen. When the Company's
employees , after consultation with Klingensmith , said that
they proposed to continue working, Dorian and DeFilipe, in the
presence of the AFL workers , announced that non-AFL electri-
cians were on the job, and DeFilipe briefly picketed the
entrance with an "unfair" apron . As a result , some if not all
of the AFL workers on the construction project began to walk
off the job.
Council Representative Powell then telephoned Beneicke, of
Beneicke & Lorenz (the prime contractor ), to say that the
painters and plumbers were walking off the Cardinal job be-
cause the electricians were not members of Local 58 . Beneicke
replied that he would rectify it. Beneicke thereupon telephoned
the Company with instructions to call off its employees. When
the Company agreed to do so, Beneicke informed Powell of this,
and added that he would let out the remaining electrical work
to a subcontractor acceptable to the Council . The other work
then resumed , and later the electrical work was completed,
not by the Company, but by another electrical subcontractor
who used Local 58 employees . Thereafter , IUE-CIO Repre-
sentative Klingensmith sought without success to adjust the
dispute with an officer of Local 58 , by agreeing to limit IUE-
CIO work on construction jobs to the wiring of new machinery.
B. Contentions of the parties
The IUE-CIO and the Company both contend that there is a
dispute before the Board within the meaning of Section 10 (k).
LOCAL 58, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1007
The Respondents oppose this contention on three grounds:
(1) The dispute is moot because the Cardinal job has been
completed ; ( 2) Section 10 (k) in effect is inapplicable , because
there is no testimony that the Respondents engaged in any
overt inducement of employees to cease work ; and (3) in any
event, the only inducement was by speech , which Section 8 (c)
protects.
C. Applicability of Section 10 (k)
The evidence set forth above shows that there is reasonable
cause to believe that the Respondents induced the painters and
other employees at the Cardinal job to strike, an object being
to force the Company or Beneicke & Lorenz to assign the
electrical work to members of Local 58 --an activity proscribed
by Section 8 (b) (4) (D ) of the Act . The Respondents contend
principally that they did not in fact engage in any overt induce-
ment of employees to cease work . Before we may proceed with
a determination of a dispute pursuant to Section 10 (k) of the
Act, however , we need be satisfied only that reasonable cause
exists for believing that the Respondents have violated Section
8 (b) (4) (D). 2
The Respondents also contend in effect that even if there is
reasonable cause to believe that the Respondents induced
employees to strike for an object proscribed by Section 8 (b)
(4) (D), the inducement consisted only of noncoercive speech,
which is protected by Section 8 (c). There is evidence that the
Respondents engaged in picketing which the Board has found,
with court approval , is not protected under the provisions of
Section 8 (c). 3
We therefore find that the dispute in the present proceeding
is properly before us for determination under Section 10 (k).
D. Merits of the dispute
At the time the Respondents disputed the assignment of the
work to nonmembers of Local 58 , Beneicke & Lorenz had as-
signed such work to the Company, which in turn had assigned
it to its own employees , who were representedby the IUE-CIO.
The underlying dispute was , as the record clearly shows, over
the assignment of electrical work on construction jobs to non-
members of Local 58 within that organization ' s geographical
2Local 562, United Association of journeymen , etc. (Northwest Heating Company), 107
NLRB 542; Teamsters Local 175 , International Brotherhood of Teamsters, etc. (Biagi Fruit &
Produce Co ), 107 NLRB 223. Where sucha finding cannot be made the Section 10 (k) proceed-
ing will be dismissed , Truck Drivers Union, etc. (Direct Transit Lines), 92 NLRB 1715, and
particularly cases cited in footnote 4 of that case.
SSee Wadsworth Building Company, 81 NLRB 802, enforced 184 F . 2d 60 (C. A. 10), cert.
denied 341 U. S. 947. Although that case involved Section 8 ( b) (4) (A), the holding applies
equally to Section 8 (b) (4) (D). The only difference between the lettered subsections of
Section 8 (b) (4) relate, not to the acts constituting inducement of employees to strike, but to
the various objects of the inducement.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction . The record does not show that there is any
Board order or certification which would have entitled the Re-
spondents to the disputed work ; and the Respondents do not
contend otherwise . On the contrary, the record affirmatively
shows that the IUE-CIO is the certified representative for the
Company's employees performing such work.
The Respondents argue that the dispute is moot, because the
Cardinal job has been completed , and that accordingly the
Board should not determine the dispute . The record clearly
shows, however , that the Cardinal job has been completed
because the employers involved capitulated to the Respondents'
jurisdictional claim, and not because the underlying dispute
was voluntarily adjusted . The record further shows that there
is a danger that the Respondents may resume their proscribed
activities if the Company or any other employer should do
electrical subcontracting on a construction job within Local 58's
jurisdictional claim, unless the work is done with members of
Local 58. Accordingly , we find no merit in this contention of
the Respondents.4
For the foregoing reasons , we find that the Respondents are
not lawfully entitled to force or require Beneicke & Lorenz or
Taylor Electric , Inc., to assign electrical work on construction
jobs to members of Local 58 rather than to employees of the
Company who are members of the IUE - CIO. However, we are
not hereby to be regarded as "assigning " the work in question
to the IUE - CIO or the Company, 6
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the
entire record in this case, the Board makes the following deter-
mination of dispute, pursuant to Section 10 (k) of the Act: 6
1. Local 58 , International Brotherhood of Electrical Workers,
AFL; Detroit Building Trades Council, AFL ; and their agents
are not and have not been lawfully entitled to force or require
either Beneicke & Lorenz or Taylor Electric , Inc., to assign
electrical work on construction jobs to members of Local 58,
International Brotherhood of Electrical Workers, AFL , rather
than to members of Local 909 , International Union of Electrical,
Radio & Machine Workers, CIO.
2. Within ten ( 10) days from the date of this Decision and
Determination of Dispute , the Respondents shall notify the
Regional Director for the Seventh Region in writing as to what
steps the Respondents have taken to comply with the terms of
this Decision and Determination of Dispute.
4United Brotherhood of Carpenters , etc. (Stroh Brewery Company ), 88 NLRB 844; United
Brotherhood of Carpenters, etc. (Ora Collard), 98 NLRB 346.
5 Local 562 , United Association of journeymen, etc. (Northwest Heating Company), 107
NLRB 542.
6Member Murdock for the reasons stated in his dissent in Local 562, United Association of
Journeymen , etc. (Northwest Heating Company), supra, would quash the notice of hearing and
make no determination at this time , except that he considers himself bound by the decision in
that case.