Local 450

National Labor Relations Board - Board Decisions

Mar 30, 1956

115 N.L.R.B. 964 (N.L.R.B. 1956)

964' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall direct that the election be set aside and a new
election ordered.
[The Board set aside the election held on October 7, 1955.]
[Text of Direction of Second Election omitted from publication.]
Local 450, International Union of Operating Engineers, AFL-
CIO and W. J. Hedrick and H. W. Marshall , Jr., d/b/a Indus-
trial Painters and Sand Blasters . Case No. 39-CD-14. Mareh
30,1956
SUPPLEMENTAL DECISION AND DETERMINATION
OF DISPUTE
-On April 25, 1955, the Board issued a Decision and Determination
of Dispute' finding that the Respondent was not lawfully entitled to
require the Employer, by means proscribed by Section 8 (b) (4) (D),
to assign work on the Employer's air compressors to the Respondent's
members rather than to the Employer's own employees who were not
members of that labor organization.
On the Respondent's motion to reconsider, the Board, on August 12,
1955, issued an order remanding for further hearing, on the ground
that the Regional Director's notice of hearing and the hearing officer's
rulings made in pursuance thereof at the hearing unduly restricted
the scope of the hearing and thereby foreclosed full litigation of the
matters charged by the Employer. A supplemental hearing was held
pursuant to such order before Evert P. Rhea, hearing officer, on Oc-
tober 4, 5, 8, and 10, 1955, at Houston, Texas. The rulings of the
hearing officer made at the hearing are free of prejudicial error and
are hereby affirmed. Both parties were afforded full opportunity
to adduce evidence with respect to the entire dispute, alleged in the
charge.
The Board, having duly considered the evidence adduced at the
original and supplemental hearings, and the entire record of the case,
in addition to the briefs of the parties, hereby finds :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
W. J. Hedrick and W. H. Marshall, Jr., d/b/a Industrial Painters
and Sand Blasters, is a partnership which operates at Texas City,
Texas, for the purpose of providing painting and sand-blasting serv-
ices to industrial concerns. From June 1954 to, June 1955, the Em-
1 112 NLRB 437.
115 NLRB No. 153.
LOCAL 450 965
ployer performed services totaling $500,000 in value, of which 95
percent was rendered to-major oil and other industrial firms engaged
in commerce, including Shell Oil Company, the Texas Company, Cities
Service Pipelines, Continental Oil Company, Republic Refinery, Re-
public Pipelines, and Monsanto Chemical Company. We therefore
find that the Employer is engaged in commerce within the meaning
of the Act, and that it would effectuate the policies of the Act to assert
jurisdiction herein?
II. THE DISPUTE
At all times material herein, the Employer was under contract with
Cities Service Oil Company to paint the latter's oil tanks at its Fauna,
Texas, plant site. The Employer had moved its equipment to the site
and had commenced operations by September 7, 1954. For its paint-
spraying operations the Employer used four air compressors which
were completely automatic in operation, save for the exercise of a few
manual starting and stopping steps, described in the record as being
similar to those required to start and stop an automobile.' The Em-
ployer normally has no need for men whose sole function is to oper-
ate the compressors. However, on occasion, at sites in and outside of
Texas, the Employer has hired compressor operators under threat of
work stoppage by the Respondent's International or locals. On such
occasions, the operators so hired have not performed work other than
that required to start and stop the compressors. The Employer has
never voluntarily hired compressor operators, a classification which,
it contends, has no useful place in its work force.
On September 7, 1954, the Employer had assigned the maintenance
of the compressors to an outside firm and the fueling of the compres-
sors to one of its own employees. Because of the relatively minor na-
ture of the starting and stopping operations, the Employer had as-
signed the latter to whoever happened to be nearest the compressors
when such operations were required. On that day, the Respondent's
business representative, Ford, in a conversation with the Employer's
foreman, insisted that the Employer hire one man to operate each of
the compressors.' The foreman replied that he could employ only one
man and told Ford to send the man the next day. This individual,
Fleming, a member of the Respondent, reported for work the follow-
7 Jonesboro Grain Drying Cooperative , 110 NLRB 481.
3 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
4 According to the foreman, Ford told him it was "required to hire a hoisting engineer
to operate the machines." Ford testified to the effect that it was his duty to see that the
Employer had one operator for each compressor. He also insisted that whether or not
the operator was a member of the Respondent's union was no concern of his, nor did he
ever insist on the lure of a union member.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing morning, September 8, and was employed that day and on Sep-
tember 9 until 4: 30 p. m. The Employer's regular employees worked
until 7 p. m. on both those days, for which they were paid overtime.
On September 9, Ford again contacted the Employer and demanded
that the Employer hire additional men to operate the compressors.
He also requested that the Employer pay overtime to Fleming, and
that it "bank" the compressors in pairs and hire additional men to take
care of each pair. These requests were refused. The next day, Sep-
tember 10, the Respondent established a picket line at the job site. A
few days later the Respondent reiterated its demand that the Em-
ployer hire an operator for each compressor and its demand for over-
time for Fleming.' Both demands were refused.
As a result of the picketing, work ceased at the Fauna site, and on
or about November 1, 1954, Cities Service canceled its contract.' Since
the inception of this dispute, the Respondent has not withdrawn any
of its demands or indicated its intention of doing so. There has been
no unit determination or certification by the Board with respect to the,
Employer's employees. Although there is evidence that the demand
by the Respondent for the placement of one operator on each air com-
pressor was in accord with an agreement between the Respondent's
International and the Houston Chapter of the Associated General
Contractors, it is clear that this Employer was not a party to, or bound
by, any contract with the Respondent's International. Indeed, the
record affirmatively establishes that the Employer was in no respect
bound by the bylaws of the Associated General Contractors or by its
contracts with labor organizations.
III. TIIE CONTENTIONS OF THE PARTIES
The Employer (Charging Party) asserts that by the above conduct
the Respondent violated Section 8 (b) (4) (D) of the Act.
The Respondent contends, in substance, that the strike was occa-
sioned only by the Employer's refusal to pay overtime to Fleming or
to hire additional employees, and not by the Employer's refusal to as-
sign the disputed work tasks to its members. Accordingly, it urges
that its conduct did not come within the proscriptions of Section 8
(b) (4) (D) of the Act.
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-
c The original notice of hearing limited the scope of the first hearing to this overtime
matter.
9 A second picket line was established at the plant site in October 1954. In the present
state of the record, it cannot reasonably be determined whether this picket line concerned
the instant dispute or another dispute involving the Painters . In view of our decision
herein, we find it unnecessary to predicate any findings on this phase.
LOCAL 450 967
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) had been committed.
In support of its position, the Respondent contends that by volun-
tarily agreeing to hire Fleming the Employer thereby generally as-
sented to the assignment of all air compressor work at the Fauna site
to the Respondent, and that the dispute and strike could therefore only
have concerned the payment of overtime to Fleming or the hire of addi-
tional compressor operators, and that neither matter was proscribed
by Section 8 (b) (4) (D). In the light of the entire record and the
evidence 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 Respond-
ent on September 9, after the Employer's limited acquiescence to its
demands, requested the Employer to hire an additional member of that
Union, and that when the Employer declined, established a picket line
at the job site the very next morning. Moreover, following the estab-
lishment of the picket line, the Respondent returned to its original
demand that the Employer employ one operator for each compressor.
That the Employer partially acquiesced in the hiring demands did not
in any way diminish the essential nature of this dispute' Clearly,
within the next 24 hours, the dispute was forcefully revived when the
Respondent renewed its demand that the Employer hire one operator
for each compressor. All the circumstances of this case overwhelm-
ingly point to the conclusion that the Employer hired Fleming only
under compulsion from the Respondent. Particularly persuasive in
this regard is the testimony that the compressor work was so minor in
nature that the hire of an employee solely for this operation-less than
30 minutes a day-appears incredible. When the Employer's tempo-
rary acquiescence to Fleming's hire is viewed in this light, no other con-
clusion appears warranted. Moreover, no sooner did the Respondent
obtain limited acquiescence when it renewed its original demand for
an operator for each compressor. Thus, whatever effect the initial
assent may have had, it was almost immediately dissipated by the com-
plete revival of the dispute in its original form by the demands of the
Respondent on the following day. Consequently, an analysis of all
the relevant facts of this case inevitably leads to the conclusion that
the dispute, both at its inception and after it was revived when a tem-
porary assent by the Employer proved futile, was basically a contro-
versy between the Respondent and the Employer arising over the Re-
spondent's insistence that the Employer hire a full-time operator or
operators for the performance of a minor operation normally per-
formed by one of the Employer's own employees.
I In Direct Transit Lines Inc., 92 NLRB 1715, there was such temporary acquiescence,
but this did not, in the Board's opinion, alter the essential character of the dispute, which
was predicated on the insistence of the Respondent in that case on assignment of work
tasks which the Employer had been assigning to its own employees.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The real crux of this dispute, in our opinion, is this insistence by
the Respondent that the Employer assign a member of that Union on
a full-time basis to a function that had been performed by the Em-
ployer's own laborers on the basis of less than 30 minutes a day. The
record amply supports this finding. The facts of this case are essen-
tially like those in Empire State Painting and Waterproofing Co., Inc.,
99 NLRB 1481, where the Employer assigned the work of starting,
stopping, and occasionally oiling an air compressor to one of its
laborers who spent approximately 90 percent of his time at other
manual work, and the Operating Engineers demanded that the Em-
ployer hire one of its members on a full-time basis to operate the air
compressor. The Board, in that case, found 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 requir-
ing the Employer to assign work on the air compressor to members
of . . . [Operating Engineers] rather than to the Employer's own em-
ployees who were members of other labor organizations." That the
Employer's own employees here did not belong to other labor organi-
zations does not change the result because Section 8 (b) (4) (D) of the
Act is phrased in terms of "employees in another labor organization
or in another trade, craft, or class." [Emphasis added.] It is obvious
that the laborers of this Employer belonged to another "class" of em-
ployees, and that the activities of the Respondent fell within the pro-
scriptions of the Act as was the case in Empire State.
We find no merit in the Respondent's contention that this contro-
versy stems from the alleged refusal by the Employer to pay one of its
members overtime not worked, which it asserts was discriminatory.
This contention is predicated on a disregard of the essential nature of
the dispute which was to force the Employer to employ full-time mem-
bers of the Respondent for work that the Employer assigned on a minor
part-time basis to its own laborers.
The Respondent also contends that its conduct was not, in any
event, actionable because there was no work which could be the subject
of a work-assignment dispute within the meaning of Section 8 (b)
(4) (D). The Respondent further asserts that none of the Employer's
own employees has complained of being aggrieved by the Respondent's
insistence on the hire of compressor operators. We find no merit in
these contentions which appear to assume that the term "work," as
used in Section 8 (b) (4) (D), is synonymous with a job that is as-
signed to specific persons. The language of the section in question
which refers to "the assignment of specific work to persons" renders
any such interpretation erroneous. The statute clearly refers to spe-
cific work rather than to specific persons. We note that the Respond-
ent also argues that if the Board considers the insistence on the hire
of one man for each compressor as "featherbedding," then the instant
LOCAL 450 969
conduct is actionable only under Section 8 (b) (6) of the Act rather
than 8 (b) (4) (D). We find nothing in the Act to warrant such
construction. The statute does not create any such mutually exclusive
treatment. As no violation of Section 8 (b) (6) has been charged,
we shall not, of course, pass on whether the Respondent's conduct was
also violative of that section. Suffice it to say, however, that any
such implications in no way minimize or detract from what we regard
as the essential matter now before us which is, as we have already
indicated, the use by the Respondent of proscribed means for the
object of forcing or requiring the Employer to assign disputed work
tasks to its members rather than to the Employer's own employees.
Finally, the Respondent contends that the controversy is moot.
We do not agree. There is a complete lack of evidence in the record
that the Respondent has at any time withdrawn its demands or indi-
cated an intention to do so.
Under the circumstances, and viewing the record as a whole, 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 warranted. Accordingly, we find that there is probable cause
that the Respondent engaged in activities proscribed by Section 8 (b)
(4) (D) of the Act, with the object of forcing or requiring the Em-
ployer to assign work on the air compressors to members of its Union
rather than to the Employer's own employees who were not members
of that 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 employer's
freedom to hire, subject only to the requirement against dis-
crimination 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 Respondent does not claim that the Employer is failing to
8 Juneau Spruce Corporation, 82 NLRB 650.
8 United Brotherhood of Carpenters and Joiners of America, Local 581 et al. ( Ora Col-
lard), 98 NLRB 346.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conform to a Board order or that it is the certified bargaining repre-
sentative for employees performing work on the Employer's air
compressors.
We find accordingly that the Respondent, Local 450, International
Union of Operating Engineers, AFL-CIO, was not lawfully entitled
to require the Employer 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.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
this case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act:
1. Local 450, International Union of Operating Engineers, AFL-
CIO, and its agents, is not and has not been lawfully entitled to force
or require W. J. Hedrick and H. W. Marshall, Jr., d/b/a Industrial
Painters and Sand Blasters, to assign the work in dispute to its mem-
bers rather than to the employees who are not members of that labor
organization.
2. Said Local 450 shall, within ten (10) days from the date of this
Decision and Determination, notify, in writing, the Regional Director
for the Sixteenth Region of the National Labor Relations Board,
whether or not it accepts the Board's determination of this dispute.
and whether or not it will refrain from forcing or requiring W. J.
Hedrick and H. W. Marshall, Jr., d/b/a Industrial Painters and
Sand Blasters, by means proscribed by Section 8 (b) (4) (D) of
the Act, to assign the work in dispute, to its members rather than to
the employees who are not members of that labor organization.
MEMBER MURDOCK, dissenting :
In the light of the evidence adduced at the supplemental hearing
and after reconsideration, I am now constrained to disagree with the
majority in this case. I would find no reasonable cause to believe that
Section 8 (b) (4) (D) was violated by the conduct of the Respondent
as it involved either the regular work or the overtime work.
As found by the majority, the Respondent induced the Employer
to hire one employee to operate the compressors on the job. The
Employer, however, refused to hire additional employees to do this
work. It is not found, nor could it be found, that the Respondent
violated Section 8 (b) (4) (D) by this inducement of an employer;
there was no inducement of employees proscribed by Section 8 (b)
(4) (D), and, therefore, no violation of that section. Nor does the
fact, as found by the majority, that the work consumed less than 30
minutes working time per day render the hiring of Fleming and the
request for the hiring of additional employees violative of Section 8
THE LANGENAU MANUFACTURING COMPANY 971
i(b) (4) (D). , Whether or not this is "featherbedding" and a viola-
tion of Section 8 (b) (6) is not before us in this: Section 10 (k)
proceeding.
- Nor do I believe that the protests of the Respondent to the refusal
to give Fleming overtime work constituted conduct properly the sub-
ject of a Section 10 (k) proceeding. There is no evidence that Flem-
ing's hire was limited to less work time than that which the other
'employees were getting. The Respondent was the representative of
the compressor operator, and, as such, had a legitimate purpose in
protesting against the discrimination directed toward Fleming in the
number of hours worked.
For the reasons given above, I would find that the Respondent did
not violate Section 8 (b) (4) (D) and would quash the notice of
hearing.
The Langenau Manufacturing Company and Agnes Weigand,
Petitioner and International Association of Machinists, AFL-
CIO, and Metal Polishers , Buffers, Platers & Helpers Interna-
tional Union, Local No . 3, AFL-CIO.' Case No. 8-RD-1392.
March 30,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John Vincek, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner, an employee of the Employer, asserts that the
currently recognized bargaining agent is no longer the bargaining
representative of the employees of the Employer as defined in Sec-
tion 9 (a) of the Act.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a decertification election in a unit of produc-
tion and maintenance employees of the Employer, excluding all office
clerical employees, professional employees, guards, and supervisors as
defined in the Act. The International Association of Machinists,
AFL-CIO, hereinafter referred to as the IAM, and the Metal Polish-
1 The AFL and CIO having merged subsequent to the hearing in this proceeding we are
amending the identification of the affiliation of the Unions accordingly.
115 NLRB No. 151.