Int'l Union of Operating Engineers, Local 12

National Labor Relations Board - Board Decisions

Feb 17, 1960

126 N.L.R.B. 688 (N.L.R.B. 1960)

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless the employer is thereby failing to conform to an order or cer-
tification of the Board determining the bargaining representative for
employees performing such work, or unless an employer is bound by
an agreement to assign the work in dispute to other employees
Painters has no order, certification, or valid contractual claim to the
disputed work herein Accordingly, we find that Painters is not
entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to
force or require the Seville and/or Carillon Hotels to assign the
disputed work to members of Painters rather than to its own em-
ployees However, we are not by this action to be regarded as assign-
ing the work in question to members of Hotel Employees
DETERMINATION OF DISPUTE
On the basis of the foregoing findings of fact and the entire record
in this case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act
1 Brotherhood of Painters, Decorators, and Paper Hangers of
America, Local 365, AFL-CIO, is not, and has not been, lawfully
entitled to force or require the Seville Hotel to assign the work of
maintenance painting to employees who are members of Painters,
rather than to the Seville Hotel's own employees
2 Brotherhood of Painters, Decorators, and Paper Hangers of
America, Local 365, AFL-CIO, is not, and has not been, lawfully
entitled to force or require the Carillon Hotel to assign the work of
maintenance painting to employees who are members of Painters,
rather than to the Carillon Hotel's own employees
3 Within 10 days from the date of this Decision and Determina-
tion of Dispute, Painters shall notify the Regional Director for the
Twelfth Region, in writing, whether or not it will refrain from forc-
ing or requiring the Seville and Carillon Hotels, by means proscribed
by Section 8(b) (4) (D) of the Act, to assign the disputed work to
members of Painters, rather than to the Seville and Carillon hotels'
own employees
International Union of Operating Engineers , Local Union No.
12, AFL-CIO and Tri County Association of Civil Engineers
and Land Surveyors
International Union of Operating Engineers, Local Union No.
12, AFL-CIO and Tri-Counties Association of Civil Engineer-
ing Employees Cases Nos 21-CC-319 and 21-CC3,02 , Febru-
ary 17, 1960
DECISION AND ORDER
On a charge and amended charge duly filed on March 26, 1959, and
April 8, 1959, by Tri County Association of Civil Engineers and Land
126 NLRB No 87
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 689
Surveyors, herein referred to as Tri County, and upon a charge duly
filed on April 7,1959, by Tri-Counties Association of Civil Engineer-
ing Employees, the General Counsel for the National Labor Relations
Board, herein referred to as the General Counsel, by the Regional
Director for the Twenty-first Region, issued a complaint dated May 22,
1959, against International Union of Operating Engineers, Local
Union No. 12, AFL-CIO, herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section
8(b) (4) (A) and (B) of the National Labor Relations Act, as
amended. Copies of the order consolidating the cases herein, the con-
solidated complaint, and notice of hearing were duly served upon the
Respondent and the Charging Parties. The Respondent filed an
answer to the consolidated complaint denying the commission of the
alleged unfair labor practices and asserting certain matter by way
of a separate defense.
On July 31, 1959, the parties entered into a stipulation setting forth
an agreed statement of facts. In a joint motion to transfer proceed-
ings to the Board, also dated July 31, 1959, the parties requested that
the proceedings be transferred to the Board. In said motion, the
parties agreed that the charges, complaint, notice of hearing, answer,
and the aforesaid stipulation constituted the entire record in these
cases and that no oral testimony was necessary or desired. The parties
agreed further to waive a hearing before a Trial Examiner, findings
of fact and conclusions of law, and the issuance of an Intermediate
Report and Recommended Order.
By order dated August 12, 1959, the Board granted the joint motion
of the parties and made it a part of the record herein. Pursuant to
such motion, the Board transferred the proceedings to, and continued
it before, the Board. The Board fixed a time for the filing of briefs
and directed that any requests for oral argument be made in writing
to the Board simultaneously with the filing of the briefs. Thereafter,
only the General Counsel filed a brief. None of the parties requests
oral argument.
Upon the basis of the aforesaid stipulation and the entire record
in these cases, including the charges and amended charges, the com-
plaint and answer, and briefs, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES INVOLVED
Tri County Association of Civil Engineers and Land Surveyors is
composed of various employers including Pacific Engineers & Sur-
veyors, Inc., and Kenneth W. Wright, herein respectively referred to
as Pacific and Wright, who are engaged in civil engineering and land
554461-60-vol 123-45
,'690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surveying work in the State of California. Tri County exists for, and
engages in, collective bargaining and the negotiation of collective-
bargaining agreements on behalf of its members, including Pacific
and Wright. During the 12-month period ending March 31, 1959,
members of Tri County, including Pacific and Wright, sold products
and performed services valued at more than $50,000 to firms and in-
dividuals who shipped goods from and performed services outside
the State of California valued at more than $50,000. Accordingly,
we find that Tri County is an employer within the meaning of Sec-
tion 2 (1) and (2) of the Act, that Tri County and its employer-
members at all material times herein have been and are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local Union No. 12,
AFL-CIO, and Tri-Counties Association of Civil Engineering Em-
ployees are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
As set forth in the stipulation of the parties, at all times material
herein, the Respondent has been engaged in a program and campaign
to obtain recognition as collective-bargaining representative of the
employees of the employer members of Tri County, including among
others the employees of Pacific and Wright. At such times, William
C. Wyckoff & Son, Sinton & Savage, Guido O. Ferrini, L. E. Webb
Construction Co., and M. J. Hermreck, herein respectively called
Wyckoff, Sinton, Ferrini, Webb, and Hermreck, were, and each of
them was, engaged in construction work, and each employed members
of Respondent to operate his construction power equipment. Also
at the same time Sinton, Lindero Investment Co., Inc., herein called
Lindero, and Rancho Estates, herein called Rancho, were, and each
of them is, a company or person engaged in the land development
business, in connection with which Lindero and Rancho use and have
used during the months of March and April 1959, the services of
Wyckoff, Ferrini, Webb, and Hermreck.
On or about March 26, 1959, the Respondent, by its agents Holman
and Smith, induced and encouraged the employees of Wyckoff to
engage in a strike on work being performed by Wyckoff for Lindero
by directing such employees to stop their work and telling them that
they were not to work because the surveyors on the same jobsite, who
were employees of Pacific,. performing work pursuant to a contract
between Lindero and Pacific, were nonunion. Similarly, on or about
March 31, 1959, the Respondent by its agent, Neal, induced and en-
couraged the employees of Ferrini, Webb, and Hermreck to engage
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 691
in a strike or strikes on work being performed by Ferrini, Webb, and
Hermreck for Rancho, telling some of the employees that they were
not to work because the surveyors on the same jobsite, who were em-
ployees of Wright, performing work pursuant to a contract between
Rancho and Wright, were not union men. Also, on or about April 3,
1959, Respondent by its agent, Neal, induced and encouraged the
employees of Sinton to engage in a strike on work being performed
by Sinton as a developer and general contractor telling such employees
that they could not work for Sinton as long as the surveyors on the
same jobsite, who were employees of Pacific, performing work, pur-
suant to a contract between Sinton and Pacific, were working on the
project.
The matter at issue concerns the legality of the Respondent's con-
duct in inducing and encouraging employees of Wyckoff, Ferris i,
Webb, Hermreck, and Sinton to engage in a strike at the various
j obsites because employees of Pacific and Wright were performing
work as surveyors on the jobsites. In justification, the Respondent
relies on the terms of collective-bargaining agreements with the afore-
mentioned firms containing a provision regulating subcontracting.
Specifically the agreements provide in article I:
D. If the CONTRACTORS, parties hereto, sub-contract job-
site work falling within the recognized jurisdiction of the Union,
provisions shall be made in each sub-contract for the compliance
by said sub-contractor with terms not less than those contained
herein. A sub-contractor is defined as any person, firm or corpo-
ration who agrees, under contract with the general contractor or
his sub-contractor, to perform on the jobsite any part or portion
of the work covered by this Agreement, including the operation of
equipment, performance of labor, and the installation of materials.
It appears that for comparable classifications of employees, wage
rates paid by Pacific and Wright for surveyors were appreciably lower
than those prescribed by the Respondent's contract. It also appears
that on March 26, 1959, Respondent's agent, Smith, told Wyckoff that
it was closing down his job and was standing on its subcontracting
clause; on March 31, Respondent's agent, Neal, told Hermreck that
his men could not work on the Rancho job because his subcontractor
clause applied, and on April 1, the Respondent's agent Neal similarly
informed Sinton that his men could not work on the Sinton job be-
cause the subcontractor clause applied. The Respondent is not, nor
has it been at any time material herein the certified bargaining repre-
sentative of any of the employees of Tri County employer-members.
Section 8(b) (4) (A) of the Act, so far as relevant, provides that it
shall be an unfair labor practice for a labor organization to engage
in or induce or encourage the employees of any employer to engage
in a strike where an object thereof is to force or require any employer
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other person to cease doing business with another person. Section
8(b) (4) (B) provides that such conduct is an unfair labor practice
if the object thereof is to force or require any other employer to
recognize or bargain with a labor organization as the representative
of its employees unless such labor organization has been certified as
the representative of such employees under the provisions of Section 9.
Inducement is conceded by the Respondent. The only question is
whether the Respondent's objectives were unlawful within the mean-
ing of Section 8(b) (4) (A) and (B) as charged. We are of the
opinion that the Respondent violated Section 8(b) (4) (A) because
it induced the work stoppages in question with the object of causing
Wyckoff and the other employer contractors to cease doing business
with Lindero and Rancho, in order to cause Lindero and Rancho to
cancel their contracts with Pacific and Wright. We are also of the
opinion that the Respondent violated Section 8(b) (4) (B) because its
inducement of the work stoppages had the further objective of forcing
Pacific and Wright to recognize or bargain with the Respondent on
behalf of their employees who were performing work on the construc-
tion sites which the Respondent regarded as falling within its
jurisdiction.
Indicative of this objective is the fact that at the construction sites
where the work was being performed by the contractors for Lindero
and Rancho the Respondent told the employees of the contractors
that they were to stop working because the employees of Pacific and
Wright were nonunion. In view of the fact that the Respondent had
been carrying on a campaign to organize the employees of all employer
members of Tri County including Pacific and Wright, it is reasonable
to infer that by causing the work stoppages for the reasons given, the
Respondent hoped thereby to compel Wyckoff and the other contrac-
tors to cease doing work for Lindero and Rancho thereby forcing the
latter to cancel their agreement with Pacific and Wright and thus
ultimately to force Pacific and Wright to recognize and bargain with
the Respondent.
We find no merit in the Respondent's contention that by striking
the employees of Wyckoff and the other contractors it was merely
seeking to compel compliance with a subcontract clause in its agree-
ment with the Contractors. There is nothing in the record to suggest
that any conduct on the part of Wyckoff, Ferrini, Webb, or Hermreck
could have been the object of the Respondent's activities since none
of the aforesaid employers had violated its agreement with the Re-
spondent by entering into a contract with Pacific or Wright. In
view of the fact that 'their employees were nevertheless induced to
strike, the conclusion is inescapable that the true object of the Re-
spondent's conduct was to force a cancellation of Pacific's and
Wright's contracts. Since such was the true objective of the Respond-
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 693
ent, as manifested by its actions on March 26 and 31, we are equally
of the opinion that in striking Sinton's employees on April 3, it had
the same objective, that is to cause Sinton to cancel its contract with
Pacific. Such object is clearly in violation of the Act. Moreover;
the fact that Sinton may have breached its agreement with the Re-
spondent in entering into a subcontract with Pacific cannot avail the
Respondent as a defense to its otherwise unlawful conduct.' Accord-
ingly, we conclude on the basis of the entire record and the conduct
hereinabove described, the Respondent violated Section 8 (b) (4) (A)
and Section 8 (b) (4) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, as set forth above, occurring in
connection with the operations of Pacific and Wright and other em-
ployers 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 of
commerce.
V. THE REMEDY
We have found that the Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8(b) (4) (A) and (B)
of the Act. In part, we have found that the fact that Sinton may
have breached its agreement with the Respondent, relating to work
to be done on the site of the construction projects, cannot avail the
Respondent as a defense to its unlawful conduct. Since the com-
mission of the unfair labor practices herein, however, Congress has
enacted the Labor-Management Reporting and Disclosure Act of 1959,
which added in Title VII, Section 704(b), an amendment to Section
8 of the National Labor Relations Act. The amendment reads in
material part as follows :
(e) It shall be an unfair labor practice for any labor organiza-
tion and any employer to enter into any contract or agreement,
express or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from handling, using, selling, trans-
porting or otherwise dealing in any of the products of any other
employer, or to cease doing business with any other person, and
any contract or agreement entered into heretofore or hereafter
containing such an agreement shall be to such extent unenforcible
and void: Provided, That nothing in this subsection (e) shall
apply to an agreement between a labor organization and an
employer in the construction industry relating to the contracting
or subcontracting of work to be done at the site of the construction,
'Bangor Building Trades Counoil, AFL-CIO (Davison Construction Company, Inc.),
123 NLRB 484.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alteration, painting, or repair 2 of a building, structure, or other
work....
We are of the opinion that Congress in enacting the foregoing proviso
in Section 8(e) did not intend thereby to grant immunity to a labor
organization for practices which the Board has heretofore held to be
in violation of provisions of Section 8(b) (4) (A) and (B), or in-
tended in any way to limit the Board's authority to provide an appro-
priate remedy in such instances. Thus, in reporting on the effect of
the said proviso of Section 8 (e), the committee of conference stated :
... The committee of conference does not intend that this pro-
viso should be construed so as to change the present state of the
law with respect to the validity of this specific type of agreement
relating to work to be done at the site of the construction project
or to remove the limitations which the present law imposes with
respect to such agreements. Picketing to enforce such contracts
would be illegal under the Sand Door case (Local 1796, United
Brotherhood of Carpenters v. N.L.R.B., 357 U.S. 93. To the
extent that such agreements are legal today under section 8 (b) (4)
of the National Labor Relations Act, as amended, the proviso
would prevent such legality from being affected by section 8(e).
The proviso applies only to section 8(e) and therefore leaves
unaffected the law developed under section 8(b) (4).
In the circumstances, we shall issue the customary order in this case,
directing the Respondent to cease and desist from engaging in the
unfair labor practices found herein and to take affirmative action
designed to effectuate the policies of the Act.
Since it is apparent that the Respondent is engaged in a program
and campaign to obtain recognition as collective-bargaining repre-
sentative, not only of the employees of Pacific and Wright, but of
the employees of other employer members of Tri County, it may rea-
sonably be anticipated that it will engage in similar unlawful con-
duct as that herein which will involve employees of other secondary
employers. We shall, therefore, enter a broad order against the
Respondent.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent International
Union of Operating Engineers, Local Union No. 12, AFL-CIO, its
agents, officers, representatives, successors, and assigns, shall:
1. Cease and desist from engaging in, or inducing or encouraging
the employees of William C. Wyckoff & Son, Sinton & Savage, Guido
. 2 With respect to the final proviso in Section 8 ( e), it is clear from the language of the
statute and the legislative history that it is applicable only to the clothing and apparel
industry.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 12 695
0. Ferrini, L. E. Webb Construction Co., and M. J. Hermreck, or
any other employer, to engage in, a strike or a concerted refusal in
the course of their employment to use, manufacture, process, transport,
or otherwise handle or work on goods, articles, materials or commodi-
ties, or to perform any services for their respective employers where
an object thereof is to force or require said employers to cease doing
business with Pacific or Wright, or with Lindero or Rancho, or any
other employer or person, or to force and require Lindero or Rancho to
cease doing business with Pacific or Wright or any other employer
member of Tri County; or where an object thereof is to force and
require Pacific or Wright or any other employer member of Tri
County to recognize or bargain with the Respondent as the repre-
sentative of any employees of Pacific or Wright or any other employer
member of Tri County, unless the Respondent has been certified as the
representative of such employees under the provisions of Section 9
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in Los Angeles,
California, copies of the notice attached hereto marked "Appendix." I
Copies of said notice to be forwarded by the Regional Director for
the Twenty-first Region shall, after being duly signed by an author-
ized representative of the Respondent, be posted by it immediately
upon receipt thereof and maintained by it for a period of 60 consecu-
tive days thereafter in conspicuous places including all places where
notices to members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the aforesaid notice for posting on the jobsites of
Wyckoff, Sinton, Ferrini, Webb, and Hermreck in places where
notices to their employees are customarily posted, if the said firms are
willing to do so. Copies of said notice to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly signed by
an authorized representative of the Respondent, be forthwith returned
to the Regional Director for such posting.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
S In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order "
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL UNION No. 12, AFL-CIO, AND TO ALL EM-
PLOYEES OF WILLIAM C. WYCKOFF & SON, SINTON & SAVAGE, GuIDO
0. FERRINI, L. E. , WEBB CONSTRUCTION CO., AND M. J. HERMRECS
Pursuant to a Decision and Order of the 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 engage in, or induce or encourage employees of
William C. Wyckoff & Son, Sinton & Savage, Guido O. Ferrini,
L. E. Webb Construction Co., and M. J. Hermreck, or any other
employer to engage in a strike or a concerted refusal in the course
of their employment to use, manufacture, process, transport, or
otherwise handle or work on goods, articles, materials, or
commodities, or to perform any services for their respective
employers, where an object thereof is to force or require said
employers to cease doing business with Pacific Engineers &
Surveyors, Inc., or Kenneth W. Wright, or with Sinton, Lindero
Investment Co., Inc., or Rancho Estates, or any other employer
or person, or to force and require said Sinton, Lindero Investment
Co., Inc. or Rancho Estates to cease doing business with Pacific
Engineers & Surveyors, Inc., or Kenneth W. Wright or any other
employer member of Tri County Association of Civil Engineers
and Land Surveyors; or where an object thereof is to force and
require said Pacific Engineers & Surveyors, Inc. or Kenneth W.
Wright or any other employer member of Tri County Association
of Civil Engineers and Land Surveyors to recognize or bargain
with us as the representative of any employees of Pacific Engi-
neers & Surveyors, Inc., or Kenneth W. Wright or any other
employer member or Tri County Association of Civil Engineers
and Land Surveyors, unless we have been certified as the repre-
sentative of such employees under the provisions of Section 9 of
the Act.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION No. 12,
AFL-CIO,
Local Union.
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.