Int'l Union of Operating Engineers, Local 66

National Labor Relations Board - Board Decisions

Feb 28, 1962

135 N.L.R.B. 1392 (N.L.R.B. 1962)

1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Within 10 days from the date of this Decision and Determination
of Dispute, International Association of Machinists, Lodge 681, Dis-
trict 27, AFL-CIO, shall notify the Regional Director for the Ninth
Region, in writing, whether or not it will refrain from forcing or re-
quiring P. Lorillard Company, Inc., by means proscribed by Section
8(b) (4) (D) to assign the work in dispute to machinists rather than
to fixers in the Tobacco Workers unit.
International Union of Operating Engineers , Local 66, AFL-CIO
and Frank P. Badolato & Son. Case No. 6-CD-122. Febru-
ary 28, 1962
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 February 16, 1961, Frank P. Badolato & Son, herein called
Badolato, filed with the Regional Director for the Sixth Region a
charge alleging, inter alia, that International Union of Operating
Engineers, Local 66, AFL-CIO, herein called Engineers, had induced
or encouraged employees to strike for the purpose of forcing or re-
quiring Badolato toassign "the work of operation of mortar mixer
and operation of tri-coater (plaster applicating machine)" to mem-
bers of the Engineers rather than to employees who are members of
or represented by International Hod Carriers, Building and Common
Laborers Union of America, Local 286, AFL-CIO, herein called
Laborers.
Thereafter, pursuant to Section 10(k) of the Act and Section 102.89
and Section 102.90 of the Board's Rules and Regulations, Series 8,
as amended, the Regional Director investigated the charge and pro-
vided for an appropriate hearing upon due notice to all the parties.
The hearing was held before Julius G. Serot beginning April 10 and
ending May 12, 1961. The Laborers was allowed to intervene as a
party in interest to the dispute. 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 preju-
dicial error and are hereby affirmed. All parties filed briefs which
were duly considered by the Board.
135 NLRB No. 140.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 66 1393
Upon the entire record in the case , the Board makes the following
findings :
1. As stipulated by the parties , Badolato is engaged in commerce
within the meaning of the Act.
2. The Engineers and Laborers are labor organizations within the
meaning of the Act.
3. The dispute :
A. The basic facts
Badolato operates in the tristate area of Pennsylvania, West
Virginia, and Ohio 1 as a plastering contractor in the construction
industry. In connection with these operations, Badolato customarily
employs members of three labor organizations : Wood, Wire, and
Metal Lathers International Union, AFL-CIO, herein called the
Lathers; Operative Plasterers and Cement Masons International As-
sociation of the United States and Canada, AFL-CIO, herein called
the Plasterers; and the Laborers. Badolato does not enter into labor
agreements on a single-employer basis with any union but, as a mem-
ber of The Employing Plasterers' Association of Allegheny County,
herein called the Association, Badolato is bound by agreements en-
tered into between the Association and the Lathers and the Plasterers.
Neither Badolato nor the Association is signatory to a labor agree-
ment with the Laborers, but Badolato conforms to the Laborers' wage
scale and fringe benefits, including payments to pension or welfare
funds, applicable to the area in which a particular job is located.
In March 1960, Badolato was awarded a. subcontract by Uniontown
Construction Company for the plastering work on a school building
at McClellandtown, Pennsylvania. Late in 1960, Badolato began
work on' the job and by mid-January 1961 had a full crew of some 17
or 18 employees working. In connection with the plastering, Bado-
lato used a plaster mixer driven by •a gasoline engine and a plaster
applicator driven by an electric motor. A member of the Laborers
was assigned to operate both machines in connection with the prepa-
ration and conveyance of the plaster to the plasterers working in the
building.
Late in January, a business agent for the Engineers requested
Badolato to hire a member of the Engineers to "operate" the mixer
and applicator. ' When Badolato refused to employ an engineer, the
Engineers began picketing on or about January 31, 1961.2 The em-
ployees of Badolato and the other'contractors on the job honored the
picket line and, as a result; the job was shut down. Some 3 weeks
The parties stipulated to a general delineation of the tristate area.
2 The pickets carried placards which first read : "Badolato & Son unfair to Operating
Engineers Local 66" and then were changed to read : "Badolato & Son does not - employ
members of Operating Engineers Local •66:" '
634449-62--vol. 135-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later, after Badolato had resumed work but without use of the ma-
chines in question (plaster was mixed by hand and carried by hod to
the plasterers), the pickets were called off. Thereafter, Badolato
again began to use the machines and the picketing was resumed. The
picketing was terminated in compliance with a 10(1) injunction issued
by a Federal district court on or about March 2, 1961. All crafts
thereafter resumed work and by the time of the close of the hearing
in the instant case, Badolato had completed his work on the project.
B. Contentions of the parties
Badolato contends that: The Engineers has violated Section
8(b) (4) (D) ; since Badolato has not agreed upon a method for the
voluntary adjustment of the dispute, the case is properly before the
Board under Section 10 (k) of the Act; the instant case is distinguish-
able from the CBS case l and that in the present factual situation
the Employer's assignment should be determinative; even if factors
such as the Employer's past practice and custom and practice in the
industry are considered, the work is properly assigned to hod carriers;
and any award granted by the Board should run to "individuals in
the employ of Badolato" rather than the laborers inasmuch as Bado-
lato does not have a written agreement with the Laborers.
The Engineers contends that the Board should "dismiss" this case
(a) "inasmuch as the parties have `agreed upon methods for the
voluntary adjustment of the dispute' within the meaning of Section
10(k)," i.e., National Joint Board for Settlement of Jurisdictional
Disputes in the Building and Construction Industry, herein called
the Joint Board; or (b) "in view of the fact that the work in dispute
has been completed, thereby rendering the issue moot"; that in the
event that the Board decides to render an affirmative award, it should
follow the criteria and standards of the Joint Board, and, following
those standards, should award the disputed work to the Engineers;
and that if the criteria of area practice is used, the Board should, on
the basis of the evidence, award the jurisdiction to the Engineers.
On the merits of the dispute, the Engineers' basic contention is that
the disputed work is properly within the Engineers' jurisdiction and
performance of the work by the Laborers constitutes an encroachment
upon work traditionally performed by the Engineers.
The Laborers contends that: The matter is properly before the
Board for a determination of the dispute; the Joint Board has no
jurisdiction in the matter because Badolato is not bound by the pro-
cedures of the Joint Board; the Laborers properly has jurisdiction
over the work in dispute and the natural flow of work in the plaster-
3 AT L R B v Radio & Televtsion Broadcast Engineers Union Local 1212 etc. ( Columbia
Broadcasting System), 364 U.S. 573.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 66 1395
ing industry provides no position for an engineer; and Badolato's
past practice and custom and practice in the industry establish that
the work in dispute has been assigned to and performed by laborers.
' C. Applicability of the statute
The charge alleges a violation of Section 8(b) (4) (D) and thQ,
record reflects picketing by the Engineers and resulting work stop-
pages on two different occasions, because of Badolato's refusal to hire,
a member of the Engineers to perform work assigned to an employee;
engaged as a hod carrier.
The Engineers asserts that the Board is precluded from a deter-
mination of the dispute because of the existence of an allegedly agreed-
upon method for the voluntary adjustment of the dispute under the
Joint Board procedures. In this connection, the parties agree that
the Laborers and the Engineers are bound by Joint Board procedures
by virtue of their affiliation with the AFL-CIO Building and Con-
struction Trades Department. The Engineers asserts that Badolato is
bound by the Joint Board procedures, whereas Badolato and the
Laborers disagree. The Engineers' contention, insofar as Badolato
is concerned, is based on the theory that Badolato is bound to the
Joint Board procedure through membership in the Association and/or
CPLIA; 4 and/or by the terms of one or more of various labor agree-
ments to which Badolato is a party or otherwise bound by following
specific wage rates and other employee benefits.
The Engineers' contention in this regard is without merit. The
procedural rules of the Joint Board provide that the procedure shall
apply to "contractors who employ members of the organizations
affiliated with the Building and Construction Trades Department,
AFL-CIO, and [1] who have signed a stipulation setting forth that
they are willing to be bound by the terms of the agreement establish-
ing the Joint Board, or [2] who are members of a signatory associa-
tion of contractors with authority to bind its members, or [3] who
are parties to a collective bargaining agreement providing for the
settlement of jurisdictional disputes under the procedures herein set
forth." There is no assertion that Badolato has "stipulated" to the
Joint Board procedures and the evidence is clear that neither the
Association nor CPLIA has authority to bind its members to those
procedures. Collective-bargaining agreements between the Associa-
tion and the Lathers have in the past contained the following
provision
The Association and its members are affiliated with Contracting Plasterers' and
Lathers' International Association herein called CPLIA. CPLIA Is not a party to any
labor agreement covering employees of its affiliates nor does it represent its affiliates in
bargaining with labor organizations.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE XII
SECTION 3. The parties to this agreement will do their utmost
to abide by the following 10 principles recommended by the
Building and Construction Trades Department, AFL-CIO.
SECTION 6. Jurisdictional disputes shall be settled in accord-
ance with the procedure established by the Building Trades De-
partment of the AFL-CIO or in special cases as agreed and estab-
lished by two or more International Unions without interruption
of work or delay to the job.
Assuming arguendo that this contract requires the Lathers and Asso-
ciation members, including Badolato, to use Joint Board procedures
to resolve jurisdictional disputes affecting the Lathers, it cannot be
held to bind Badolato to Joint Board procedures in the instant dis-
pute, where the disputants are two different unions and the work in-
volved is unconnected with that of the Lathers. As to agreements
between the Laborers and various employer associations of which
Badolato is admittedly not a member, provisions for Joint Board pro-
cedures may not be found-binding upon Badolato.5
Based on the entire record, we find that Badolato has not' complied
with any of the three methods by which a contractor may bind himself
to the Joint Board procedures. Moreover, Badolato has specifically
refused to participate in a Joint Board proceeding initiated by the
Engineers involving the instant dispute and has consistently taken
the position that the Joint Board is without authority to resolve the
dispute and that any award made by the Joint Board would be dis-
regarded. Under these circumstances, it cannot be said that the par-
ties have submitted to us "satisfactory evidence that they have ad-
justed, or agreed upon methods for the voluntary adjustment of, the
dispute." 6
On the basis of the entire record, we find that there is reasonable
cause to believe that a violation of Section 8(b) (4) (D) has occurred,
and that the dispute is properly before the Board for determination
under Section 10 (k) of the Act.
S Local 450 , International Union of Operating Engineers, AFL-CIO ( Stine Industrial
Painters ), 119 NLRB 1725
In this connection the Engineers urges that where, as here , voluntary procedures are
available to the parties , the Board should, as a matter of policy, compel the parties to
use the voluntary processes by refusing to entertain the dispute under Section 10(k) of
the Act. We do not believe that the mandate of the Supreme Court as set forth in the
CBS decision allows for such disposition in the absence of the "satisfactory evidence"
spelled out in the statute.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 66 1397
Merits of the Dispute
The dispute arises over the "operation" of power-driven plaster
mixers and plaster applicators. .
The plaster mixer is a machine consisting basically of a metal drum
inside of which are blades which rotate, thereby mixing the, various
ingredients from which plaster is made into the desired consistency.
Usually, as in Badolato's equipment, the power is supplied by a small
gasoline engine which is started by pulling a rope much like a gasoline
lawnmower. After the machine is started, the hod carrier places
water in the drum, usually by bucket so as to measure the amount, and
then the proper quantity of dry ingredients, mainly sand and a pre-
packaged plaster mix. The proportions of ingredients vary depend-
ing upon the coat of plaster being applied and coloring may be added
for the finish coat. When the desired mix is obtained, the hod carrier
pulls a lever which turns the drum and dumps out the plaster. In
addition to the usual minor maintenance of gasoline engines such as
checking and adding oil, replacement of spark plugs, etc., the oper-
ator greases some five fittings about three times a week, and daily
cleans the drum by hitting the outside with a hammer or other instru-
ment to loosen hardened plaster, and by flushing it with water.
The plaster applicator is a device used to spray plaster on to the sur-
face being plastered instead of applying it by trowel. The particular
type of applicator used on the job when the instant dispute arose is
known by the trade name of "Tri-Coater." ° The Tri-Coater is a
machine which mainly consists of a hopper, an electric-motor, a small
air compressor, a ram and cylinder device, hoses which run from the
machine to the point where the plaster is to be applied, which may be
several hundred feet away and at a different floor level, and u nozzle
operated by the plasterer. The mixed plaster is poured from the
mixer into the applicator hopper and the ram or piston pushes the
plaster through one of the hoses; at the same time compressed air is
forced through a smaller hose. At the end of the hoses there is a
nozzle on which there are several controls operated by the plasterer
who manipulates the controls to regulate the flow of air and plaster,
spraying the surface to be plastered. The motor on the trimixer is
started and stopped by a switch similar to a household electric switch.
A plaster applicator is cleaned and oiled or greased at least twice
daily while in use; once at the end of the morning and once at the end
of the afternoon. Cleaning of the applicator requires some disassem-
bly of the machine. The ram assembly is cleaned and, after flushing
7 Although the notice of hearing specifically referred to the operation of a mixer and a
"Tri-Coater" as the work in dispute, it is clear from the record and undisputed that
"Tri-Coater" is merely a trade name for the plaster applicator used at the time by Badolato
and that the dispute involves the operation of plaster applicators generally regardless of
brand name.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it with water, the plaster hose is cleaned by sending a sponge through
it. Also, minor repairs such as replacement of rubber poppets (which
act as valves) are required from time to time. Major repairs are not
done on the job and spare mixers and applicators are generally avail-
able in case of serious breakdowns.
The Engineers lays no claim upon the hod carriers' work of han-
dling the dry ingredients preparatory to use, the placing of water and
dry ingredients into the mixer, the dumping of the mixed plaster into
the applicator, the cleaning of the mixer drum and the applicator
hopper, the moving of scaffolding, or otherwise servicing of the plas-
terers. Nor does the Engineers claim any work on a plastering job if
the plaster is mixed by hand and carried by wheelbarrow or hod.'
The Engineers' claim may be described as covering the starting,
stopping, oiling, greasing of, and making minor repairs to, plaster
mixers and plaster applicators. Evidence introduced by Badolato
and the Laborers indicates that the work claimed by the Engineers
takes from 15 to 45 minutes per day of the hod carriers' time, depend-
ing on various factors.' Evidence introduced by the Engineers sug-
gests that the machines need more or less constant attention and that
when an engineer is assigned to their operation, he is kept busy during
a full 8-hour shift. A fair appraisal of all the evidence introduced
on this point indicates, and we find, that the work claimed by the En-
gineers, when performed by a hod carrier, is accomplished to Bado-
lato's satisfaction in less than 1 hour per day.
The parties stipulated that there is no Board order or certification
applicable to this dispute and, as noted heretofore, neither the Laborers
nor the Engineers has a labor agreement with Badolato. The En-
gineers' claim to the disputed work is based mainly upon a purported
jurisdictional assignment by the AFL which includes "the motive
power of all derricks, cement mixers, hod-hoists, pumps, and other
machines used in construction work ...." On the other hand the
Laborers' constitution describes its grant of jurisdiction as including
"tending masons, plasterers, carpenters and other building and con-
struction crafts and mixing, handling and conveying of all materials
used by masons, plasterers, carpenters and other building and construc-
tion crafts whether done by hand or by any other process . . . ." It
seems apparent, and we find, that the disputed work could arguably
fall within either jurisdictional description and therefore these de-
scriptions in themselves give us no aid with respect to a proper dis-
position of the case.
s The record reflects that a mechanical applicator is economically justified on only a
small percentage of Badolato 's jobs; that a larger number of jobs warrant use of a
power mixer without the applicator ; and that on many jobs plaster continues to be mixed
by hand and carried by hod or wheelbarrow . Moreover, even on jobs where power equip-
ment is used , one or both types of equipment may be used one day and not the next, or
for a fraction of any one day.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 66 1399
Badolato has been in the business of plastering contractor for some
40 years. For many years he has used powered plaster mixers on
jobs large enough to make their use feasible, and for the past 6 or
'7 years he has used a powered applicator where economically justi-
fied. There is no evidence that prior to the advent of applicators
the Engineers claimed work connected with the plaster mixer and the
Engineers' brief suggests that the present dispute involves the opera-
tion " in combination" of the mixer and the applicator. Assuming
arguendo that this is a proper framing of the disputed work, the
record discloses a uniform practice on the part of Badolato to assign
-the operation of the mixer and applicator, whether operated sepa-
rately or in combination, initially to employees engaged as hod car-
riers, and in the vast majority of jobs this assignment remains undis-
turbed. In those few cases when a member of the Engineers has been
-engaged by Badolato to perform the disputed work, it has been after a
demand, such as was made in the instant case, either to Badolato or
the general contractor, accompanied by an express or implied threat
that failure to comply would result in picketing and/or withdrawal
of other members of the Engineers from the job. Under the circum-
stances, we find that the Employer's assignment of the disputed work
to employees engaged as hod carriers is consistent with his past prac-
tice. Moreover, the evidence in the record as to custom and practice
of other employers in the plastering industry in the tristate area is
similar to the past practice of Badolato.9
While the record discloses no applicable Joint Board determination
prior to the issuance of the notice of hearing in the instant case, there
is evidence that following the notice of hearing the Engineers filed
,with the Joint Board notices of dispute covering the instant dispute
and two similar ones. In each of the three cases the employer in-
volved refused to participate, as did the Laborers, taking the position
that the Joint Board was without authority because the employer was
not "stipulated" to the Joint Board. The Joint Board held in abey-
ance the instant dispute, apparently in view of the instant proceeding.
As to the other two cases, the Joint Board awarded the disputed work
to the Engineers. The record does not disclose what facts were con-
sidered by the Joint Board or the basis for its awards. The awards
carry the proviso that "this action of the Joint Board was predicated
upon particular facts and evidence before it regarding this dispute
g The Engineers contends that the hearing officer erred in excluding testimony as to
the power equipment and work assignments of contractors in the construction industry
other than plastering contractors. The Engineers' brief states in this connection "that
if the criteria of area practice is determinative of this dispute, serious consideration
should be given to reopening the hearing because of the Hearing Officer's rejection of evi-
dence relevant and material to this issue " The Engineers' request to reopen the hearing
is denied inasmuch as evidence as to a different field of contracting was properly excluded
in this case
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and shall be effective on this particular job only." Under these cir-
cumstances , the fact of the Joint Board award cannot have significant
weight in our determination of the instant dispute.
Conclusions as to the Merits of the, Dispute
We recently stated in the J. A. Jones 10 case that pursuant to the
mandate from the Supreme Court in the matter of CBS,11 we would
in each case properly presented for resolution under 10(k) of the Act,
determine the proper assignment of disputed work only after taking
into account and balancing all relevant factors.
The instant dispute arises basically from a technological change oc-
curring in the plastering industry. A new method of conveying plas-
ter to the journeyman plasterer has been brought into use, and we are
called upon to decide whether, on the facts in this record, the disputed
work should be awarded to employees engaged as hod carriers or to
members of the Engineers. We conclude that it should be awarded
to hod carriers.
The record reflects that, traditionally, a hod carrier has mixed plas-
ter and conveyed it to the journeyman plasterer whose task it was to
apply it to the surface being plastered. Before the introduction of
mechanical equipment, plaster was mixed by hand and carried by hod,
and on small jobs these methods still apply. Many years ago power
mixers were introduced to replace and/or supplement the hand-mixing
operation and the record is clear that the hod carrier, virtually without
exception, operated the mixer. In more recent years mechanical appli-
cators have been used to convey the plaster from the place where it is
mixed to the journeyman plasterer who controls the applicator nozzle
in applying the plaster. It is the "operation" of mixer and applicator
which is in dispute. Badolato's practice, and that of other employers
in the industry, is to assign the disputed work to hod carriers in the
absence of economic pressure by the Engineers. There are no Board
certifications or contracts compelling the assignment to the Engineers,
nor are there outstanding jurisdictional assignments or awards which
we deem material. There is no showing that the disputed work insofar
as Badolato's operation is concerned requires skills specially possessed
by members of the Engineers, but rather that a modicum of on-the-job
training suffices. The work involves an application of mechanical
power to a task heretofore done by hand; the operation of this rela-
tively common and simple source of laborsaving power which con-
sumes a small portion of each workday to accomplish can be performed
10 International Association of Machinists , Lodge No 1743, AFL-CIO (J. A. Jones
Construction Company), 135 NLRB 1402.
11 N.L.R B. v. Radoo 4 Television Broadcast Engineers Union Local 121$, etc (Columbia
Broadcasting System ), supra.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 66 1401
readily and satisfactorily as an incident to work traditionally done by
hod carriers.
Because of all these considerations and based upon the entire record,
we shall determine the dispute by assigning the controverted work to
employees engaged as hod carriers.'2 In making this determination,
we are assigning work to hod carriers, who are represented by the
Laborers, and not to the Laborers or its members. Our assignment
is to be regarded, moreover, as limited to the facts and circumstances
of Badolato's plastering contracting operations and as directed at the
controversy which gave rise to these proceedings. Also, in view of our
assignment, we shall provide in our determination that the Engineers
was not, and is not, entitled to use methods proscribed by Section
8 (b) (4) of the Act to force or require Badolato to assign the disputed
work to its members rather than to hod carriers.
The Scope of the Determination
As heretofore stated, the Engineers contends that since the job in
which the dispute arose has been completed, the case is now moot,
pointing out that the Joint Board in settling such disputes ordinarily
restricts itself to the particular job involved and urging that this
Board should follow the same practice. We do not agree that the case
is moot, particularly where, as here, the evidence discloses a number
of similar disputes in the recent past and there is no evidence that
similar disputes will not occur in the future. In such cases, we also
do not agree that, as a policy matter, this Board should restrict itself
to a single job determination. It seems to us apparent that a practice
which may be desirable for a private and voluntary settlement may not
be equally valid where a public body acts pursuant to statute. We
believe that the scope of the determination in 10(k) cases should be
decided upon the basis of the facts in each case. Under the facts of the
instant case, we hold that the determination should apply to Badolato's
plastering contracting operations within the tristate area, in which he
normally operates.
DETERMINATION OF THE DISPUTE
On the basis of the foregoing and upon the entire record in the case,
the Board makes the following determination of the dispute pursuant
to Section 10(k) of the Act:
Employees engaged as hod carriers are entitled to the assignment of
starting, stopping, oiling, greasing, and making minor repairs to
plaster mixers and plaster applicators on plastering jobs performed by
' We do not agree with Badolato's contention that our assignment should run to un-
specified "individuals in the employ of the employer" inasmuch as we have found that
the disputed work is performed as an incident to work traditionally performed by hod
carriers.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Badolato within the tristate area of Pennsylvania, West Virginia, and
Ohio. Accordingly, Engineers Local 66 is not and has not been law-
fully entitled to force and require Badolato to assign such work to its
members.
Within 10 days of the date of this Decision and Determination of
Dispute, International Union of Operating Engineers, Local 66, AFL-
'CIO, shall notify the Regional Director for the Sixth Region, in writ-
ing, whether or not it will refrain from forcing or requiring Frank
P. Badolato & Son, by means proscribed by Section 8(b) (4) (D), to
assign the work in dispute to its members rather than to employees
-engaged as hod carriers.
International Association of Machinists , Lodge No. 1743, AFL-
CIO and J. A. Jones Construction Company. Case No. 19-CD-
68. February 28, 1962
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
determine the dispute out of which such unfair labor practice shall
have arisen. . . ."
On July 26, 1961, J. A. Jones Construction Company, herein called
the Employer, filed with the Regional Director for the Nineteenth
Region a charge, amended August 2, 1961, alleging, inter alia, that
International Association of Machinists, Lodge No. 1743, AFL-CIO,
herein called the IAM, had violated Section 8(b) (4) (D) of the Act
by inducing or encouraging employees "to engage in a strike or re-
fusal in the course of their employment to handle or work on certain
materials and perform certain services" for the purpose of requiring
the Employer to assign the operation of overhead electric cranes to
members of the IAM after the Employer had assigned this task to
members of the International Brotherhood of Electrical Workers,
Local 112, herein called the IBEW.
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, as
amended, the Regional Director investigated the charges and pro-
vided for an appropriate hearing upon due notice to all the parties.
The hearing was held before James M. Fitzpatrick, hearing officer,
beginning on August 16 and ending August 22, 1961. The IBEW
was allowed to intervene as a party in interest to the dispute. All
parties appeared at the hearing and were afforded full opportunity
135 NLRB No. 139.