Int'l Union of Operating Engineers, Local 542

National Labor Relations Board - Board Decisions

Nov 4, 1963

144 N.L.R.B. 1351 (N.L.R.B. 1963)

INT'L UNION OF OPERATING ENGINEERS , LOCAL 542 1351
condition of employment, as authorized in Section 8(a) (3) of the Act , as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Gerhard Heil (employee ) immediate and full reinstate-
ment to his former or substantially equivalent position , without prejudice to
his seniority or other rights and privileges of employment , and make him
whole for any loss of pay or earnings he may have suffered by reason of our
discrimination against him.
All of our employees are free to become or remain, or to refrain from becoming
or remaining members of the above -named or any other labor organization.
TOMAHAWK BOAT MANUFACTURING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 316
Federal Building, 110 South Fourth Street, Minneapolis , Minnesota , Telephone No.
339-0112, Extension 2601, if they have any questions concerning this notice or com-
pliance with its provisions.
International Union of Operating Engineers , Local No. 542, and
its Agents , Robert Walsh and Robert P. Cahill and The Bell
Telephone Company of Pennsylvania
International Union of Elevator Constructors , Local No. 5, and
its Agent , Robert M. Williams and The Bell Telephone Com-
pany of Pennsylvania . Cases Nos. 4-CD-86 and 41-CD-87. No-
vember 4, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by The Bell Telephone Company of Pennsylvania, herein
called Bell, alleging that International Union of Operating Engineers,
Local No. 542, herein called the Engineers, and its Agents, Robert
Walsh and Robert P. Cahill, and, International Union of Elevator
Constructors, Local No. 5, herein called the Constructors, and its
Agent, Robert M. Williams, induced or encouraged employees to en-
gage in a strike, and threatened, coerced, or restrained persons en-
gaged in commerce in order to force or require Bell to assign particular
work to employees who were members of their respective unions. A
hearing was held before Hearing Officer Jerome F. Connor between
January 11 and March 15, 1963, at which all parties were afforded
full opportunity to be heard,, to examine and cross-examine witnesses,
and to adduce evidence bearing upon the issues.' The rulings of the
The Engineers alleges that the Hearing Officer did not afford It a full opportunity to
be heard by not allowing further evidence to be presented as to area practice , by cutting
off some of its questioning of witnesses, and by closing the hearing while Engineers'
counsel was not present. The Board has considered the briefs and the entire record in
this case , and finds no merit in these allegations . We are satisfied from the record that
the Hearing Officer made every possible effort to cooperate with Engineers ' counsel,
144 NLRB No. 126.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hearing Officer made at the hearing are free from. prejudicial error
and are hereby affirmed? Briefs filed by the parties have been duly
considered.3
Upon the entire record in the case, the Board 4 makes the following
findings :
1. The business of the Company
Bell is a telephone company providing intrastate and interstate
communications services to the general public. Bell Telephone Com-
pany of Pennsylvania does an'annual gross volume of business exceed-
ing $100,000, and annually purchases more than $50,000 in goods and
materials from outside the State, and sells more than $50,000a. year in
products outside the State. We find that Bell is engaged in commerce
within the meaning of the Act.
2. The labor organizations involved
International Union of Operating Engineers, Local No. 542, Inter-
national Union of Elevator Constructors, Local No. 5, and The
Abraham E Freedman , in the presentation of his case , and we are further satisfied that his
rulings regarding the above matters were fair and judicious and free from prejudicial error.
Those rulings are hereby affirmed.
The Federation of Telephone Workers of Pennsylvania, herein called the Federation,
intervened at the hearing on the basis of a current contract
2 In addition to the rulings considered in footnote 1, above, the Engineers contends that
the Hearing Officer acted arbitrarily and capriciously in overruling certain of its objections
made at the hearing, and also by denying the requests of Freedman for postponements for
January 17, February 19, and March 14 and 15, 1963 After due consideration of the
record and briefs in the case , the Board is satisfied that none of the Hearing Officer's rul-
ings was prejudicially erroneous , and hence they are affirmed
The Engineers further contends that, if the Board does not find for the Engineers on
the basis of the present record, that it should , in light of the many allegedly arbitrary and
prejudicial rulings of the Hearing Officer , grant a trial de novo. In view of our findings
above regarding the Hearing Officer's rulings , we hereby deny the Engineers ' request for a
new trial.
3 All parties to the case herein filed briefs with the Board. After the briefs had been
received , Bell requested , and was granted , permission to file a special reply brief which
addresses itself to a defense of the Hearing Officer's conduct and the fairness of his rulings,
which were severely criticized in the Engineers' brief
In the Engineers ' brief, and throughout the hearing, Freedman charges the Hearing
Officer, inter alie, with "arbitrary and capricious conduct ," "distasteful arrogance," a
"lack of maturity ," and "extraordinary bias, hostility and incompetency " He further
charges that opposing counsel in this case were collaborating against the Engineers In
view of these serious charges , the Board has reviewed very carefully the actions and rul-
ings of the Hearing Officer , and also the conduct of Freedman As mentioned above, we
find that none of the Hearing Officer's rulings were unfair or prejudicial . We further find
Freedman 's charges against the Hearing Officer and opposing counsel to be completely
unwarranted
Our careful review of the record has disclosed numerous instances where Freedman not
only made unfounded accusations against opposing counsel and the Hearing Officer, but
otherwise conducted himself in so unseemly a manner as to interfere with and disrupt
the orderly conduct of the hearing We find Freedman ' s behavior in that regard to have
been of such an aggravated character as to warrant our condemnation . We hereby place
Freedman on notice that such conduct , if repeated in future Board cases, may result in the
initiation of appropriate proceedings under Section 102 44 ( b) or Section 102.66 ( d)(2) of
the Board ' s Rules and Regulations.
4 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Cbainnan McCulloch and
Members Leedom and Fanning].
INT'L UNION OF OPERATING ENGINEERS, LOCAL 542 1353
Federation of Telephone Workers of Pennsylvania, are labor organi-
zations within the meaning of the Act.
3. The dispute
a. The work in dispute
The work dispute which gave rise to this proceeding occurred at
Philadelphia, Pennsylvania, where Bell was engaged in the construc-
tion of a new 18-story office building.5 The contract for general
construction was awarded to the McCloskey Construction Company
of Philadelphia. The Westinghouse Electric Company's elevator
division was engaged in installing elevators in the new building.
There are nine elevators in the building, one a hydraulic plunger-type
freight elevator which travels from the first floor to the basement, and
eight automatic elevators-four low-rise and four high-rise.
During the course of construction of the building it was necessary
to haul building materials, i.e., materials which would become a
permanent part of the building structure itself, and building and con-
struction personnel. It was conceded that traditionally the Con-
structors operate elevators carrying personnel, and the Engineers
operate elevators hauling building materials. However, a dispute
arose as to who should operate elevators to haul furniture into the
offices of the Parkway Building, while the building was being con-
structed. The Board is asked to decide who should be assigned the
work of operating the elevators for the purpose of moving furniture
when the elevators are still of the "temporary type," 6 and also when
the elevators are of the automatic type which have already been
"turned over" to Bell.' The work of operating temporary elevators
to move furniture is claimed by the Engineers and the Constructors;
on turned-over elevators, the work is claimed by the Federation, as
well as by the Engineers and the Constructors.
b. Evidence of conduct violative of Section 8(b) (4) (D)
On or about October 17, 1962,8 Bell began to set into motion its
plan to have its furniture moved to the various floors as they were
completed, planning to make those moves on Friday nights and week-
ends. At that time, none of the elevators had yet been turned over
5 The building, herein referred to as the Parkway Building, has now been completed.
6 A "temporary" elevator is any elevator which has not yet been accepted by the building
owner, and which still belongs to the elevator manufacturer. Such elevators are usually
manual until the time they are turned over to the building owner.
A "turned-over" elevator is one which has been completely constructed, has passed the
State inspection requirements and received an operating license, and has been accepted by
the building owner (herein, Bell).
8 Unless otherwise specified, all dates hereinafter refer to 1962
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Bell, and Bell did not know exactly when any of them would be
turned over.
After contacting both the Engineers and the Constructors and
inquiring about their pay scales involved in moving furniture, Freas
Ertwine, an engineering associate with Bell who was in charge of
the furniture moves, hired four engineers for the first scheduled
move of October 26. Robert M. Williams, a business representative
of the Constructors, at that point informed Ertwine that the Construc-
tors had no objection to Bell using its own employees, but that it would
strike if Bell used the Engineers.
In view of this threat, Ertwine canceled the order for the four
engineers, whereupon the Engineers informed Ertwine that if Bell
used its own employees for the move, or used anyone other than the
Engineers, Bell would be "in serious trouble." Ertwine once again
hired four engineers for the move. Williams then reiterated the
Constructors' threat to strike if Bell used Engineers. Ertwine at
that point once again canceled the order for four engineers, and told
Robert Walsh, business representative of the Engineers, that Bell
would use its own employees. Walsh responded that there would be
a strike if Bell did so.
On the morning of October 26, Ertwine offered as a compromise
the suggestion that three engineers be used to operate those ele-
vators moving the furniture and three constructors to operate those
carrying personnel. Both the Engineers and the Constructors
agreed, and the move was made that evening, using the three-three
arrangement.9
Bell's second move was scheduled for November 23. On October
29, Williams informed Ertwine that the Constructors did not wish
to continue with future moves under the three-three arrangement,
because such an arrangement was simply featherbedding. Williams
again stated that the Constructors had no objection to Bell using its
own employees on turned-over elevators, but that if any building
trades men were employed on the elevators, then the Constructors
claimed the work.
On or about October 30, Walsh contacted Ertwine to talk about
the future moves, stating that the Engineers were content with the
three-three arrangement. Ertwine told Walsh that the Construc-
tors had refused to continue the arrangement, and that Bell had
decided to use its own men on the turned-over elevators for the Novem-
ber 23 move. Walsh stated that the Engineers continued to claim the
O During the afternoon of October 26, the four low-rise elevators were turned over to,
and accepted by, Bell, and these four elevators, along with two temporary ones, were used
for the move . Ertwine testified that Bell had not known when these elevators would be
turned over , because, although Westinghouse had promised to turn them over on October 26,
prior assurances of completion dates had not been met
INT'L UNION OF OPERATING ENGINEERS, LOCAL 542 1355
work, and that Bell was not allowed to use its own employees since
it had already assigned the job to the Engineers.
On the evening of November 23, employees of Ryan and Christie
Transfer Corporation arrived at the Parkway Building, and were
preparing to move the furniture in themselves, when Walsh approached
the foreman and asked if he planned to move the furniture on the
elevators. Upon receiving an affirmative answer, Walsh and Robert
P. Cahill, another business representative of the Engineers, along
with other members of the Engineers, formed a picket line. The
Ryan and Christie employees thereupon refused to cross the picket
line, and the move could not be effected that day.
On December 21, pursuant to a petition filed by the National Labor
Relations Board, Judge Luongo of the United States District Court
in Philadelphia signed a decree granting the Board a temporary
injunction enjoining both the Engineers and the Constructors from
picketing or taking like action pending the Board's disposition of
the instant matter. On December 11, during the injunction hearing,
Bell moved furniture into its building using two Engineers and two
Constructors. This arrangement was made by the parties at the sug-
gestion of Judge Luongo. Moves made after the injunction was
granted were made with either Bell personnel or personnel of the
moving companies operating the elevators.
c. Contentions of the parties
The Constructors contends that when elevators have been turned
over to Bell, it has no objection if Bell assigns the work to its own
employees, or to employees of a moving company, but if Bell decides
to assign the work to any building trades union, then that union should
be the Constructors. The Constructors claims the work as to all
uncompleted or temporary elevators used to haul furniture, because
it claims to be the most qualified to handle mechanical trouble which
may arise. It further contends that it has not violated the Act,
because Bell's final assignment (after October 26) was to the movers,
an assignment to which it did not object, and following which it did
not make further claim to the work.
The Engineers contends that, so long gas a building is incomplete,
the job of operating elevators hauling furniture into that building
belongs to the Engineers, whether the moves be made on temporary
or turned-over elevators. It contends further that Bell had entered
into an oral agreement with the Engineers giving it the job of operat-
ing all elevators hauling furniture into all 18 floors of its building.
Hence, it contends that the picketing of November 23 was for work
already assigned, and was not in violation of the Act.
The Federation has a current contract with Bell which covers
building service and maintenance people, including elevator operators.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It does not claim any work on temporary elevators,10 but contends that,
once the elevators have been turned over to Bell, then the job of op-
erating them belongs to Bell's own employees. The Federation states
that, where the elevators in any particular Bell building are com-
pletely automatic, as at the Parkway Building, it never insists or
requests that Bell assign an operator to push the buttons of such an
elevator. However, it contends that, if Bell chooses to assign an
operator to such an elevator, then it must assign one of its own ele-
vator operators, currently represented by the Federation.
Bell contends that it should be free to assign its own employees
to operate turned-over elevators, or else to allow the movers to operate
the elevators. Bell does not have any written collective-bargaining
agreements with either the Engineers or the Constructors. It con-
tends that it had originally made an oral agreement with the Engi-
neers for the move of October 26, but had not made any agreement for
moves subsequent to that date.
d. Applicability of the statute
The record shows clearly that Bell canceled its agreement with the
Engineers for four elevator operators for the October 26 move due to
the threat of strike made by the Constructors. Further, although
the Constructors did not object to Bell assigning the work to its own
employees or to the movers, it did, following the October 26 move,
continue to claim the work if Bell decided to assign the work to any-
one other than those employees. We find this to be a continued im-
plied threat to strike if Bell should have decided to assign future
work to the Engineers. The Engineers' initial threat to strike was
made only after Bell's cancellation of its request for Engineers for
the October 26 move. However, we find, upon the entire record that,
by this request for four elevator operators to be used in the October 26
move, Bell did not make an assignment to the Engineers for all moves
subsequent to that date, and that hence the Engineers' picketing on
November 23 had as an object the forcing of such assignment.
We find that there is reasonable cause to believe by the foregoing
conduct that the Engineers and its agents, Robert Walsh and Robert
P. Cahill, violated Section 8 (b) (4) (i) and (ii) (D), and the Con-
structors, and its agent, Robert M. Williams, violated Section
8(b) (4) (ii) (D), and that the dispute is properly before the Board
for determination under Section 10 (k) of the Act.ll
10 The operation of uninspected elevators must be by either "an experienced elevator
erector or hoisting engineer ," according to the requirements of the Pennsylvania Depart-
ment of Labor and Industry
n As there is no evidence to show that Williams' threats to strike were communicated
to anyone other than Ertwine, we find no reasonable cause to believe that the Con-
structors or Williams have violated Section 8(b) (4) (i ) (D) of the Act.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 542 1357
e. Merits of the dispute
The Parkway Building has now been completed and all furniture
has been moved into its floors. Nevertheless, the Board is asked, to
decide the questions in issue because of the likelihood that this same
jurisdictional question will arise in the future.
On the basis of the entire record, we shall determine the dispute
with regard to turned-over elevators by assigning the work in question
to the employees of Bell, currently represented by the Federation. In
so finding, we give particular weight to: (1) the Federation's con-
tract with Bell covering elevator operators, (2) the fact that neither
the Engineers nor the Constructors has collective-bargaining agree-
ment with Bell, (3) the fact that Bell's original assignment to the
Engineers for October 26 was made at a time when the elevators were
all temporary, (4) record evidence showing that in the past, when-
ever operators have been assigned to operate turned-over elevators in
Bell's buildings, those operators have been employees of Bell repre-
sented by the Federation, and (5) the lack of evidence tending to
show any necessity for the utilization of the special skills of either
an engineer or a constructor on automatic elevators.
In making this determination, we wish it understood that the assign-
ment is to the employees of Bell, who are currently represented by the
Federation of Telephone Workers of Pennsylvania, and not to that
Union or its members.
However, we wish to note that we are specifically not finding that
Bell must assign its own elevator operators to operate the automatic
elevators while moving furniture in its Parkway Building in a situa-
tion where Bell's contract with a furniture mover contemplates that the
latter provide its own employees for that purpose. It may in that
event continue its practice of allowing the employees of its contracting
furniture movers to operate its automatic elevators while moving
furniture.12 We are finding only that, when Bell does assign an
elevator operator to operate its own automatic elevators gat the Park-
way Building for the purpose of hauling furniture, it must assign
such work to its own employees who are currently represented by the
Federation.
We further find that the question of who should be assigned the
work of operating temporary elevators in the Parkway Building for
the purpose of hauling furniture is not properly before us. There
are no more temporary elevators in the building, and the question is
therefore moot.13 Furthermore, until they were turned over to Bell,
12 As stated above , the Federation does not insist that Bell - assign operators to auto-
matic elevators
13 The dispute involving the "turned-over" elevators is not moot in the same sense, be-
cause the Engineers has claimed the work of operating the elevators even in the future,
during such repairs or alterations as may occur.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the elevators belonged to Westinghouse , and the question of whether
the Engineers or the Constructors should have been assigned to that
work appears to be one in which Westinghouse , and perhaps the gen-
eral contractor , McCloskey , are also concerned. Neither Westing-
house nor McCloskey is a party to this proceeding . Accordingly, we
shall not decide this aspect of the dispute.
DETERMINATION OF THE DISPUTE
Upon the basis of the foregoing findings, and the entire record, the
Board makes the following Determination of Dispute pursuant to
Section 10 (k) of the Act :
1. Employees of The Bell Telephone Company of Pennsylvania
engaged as elevator operators and currently represented by the Fed-
eration of Telephone Workers of Pennsylvania are entitled to operate
Bell's own automatic elevators at its Parkway Building, Philadelphia,
Pennsylvania, while furniture is being moved into this building, if Bell
elects to assign elevator operators to such work. Accordingly, neither
International Union of Operating Engineers, Local No. 542, and its
agents, Robert Walsh and Robert P. Cahill, nor International Union
of Elevator Constructors, Local No. 5, and its agent, Robert M. Wil-
liams, is entitled to force or require Bell Telephone Company of
Pennsylvania to assign the above-mentioned disputed work to elevator
operators currently represented by their respective unions.
2. Within 10 days from the date of this Decision and Determination
of Dispute, International Union of Operating Engineers, Local No.
542, and its agents, Robert Walsh and Robert P. Cahill, -and Inter-
national Union of Elevator Constructors, Local No. 5, and its agent,
Robert M. Williams, shall notify the Regional Director for the Fourth
Region, in writing, whether or not they will refrain from forcing or
requiring The Bell Telephone Company of Pennsylvania, by means
proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in
dispute to members of Engineers Local No. 542, or Constructors Local
No. 5, respectively.
Cement Masons Local 694, Operative Plasterers ' and Cement
Masons' International Association of the United States and
Canada, AFL-CIO, and its Agent, Ray E . Edwards and Edgar
H. Hughes Company, Inc.' Case No. 9-CD-67. November 4,
1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act following a charge filed by Edgar H. Hughes
'The name of the Employer , the Charging Party, appears as amended at the hearing.
144 NLRB No. 122.