Local 595

National Labor Relations Board - Board Decisions

May 20, 1955

112 N.L.R.B. 812 (N.L.R.B. 1955)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the letter in issue herein is merely an expression of the Employer's
opinion and argument and electioneering propaganda privileged under
Section 8 (c) of the Act. Moreover, it does not appear to us that
the portion of the letter specifically adverted to by the Petitioner is
such as to influence the employees improperly or to prevent their exer-
cise of a free choice 2
Accordingly, as we have found no merit in the Petitioner's objec-
tions, and, as the tally shows that a majority of the ballots has not been
cast for the Petitioner, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for Local No. 49, International Union of Operating Engineers,
A. F. L., and that the said Union is not the exclusive representative
of the employees at the operations of L. G. Everist, Inc., Dell Rapids,
South Dakota.]
a Stewart-Warner Corporation, supra.
Local 595, International Association of Bridge , Structural and
Ornamental Iron Workers, A. F. L., and Its Business Agent,
W. B. Sanders , Iron Workers Association , Inc. and W. B. Sand-
ers, Resident Agent and Bechtel Corporation. Case No. 14-
CD-39. May 20,1955
DECISION AND ORDER
On December 15, 1954, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondents had not engaged in and were not engaging in any unfair
labor practices within the meaning of Section 8 (b) (4) (D) of the
Act. Accordingly, he recommended that the complaint be dismissed
in its entirety. Thereafter, the General Counsel filed exceptions and
a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
this Decision and Order.
1. Pursuant to Section 10 (k) of the Act, the Board issued a Deci-
sion and Determination of Dispute on May 11, 1954.1 It found that
Respondents, Local 595 and W. B. Sanders, were not lawfully entitled
1 Local 595, International Association of Bridge , Structural and Ornamental Iron Workers,
A. F. L., and its Business Agent, W. B. Sanders , 108 NLRB 823.
112 NLRB No. 110.
LOCAL 595 813
to induce and encourage employees of Bechtel Corporation, as pro-
scribed by Section 8 (b) (4) (D), for the object of forcing or requir-
ing Bechtel to assign the work of the ironworker's trade in connection
with the Joppa Steam Electric Generating Plant project to members
of Local 595 rather than to nonmembers of Local 595 or to members
of Local 758, International Association of Bridge, Structural and
Ornamental Iron Workers, AFL. In the determination the Board
stated, inter alia, that "within ten (10) days from the date [thereof]
, the Respondents . . . shall notify the Regional Director for
the Fourteenth Region, in writing, as to what steps [they] have taken
to comply with the terms of this Decision and Determination of
Dispute."
The principal issue for consideration here is whether the Respond-
ents, Local 595 and Sanders, have complied with the Decision and De-
termination of Dispute. The General Counsel contends that the
failure of these Respondents to send a letter to the Regional Director
within the time specified in the notice provision constitutes noncom-
pliance by them and justifies his issuance of the instant 8 (b) (4) (D)
complaint. The Trial Examiner in recommending dismissal of the
complaint relies upon the Board's order 2 and decision 3 in the West-
inghouse case as dispositive of the issue.
In the Westinghouse case, the Board held (1) that the intent of
Congress was that the General Counsel should allege and prove non-
compliance with a 10 (k) determination in the 8 (b) (4) (D) proceed-
ing; (2) that the particular respondents were not proven by substan-
tial evidence to have engaged in any strike or other compulsive
activity that could constitute noncompliance with the terms of the de-
termination; and (3) that because no affirmative action was required
by the Board's determination, the failure to notify the Regional Direc-
tor of what was or was not clone did not alone establish noncompliance.
In our opinion, for the reasons which will be hereinafter given, the
present case is clearly distinguishable from Westinghouse. However,
before discussing the substantial difference between these two cases,
some observations appear appropriate as to how Sections 10 (k) and
8 (b) (4) (D) fit into the statutory scheme and as to the nature of
compliance with a 10 (k) determination.
The substantive matter presented by this complaint proceeding is
whether the Respondents engaged in unfair labor practices within the
meaning of Section 8 (b) (4) (D) by certain conduct occurring before
the filing of the charge on which the complaint is based. Section 8
(b) (4) (D) alone defines the unfair labor practice and it makes no
reference to compliance. Such reference is to be found in Section 10
(k) which states, in relevant part, that "upon compliance by the
0 Los Angeles Building and Construction Trades Council , A F. L, et at., 88 NLRB 1101.
3 Los Angeles Building and Construction Trades Council , A. F. L, et at, 94 NLRB 415.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Respondents] . . . with the [10 (k) ] decision of the Board . .
[the 8 (b) (4) (D) ] charge shall be dismissed." Section 10 (k) must
be viewed as a part of the whole procedural machinery prescribed in
Section 10 for the prevention of all unfair labor practices. The heart
of this machinery is Section 10 (b) which provides for investigation
of a charge and issuance of a complaint based thereon by the General
Counsel. For a charge alleging an unfair labor practice other than
one involving 8 (b) (4) (D), if investigation discloses reason to be-
lieve that it is true, formal proceedings are initiated by an unfair labor
practice complaint. For an 8 (b) (4) (D) charge, Section 10 (k) in-
terposes an intermediate formal step between the completion of inves-
tigation of the charge and the issuance of a complaint based thereon..
It provides for a hearing and a declaratory ruling by the Board on.
the question of legal entitlement to force or require the work assign-
ments involved in the underlying dispute, which is designed to facili-
tate settlement of the dispute and to obviate the need for further pro-
ceedings. If the 10 (k) procedure has failed to produce a settlement or
acceptance by the parties of the Board's determination of the under-
lying dispute, then the further proceedings-the issuance of a coin-
plaint based on the charge followed by the traditional procedure for
determination and redress of all unfair labor practices-are spelled
out in Section 10 (b), not 10 (k). Once the procedural conditions,
precedent to the invocation of Section 10 (b) have been met and a com-
plaint has been properly issued, the only substantive matter then to
be decided in an 8 (b) (4) (D) proceeding is whether an unfair labor
practice was committed within the meaning of that section as of the
time alleged and, if so, what the appropriate remedy should be.
As previously indicated, Section 10 (k) requires that if the respond-
ents have complied with the Board's determination, the charge must be
dismissed. Unlike other complaint cases where the Board's decision
is implemented by a remedial order which is subject to judicial review
or enforcement, this is the only sanction supporting the Board's in-
terim declaration of the rights of the parties. It is clear therefore,.
that, before any consideration can now be given to the merits of the
alleged 8 (b) (4) (D) violation here, we must first decide whether
the Respondents have complied with our 10 (k) determination. In
order to arrive at such a decision, we must explicate what we believe
constitutes compliance, or the want of it. Obviously, the criterion
for assessing compliance must perforce give due recognition to the
basic purpose of Section 10 (k), which is to attempt to resolve by
effective voluntary action jurisdictional disputes that otherwise would
have to be remedied by the compulsory processes of the Act. In the
10 (k) proceeding involved herein the Board determined that the
Respondents, Local 595 and Sanders, were not lawfully entitled to
engage in certain conduct. If that had been an 8 (b) (4) (D) pro-
LOCAL 595 815
ceeding and the Board found that the Respondents had violated the
Act, the remedy would have been an order restraining them from
doing that which we held they might not lawfully do. However,
Section 10 (k) gives a respondent union the opportunity to forestall
such an order by complying with the Board's determination. But
since the ultimate objective of a 10 (k) and an 3 (b) (4) (D) pro-
ceeding is the same-to obtain cessation of the particular conduct-
the measure of compliance should likewise be the same. Otherwise,
compliance would be meaningless and the statutory purpose of pro-
viding an effective voluntary substitute for compulsory remedial ac-
tion would be thwarted and frustrated.
In our opinion, the minimal requirement for a finding of compli-
ance with a 10 (k) determination ought to be a manifested good-faith
intent by the particular respondents to accept and abide by the Board's
determination and to refrain then and in the future from doing that
which the determination has stated may not rightfully be done. It
should include performance by the respondents of substantially the
same kind of acts as would be required for a showing that they were
intending to abide by a remedial order of the Board, such as indicating
a willingness to confer with the Regional Director regarding imple-
mentation of their avowed inten( to accept the Board's determination,
furnishing appropriate notices to employees and/or the particular
employer, if considered advisable by the Regional Director, and giv-
ing such additional assurances as the Regional Director might require
to insure adherence to the determination. We believe that a refusal
or unwillingness so to abide by and accept the Board's determination
constitutes evidence of noncompliance warranting issuance of a
complaint.
We turn now to a consideration of the situation in the instant case
in the light of the foregoing standard which we have set forth and the
Board's decision in the Westinghouse case. In Westinghouse, the
Board alluded in passing to the absence of "any strike or other com-
pulsive activity" by the respondents subsequent to the 10 (k) deter-
mination. The Trial Examiner seizes upon this language as standing
for the proposition that evidence of such conduct is a sine qua non
for a finding of noncompliance. We do not accept this interpretation
of the Trial Examiner. In our opinion, the Board was merely giving
illustrative and not exclusive examples of the types of conduct which
would constitute noncompliance. Of course, engaging in the same or
similar conduct which constituted the basis for the Board's 10 (k)
determination affords the most patent proof of noncompliance. But
this does not mean there can be no other. Indeed, in the Juneau
Spruce case,' the Board in finding a failure of compliance specifically
4Internatmuai Lonry,horen(en's and IVarehouscmer'n Union, Local No 16, CIO, et al,
90 NLRB 17:13
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred to an express statement by the respondent union that it "did
not elect . . . to comply" and its continued adherence to the jurisdic-
tional claim as well as its continued picketing after the 10 (k)
determination.
The record in this case fails to show any strike or other compulsive
activity independently violative of Section 8 (b) (4) (D) engaged
in by the Respondents after the date of the 10 (k) determination.
Nor is there evidence of any express declaration by the Respondents
that they refused to comply before issuance of the complaint. In our
opinion, the compliance issue must be resolved by answering the
question whether the failure of the Respondents to notify the Re-
gional Director within the time prescribed by the notice provision in
the 10 (k) determination, what steps they had taken to comply, justi-
fied a presumption that the Respondents did not intend to abide by and
accept the Board's determination, which warranted issuance of the
complaint.
In the Westinghouse case, the Board held that the union's failure to,
furnish the Regional Director with written notice, standing alone,
was insufficient to establish noncompliance with the terms of the
Board's 10 (k) determination. The General Counsel contends that
the situation there was different in that the notice provision in the
10 (k) determination was a permissive one 5 (". . . the Respondents.
may notify the Regional Director . . . what steps [they] have taken
to comply. . . .") whereas in the 10 (k) determination here it was.
mandatory or imperative (". . . the Respondents shall notify the Re-
gional Director. . . ."). The Trial Examiner is of the opinion that
the Westinghouse decision does not turn upon whether the respondents
might or must give written notice to the Regional Director, but rather
on the broad principle that the General Counsel has the burden of
proving noncompliance and the mere failure to furnish notice is in-
adequate to support a finding of noncompliance.
With respect to the change in the notice provision from the "may"'
used in Westinghouse to the "shall" used here, we think that the posi-
tion taken by the General Counsel is a meritorious one. Thus, in
Westinghouse, in referring to the notice provision, the Board said
"... because no affirmative action was required by the Board's deter-
mination," [emphasis supplied], the failure to notify the Regional
Director of what was or was not done did not establish noncompliance.
But, here the notice provision called for affirmative action by the
Respondents. They were directed to furnish written notice within a
specified period of time. The word "shall" in its common and ordi-
nary meaning always has a compulsory sense. ' Regarding inferences
°Los Angeles Building and Construction Trades Council, A F L, et al., 83 NLRB 477-
0 See for example, City of Madison v Daley , 58 Fed 751 , 753, Clark v. Patterson, 21-
Ill 539
LOCAL 595 817
which may be made from a failure to furnish notice within the pre-
scribed time, there is a considerable difference between inaction in the
Westinghouse case where there was no duty to act and a failure to
respond here where affirmative action was required. Not giving notice
where one is under no obligation to do so may signify nothing. Fail-
ure to supply such notice in the face of a positive requirement is
equitable to a refusal. We do not think it too much to expect that a
union having a good-faith intent to accept and abide by a 10 (k)
determination will comply without hesitation with a formal require-
ment of notice to the Regional Director. In our opinion, an inference
of lack of such intent is reasonably to be drawn from a respondent's
failure to comply with the terms of the notice requirement.
We agree with the Trial Examiner that the Westinghouse case places
the burden of proving noncompliance upon the General Counsel.
However, we believe that the General Counsel should be deemed to
have satisfied his obligation when he shows that the respondents were
given an opportunity to comply before the complaint issued and on
the basis of all the evidence brought to his attention, including any
failure of the respondents to supply information which they were
under a duty to submit, he reasonably concluded that the respondents
failed to comply satisfactorily with the 10 (k) determination.
In view of the foregoing, we hold that the failure of the Respond-
ents, Local 595 and Sanders, to furnish written notice to the Regional
Director as required by the determination gave rise to a presumption
of noncompliance which warranted the General Counsel in issuing the
complaint. Furthermore, we find that by the evidence which the
General Counsel has presented, particularly with respect to the failure
of the Respondents to supply information which they were under a
duty to submit, the General Counsel has sustained his burden of
proving noncompliance.
At the hearing in this case on October 18, 1954, the attorneys for the
Respondents, Local 595 and Sanders, presented to the General Counsel
a letter stating that since the date of the temporary restraining order
issued by the U. S. District Court in October 1953, the Respondents
have not attempted to refer any members to the Joppa project, nor
caused any work stoppage, and since May 11, 1954, they have com-
plied with the Board's determination and have not attempted to
force or require Bechtel to assign work of the ironworker's trade to
Local 595 rather than to nonmembers or to members of Local 758.
The General Counsel asserts that the letter contains no assurances
against future violations. Respondents' counsel offered to rephrase
the letter to overcome this objection of the General Counsel 4 and con-
tended that the case was thereby rendered moot.
7 In his brief the General Counsel contends that this finding of fact by the Trial Examiner
is incorrect. However, it is supported by the record.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In our opinion , neither the letter nor the offer can affect the com-
pliance issue . The Respondents were given 10 days after the 10 (k)
determination within which to furnish the required information. We
believe that it is necessary, in order that the policies of the Act may
best be effectuated, that some time limitation be imposed upon a union
within which it must declare its position on compliance. For, under
Section 10 (k) an administrative decision, which is contingent upon
compliance or noncompliance, must be made as to whether the charge
should be dismissed or a complaint issued. This decision, which is pro-
cedural in character and involves an administrative discretionary judg-
ment, must be made by the General Counsel or the Regional Director on
his behalf prior to issuance of the complaint. Its validity must be
tested on the basis of available facts as of that time. As the Respond-
ents' letter and offer were not submitted until after the complaint is-
sued-indeed, about 5 months after the 10 (k) determination-they
were too late to have any impact upon the compliance question. For, as
we have indicated, compliance is a procedural platter having relevance
only with respect to the propriety of the issuance of the complaint and
in this type of situation must be determined on the basis of the facts as
they existed at the time the complaint issued. Regarding the conten-
tion of the Respondents that their letter and offer render the case moot,
it is clear under well-settled principles of both 'Board and court, law
that any possible change since issuance of the complaint in the position
of the Respondents with respect to forcing Bechtel to assign work of
the ironworker's trade to Local 595 does not make the Respondents'
substantive violations moot.8
Having found that the Respondents, Local 595 and Sanders, have
not complied with the Board's 10 (k) determination, we turn now
to the merits of this complaint proceeding which, as we have indicated,
is concerned with whether the Respondents, Local 595 and Sanders,
have engaged in unfair labor practices in violation of Section 8 (b)
(4) (D). All the factors essential for a finding of a violation of this
section of the Act are present here : it is clear from the record that
Local 595 and Sanders were responsible for the work stoppage and
picketing at Bechtel Corporation's Joppa job; by such conduct these
Respondents induced and encouraged the employees of Bechtel to
engage in a concerted refusal to perform services for the Bechtel Cor-
poration; their object was to force Bechtel to assign the work of the
ironworker's trade to members of Local 595 rather than to nonmembers
or to members of Local 758; and Bechtel was not failing to conform
to any order or certification of the Board determining the bargaining
8 Sec for example. Yaninan & Erbe Mfg Co , 89 NLRB 991 ; N L. R B. v United Brother-
hood of Carpenters and Joiners of America , et al, 184 P 2d 60, 63 ( C A 10 ), cert denied
341 U S 947
LOCAL 595 819
representative for the employees performing the work in dispute.
Accordingly, we conclude that Local 595 and Sanders violated Section
8 (b) (4) (D) of the Act.
2. In the complaint in this case the General Counsel has joined
Iron Workers Association, Inc., and W. B. Sanders, resident agent,
with Local 595 and W. B. Sanders, business agent, as Parties Re-
spondent. The General Counsel contends that the Association is
in purpose and in fact an alter ego of Local 595 established by Sanders
and the officers of Local 595 to avoid the inescapable consequences of
their having caused the work stoppage at the Bechtel project. At the
hearing the General Counsel adduced no evidence that the Association
had ever engaged in or was engaging in any conduct disapproved of
by the Board in the 10 (k) determination. The Trial Examiner
found that the Association had not engaged in any unfair labor prac-
tices and, since the record failed to disclose that the Association car-
ried on any of the normal functions of a labor organization, he did
not find that it was a labor organization as defined in the Act.
The Trial Examiner's holding that the Association, under the cir-
cumstances involved here, is not a labor organization is contrary to
Board precedent.9 Thus, under Section 2 (5) of the Act, it is the
purpose for which the organization exists that is controlling and not
whether the organization has actually functioned. The articles of
incorporation of the Association which set forth its purpose 10 satisfy
the statutory definition and we find that the Association is a labor
organization within the meaning of the Act.
The record clearly supports the General Counsel's contention that
the Association is the alter ego of Local 595. However, in view of the
failure of the General Counsel to show that the Association has engaged
in any conduct disapproved of in the 10 (k) determination and in view
of the fact that as an alter ego the Association is covered prospectively
by the cease and desist order which we shall issue against Local 595,
Sanders, and their agents for their violation of Section 8 (b) (4) (D),
we find it unnecessary to include the Association specifically by name
in that order.
THE REMEDY
Having found that the Respondents, Local 595 and Sanders, have
violated Section 8 (b) (4) (D) of the Act, as set forth above, we
shall order them to cease and desist from such conduct. We shall
also order that these Respondents take certain affirmative action de-
signed to effectuate the policies of the Act.
° See for example, 11(odern Cleaners Company, 100 NLRB 37
10"4 To maintain and to help others maintain union principles wages, and hours as
spon,med by the international Association of Bridge, Structural, and Ornamental Iron-
workei s "
P,,W)023-50-vol 112-- i3
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
1. Local 595 and Local 758, International Association of Bridge,
Structural and Ornamental Iron Workers, A. F. L., Iron Workers
Association, Inc., and International Association of Bridge, Structural
and Ornamental Iron Workers, A. F. L., are each labor organizations
within the meaning of Section 2 (5) of the Act.
2. By engaging in a work stoppage and picketing and by inducing
and encouraging the employees of Bechtel Corporation to engage in a
concerted refusal in the course of their employment to perform services
with an object of forcing or requiring Bechtel Corporation to assign
the work of the ironworker's trade to members of Local 595 rather than
to nonmembers or to members of Local 758, the Respondents, Local
595 and Sanders, have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (D) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Local 595, Inter-
national Association of Bridge, Structural and Ornamental Iron
Workers, A. F. L., and its Business Agent, W. B. Sanders, their repre-
sentatives, agents, successors , and assigns, shall :
1. Cease and desist from engaging in, or inducing and encouraging
the employees of Bechtel Corporation to engage in, a strike or a con-
certed refusal in the course of their employment to perform services,
where an object thereof is to force or require Bechtel Corporation to
assign the work of the ironworker's trade to members of Local 595
rather than to nonmembers or to members of Local 758, unless and
until Local 595 is certified by the Board as the bargaining representa-
tive of the employees performing such work.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at their business office copies of the notice attached hereto
marked "Appendix A." 11 Copies of said notice, to be furnished by
the Regional Director for the Fourteenth Region, shall, after being
duly signed by their official representatives, be posted by the Respond-
ents immediately upon receipt thereof, and maintained for a period
of sixty (60) consecutive days thereafter, in conspicuous places in-
cluding all places where notices to members of Respondents are cus-
11 In the event that this Order is enforced by 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 "
LOCAL 595 821
toinarily posted. Reasonable steps shall be taken by said Respondents
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Fourteenth region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
MEMBIEII Muanocx, dissenting :
Because the Decision and Determination of Dispute did not state
what would constitute compliance, I would find, under the circum-
stances here, that the cessation of the proscribed conduct was suffi-
cient to constitute compliance with the determination. I assume that
the Board is interested in the substance of compliance rather than
particular forms. Therefore, the mere fact that the Respondent did
not write a letter to the Regional Director informing him that it had
ceased engaging in the proscribed conduct cannot detract from the
fact of actual compliance by reason of the cessation of the proscribed
conduct.
I note that my colleagues state that the failure of the Respondent
to furnish the written notice to the Regional Director "gave rise to
a presumption of noncompliance." 12 If this is true, I take it that
such presumption is at least rebuttable and I would find that the Re-
spondent did rebut it at the hearing. At that time, attorneys for the
Respondent tendered a letter to the General Counsel stating that since
May 11, 1954, they have complied with the Board's determination
and have not engaged in any of the proscribed conduct. Respondent's
counsel answered an assertion by the General Counsel that the letter
contained no assurances against future violations by offering to re-
phrase the letter to take care of this objection. Particularly, in the
light of this circumstance, it seems to me that my colleagues are
exalting technicalities over the fact of compliance in finding non-
compliance with the Board's determination.
I note that the majority opinion states that the minimal require-
ment for a finding of compliance with a 10 (k) determination "ought
to be a manifested good faith intent by the particular respondents to
accept and abide by the Board's determination and to refrain then and
in the future from doing that which the determination has stated may
not rightfully be done." If this is what the Board now considers
constitutes compliance, then it should so state in its determination in
10 (k) proceedings and in future cases provide for the furnishing of
a statement containing such language to the Regional Director in-
stead of the present ambiguous direction to notify the Regional Di-
rector "as to what steps [they have] taken to comply with the terms
of" the determination of dispute. I would be pleased in future 10 (k)-
determinations to join in providing that the respondent, in order to,
No other evidence to show noncompliance was adduced by the General Counsel
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comply, file a statement with the Regional Director within a stated
period to the effect that the respondent accepts the Board's deter-
mination that it is not entitled by means proscribed by Section
8 (b) (4) (D) to force or require the assignment of work to it, and
that it has ceased and will not resume the proscribed conduct in the
future. I am not willing, however, to penalize this Respondent for
not providing a statement of this character when the Board has not
previously made known that this is what it requires as compliance
with a 10 (k) determination.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 595, INTERNATIONAL ASSOCIATION
OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, A. F. L.
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 the employees
of Bechtel Corporation to engage in, a strike or concerted refusal
in the course of their employment, to perform services, where an
object thereof is to force or require Bechtel Corporation to assign
the work of the ironworker's trade to members of Local 595
rather than to nonmembers or to members of Local 578, Interna-
tional Association of Bridge, Structural and Ornamental Iron
Workers, A. F. L., unless Bechtel Corporation fails to conform to
an order of the Board certifying us as the representative of em-
ployees performing such work.
LOCAL 595, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WORKERS , A. F. L.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
By -------------------------------------
(W B. Sanders ) ( Business Agent)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding arises under Sections 8 (b) (1) (A), 8 (b) (4) (D ), and 10 (k)
of the Labor Management Relations Act of 1947, 61 Stat . 136 (herein called the
Act), and was heard in St . Louis, Missouri, on October 18, 1954, pursuant to due
notice to all parties . The amended complaint issued on July 8, 1954 , by the Gen-
LOCAL 595 823
eral Counsel of the National Labor Relations Board,' based on charges, as amended,
duly filed by Bechtel Corporation (herein called Bechtel or the Company), and
served upon the parties, alleges in substance that Local 595, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers, A. F. L. (herein called
Local 595), and its Business Agent, W. B. Sanders, and Iron Workers Association,
Inc. (herein called the Association), and W. B. Sanders, Resident Agent, having failed
and refused to comply with the Board's Decision and Determination of Dispute
(108 NLRB 823) regarding the assignment of certain work, thereby engaged in
unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (4)
(D) of the Act. The answer of the Respondents admits certain allegations of the
complaint but denies the commission of any unfair labor practices.2
At the outset of the hearing the Trial Examiner granted the motion for leave to
intervene by International Association of Bridge, Structural and Ornamental Iron
Workers (herein referred to as the International or Intervenor), parent of Local 595.
All parties were present and represented at the hearing and were afforded op-
portunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, to argue orally, and to file briefs. Counsel waived oral argument and
thereafter the General Counsel and counsel for the Respondents filed briefs which
have been duly considered.
Upon the entire record in the case the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE COMPANY'S BUSINESS
The complaint alleges and the answer admits that Bechtel, a Delaware corpora-
tion, maintains its principal office in San Francisco, California, and is engaged in
general building, construction, and engineering throughout the United States, and
in the course of its operations during the past year its gross receipts exceeded
$100,000,000. Since on or about August 15, 1953, Bechtel has been engaged by
Electric Energy Inc., an Illinois corporation, as general construction contractor to
complete the construction of a steam electric generating plant at Joppa, Illinois, for
the generation of electric power and energy to be used by the Paducah Atomic
Energy plant of the Atomic Energy Commission in the production of fissionable
material which is essential to the defense of the United States. The Trial Examiner
finds that Bechtel is engaged in commerce as defined in the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 595, International Union, and Local 758, International Association of Bridge,
Structural and Ornamental Iron Workers (herein called Local 758) are each labor
organizations within the meaning of Section 2 (5) of the Act. At all times material
Sanders was and is business agent for Local 595.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of events
On October 6, 1953, Bechtel filed a charge with the Regional Director alleging that
Local 595 and Sanders, since September 14, 1953, had induced and encouraged
employees of Bechtel to engage in a strike, the object thereof being to force or re-
quire Bechtel to assign particular work to employees in a particular labor organiza-
tion rather than to employees in another labor organization, trade, or class, in viola-
tion of Section 8 (b) (4) (D) of the Act.
Thereafter, pursuant to Section 10 (k) of the Act and the Board's Rules and
Regulations (Series 6, as amended, effective June 3, 1952), a hearing was duly held
on November 9, 10, 11, and 12, 1953, and on May 11, 1954, the Board issued its
Decision and Determination of Dispute.
In the meantime, on October 12, 1953, the Regional Director filed a petition for
an injunction under Section 10 (1) against Local 595 and Sanders in the United
I The General Counsel and the staff attorney appearing for him at the hearing are referred
to as the General Counsel and the National Labor Relations Board as the Board
2 The Respondents withdrew their second grounds of defense, namely, that the Board
has previously considered the same matters and dispute between the same parties in Case
No 14-CB-211, lOS NLRB 1070, wherein it issued an order based upon Section 8 (b) (1)
(A) and (2) violations of the Act It is clear from the record that the Respondent in
that case filed a petition for review of the order in the Circuit Court of Appeals for the
Sixth Circuit, but later withdrew its petition.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States district court and the same day the court issued a temporary restraining order
prohibiting the Respondents from inducing or encouraging the employees of Bechtel
to engage in a strike or a concerted refusal to work or perform services an object
thereof being to force or require Bechtel to assign certain work to members of
Local 595, rather than to employees of the Company to whom such work is to be
assigned, who are members of other locals of the International, unless it is certified by
the Board as the bargaining representative for the employees performing such work.3
At the same time the court issued a rule, returnable October 16, to show cause, if
any there be, why the Respondents should not be enjoined and restrained as prayed
for in the petition.
On October 16, the Regional Director filed a petition to adjudge the Respondents
in civil and criminal contempt for having knowingly, wilfully, and intentionally
violated the terms of the above restraining order. That same date, counsel for the
parties executed a stipulation, which was approved by the court, whereby it was
agreed that the temporary restraining order be continued in effect until such time
as the Board decided the controversy and that the hearing on the contempt peti-
tion be continued to October 23, and from week to week thereafter, until the matter
pending before the Board had been heard and determined. On October 16, the
court entered an appropriate order, which is still in force and effect.
B. The Section 10 (k) proceeding
The facts concerning the dispute are fully set forth in the Board's decision which
proceedings including the record, under the Board's Rules and Regulations, become
a part of the record herein. In that case the Board found that about July 31, 1953,
Electric Energy, Inc., terminated the construction contract of Ebasco Services Inc.,
at the Joppa project and all employees of Ebasco were laid off including about 100
ironworkers who were members of Local 595 Thereafter, Electric Energy, Inc ,
executed a contract with Bechtel for completion of the plant and Bechtel began
operations about September 1, 1953. In line with its policy to hire men through
the local building trade unions in new areas, Bechtel, between September 1 and Sep-
tember 11, hired about 33 ironworkers, all of whom were referred and cleared by
Local 595. On September 11, Bechtel requested Sanders to refer six named iron-
workers, all of whom were members of the International Union but not members of
Local 595. Sanders refused to refer the individuals requested but instead sent four
members of Local 595 and former employees of Ebasco. When the Company re-
fused to hire the 4 men all of the ironworkers, except 1 man, walked off the job.
On September 15, officials of the Company and representatives of the Interna-
tional Union met with Sanders at which time the general secretary of the Interna-
tional directed Sanders to furnish the six men named by Bechtel and to replace the
ironworkers who had walked off the job.
On September 15, 1953, a picket line was placed at the plant which resulted in
a complete shutdown of operations. About October 13, following the issuance of
the temporary restraining order and the petition to adjudge in contempt, operations
were resumed.
On September 16, the Company asked Sanders for 39 unnamed men and he re-
ferred the 33 who had left the job, the 4 who had been refused employment, and 2
additional men. The Company refused to employ the 33 men but hired the 6
individuals, each of whom was given a half-day's pay and told they would be advised
when the plant would be reopened and to report for work.
On September 17, the International Union notified Sanders that unless he com-
plied with the instructions previously given, the International would take appropriate
action. On September 21, the general executive board of the International estab-
lished Local 758, with jurisdiction over the Joppa project. Local 595 and Sanders
still claimed jurisdiction over ironworkers on the job.
The Board found that Local 595 and Sanders were responsible for the work stop-
page and that neither Local 595 nor Sanders had any immediate or derivative rights
under any existing contract upon which they could predicate any lawful claim to the
work in question. In its determination of dispute the Board held that Local 595 and
Sanders:
1. . are not and have not been lawfully entitled to force or require
Bechtel Corporation to assign the work of the iron worker's trade in connection
with the Joppa Steam Electric Generating Plant project to members of Local
'V. Lee McMahon, etc v International Association of Bridge, Structural and Orna-
mental Ii on Woi loei s, Local 595, and IV I3 Sanders, business agent, U S D C E D. Ill
33 LRR\I 2273.
LOCAL 595 825
595 rather than to non-members of Local 595 or members of Local 758, Inter-
national Association of Bridge, Structural and Ornamental Iron Workers, AFL.
2. Within ten ( 10) days from the date of this Decision and Determination of
Dispute, the Respondents (Local 595 and Sanders) shall notify the Regional
Director for the Fourteenth Region in writing as to what steps the Respondents
have taken to comply with the terms of this Decision and Determination of
Dispute.
The Trial Examiner is bound by the decision and determination of the Board and
accepts its findings of fact therein contained. In accordance with the decision and de-
termination the Tiial Examiner finds that Local 595 and Sanders are not, and have
not been, lawfully entitled to force or require Bechtel to assign work in the iron-
worker 's trade to Local 595, rather than to nonmembers or members of Local 758.
C. The issues
The complaint alleges that the Respondents have failed and refused to comply with
the Board 's determination of May 11, 1954 , and thereby violated Section 8 (b) (4)
(D) and (1) (A) of the Act . The answer denies the commission of any unfair labor
practices.
Section 8 (b) (4) (D) declares it an unfair labor practice for a labor organization
or its agents to engage in, or to induce or encourage the employees of any employer to
engage in , a strike or a concerted refusal in the course of their employment to perform
any services , where an object thereof is forcing or requiring any employer to assign
particular work to employees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization or in another
trade, craft , or class unless such employer is failing to conform to an order or certi-
fication of the Board determining the bargaining representative for employees perform-
ing such work.
It is undisputed that neither Local 595 nor Local 758 have been certified by the
Board as the representative of the employees in the trade in question.
The principal issue, therefore , is whether the Respondents Local 595 and Sanders
have complied with the decision and determination . A secondary question arises as
to whether the Association is the alter ego of Local 595.
Concluding Findings
The essential facts in this case are not disputed The General Counsel offered no
evidence whatever to establish noncompliance on the part of the Respondents , except
that they failed to submit written notice to the Regional Director within the time
stated in the determination . Respondents Local 595 and Sanders admit that no writ-
ten notice was furnished the Regional Director until the day of the hearing, October
18, 1954 , when their attorneys presented to the General Counsel a letter stating that
since the date of the temporary restraining order 4 they have not attempted to refer
any members to the Joppa project, nor caused any work stoppage, and since May 11,
1954, they have complied with the Board 's determination and have not attempted to
force or require Bechtel to assign work of the ironworker 's trade to Local 595 rather
than to nonmembers or to members of Local 758.
The General Counsel asserts that the letter was not timely filed, that it contains
no assurance against future violations and that it amounts to no more than a state-
ment that the Respondents have not violated the terms of the temporary restraining
order. Respondents ' counsel offered to rephrase the letter to overcome the second
objection The General Counsel contends the foregoing evidence supports the allega-
tions of his complaint.
In the past the Board has had occasion to resolve the matter of compliance wtih
Section 10 (k) determinations in two cases . In the first instance , the Board, in the
Westinghouse case,5 laid down the rule that "the intent of Congress was that the
General Counsel should allege and prove noncompliance with our 10 (k) determina-
tion in 8 (b) (4) (D) proceedings" and, since no evidence had been adduced concern-
ing compliance or noncompliance , remanded the case to allow the General Counsel to
amend his pleadings and "to introduce evidence to sustain his burden of proof."
After hearing on remand , the Trial Examiner found that the Respondents had failed
to comply with the determination and thereby engaged in certain unfair labor prac-
4 As appears above this order was entered on October 12, 1953 On October 16 , follow-
ing the filing of the contempt petition , the order was continued indefinitely. It may be
that the letter refers to the latter date
5 Los Angeles Building and Construction Trades Council, AFL , et at, 88 NLRB 1101.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices. The Board, in reversing the Trial Examiner (94 NLRB 415), held the Respond-
ents were not proven by substantial evidence to have engaged in any strike or other
compulsive activity that could constitute noncompliance with the terms of the de-
termination, which imposed no obligation upon them to take any particular steps
to achieve the desired result of compliance. Speaking upon that provision of the de-
termination with respect to furnishing written notice as to the steps taken by the
Respondents, the Board stated: (p. 417)
Their failure to furnish the Regional Director with a notice survives as the only
fact upon which the Trial Examiner could have relied. But this failure, standing
alone, is hardly sufficient to establish noncompliance with the terms of the
Board's determination. We believe that, because no affirmative action was
required by the Board's determination, the failure to notify the Regional Di-
rector of what was or was not done does not alone establish noncompliance.
Accordingly, we find, contrary to the Trial Examiner, that the General Counsel
has failed to prove that the Respondents have not complied with the Board's
decision and determination of dispute. Because Section 10 (k) directs that the
case be dismissed upon compliance with the determination, we shall dismiss the
complaint in its entirety.
In the second case, Juneau Spruce,° the Board entered its decision and determina-
tion wherein it found that the union was not lawfully entitled to force or require
the company to assign its longshore work to members of the union rather than to
the employees of the company who were members of another labor organization,
or members of any other labor organization. Thereafter, the Board found (90
NLRB 1753) that the union and certain of its agents by picketing the company's
premises induced and encouraged its employees to engage in a concerted refusal in
the course of their employment to perform services for the company, the object
thereof being to force the company to assign longshore work to members of the
union or workers dispatched by it instead of to employees of the company and
thereby failed to comply with the decision and determination and engaged in unfair
labor practices as defined in Section 8 (b) (4) (D) of the Act.
The General Counsel seeks to distinguish this case from the Westinghouse case
on three grounds: (1) In that case the determination stated the Respondents "may"
furnish written notice to the Regional Director whereas here the Board used the
word "shall"; (2) the present illegal conduct ceased as a result of the injunctive
process of the Court and in Westinghouse no such order was entered against the
Respondents; and (3) the Board should adopt the minority view expressed in the
Westinghouse case, namely, that the matter of compliance is an affirmative defense
and the burden of proving it is upon the Respondents. The Trial Examiner cannot
accept these arguments. Clearly, the decision in the Westinghouse case does not
turn upon any strict interpretation of limited terms of the determination or whether
the Respondents might or must give written notice to the Regional Director but
rather on the broad principle that the General Counsel has the burden of proving
noncompliance and the mere failure to furnish notice was inadequate to support a
finding of noncompliance. Moreover, the Trial Examiner is of the opinion that the
record herein would not justify placing such a narrow and fine construction upon
the language in the determination in order to sustain a violation of the Act. With
respect to the second grounds, it strikes the Trial Examiner that it is immaterial
what motives prompted the Respondents to cease their unlawful conduct, so long as
they did not engage in such acts subsequent to the determination. Further, it might
be pointed out that a temporary restraining order was entered in the Westinghouse
case 7 and also in Juneau Spruces Lastly, the fact that the decision in the West-
inghouse case may not have been unanimous on all points does not affect the validity
and finality of the same.
In view of the foregoing authorities the Trial Examiner concludes and finds that
there is no evidence indicating that the Respondents, subsequent to the Section 10
0International Longshoi mien's and 1i'arehoitsenien's Union, Local No 16, 82 NLRB 650.
7 94 NLRI; 415, 422 , LeBai on, etc v. Los Angeles Building and Construction Trades
Council, et at , 84 h Sapp. 629.
8 The respondents continued picketing for 39 days after the issuance of the determina-
tion and discontinued this action shortly before the Regional Director filed his petition for
injunctive relief (90 NLRB 1753, 1754, footnote 5; Giaham, etc. v. International Long-
shoremen's Union, at al, 24 LRRM 2105.)
LOCAL 595 827
(k) decision and determination, engaged in any strike or other compulsive activity
that could constitute noncompliance with the determination and that the bare failure
of the Respondents to submit timely written notice to the Regional Director is insuf-
ficient to establish noncompliance with the terms thereof, in violation of Section
8 (b) (4) (D) of the Act. Accordingly, the General Counsel has failed to sus-
tain his statutory burden of proving noncompliance with the determination. It is,
therefore, recommended that the complaint be dismissed in its entirety.
The Respondents Association and Sanders, its Resident Agent
The General Counsel contends that the Association was established by Sanders
and officers of Local 595 as the alter ego of that local in order "to avoid the in-
escapable consequences of their having caused the work stoppage at the Bechtel
project."
Briefly, the record shows that about October 9, 1953, Sanders and some 15 of-
ficers and members of Local 595 signed articles of incorporation and on October
14, a certificate of incorporation was issued by the Commonwealth of Kentucky.
One of the purposes of the Association, as set forth in the articles of incorporation,
is "to maintain principles, wages, and hours as sponsored" by the International union.
The minutes of Local 595 disclose that at its regular meeting on October 17, 1953,
Sanders read the articles to approximately 500 members, who unanimously voted
"to adopt" the Association and to "donate" $30,000 to it. Sanders related, and the
minutes of Association also show, that the Association received a check in the above
amount from Local 595 about December 9, 1953. Counsel for the parties stipu-
lated that the Association held only four meetings, the last one being on March
31, 1954. The association minutes for these meetings indicate that, apart from the
election of officers and trustees, no business was transacted other than retaining
counsel to represent its interest in certain court litigation. There is no evidence
that the Association ever functioned or carried out any of the objectives for which
it was formed, except the receipt of the $30,000 donation.
After the issuance of the Section 10 (k) decision and determination, the General
Counsel filed a motion to reopen the record, on substantially the same facts set forth
above, for the purpose of ascertaining whether the determination should be amended
to include the Association. On June 16, 1954, the Board denied the motion because
there was no allegation that the Association had engaged in or was engaging in any
conduct disapproved in the decision and determination.
At this hearing the General Counsel adduced no evidence that the Association
had ever engaged in any such acts or conduct As a corollary to the findings with
respect to Local 595 and Sanders, the Trial Examiner further finds that the Associa-
tion has not engaged in any conduct disapproved by the Board in its decision and
determination. It has not, therefore, engaged in any unfair labor practices. Since
the record fails to disclose the Association carried on any of the normal functions of
a labor organization the Trial Examiner will not find that it is a labor organization
as defined in the Act
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the ;ollowing-
CONCLUSIONS OF LAW
1 The operations of Bechtel Corporation at its Joppa, Illinois, project occur in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Local 595 and Local 758, International Association of Bridge, Structural and
Ornamental Iron Workers, A. F. L., and International Association of Bridge, Struc-
tural and Ornamental Iron Workers, A. F. L., are each labor organizations within
the meaning of Section 2 (5) of the Act
3. The Respondents, Local 595, International Association of Bridge, Structural
and Ornamental Iron Workers, A. F. L., and its Business Agent W. B. Sanders; Iron
Workers Association, Inc , and W. B. Sanders, its Resident Agent, have not engaged
in unfair labor practices as alleged in the amended complaint within the meaning
of Section 8 (b) (4) (D) and.(1) (A) of the Act.
[Recommendations omitted from publication.]