Int'l Union of Operating Engineers, Local 926

National Labor Relations Board - Board Decisions

Mar 23, 1960

126 N.L.R.B. 1277 (N.L.R.B. 1960)

INT'L UNION OF OPERATING ENGINEERS, LOCAL 926 1277
The unfair labor practices found to have been engaged in by Respondents are of
such a character and scope that in order to insure the employees and prospective
employees of the employers here involved their full rights guaranteed them by the
Act it will be recommended that Respondents cease and desist from in any manner
interfering with, restraining, and coercing the employees and the prospective
employees in their rights to self-organization.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Consolidated Rock Products Company and the 13 other employer-members
signatory to the aforementioned collective-bargaining agreement are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. District Lodge 94, International Association of Machinists and its affiliated
Local Lodges 1186 and 1484, AFL-CIO, are labor organizations within the meaning
of Section 2(5) of the Act.
3. By maintaining an agreement which contains and involves terms and condi-
tions of employment requiring the employers signatory thereto to discriminate against
their employees and against applicants for employment in violation of Section 8 (a) (3)
of the Act, Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(b) (1) (A) and (2) of the Act.
4. By causing or attempting to cause Consolidated Rock Products Company to,
discriminate against Irvin Karstensen in violation of Section 8(a)(3) of the Act,
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
5. By the aforementioned acts, Respondents have restrained and coerced the
employees of, and applicants for employment with, the employers here involved
in the exercise of the rights guaranteed by Section 7 of the Act, and have thereby
engaged in and are engaging in unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
International Union of Operating Engineers , Local 926, AFL-
CIO and Tip Top Roofers . Case No. 10-CD-138. March 23,
1960
DECISION AND DETERMINATION OF DISPUTE
This 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 paragraph 4(d) of
Section 8(b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair practice shall have
arisen. . . ."
On December 4,1959, Tip Top Roofers, herein called the Employer,
filed with the Regional Director for the Tenth Region a charge alleg-
ing, in substance, that on or about December 3, 1959, International
Union of Operating Engineers, Local 926, AFL-CIO, herein called
Local 926, violated Section 8(b) (4) (D) of the Act by inducing and
encouraging the employees of the Employer to engage in a strike or
concerted refusal to work with the object of forcing or requiring the
Employer to assign certain work to members of Local 926 rather than
126 NLRB No. 146.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Employer's employees who were members of Composition
Roofers, Damp and Waterproof Workers, AFL-CIO, Local 136,
herein called Local 136.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director investigated the charges and provided for an ap-
propriate hearing upon due notice. The hearing was held before
Arthur C. Joy, hearing officer, on January 5,1960, at Atlanta, Georgia.
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. The rulings of the hearing officer
made at the hearing are free from prejudicial error and are hereby
affirmed. The Employer and Local 926 filed briefs which have been
duly considered by the Board.
Upon the entire record in this case, the Board' makes the following :
FINDINGS OF FACT
1. The Employer is engaged in commerce within the meaning of
the Act.
2. Local 926 and Local 136 are labor organizations within the
meaning of the Act.
3. The dispute :
A. The facts
The Employer is engaged in the roof repairing and construction
business. On or about December 2, 1959, while the Employer was
engaged at a construction project known as the Emory University
Food Center, Ben Suddeth, assistant business manager for Local 926,
contacted Superintendent Lamb at the jobsite and asked if the Em-
ployer was going to employ an operating engineer to operate a me-
chanical hoist known as a laddervator. The hoist was then being
operated by a member of the Roofer's Union 2 Lamb advised Suddeth
that he was not going to get an operating engineer and arranged for
Suddeth to talk with the Employer's main office by telephone.
Suddeth informed Hutcheson, the Employer's secretary-treasurer,
that the Employer would have to put an operating engineer on the
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [ Chairman Leedom and Members Rodgers and Bean].
2 The Employer has a contract with Local 136 which recognizes that organization for
all work, including the handling of materials In connection with roofing . A representative
of Local 136 testified that during contract negotiations he made it clear to the employer-
negotiators that Local 136 did not consider this section as applying to the operation of
hoisting equipment , but rather that the provision was intended to cover any new mechani-
cal methods of installing roofing The contract negotiations referred to, however, were
with a committee from a contractor 's association which did not include any representative
of the Employer . The contract Involved herein is between Local 136 and the Employer,
rather than the employer association.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 926 1279
hoisting equipment at the Food Center job. When Hutcheson re-
fused, Suddeth replied that he would take steps if they did not.
After the telephone conversation, Suddeth told Lamb that he would
have to go and get a picket sign.
The following morning, picketing began at the jobsite. The picket
sign was carried in part by Suddeth and in part by Tommy Archer,
business manager for Local 926.3 When the picketing began, em-
ployees of other employers on the jobsite walked off the job, but there
is no showing that any of the Employer's employees refused to work
because of the picketing. At this point, Hutcheson called Local 926
and requested that an operating engineer be furnished to operate the
mechanical hoist' When this was done the picketing, which lasted
only about 15 minutes, ceased and the employees who had walked off
the job returned to work.'
B. Contentions of the parties
The Employer asserts that the picket-line activity by Local 926 was
designed to force a change in the assignment of work to which it was
not entitled, and that Local 926 thereby violated Section 8(b) (4) (D)
of the Act.
Local 926 contends that it picketed the Employer because the
Employer had previously used its men on the mechanical hoist, but
did not do so on the Food Center job; that this is not a jurisdictional
dispute within the meaning of Section 8(b) (4) (D) because there is no
dispute between the Unions as to whom the hoist work should be
assigned; that, indeed, Local 136 has disclaimed any desire for this
work; that the Employer is not required by its contract to assign the
work to Local 136; and that Local 136 concurs with its contention that
this work should be assigned to Local 926. Finally, Local 926 asserts
that, in any event, it is the Board's responsibility to determine to
whom the work in question should be assigned,' and requests that the
Board remand the case for further hearing if necessary to make this
determination. No defense is urged on the basis of any board order or
certification, or any contract concerning the disputed work.
APPLICABILITY OF THE STATUTE
Section 10(k) of the Act empowers and directs the Board to hear
and determine disputes out of which Section 8(b) (4) (D) charges
8 The exact wording of the picket sign is not in evidence.
The operating engineer was assigned to the hoist and the roofer who had been operat-
ing the hoist was dismissed from the job
a Hutcheson testified that he requested the operator in order to put the job back in
operation and not impair the work and thus risk losing his contract
6 The Employer concurs with the contention of Local 926 that the Board should deter-
mine to whom the hoist work should be assigned , but argues that such work should be
assigned to its employees as a class.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have arisen. However, before the Board may proceed to a determina-
tion of the dispute in Section 10(k) proceedings, it must be satisfied
that there is reasonable cause to believe that Section 8(b) (4) (D) has
been violated. In order to conclude that reasonable cause exists, the
Board must find some evidence in the record showing a strike or con-
certed refusal, or an inducement or encouragement of employees to
engage in a strike or concerted refusal to perform services for their
employer for the purposes proscribed by that Section of the Act'
It is admitted that the picket line was established by Local 926.
The Board has held that apart from the literal appeal of picket signs
the picketing itself constitutes an act of inducement or encourage-
ment of employees not to perform services for the picketed employer,
and that such picketing for unlawful purposes, whether or not success-
ful in bringing about a strike or refusal to perform services for the
employer, is within the proscription of Section 8(b) (4) (D).8
With respect to Local 926's objective in picketing the Employer,
the record shows, and Local 926's representatives at the hearing admit-
ted that Local 926 sought to obtain the Employer's agreement to
employ a member of Local 926 to operate the mechanical hoist and that
these attempts, though originally unsuccessful, were subsequently
adopted when the Employer acquiesced and requested an operator
after the strike began.
In these circumstances, we are persuaded that there is reasonable
cause to believe that an object of Local 926's picketing was the reas-
signment of work from Employer's employees, who were members of
Local 136, to members of Local 926. Such conduct is plainly pro-
hibited by Section 8(b) (4) (D).9
We find, accordingly, that the dispute is properly before us for
determination under Section 10(k) of the Act.
THE MERITS OF THE DISPUTE
As indicated above, there is evidence that the dispute involved the
Employer's assignment of the operation of the mechanical hoist to
its own employees, who were members of Local 136, rather than to
members of Local 926. It is well established that an employer is free
to make work assignments without being subject to pressures by a
labor organization seeking the work for its members, unless the em-
ployer is thereby failing to conform to an order or certification of
the Board determining the bargaining representative for employees
'International Union of Operating Engineers, AFL-CIO, Local 513 (John P. Reuter,
d/b/a Missouri Roofing Company), 124 NLRB 937, and cases cited therein.
Local 472, International Laborers Union, Heavy and General Construction, AFL-CIO,
et al. (Ernest Renda Contracting Company, Inc ), 123 NLRB 1776.
'Local 472, International Laborers Union, Heavy and General Construction, AFL-CIO,
et al. (Ernest Renda Contracting Company, Inc.), supra, and cases cited therein.
BATJAC ENTERPRISES , INC. 1281
performing such work, or unless an employer is bound by an agree-
ment to assign the work in dispute to the claiming union. Local 926
has no order, certification, or contract claim to the work. Accord-
ingly, we find that it is not entitled, by means proscribed by Section
8(b) (4) (D), to force or require the Employer to assign the disputed
work to members of Local 926 rather than to the Employer's own
employees. However, we are not by this action to be regarded as
assigning the work in question to Local 136.10
DETERMINATION OF DISPUTE
On the basis of the foregoing findings, and upon the entire record
in this case, the Board makes the following determination of dispute,
pursuant to Section 10(k) of the Act :
1. International Union of Operating Engineers, Local 926, AFL-
CIO, 'and its agents, are not, and have not, been entitled, by means
proscribed by Section 8(b) (4) (D) of the Act, to force or require Tip
Top Roofers to assign the work of operating the mechanical hoist to
its members rather than to the Employer's own employees, who are
members of Composition Roofers, Damp and Waterproof Workers,
AFL-CIO, Local 136.
2. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 926 shall notify the Regional Director for the
Tenth Region, in writing, whether or not it will refrain from forcing
or requiring Tip Top Roofers, by means proscribed by Section
8(b) (4) (D) of the Act, to assign the disputed work to its members
rather than to the Employer's own employees, who are members of
Local 136.
10 In declining to make such an affirmative work award, we respectfully disagree with
the court decisions to the contrary . See Newark & Essem Plastering Oo., 121 NLRB 1094,
at 1108-1113 ; N.L.R.B. v. Local 450, International Union of Operating Engineers, AFL-
CIO (dline Industrial Painters ), 275 F. 2d 408 (C. A. 5). Moreover, the Board has
determined to seek Supreme Court review of the decision , relied on by the parties hereto,
in N.L .R.B. v. Radio d Television Broadcast Engineers Union, Local 1212, etc. (Columbia
Broadcasting System ), 272 F. 2d 718 (C.A. 2).
Batjac Enterprises , Inc.; Batjac Productions, Inc.; Romina
Productions, Inc. and Musicians Guild of America, Petitioner.
Case No. 21-RC-5820. March i'8, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before H. C. Bumgarner, hearing
126 NLRB No. 144.
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