Int'l Union Of Operating Engineers, Local 12

National Labor Relations Board - Board Decisions

Jun 17, 1969

176 N.L.R.B. 773 (N.L.R.B. 1969)

INT'L UNION OF OPERATING ENGINEERS , LOCAL 12 773
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO (Oltmans Construction
Company; Jackson Bros.) aid Associated
Independent Owner-Operators, Inc.
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO (Webb and Lipow) and
Associated Independent Owner-Operators, Inc.
Case 31-CC-80 and 3l-CC-89
June 17, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 12, 1967, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding ,' finding that the
Respondent had not violated Section 8(bX4XiiXA)
and (B ) of the Act by threatening certain
contractors on a construction project with strikes
and picketing with an object of forcing the
contractors to cease doing business with Vance and
Watson, two nonunion "owner-operators" of
"skip-loading equipment " working on the jobsites,
and by forcing . them to join the Union . The Board,
reversing the Trial Examiner , found that as the
"owner-operators" in question were employees of
the contractors involved , the Union ' s conduct was
primary in nature, and dismissed the complaint.
Thereafter, the Associated Independent
Owner-Operators , Inc., filed a petition for review of
a Decision and Order of the National Labor
Relations Board with the United States Court of
Appeals for the Ninth Circuit . The court , reversing
the Board ' s finding , held the owner-operators to be
independent operators , and remanded the case for
further proceedings consistent with the Court's
decision. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
We have accepted the Court ' s remand , and accept
the Court ' s opinion as the law of this case.
Accordingly , we now find , as did the Trial
Examiner, as set forth in his Decision , that the
International Union of Operating Engineers, Local
Union No . 12, AFL-CIO, the Respondent , violated
Section 8(bx4Xii)(A) and ( B) of the Act by
threatening certain contractors on a construction
project with strikes and picketing with an object of
forcing the contractors to cease doing business with
Watson and Vance , two nonunion owner-operators
working on the jobsites , and by forcing Watson and
1168 NLRB No. 112.
'Associated Independent Owner-Contractors. Inc. v. N . L.R.B., 407 F. 2d
1383 (C.A. 9).
Vance to join the Union . Accordingly , we adopt the
recommended remedy of the Trial Examiner that
the Respondent cease and desist therefrom and take
the affirmative actions, as set forth in the Trial
Examiner ' s Decision.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent , International Union of
Operating Engineers, Local Union No. 12,
AFL-CIO, their officers , agents, and representatives,
shall take the action set forth in the Trial
Examiner 's Recommended Order.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
E. DON WILSON , Trial Examiner : A charge in Case
31-CC-80 was filed by Associated Independent
Owner-Operators , Inc., herein Associated , on June 23,
1966.' This charge was amended by Associated on
October 25 . A charge in Case 31-CC-89 was filed by
Associated on August 29. This charge was amended by
Associated on October 25. On October 27, the General
Counsel of the National Labor Relations Board , herein
the Board , issued an order consolidating Cases 31-CC-80
AND 31-CC-89 . On the same date he issued the
consolidated complaint and Notice of Hearing herein.:
Pursuant to due notice , a hearing in this matter was
held before me in Los Angeles , California, on February 16
and 17 , 1967. The parties were afforded full opportunity
to participate . Briefs of the parties have been received and
considered.
Upon the entire record in the case , including my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
At all times material , Swinerton and Walberg
Company , Oltmans Construction Company , herein
Oltmans and Jackson Bros., herein Jackson , all California
corporations with principal offices located in Los Angeles,
California, Monterey Park , California and Los Angeles,
California, respectively, have been engaged as general
contractors in the building and construction industry in
California . At all times material , Swinerton and Walberg
Company has been a member of the Associated General
Contractors of America, herein AGC , and Oltmans has
been a member of Building Contractors Association of
California , Inc., herein BCA. AGC and BCA are each an
association of employers engaged as contractors in the
building and construction industry , and they engage in
negotiating and entering into collective-bargaining
agreements on behalf of their employer members with the
' Hereinafter all dates are 1966 unless otherwise specified.
'The consolidated complaint alleges that International Union of
Operating Engineers, Local Union No. 12, AFL-CIO, herein Respondent,
committed unfair labor practices.
176 NLRB No. 101
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective - bargaining representatives of the members'
employees , including Respondent , in the Southern
California area, and in representing their employer
members in matters of labor disputes , grievances and
other phases of labor-management relations. In the
operation of their businesses the employer members of
BCA annually perform services outside the State of
California valued in excess of $50,000. In the operation of
their businesses , the employer members of AGC annually
perform services outside California , valued in excess of
$50,000 and annually purchase and receive goods directly
from points outside California , valued in excess of
$50,000.
At all times material , Swinerton and Walberg
Company, Oltmans and Jackson have been engaged in the
construction of a shopping center in California , known as
Glendale Fashion Center, pursuant to separate contracts,
the collective value of which is $4,700,000.
At the Center the contractors described immediately
above and their subcontractors have purchased for use at
the Center , products , goods and materials valued in excess
of $50,000 from California suppliers who received said
products , goods , and materials directly from outside
California.
Webb and Lipow is a California corporation engaged in
the sharing and underpinning of structures , with its
principal place of business in Los Angeles , California. At
all material times it has been performing its works on a
multimillion dollar building on Wilshire Boulevard in Los
Angeles , California, pursuant to a contract value at
approximately $ 100,000 with C.L. Peck, the general
contractor . Peck and its subcontractors, including Webb
and Lipow , purchased for use at the Wilshire project,
products , goods , and materials valued in excess of $50,000
from California suppliers who obtained them from outside
of California.
11. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Were Samuel J. Vance and Jon Watson
self-employed persons within the meaning of the Act? This
includes whether they were persons.
2. By threats , restraint , and coercion to Webb and
Lipow, did Respondent violate Section 8(b)(4)(iiXB) of the
Act?
3. By threats , restraint , and coercion to Oltmans and
Jackson, did Respondent violate Section 8(b)(4Xii)(A) and
(B) of the Act?
B. The Facts with Respect to the Self-Employment
Status of Vance.
I find that at material times , Vance was a
self-employed person.3 He was in the business of
excavating and grading , using a skip loader and dump
truck in his operations. He owns the skip loader and
tractor and when necessary , rents the dump truck by the
hour. He pays his own costs, thus, he pays for needed
insurance , fuel, repairs and services on his own equipment
and pays for the rental of the dump truck and the fuel
therefor, when he uses it. He either solicits work for
himself or through the services of a company known as El
Monte Equipment Co. He pays El Monte 10 percent of
his earnings for El Monte ' s services in doing his
bookkeeping, providing telephone service, advertising, and
parking his equipment. Vance's customers are billed by El
Monte and upon payment , El Monte deducts 10 percent
for itself and remits the balance to Vance. During the last
year , Vance worked for about 100 customers, including
contractors and home owners . He charges and is paid by
the hour. No deductions for social security or income tax
are made from his compensation . During material times,
Vance obtained an excavating and grading job with Webb
and Lipow at the C.L. Peck Wilshire Plaza Construction
Project. Webb and Lipow was performing the shoring
operations on the Project pursuant to a contract with
Peck. The shoring required the digging of holes by drills.
Vance was retained to use his skip loader and take the
dirt away from the holes and to spread it. The only
directions he received were on his first day when he was
told to keep ahead of the drills and spread the dirt.
C. The Facts with Respect to the Self-Employment
Status of Watson
Watson does grading work . He uses a truck , trailer and
skip loader. He owns all his equipment . He pays the
insurance on his equipment . He pays for the fuel . He pays
for the maintenance and service on his equipment. In the
past year he has worked for about 75 different persons
through self-solicitation and job referrals from contractors
and friends in the excavating business . Prospective
customers reach him through his own phone where he has
a telephone answering service for which he pays. While he
works principally for contractors he also works for private
home owners. He has no employees but is paid for his
services and the use of his equipment. Social security or
income tax is never deducted from the compensation he
receives from customers. He works by the hour for a fee
which he sets and changes on occasion. He keeps his own
record of the hours he works.' Swinerton & Walberg Co.,
Oltmans and Jackson used Watson's services separately
and from time to time, to do finished grading work for
cement or concrete. A superintendent from each company
told him where he was to work and that he was to grade
from grade stakes. He first started work on this project
through a referral from an excavator.
D. Conclusions as to the Self-Employment and
Person Status of Vance and Watson
I find the facts establish Vance and Watson as
independent contractors , or self employed persons.
Respondent contends they are employees. The "right of
control" test governs. It is recognized that no one factor is
determinative of this issue. The persons for whom Vance
and Watson performed work had the right of control only
over the end to be achieved and not over the means to be
used in reaching such end. Vance and Watson were,
independent contractors in law and as a matter of
economic reality. They were persons and self employed
'Disputes with self-employed contractors are as primary in character as
if the self-employed contractor had others doing the work for him.
Northwestern Construction of Washington, Inc.. 152 NLRB 975, 980.
'It must be noted that Respondent considered Watson a self employed
person since it required him to sign a collective bargaining agreement with
Respondent.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 12
persons. They determined their own profits by what they
paid for, or the rate at which they rented, their equipment;
they set their own rates of pay; they determined what
repairs and services they needed and arranged for the
same to be done; they determined what insurance they
needed and paid for the same. They were told what they
should do but it was substantially left to them as to how
they should achieve the ends. They assumed the risks of
their businesses. They were to accomplish results or to use
care and skill in accomplishing results. The control
exercised by the contractors with respect to Vance and
Watson was limited to the achievement of a desired result
and did not include control of the means. They were self
employed persons within the meaning of the Act. I
consider it irrelevant that neither possessed a license as a
contractor.
E. Violation of Section 8(b)(4)(iiXB) at Webb and
Lipow.'
On August 24, 1966, Vance was working on the
Wilshire Project of Webb and Lipow. The foreman on the
job was Marshall Fletcher. Fletcher did the hiring and
firing and was "top authority" on the jobsite. On this day,
Respondent' s agent , business representative Clyde Wilson,
came on the job and asked Vance to show his Union card.
Vance displayed a card he had from Associated
Independent Owner-Operators, Inc., and Wilson said the
card meant nothing to him. He wrote Vance's name down
and approached Fletcher. Wilson told Fletcher Vance was
a nonunion contractor and he should be removed from the
job. Thereupon, Fletcher told Vance that Wilson had said
he could not work on the job because he was non Union.
After a very short time, Wilson told Fletcher that Vance
was still on the job. Wilson said, "I want him off
immediately. If you don't get him off I will have to stop
your operators."' Fetcher said he would remove Vance
immediately. He told Vance to leave the jobsite and
Vance did so. By Wilson's threat, restraint and coercion
to stop the operators in their work,' Respondent violated
Section 8(b)(4)(ii)(B) of the Act.
F. Violations of Section 8(b)(4XiiXA) and (B) at
Oltmans and Jackson
The Respondent's activities with respect to Watson
took place on June 16 and 17, 1966. Watson was
employed by Oltmans and Jackson and others at that
time. Having considered the entire record and recognizing
that it is undenied, I credit the testimony of General
Counsel' s witnesses as to the relevant events on these
days. In any event, the parties stipulated that
Respondent' s agents , in demanding the removal of
Watson from the jobsites of Oltmans and Jackson,'
threatened to use economic force, to picket the jobsites, if
Watson were not removed, and that another object was to
force Watson to join Respondent , and to sign a short
form labor agreement with Respondent. I find the threats,
restraint and coercion to Oltmans and Jackson for the
objects found above, with respect to Watson, violated
'In making findings of fact herein , having observed the demeanors of
Vance , Fletcher and Wilson , I do not credit the testimony of Wilson where
it conflicts with that of Vance or Fletcher . Fletcher impressed me as an
honest and forthright witness and I accept his testimony as truthful and
accurate.
'Fletcher had four or five operating engineers , members of Respondent,
working under him. To stop them would be to close down the job.
'Shut down the job.
775
Section 8(b)(4)(ii)(A) and (B) of the Act.
That Respondent had a contract with the employers
requiring the latter to subcontract only to Union
subcontractors does not change my view. Under Section
8(b)(4) of the Act, such contracts may be enforced
through lawsuits but not through economic action.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Employers as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found Respondent has violated Section
8(b)(4)(ii)(A) and (B) of the Act, it will be recommended
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.'
Upon the basis of the above findings of fact , and on the
entire record in the case , I make the following:
Conclusions of Law
1. At all times material the employers named in Section
I have been employers within the meaning of the Act and
have been engaged in commerce and/or in an industry
affecting commerce within the meaning of the Act.
2. Respondent is a labor organization within the
meaning of the Act.
3. Vance and Watson are persons and self-employed
persons within the meaning of the Act.
4. By threats, restraint, and coercion, as found above,
to Webb and Lipow, with the object of forcing or
requiring Webb and Lipow to cease doing business with
Vance, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(ii)(B) of the Act.
5. By threats, restraint, and coercion, as found above,
to Oltmans and Jackson, with the objects of forcing or
requiring Watson to join Respondent and forcing or
requiring Oltmans and Jackson to cease doing business
with Watson, Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(ii)(A) and
(B) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , I recommend Respondent, its officers,
agents , and representatives , shall:
1. Cease and desist from:
(a) Threatening , coercing , or restraining Webb and
Lipow, or any other employer where an object thereof is
to force or require said employers to cease doing business
with Samuel J. Vance.
(b) Threatening, coercing, or restraining Oltmans or
Jackson or any other employer where an object thereof is
'The Glendale Fashion Center Construction Project
'I find insufficient probative evidence of a violation of Section 7 of the
consolidated complaint.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to force or require said employers to cease doing business
with Jon Watson."
(c) Threatening, coercing, or restraining Oltmans or
Jackson or any other employer where an object thereof is
to force or require Jon Watson to join Respondent.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post, in conspicuous places, at its business offices
and meeting halls, including all places where notices to
members are customarily posted, copies of the attached
notice marked "Appendix."" Copies of said notice to be
furnished by the Regional -Director for Region 31, shall,
after being signed by Respondent's authorized
representative, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail copies of said notice to the Regional
Director for posting by Webb and Lipow, Oltmans, and
APPENDIX
Pursuant to National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain Webb and
Lipow or any other employer where an object thereof is
to force or require said employers to cease doing
business with Samuel Vance, a self-employed person.
WE WILL NOT threaten, coerce or restrain Oltmans
Construction Company or Jackson Bros., or any other
employer where an object thereof is to force or require
said employers to cease doing business with Jon
Watson, a self-employed person.
WE WILL NOT threaten, coerce or restrain Oltmans
Construction Company or Jackson Bros., or any other
employer where an object thereof is to force or require
Jon Watson, a self-employed person, to join our Union.
Jackson, they being willing, at all locations where notices INTERNATIONAL UNION
to their employees are customarily posted. OF OPERATING
(c) Notify the Regional Director , in writing , within 20 ENGINEERS, LOCAL
days from the receipt of this Decision, what steps UNION No. 12, AFL-CIO
Respondent has taken to comply herewith." (Labor Organization)
"I find no substantial evidence of a broad plan by Respondent to violate
the Act.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the said Regional
Director , in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith.
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building, 215 West Seventh Street, Los Angeles,
California 90014 Telephone 688-5840.