International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Aug 7, 1957

118 N.L.R.B. 978 (N.L.R.B. 1957)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with , restrain , or coerce our employees
in the exercise of their right to self -organization , to form labor organizations,
to join or assist International Woodworkers of America , AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any and all
of such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL offer to Etta M . Nelson and Ray Nelson immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed , and make them
whole for any loss of pay suffered as a result of our discrimination against them.
WE WILL make Etta M . Nelson and Ray Nelson whole for any loss of pay
suffered as a result of our discrimination against them.
All our employees are free to become or remain members of the above-named
Union or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of membership in or
activity on behalf of any such labor organization.
CAMPBELL & MCLEAN, INC.,
Employer.
Dated------------------- By--------------------------- ----------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
International Union of Operating Engineers, Local 825, AFL-CIO
and Building Contractors Association of New Jersey. Case No.
2-CD-133. August 7,1957
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (D) of
Section 8 (b), the Board is empowered and directed to hear and de-
termine the dispute out of which such unfair labor practice shall have
arisen...."
On August 27, 1956, Building Contractors Association of New Jer
sey, herein called the Association, filed with the Regional Director for
the Second Region a charge alleging that International Union of
Operating Engineers, Local 825, AFL-CIO, herein called the Engi-
neers, had engaged in and was engaging in certain activities pro-
scribed by. Section 8 (b) (4) (D) of the Act. It was charged, in
substance, that the Engineers induced and encouraged employees and
members of the Association to engage in strikes or concerted refusals
to work in the course of their employment with an object of forcing
the members of the Association to assign particular work to members
of the Engineers rather than to employees who are members of several
118 NLRB No. 126.
INTERNATIONAL UNION OF OPERATING ENGINEERS 979
other labor organizations whose members are generally engaged in
the building trades.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge and provided for an appropriate
hearing upon due notice served on all parties on October 15, 1956.
The hearing was held before I. L. Broadwin, hearing officer, on various
days between October 31, 1956, and February 20, 1957. Both 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. The rulings of the hearing officer made at the
hearing are free from prejudicial error and are hereby affirmed except
as hereinafter noted? Subsequent to the hearing, the Association filed
a brief which the Board has duly considered.
Upon the entire record in the case, the Board finds : s
1. The Association is engaged in commerce within the meaning of
the Act.
2. International Union of Operating Engineers, Local 825, AFL-
CIO, is a labor organization within the meaning of the Act.
3. A dispute exists as follows :
The Facts
The Association is composed of approximately 500 member-con-
tractors and subcontractors engaged in the building construction
industry in the State of New Jersey and specializing in the construc-
tion of industrial buildings, schools and other public buildings. For
a number of years, the Association and the Engineers had operated
pursuant to successive yearly collective-bargaining contracts, the last
of which expired June 30, 1954. The parties conceded that none of
these contracts included the work over which the Engineers claims
jurisdiction and which constitute the basis for the dispute herein.
However, all other work over which the Engineers has jurisdiction is
specifically set forth therein. The parties further concede that there
is, at present, no outstanding written contract or Board certification
or award granting to the Engineers the work in question.
Since the expiration of the contract in 1954, the Engineers' and
the Association's negotiating committees have met upon a number of
occasions for the purpose of arriving at a new bargaining agreement.
However, the stumbling block in the negotiations has been the insist-
ence by the Engineers that two clauses be included in the agreement
1 The New Jersey State Council of Carpenters , herein called the Carpenters , was permitted
to intervene on motion made at the outset of the hearing.
a See footnote 5, infra.
8 Pursuant to the provisions of Section 3 (h) of the National Labor Relations Act, the.
Board has delegated its powers in connection with this case to a three-member panel [Chair-
man Leedom and Members Bean and Jenkins].
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
giving the work in dispute to the Engineers. In substance, the first of
these two clauses would give to the Engineers the work of maintaining
certain small power equipment used in the construction industry, said
equipment including concrete vibrators, leveling machines, finishing
machines, power saws, portable generators and power buggies. The
second clause would guarantee to the Engineers that no member of
the Association would enter into any agreement with a subcontractor
not an Association member unless the said subcontractor would agree
to assign this maintenance work, as above set forth, to the Engineers.
At the hearing, a number of witnesses, most of whom were officials
in the various Association construction companies testified that seldom,
if ever, in the history of the Association or in their own individual
experiences in the construction field has the work demanded by the
Engineers been assigned or performed by members of that union 4
Moreover, it was further testified without contradiction by the same
witnesses that the work of day-to-day maintenance of the equipment
listed had been performed over the years by members of such labor
organizations as the Hod Carriers, Bricklayers or Carpenters, depend-
ing upon which trade was operating the said small equipment in con-
junction with their particular work. Moreover, these same witnesses
testified, again without contradiction, that when other than ordinary
day-to-day maintenance, consisting of gassing, oiling, and cleaning is
required, or when major repairs are required, the equipment is sent
either to the contractors' own maintenance shops, or to outside repair
specialists or to the manufacturers.
Under date of July 27, 1956, the Engineers addressed a communica-
tio^ to the Association through the Association's president, Benjamin
J. Lucarelli, to the effect that unless an agreement including the
assignment of the work in dispute was concluded between the parties
by August 8, 1956, the members of the Engineers would not work and
that the Engineers would seek to negotiate directly with individual
contractors. No agreement was consummated within the time specified
by the aforementioned communication. However, on August 13, 1956,
the Association's negotiating committee met with the Engineers'
committee which again repeated its demands for the inclusion in the
proposed contract of the two clauses heretofore mentioned. The
Association again refused to comply with these demands for the reason
that it believed that the assignment of the work to the Engineers would
bring about a series of jurisdictional disputes involving the unions
whose members were already performing the work in question. On
August 16 and on August 28, the parties met again with the same
failure to reach an agreement resulting each time.
' Only two out of the many Association witnesses testified that, upon occasion , members
of the Engineers were assigned the maintenance work in question.
INTERNATIONAL UNION OF OPERATING ENGINEERS 981
Meanwhile, on August 20, in connection with its stated concern
over the possible outcome of assigning the disputed work to the
Engineers, the Association sent a telegram to the National Joint Board
for settlement of jurisdictional disputes asking for advice from the
Joint Board as to whether jurisdictional disputes would result from
an assignment of the demanded work to the Engineers. On August 30
the Joint Board answered that it did not issue advisory opinions but
that it would be ready and willing to hand down an award concerning
any actual dispute which was submitted to it by the Association.' The
Association did not reply to this offer of arbitration by the Joint Board
nor did it thereafter submit the dispute to that Board. In connection
with this request for information by the Association from the Joint
Board, it is conceded that the Association is not a party to any agree-
ment to submit disputes concerning the assignment of work to the
Joint Board.
On August 27, 1956, the Engineers struck in several instances and
picketed approximately 30 construction jobs on which members of
the Association were either contractors or subcontractors. This
action resulted in the shutdown of these jobs. On the same day, the
charges herein were filed by the Association. As a result of being
struck, several of the members of the Association either entered into
agreements with the Engineers in the form demanded or without any
formal agreement assigned the work in question to the striking union
in order to resume operations.
Contentions of the Parties
The Association contends that by reason of the foregoing conduct,
the Engineers violated Section 8 (b) (4) (D) of the amended Act.
The Engineers contends that: 6 (1) The Board is without jurisdic-
tion to hear or determine this case because, pursuant to Section 10 (k)
of the amended Act, within 10 days after notice that the charge had
been filed, the parties had agreed upon a method for voluntary ad-
justment of the dispute; (2) no other trade, craft, or class of employees
claims jurisdiction to maintain and repair the power-driven equip-
ment claimed by the Engineers; (3) traditionally, the maintenance
and repair of these power-driven implements have been performed in
the building industry by members of the Engineers and that the
Joint Board has recognized such jurisdiction by its awards on many
occasions; (4) there is no jurisdictional dispute involved herein be-
cause the work stoppages and picketing and other forms of economic
c The hearing officer refused to admit in evidence the written request to the Joint Board
and the answer thereto. This ruling is hereby reversed , the documents are admitted and
considered infra.
u Most of these contentions were set forth in the Engineers ' motion to dismiss made at
the hearing . The hearing officer properly referred the motion to the Board for disposition.
Said motion is disposed of as hereinafter set forth.
982 DECISION S Or NATIONAL LABOR RELATIONS BOARD
pressure utilized by the Engineers were for the purpose of forcing the
Association and its members to capitulate to contract demands and not
to force the assignment of work already assigned to others; (5) the
constitution of the Engineers provides that it has jurisdiction over all
persons engaged in the work which is the subject of this dispute; and
(6) during the course of the hearing, the Engineers stated that it no
longer claimed the day-to-day maintenance of the equipment involved
but rather its claim was amended to be limited only to such major
repairs as the Association claimed had been made either in the Asso-
ciation members' shops or by outside specialists or by the manufac-
turers of the equipment.
Applicability of the Statute
In a proceeding under Section 10 (k) of the Act, the Board is re-
quired to find that there is reasonable cause to believe that Section 8
(b) (4) (D) has been violated before proceeding with a determination
of the dispute out of which the unfair labor practice has arisen.
The Engineers contends that the Board does not have jurisdiction
to hear and determine this dispute because before filing the charge
herein the Employer had elected to submit the matter to the Joint
Board. However, as set forth above, the Association submitted to the
Joint Board only a request for an advisory opinion as to whether
jurisdictional disputes would arise should the Association take the
disputed work away from the employees to whom it had previously
been awarded and give. the same to the Engineers. The Joint Board
refused to pass on this request because it stated that it does not render
advisory opinions. Introduced by the Engineers at the hearing, for
the purposes of establishing a course of dealing and a resulting im-
plied agreement to submit disputes to the Joint Board, was a series of
correspondence between the Association and the Joint Board demon-
strating that upon numerous occasions in the past and since the com-
mission of the alleged unfair labor practices herein, the Association
has submitted various jurisdictional disputes to the Joint Board and
has abided by the said Joint Board's awards.
We cannot agree that this course of dealing between the Association
and the Joint Board gives rise to an implied agreement to submit
the instant dispute to the Joint Board. Nor do we believe that the
Association's request for an advisory opinion constitutes a voluntary
submission of the dispute within the meaning of Section 10 (k) in
view of the fact that the Association did not accept the offer of the
Joint Board to submit the dispute. Moreover, it is clear that the
Engineers had no intention of relying on the Joint Board's opinion as
a means of disposing of this dispute because the Joint Board's answer
to the request for an advisory opinion was not sent to the Association
until August 30, 1956, whereas the Engineers commenced their work
INTERNATIONAL UNION OF OPERATING ENGINEERS 983
stoppages on August 27. Had the Engineers decided in advance to
be bound by the Joint Board's answer it would not have struck until
the answer was received. We find, therefore, that as neither the
Association nor the Engineers agreed upon a voluntary method for
.disposing of the dispute, this Board has jurisdiction to hear and
determine the same.?
In answer to the Engineers' contention that no other trade craft or
class of employees claims jurisdiction over the work in dispute, the
Carpenters' Council of the State of New Jersey intervened at the hear-
ing to claim that its members had jurisdiction over maintenance of
the power saws and the generators when those implements are used
in connection with carpenter work.' Moreover, as hereinbefore stated,
numerous other witnesses of the Association testified that the work
in dispute had been performed for many years by the employees of
various other crafts and trades in conjunction with their own par-
ticular work. Accordingly, we find that there is no merit in the
contention that no other craft or class of employees claims the work
involved.
Moreover, we also find without merit the Engineers' contention that
its members traditionally have performed the work in dispute and
that the Joint Board has recognized the Engineers' jurisdiction over
this work. This Board has consistently held that evidence tending
to establish that, by tradition and custom, a particular union's mem-
bers have performed the work in dispute, is not material where, as
here, the union relying on such facts has no immediate, enforceable,
contractual claim to the work in dispute.' For like reason, we do not
consider relevant the provisions of the Engineers' constitution assert-
ing jurisdiction over the type of work in dispute here.
Additionally, we find equally untenable the Engineers' contention
that the work stoppages were called for lawful contract purposes, and
not for purposes proscribed by the Act. At the time of the walkouts on
August 27, all contract terms had been agreed upon between the
Association and the Engineers except those dealing with the assign-
ment of the work herein involved. Inasmuch as the Association had
already assigned the work to other employees of other trades, crafts,
or classes who had and still were, at the time of the contract demands
and the walkouts, performing the same, we find that there was and
still is an underlying, basic dispute over the work. Although the
Engineers called the strike to force the Association to accept the pro-
posed contract and all its terms, it is clear that, under the foregoing
7 See Farnsworth & Chambers Co., Inc ., 111 NLRB 1307 , 1312 . Cf. A. TV. Lee, Inc.,
113 NLRB 347.
8 The business agent of Local 35 of the Bricklayers ' Union also testified that his union
claimed jurisdiction over the small equipment which its members used in their trade work.
ll See Port Everglades Terminal Co., Inc., 116 NLRB 27 , 38; Juneau Spruce Corporation,
82 NLRB 650; United Association of Journeymen and Apprentices , etc., (Philadelphia As-
sociation), 108 NLRB 186 , 200; Los Angeles Building and Construction Trades Council,
( Westinghouse Electric Corporation ), 83 NLRB 477.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, an object of the strike was to force or require the
Association to assign the work in dispute to its members rather than
to members of the trades, crafts, and classes to whom the Association
had theretofore assigned the same. Had the Association capitulated
with regard to the assignment of the maintenance and repair work,
thereby settling the dispute to the Engineers' satisfaction, there would
have remained no further obstacle to arriving at an agreement. That
the desired assignment of work was of prime importance to the Engi-
neers when the strike was called is further borne out by the action
of the Engineers in withdrawing its pickets in those instances where
Association members capitulated to the extent of assigning the dis-
puted work to the Engineers' members without entering into any
agreement therefor.'°
In a final attempt to quash the charge and complaint herein, during
the hearing, the Engineers amended its claim to the disputed work
and confined its demands to major repairs only of the equipment in-
volved, conceding that the work of day-to-day maintenance, consisting
of oiling, gassing, and minor repairs, belonged to the employees who
operated the equipment. However, we feel that even the amended
demands are but a part of the basic jurisdictional dispute which is
the subject of this proceeding. This is so because whether the indi-
viduals who now perform the major repair work on these implements
are members of any union or of no union or whether such employees
are employed by members of the Association or by firms which are not
members, the assignment of the repair work involved has already been
made, and the demand that such major repair work be transferred to
the Engineers constitutes merely a further aspect of the preexisting
jurisdictional dispute. The fact that employees who belong to no un-
ion or who work for secondary employers may be involved does not
remove the dispute from the statutory proscription."
By reason of all of the foregoing, we are satisfied that there is rea-
sonable cause to believe that the Engineers engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (D) of the Act.
We find, accordingly, that the dispute involved in this proceeding is
properly before the Board for determination under Section 10 (k)
of the Act.
Merits of the Dispute
When the Engineers demanded that its members be assigned all of
the work of maintaining and repairing the power equipment herein-
above described, such work was being performed either by employees
of the Association's members or employees of others, as a result of the
10 See Anning-Johnson Company, 113 NLRB 1237 ; Cf. Anheuser-Busch, Inc., 101 NLRB
346.
11 See International Longshoremen's Association, etc. (Abraham Kaplan ), 116 NLRB
1533; United Association of Journeymen and Apprentices, etc., (Philadelphia Association),
108 NLRB 186; New London Mills, Incorporated, 91 NLRB 1003.
LANGLADE VENEER PRODUCTS CORPORATION 985
assignment of the work by the Association. All of the employees per-
forming the said work so assigned were and are either members of
labor organizations other than the Engineers or in other trades, crafts,
or classes.
It is well established that an employer is entitled to make such as-
signment free from strike pressure by a labor organization, "unless
such employer is failing to conform to an order or certification of the
Board determining the bargaining representative for employees per-
forming such work." 12
Accordingly, the Board finds that the Engineers was not and is not
lawfully entitled to require the Association's members or any other
employers to assign the aforesaid work to members of the Engineers
rather than to members of any other labor organization or to non-
members of any labor organization.
Determination of Dispute
Upon the basis of the foregoing findings and the entire record in
this case, the Board makes the following determination of dispute pur-
suant to Section 10 (k) of the Act :
1. International Union of Operating Engineers, Local 825, AFL-
CIO, and its agents are not and have not been lawfully entitled to force
or require the members of the Building Contractors Association of New
Jersey or any other employers to assign the work in dispute to mem-
bers of the Engineers rather than to members of any other labor or-
ganization or to nonmembers of any labor organization.
2. Said Local 825 of the Operating Engineers shall, within ten (10)
days from the date of this Decision and Determination, notify, in
writing, the Regional Director for the Second Region of the National
Labor Relations Board, whether or not it accepts the Board's deter-
mination of this dispute, and whether or not it will refrain from forc-
ing or requiring the Building Contractors Association of New Jersey,
by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the
work in dispute, to members of Local 825 rather than to members
of any other labor organization or to nonmembers of any labor
organization.
a Juneau Spruce Corporation, 82 NLRB 650. The parties hereto stipulated that the
Association is not failing to conform to an order or certification of the Board determining
the bargaining representative for employees performing such work.
Langlade Veneer Products Corporation and International Wood-
workers of America, AFL-CIO . Case No. 18-CA-C730. August
8, 1957
DECISION AND ORDER
On December 19, 1956, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
118 NLRB No. 125.