Local 450

National Labor Relations Board - Board Decisions

Apr 25, 1955

112 N.L.R.B. 437 (N.L.R.B. 1955)

LOCAL 450 437
dlers, powerhouse helpers, tractor operators-heavy, oilers, janitors,
and standby operators-inspectors, excluding condenser operators, in-
side and outside water operators, compressor operators, well operators,
instrument men, boiler cleaners and power area oilers, all other em-
ployees, office clerical employees, professional employees, guards, and
supervisors as defined in the Act.'
5. The Employer asserts that since the cessation of hostilities in
Korea it has reduced its working force of power department employees
from 118 to 51, that operations are on a standby basis and that no
election should be directed at the present time. We find no merit in
this contention. The record shows that, although the power depart-
ment has been reduced, a substantial number of employees are still
working and apparently will be retained for at least another year and
the Employer has no current plans for increasing production. In these
circumstances we believe that the policies of the Act will be effectuated
by the direction of an election at this time.9
[Text of Direction of Election omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Direction of Election.
8 The Employer agrees that this description includes all classification of the power
department. In its brief however the Employer also attacks the appropriateness of the
requested power department unit on the giound that it does not seek to include 10 main-
tenance employees These employees work out of a shop in powerhouse No. 2 and repair
boilers . They perform no powerhouse duties, are separately supervised by a maintenance
superintendent , and are not classified as power department employees but are classified
as maintenance department employees . We will therefore exclude them . See E I. du
Pont de Nemours & Company, supra.
9 See If. I. du Pont do Nemours and Company , use, Construction Division, Savannah
River Plant , 107 NLRB 734 and cases cited therein.
Local 450, International Union of Operating Engineers, AFL and
W. J. Hedrick and H . W. Marschall, Jr., d/b/a Industrial Paint-
ers and Sand Blasters . Case No. 39-CD-14. April 25, 1955
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 September 13, 1954, W. J Hedrick and H. W. Marschall, Jr.,
doing business as Industrial Painters and Sand Blasters, herein called
the Employer, filed with the Regional Director for the Sixteenth
112 NLRB No. 60.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region a charge alleging that Local 450, International Union of
Operating Engineers, AFL, herein called the Operating Engineers,
has engaged in and is engaging in certain activities proscribed by
Section 8 (b) (4) (D) of the Act, in that (a) it ". . . caused and
attempted to cause painter employees of Industrial Painters and Sand
Blasters to engage in a strike . . . to force Industrial Painters and
Sand Blasters to assign work to members of Local 450 rather than
to employees in another labor organization or in another trade, craft
or class," and that (b) "Industrial Paint and Sand Blasters employed
one member of Local 450 and Local 450 engaged in a strike to force
and require the employer to hire additional members of Local 450
rather than to assign the work in question to other employees." 1
Thereafter, pursuant to Section 10 (k) of the Act and applicable
sections of the Board's Rules and Regulations, the Regional Director
investigated the charge and provided a hearing upon due notice to
all parties. The hearing was held on November 2 and 22, 1954, at
Houston, Texas, before Evert P. Rhea, hearing officer of the Board.
All parties appeared at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
adduce evidence bearing upon the issues. The rulings of the hearing
officer are free of prejudicial error and, except as modified hereinafter,
are hereby affirmed? The Operating Engineers filed a brief with
the Board.
At the close of the hearing, the Operating Engineers moved to dis-
miss the charge on the ground that it fails to state a violation of
Section 8 (b) (4) (D) of the Act. The motion is hereby denied for
the reasons hereinafter stated.
' The relevant portions of Section 8 of the Act are as follows :
(b) It shall be an unfair labor practice for a labor organization or its agents
(4) to engage in, or to induce or encourage the employees of any employer to engage
in, a strike . . . where an object thereof is : .
(D) 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 certification of the Board deter-
mining the bargaining representative for employees performing such work. . . .
2 At the hearing , the Employer offered to pi ove , among other things, that on the par-
ticular job in dispute the fueling of the compressors was assigned to one of its regular
employees , that the starting and stopping of the compressors was assigned to the laborer
who was nearest to the machine , and that the Employer refused to employ Operating
Engineers ' members because it preferred to continue assigning these tasks as in the past,
especially as the staiting and stopping operations took no more than 15 minutes a day
The hearing officer rejected the offer of proof, relying on the limited character of the
notice of hearing For the reasons hereinafter stated, we find that the proffered evidence
was pertinent to the issues raised by the charge , and therefore reverse the hearing officer's
ruling However, as the record contains other evidence which we find hereinafter suffi-
cient to warrant a finding that there is reasonable cause to believe that the Respondent
engaged in activities proscribed by the Act , we conclude that the rejection of the offer of
proof was not prejudicial
LOCAL 450
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
439
W. J. Hedrick and W. H. Marschall, Jr., d/b/a Industrial Painters
and Sand Blasters, is a partnership which operates a plant at Texas
City, Texas, for the purpose of providing painting and sand blasting
services to industrial concerns. During the year ending July 30,
1954, the Employer performed services totaling $750,000 in value,
of which 90 percent was rendered to major oil and industrial firms
engaged in commerce, including Gulf Oil Corporation, The Texas
Company, Cities Service Oil Company, Continental Oil Company,
Republic Oil Corporation, Monsanto Chemical Company, and Con-
solidated Vultee Corporation. We therefore find that the Employer
is engaged in commerce within the meaning of the Act.'
II. THE FACTS
For its painting operations the Employer uses paint sprayers
powered by air compressors. The instant dispute concerns the opera-
tion of the air compressors which, because of their fully automatic
character, consists of 3 simple steps to start the compressor engines
and 1 simple step to stop them. Because of the relatively insignificant
character of the work involved, the Employer does not customarily
assign the starting and stopping of the compressors to any one person,
but rather to whichever of its laborers happens to be nearest them .4
The instant dispute arose while the Employer was commencing
operations under a contract to paint oil tanks at Fauna, Texas, for
Cities Service Oil Company. Between September 2 and 6, 1954, the
Employer moved the 12 employees needed for the work to the job
site, together with the requisite equipment, including 3 or 4 paint
sprayers, with air compressors. The work commenced on Monday,
September 6, 1954. On September 7, Earl E. Ford, business repre-
sentative for the Operating Engineers, asked the Employer's fore-
man, Vincent, to hire 1 man for each of the 3 compressors then in use
or about to be used. Vincent told Ford that he would hire only one
compressor operator and asked Ford to send him to the job site.'
On Wednesday, September 8, a member of the Operating Engineers
reported for work and was employed by the Employer from 9 a. in. to
a Jonesboro Grain Drying Cooperative , 110 NLRB 481
• The compressor automatically responds to variations in air pressure in the line The
operations require punching a button to start the engine on gasoline , flipping a lever, after
a minute, to run the engine on diesel fuel , and turning a clutch screw to engage the engine
with the hydraulic assembly . Stopping operations merely involve pulling a choke. The
Employer contracts with an outside firm for the regular maintenance of the spraying and
compressor equipment , which is performed during nonworking hours.
6It is not clear whether or not the compressors were in operation on September 6 and 7
The fueling of the compressors had been assigned to a single employee prior to September 7.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4: 30 p. in. on that day as well as on the next day, September 9. He
started the 3 compressors in the morning on both days. During the
same 2 days, 1 of the Employer's regular employees turned off the
compressors ; during those days, the Employer's other employees
worked from 9 a. in. to 7 p. in. On Wednesday, September 8, Ford
also told Hedrick, 1 of the partners of the Employer, that he should
employ 2 more compressor operators on the job. When asked why,
Ford stated that if Hedrick did not employ them, he would "get his
job messed up." On Thursday, September 9, Ford demanded that the
Employer hire another man for the compressors and that it also pay
overtime to the member of the Operating Engineers it had already
hired for the 2 days worked for the reason that he was not allowed
to work overtime from 4: 30 to 7 p. in. on each day. He further asked
the Employer whether it would be willing to hire 1 man to operate 2
compressors, that had been banked, i. e., placed side by side so that
1 operator would have ready access to both compressors. The de-
mands and the request were not granted.
On Friday, September 10, the Operating Engineers established a
picket line at the job site with signs reading "Local 450, Operating
Engineers, in dispute with Industrial Painters and Sand Blasters."
Work ceased at the job site due to the strike. During the following
week, Ford reiterated his demand that the Employer hire a member
of the Operating Engineers for each compressor. In the latter part
of October 1954, Cities Service Oil Company canceled the Employer's
contract. Only 20 percent of the work had been completed by that
time. The Operating Engineers stipulates that it "would picket the
employer's job if a similar instance arose."
III. THE CONTENTIONS OF THE PARTIES
The Employer, the Charging Party herein, asserts that by the above
conduct the Operating Engineers, the Respondent herein, violated
Section 8 (b) (4) (D) of the Act.
The Respondent contends, in substance, that its conduct as charged
did not constitute a violation of Section 8 (b) (4) (D) as the strike
was occasioned by the Employer's refusal to pay overtime, not by the
Employer's refusal to assign the disputed work tasks.
IV. APPLICABILITY OF THE STATUTE
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D) of the Act, and the Re-
gional Director was satisfied on the basis of such investigation that
there was reasonable cause to believe that a violation of Section
8 (b) (4) (D) of the Act had been committed.
It is clear that at the time the Operating Engineers made its initial
demand that the Employer hire its members on the basis of one oper-
LOCAL 450 441
ator for each compressor, the Employer had assigned, or was about to
assign, the starting and stopping operations on the compressors to
whichever of its own laborers was working nearest to the compressors.
The record further shows that the Operating Engineers made repeated
demands during the entire course of the dispute to require the Em-
ployer to hire its members to operate the air compressors to the exclu-
sion of the Employer's own employees who customarily performed the
simple operations necessary to start and stop these machines. The
Operating Engineers does not claim that it is the collective-bargain-
ing representative under a Board certification for employees perform-
ing the work task in dispute. Although there was evidence that the
demand by the Operating Engineers for the placement of one operator
on each air compressor was in accord with an agreement between the
Operating Engineers and the Houston Chapter of A. G. C., it is clear
from the stipulation of the parties that this Employer was not a party
to or bound by any contract with the Operating Engineers. Indeed,
the record affirmatively establishes that the Employer was neither a
member nor an associate member of the Houston Chapter of A. G. C.
The Operating Engineers contends, however, that the dispute was
limited to a demand and a refusal to let the member of the Operating
Engineers earn overtime pay from 4: 30 to 7 p. in. on the 2 successive
days that he worked for the Employer. The Operating Engineers also
contends that the Act was not violated in the respects charged because
the Employer had actually already made an assignment of the disputed
work to one of its members. In light of the entire record and the evi-
dence adduced at the hearing, we cannot agree with so narrow a view
of the character of the dispute in this case. We note that the Operat-
ing Engineers on September 9, after the Employer's limited acqui-
escence to its demands, by hiring one operator, requested that the
Employer hire an additional member of that Union, and that when
the Employer refused to agree to this, established a picket line at the
job site on the very next morning, September 10. Moreover, following
the establishment of the picket line, the Operating Engineers returned
to its original demand that the Employer employ one operator for
each air compressor, and, in addition, pay its member "for the over-
time that he was prevented from earning." That the Employer tem-
porarily acquiesced in the demands did not in any way diminish the
essential nature of this dispute.6 Clearly, within the next 24 hours,
the dispute was again very much alive when the Operating Engineers
renewed its demand that the Employer hire only its members to do
work which the Employer insisted belonged to its own employees.
6In Direct T>ansst Lines, Inc., 92 NLiIB 1715, there was such temporary acquiescence,
but this did not alter the essential nature of the controversy or the character of the dispute
which was that the Employer insisted on the right of its own employees to perform the
work tasks in dispute
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts of this case are essentially like those in Empire State
Painting and TVaterproo fing Co. Inc.,7 where the Employer assigned
the work of starting, stopping, and occasionally oiling an air com-
pressor to one of its laborers who spent approximately 90 percent of
his time at other manual work, and the Operating Engineers de-
manded that the Employer hire 1 of its members on a full-time basis
to operate the air compressor. The Board found in that case that there
was "reasonable cause to believe that the Respondents engaged in
activities proscribed by [Section 8 (b) (4) (D) ] with the object of
forcing or requiring the Employer to assign work on the air compressor
to members of [Operating Engineers] rather than to the Employer's
own employees who were members of other labor organizations." That
the Employer's own employees here did not belong to other labor or-
ganizations does not change the result because Section 8 (b) (4) (D)
of the Act is phrased in terms of "employees in another labor organ-
ization or in another trade, craft, or class." (Emphasis added.) It is
obvious that the laborers of this Employer belonged to another "class"
of employees, and that the activities of the Operating Engineers there-
fore fell within the proscriptions of the Act as it did in the Empire
State case. Thus, whether we regard this dispute as a narrow one,
i. e., a controversy over the reassignment of overtime work to the
members of Operating Engineers, as apparently the Regional Director
did, or as a broader one, i. e., a controversy over the entire operation
of the compressors, as the record appears to support, we are of the
opinion that the Regional Director's conclusion that there is reasonable
cause to believe that Section 8 (b) (4) (D) was violated is fully war-
ranted. Under the circumstances, and for the reasons herein stated,
we find that, even apart from the Employer's offer of proof, which
the hearing officer erroneously rejected, the record supports the above
finding. In view of this result, we further find that the hearing of-
ficer's ruling was not prejudicial.
We also find no merit in the Operating Engineers' second conten-
tion that there was no actual assignment of the work. We have al-
ready called attention to the facts of this case which clearly show
that the work of starting and stopping the air compressors was a
function regularly performed on a part-time basis by the Employer's
own laborers, and that such work was either assigned to them or
about to be assigned. The real crux of this dispute, in our opinion,
was the insistence by the Operating Engineers that the Employer
utilize a member of the Union on a full-time basis for a work-function
that could be performed, and had in fact been performed, by one of
the Employer's own laborers on the basis of less than one-half hour a
day. The record in this case amply supports this finding.
'International Union, of Operating Enginee>s, Locals 17, 17A, and 17B (Empire State
Painting and Waterproofing Co Inc ), 99 NLRB 1481.
LOCAL 450 443
Accordingly, on the record before us, we find that there is reasonable
cause to believe that the Operating Engineers engaged in activities
proscribed by Section 8 (b) (4) (D) of the Act, with the object of
forcing or requiring the Employer to assign work on the air com-
pressors to members of its Union rather than to the Employer's own
employees who were not members of that labor organization.
V. THE MERITS OF THE DISPUTE
It is clear from the record that the dispute was over an employer's
assignment of work to members of one labor organization rather than
to employees of the employer who were not members of that labor
organization.
The Board stated in Juneau Spruce Corporation: 8
As we read Sections 8 (b) (4) (D) and 10 (k), these Sections
do not deprive an employer of the right to assign work to his
own employees ; nor were they intended to interfere with an em-
ployer's freedom to hire, subject only to the requirement against
discrimination as contained in Section 8 (a) (3).
It is also well established that an employer is free to make such
assignment without being subjected to the pressures proscribed by
Section 8 (b) (4) (D) "unless such employer is failing to conform
to an order or certification of the Board determining the bargaining
representative for employees performing such work." 9 It is clear
that the Operating Engineers does not claim that it is the certified
bargaining representative for employees performing Work on the
Employer's air compressors.lo
We find accordingly that the Operating Engineers were not law-
fully entitled to require the Employer by methods proscribed by
Section 8 (b) (4) (D) to assign Work on the Employer's air com-
pressors to the Respondent's members rather than to the Employer's
own employees who were not members of that labor organization.
VI. DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in this case, the Board makes the following determination
of dispute pursuant to Section 10 (k) of the Act :
1. The Respondent, Local 450, International Union of Operating
Engineers, AFL, is not, and has not been, lawfully entitled to force
s Juneau Spruce Corporation, 82 NLRB 650
° United Brotherhood of Carpenters and Jotiners of America, Local 581 et al (Ora
Collard), 98 NLRB 346
10 We find no merit in the Operating Engineers' contention that this controversy stems
from the alleged refusal by the Employer to pay one of its members pay for overtime not
worked, which it contends n as discriminatory. This contention is predicated on a dis-
regard of the essential nature of the dispute which was to force the Employer to employ
full-time members of the Operating Engineers for work that the Employer assigned on a
part -time basis to its employees who were not members of that labor organization
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or require W. J. Hedrick and W. J. Marschall, Jr., d/b/a Industrial
Painters and Sand Blasters, to assign air compressor work to its
members rather than to the employees who are not members of that
labor organization.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, the Respondent shall notify the Regional Direc-
tor for the Sixteenth Region, in writing, as to what steps the Re-
spondent has taken to comply with the terms of this Decision and
Determination of Dispute.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Determination of Dispute.
Maxon Construction Company, Inc. and Brotherhood of Paint-
ers, Decorators and Paperhangers of America, Local Union No.
437, AFL, and its agent , Edgar A. Peterson and Ray Lunsford,
Roy E. Stephens, Kenneth J. Weaver, William H . Kaiser, Jr.,
Omer F. Waldrop , Charles R. Scruggs , Charles O. White, Roy
E. Bates, Tom A. Holt, Calvin L. Gaskey and Frank L. Weaver.
Cases Nos. 10-CA-1905, 10-CA-1932, 10-CB-185, and 10-CB-207.
April 25, 1955
DECISION AND ORDER
On September 21, 1954, Trial Examiner Herbert Silberman issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had not engaged in any unfair labor practices
and recommending that the complaint be dismissed, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and
a supporting brief, and the Respondent Company and the Respondent
Union each filed a reply brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order.
112 NLRB No. 62.