Local 450

National Labor Relations Board - Board Decisions

Feb 27, 1958

119 N.L.R.B. 1725 (N.L.R.B. 1958)

LOCAL .450 1725
Local 450, International Union of Operating Engineers, AFL-
CIO and Painting and Decorating Contractors of America,
Houston Chapter , on behalf of its member Sline Industrial
Painters and its other members . Case No. 39-CD-25. February
207, 1958
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (D)
of Section 8 (b), the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen. ... .."
On April 4,1957, the Houston Chapter of the Painting and Decorat-
ing Contractors of America, herein called the Charging Party, on be-
half of Sline Industrial Painters, herein called Sline, and its other
members, filed with the Regional Director for the Sixteenth Region a
charge alleging in substance that on April 3, 1957, Local 450, Interna-
tional Union of Operating Engineers, AFI,-CIO, herein called the
Operating. Engineers, violated Section 8 (b) (4) (D) of the Act by
inducing employees of Tampco Piping, Inc., herein called Tampco,
and of other employers to engage in a strike and concerted refusal to
work with the object of forcing or requiring Sline to assign certain
particular work to members of the Operating Engineers rather than
Sline's employees who were members of the Brotherhood of Painters,
Decorators and Paperhangers of America, Local Union No. 585.
Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71
and 102.72 of Board Rules and Regulations, Series 6, as amended, the
Regional Director investigated the charge and provided for a hearing
upon due notice to all of the parties. The hearing was held before
Edwin Youngblood, hearing officer, on July 18, 19, and 22, 1957. The
Charging Party, Sline, and the Operating Engineers appeared at the
hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence bearing on the
issues. The rulings of the hearing officer made at the hearing are free
from ,prejudicial error and are hereby affirmed.' Both the Charging
Party and the Operating Engineers filed briefs with the Board.
I The'Operating Engineers moved at.the hearing to quash the notice of hearing and dis-
miss the charge because of an alleged delay on the part of the Regional Director in
processing the case. It further moved to transfer the case to another Region on the
ground of alleged bias and prejudice on the part of the Regional Director. Insofar as
such motions were directed to the hearing officer, they were denied by the hearing officer.
Insofar as the motions were addressed to the Board, the hearing officer referred them to
the Board. We find the motions of, the Operating Engineers are without merit and
accordingly are hereby denied.
119 NLRB No. 223.
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Sline Industrial Painters is a Texas corporation with its principal
place of business in Houston, Texas. It is engaged in industrial
painting. During the calendar year 1956 Sline performed services
valued in excess of $100,000, for the Monsanto Chemical Corporation
at the latter's plant in Texas City, Texas. During the same period
Monsanto Chemical Corporation sold and shipped goods in excess of
$500,000 in value from the Texas City plant to points outside the State
of Texas. During the same calendar year, Sline performed services
Outside the State of Texas which services were valued in excess of
$600,000. In view of the foregoing facts, we find that Sline is engaged
in commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction.2
II. THE LABOR ORGANIZATIONS INVOLVED
Local 450, International Union of Operating Engineers, AFL-CIO,
and Brotherhood of Painters, Decorators and Paperhangers of
America, Local Union No. 585, are labor organizations within the
meaning of the Act.
III. THE DISPUTE
A. The facts
On April 3, 1957, and at times prior thereto, Sline was engaged in
performing new construction painting at the Monsanto plant in Texas
City, Texas, under a subcontract with the J. F. Pitchard Company.
Sline was also engaged in performing maintenance painting under a
direct contract with the Monsanto Chemical Corporation at the same
plant. In connection with its construction work, Sline used a 60 cubic
foot air compressor for spraying paint. The operation of the com-
pressor was a simple task requiring only a minute or two of effort
each day. It consisted of starting the machine by turning a key and
pressing a button. The machine was stopped by turning the key.
It called for no other personal attention. Because of the inconse-
quential nature of this work, Sline followed the practice of having the
employees who happened to be nearest the compressor operate it.
On April 3, 1957, when the work stoppage here involved occurred,
Leslie A. May, Sline's superintendent on the Monsanto job, instructed
Combre, classified as a painter foreman and a member of Painters'
Local 585, who happened to be nearby, to start the compressor. May
aJonesboro Grain Drying Cooperative , 110 NLRB _481 ; Whippany Dfotor Co ., Inc..
115 NLRB a2.
LOCAL 450 1727
explained that what he had assigned Combre was the responsibility
to get the compressor going and not necessarily to perform the work
himself. On April 2, Bud Miller, the Operating Engineers' steward
on the Tampeo job, after ascertaining that Sline was using an air
compressor on the job, asked May if he was going to hire an operating
engineer for the compressor. May said he was not. Miller then
brought the matter to the attention of Ramsey Searcy, business repre-
sentative for the Operating Engineers. On April 3, Searcy tried to
get Sline to hire an engineer for the compressor. He spoke to Don-
ovan, superintendent of new construction for Monsanto, and asked
for his help in persuading Sline to hire an engineer. Donovan said
that he would contact Searcy later. After speaking to Donovan,
Searcy instructed Miller and other Tampco operating engineers, who,
at Searcy's earlier request, had delayed reporting for work that
morning, to report for work because he believed that Donovan could
get the matter straightened out. However, later in the day Donovan
told Searcy that he could not help him obtain an operating engineer
for the Sline compressor. Sometime thereafter, Miller received two
telephone calls at the Tampco field office. Because Miller was not
then available, a message was left with Piangenti, timekeeper for
Tampco, to the effect that Searcy was calling Miller and that Miller
should call a certain number, which was known to Piangenti to be
that of the Operating Engineers' local hiring hall.
Shortly before noon Miller appeared at Tampco's field office and
was given the message. Thereupon Miller made a telephone call.
After completing his telephone conversation, Miller told Piangenti
that he had just spoken to Searcy who told him of his [Searcy's] lack
of success, and that "we are going in at noon." At Piangenti's
request, Miller agreed to have the operating engineers shut down
their equipment in the field and bring in the trucks before punching
out. Miller then added that it was the "same old story, same old
thing," which Piangenti knew referred to the disputes over the opera-
tion of the air compressor. Shortly thereafter, at 12: 30 p. m., all four
of the operating engineers employed by Tampco checked out and did
not return to work that afternoon. Asa result of the walkout, Tampco
on April 4 notified the National Joint Board for Settlement of Juris-
dictional Disputes that the Operating Engineers had called a strike
against Tampco because of a dispute the Engineers had with Sline
over the assignment of an operator for the air compressor, which work
Sline had assigned to members of Painters' Local 585.
On April 5, Chairman Dunlop directed the International Union of
Operating Engineers to instruct Local 450 to return to work imme-
diately and to adjust the jurisdictional dispute directly with the Paint-
ers or to process any work assignment complaint in accordance with
'1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joint Board procedures. This request was repeated in a letter of
April 6. Also by letter of April 9, Chairman Dunlop, under the
mistaken belief that Tampco was a subcontractor of Sline, requested
both Sline and Tampco to send to the Joint Board by April 16 a com-
plete description of the work in dispute. The letter to Sline was
apparently misdirected so that it was not until April 26, 1957, that
Sline had knowledge of the Joint Board's request. Sline therefore
inquired of Dunlop if the job descriptions were still desired and
added that it would be happy to comply with the request. On April
30, Chairman Dunlop advised Sline that the Joint Board had decided
to render a job decision at its next meeting on May 3 and again asked
Sline to submit a complete description of the disputed work. He
further directed Sline to proceed with the work as originally assigned
pending a job decision and informed Sline that it was a violation of
procedural rules for a contractor to shut down disputed work. On
May 2, Sline sent a description of the work to Chairman Dunlop.
It outlined the procedure for starting and stopping a compressor and
added "This work assigned by Sline to its painter employees as has
been historical practice by Sline as well as area practice by other
painting contractors in comparable situations. Sline is now pro-
ceeding with work as originally assigned."
Having thereafter obtained knowledge that Tampco was, not in-
volved in the dispute, the Joint Board on May 6, informed the
interested parties that, because of its previous misunderstanding, the
Joint Board had voted to ask both International Unions and the af-
fected contractors whether they wished to present a further statement
before it rendered a decision at its next meeting on May 10. Sline
did not respond to the Joint Board's last letter, and on May 10, the
Board awarded the disputed work to the Operating Engineers.
Thereupon, Sline protested to the Joint Board for assuming juris-
diction on the ground that it did not submit the dispute to the Joint
Board and that it considered the Joint Board's decision null and
void.3 In reply to this protest, Chairman Dunlop stated that the
Joint Board decided the dispute "on its own motion" and pointed out
that when he requested a statement of the position of the parties and
a description of the disputed work, no party objected to the Joint
Board's contemplated action.
It appears that Sline has made no changes in the assignment of
the disputed work and has no intention of complying with the Joint
Board's award.
3 Construction Employers Association (of which Tampco was a member), which brought
.the dispute to the attention of the Joint Board on behalf of Tampco also protested the
decision , maintaining that the Association had no authority to place the dispute before
the Joint Board.
LOCAL 450 1729
B. Contentions of the parties
The Respondent moves to quash the notice of hearing and to dis-
miss the charge herein for the following reasons : (1) There is no sub-
stantial evidence establishing that it caused the work stoppage; (2)
as it is undisputed that Sline's employees were not induced to strike,
no Section 8 (b) (4) (D) violation could be found; (3) there was
no jurisdictional dispute within the meaning of 8 (b) (4) (D) because
the disputed work was assigned to a supervisor; and (4) there was a
voluntary adjustment of the dispute by the Joint Board, or at least
an agreement for a voluntary adjustment of the dispute, which was
binding upon Sline.
Sline contends that the record establishes that the Operating Engi-
neers violated Section 8 (b) (4) (D) ; and denies that Sline was
bound by the Joint Board's determination of the dispute or that
Sline had agreed upon a method for the settlement of the dispute.
C. Applicability of the statute
Section 10 (k) of the Act empowers and directs the Board to hear
and determine disputes out of which Section 8 (b) (4) (D) charges
have arisen. However, before proceeding to a determination of the
dispute in Section 10 (k) proceedings, the Board is required to find
that there is reasonable cause to believe that Section 8 (b) (4) (D)
has been violated.4 In order to conclude that reasonable cause exists
the Board must find some evidence in the record showing a strike or
concerted refusal, or an inducement or encouragement of employees
to engage in a strike or concerted refusal, for the unlawful objective.5
It is clear from the evidence in the record that Searcy, as business
agent for the Operating Engineers, sought to obtain from Sline an
assignment of the work of operating the compressor and that his
efforts in that direction were frustrated. Notwithstanding Searcy's
denial, it is also evident from Piangenti's testimony that Miller, as
steward for the Operating Engineers on the Tampco job, had received
instructions from Searcy to walk off the job because of Searcy's ina-
bility to settle their dispute with Sline. In such circumstances, and
without definitively resolving conflicting testimony,6 we find that
there is reasonable cause to believe that Searcy was responsible for the
strike at Tampco and that such strike occurred for the purpose of
forcing Sline to assign the particular work of operating the com-
pressor to a member of the Operating Engineers. Contrary to the
4 Local. Union No. 1, Sheet Metal Workers etc . ( Meyer Furnace Company ), 114 NLRB
924, 927 ; United Brotherhood of Carpenters ( WPendnagel and Company ), 110 NLRB
1063, 1066.
'Local Union No. 1, Sheet Metal Workers (Meyer Furnace Company); supra,
9 United Brotherhood of Carpenters ( Wendnagel and Company), supra.
476321--5S-val . 179 170
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's contention, the fact that Sline's employees were not
induced to engage in a work stoppage does not preclude an 8 (b) (4)
(D) finding. The Board has held that Section 8 (b) (4) (D) was
designed to reach a strike or • inducement of employees of secondary
employers which is in furtherance of a dispute with another employer
over the assignment of work?
Nor do we find any merit in the Operating Engineers' contention
that Section 8 (b) (4) (D) was not violated because on the day of the
walkout there had been an assignment of the work to an alleged
supervisor. Whether Combre, who performed the disputed work on
the day of the work stoppage, was a supervisor, or whether Section 8
(b) (4) (D) was also intended to reach disputes over the assignment
of work to supervisors, we need not determine. For the record shows
that the Operating Engineers' claim to the work of operating air
compressors was not of current origin and was not limited to situations
where the particular work was being performed by a supervisory
employee.' The dispute, as far as Sline was concerned, manifested
itself at least on April 2, before the alleged assignment of work to
Combre, and continued thereafter. Moreover, there is no evidence
whatsoever that the work of operating the compressor was perma-
nently assigned to Combre. On the contrary, the record shows that
it was Sline's practice to assign the work to any painter employee who
happened to be near the machine when painting was to start. It just
happened, according to Superintendent May's testimony, that he told
Combre to see to it that the compressor was started, which did not
necessarily mean that Combre was to start it himself. In view of the
foregoing, we find that the dispute herein arose from Sline's refusal
to assign to members of the Operating Engineers work which Sline
had assigned to its own employees generally. For this reason, we
find that the dispute is within the reach of Section 8 (b) (4) (D). .
The Operating Engineers contends that the notice of hearing should
be quashed and the charge dismissed because the Joint Board's award
constituted a voluntary adjustment of the dispute or because, in any
event, the parties had agreed upon a method for voluntary adjustment.
In particular, the Operating Engineers urges that Sline was bound
by the Joint Board's award or by an agreed upon method for volun-
tary adjustment (a) by reason of membership in the Houston Chapter
of the Painting and Decorating Contractors of America whose parent
organization was signatory to the agreement establishing the Joint
Board; or (b) by reason of an alleged oral obligation when working
in Galveston, to abide by the terms of a collective-bargaining agree-
ment between Galveston Chapter of the Painting and Decorating
7Local 562 et al. (Charles E. Mules), 107 NLRB 542, 549, footnote 13.
8 See Local 450, Ojerating Engineers, AFL (Industrial Painters and Sand Blasters),
112 NLRB 437.
LOCAL 450 1731
Contractors of America, and Painters Local 585 which provides for
the determination of disputes by the Joint Board; or (c) by reason of
Sline's voluntary submission to the Joint Board's jurisdiction. Stine
denies that it was bound by the Joint Board's award or by any agreed
upon method for voluntary adjustment.
Consistent with the statutory provisions for the private settlement
of jurisdictional disputes wherever possible, the Joint Board was
established, with the knowledge of this Board, for the purpose of
considering and deciding jurisdictional disputes arising in the build-
ing and construction industry.' This Board has therefore held that
where all parties to a dispute, that is, the disputing unions and the
employer responsible for the assignment of the disputed work, are
bound by the agreement which established the Joint Board and
which provides for the submission of disputes to it, the parties have
"agreed upon methods for the voluntary adjustment of the dispute"
within the meaning of Section 10 (k), and that this Board is therefore
without authority to determine the dispute.10 In addition, this Board
has found an "agreed upon method" to exist where it was clear that
-an employer, party to a jurisdictional dispute, had indicated, by a
course of conduct, that it had submitted itself to the jurisdiction of
the Joint Board."
In the present case, we find, contrary to the Operating Engineers'
contention, that Sline was not bound by the Joint Board's determi-
nation because of his membership in the Painting and Decorating
Contractors Association. The National Joint Board agreement spe-
•cifically provides that only those contractors are bound who "have
.signed a stipulation" to that effect. 12 The Joint Board's rules provide
that such a stipulation may be signed by the contractor or by an
association with authority to bind its members, or may take the form
of a collective-bargaining agreement providing for Joint Board set-
tlement. However, it is not contended, nor is there any evidence in
the record that Sline, or the Painting and Decorating Contractors
Association on its behalf with authority to do so, had signed such
.a stipulation.
Nor are we persuaded, as the Operating Engineers contends, that
,Sline, although not a party to the Galveston Chapter's collective-bar-
gaining agreement with Painters Local 585, was nevertheless bound
by the terms of that agreement, which included a provision for the
settlement of jurisdictional disputes by the Joint Board. In support
.of its contention the Operating Engineers argues that a provision in
9 United Brotherhood of Carpenters etc. (Manhattan Construction Company, Inc.),
'96 NLRB 1045.
30 Ibid.
11 Local Union No. 9, Wood, Wire, and La thery International Union, AFL_ (A. W. Lee,
.Inc.), 113 NLRB 947, 953; Local Union No. 1, Sheet Metal Workers etc..(Meyer Furnace
,Company), 114 NLRB 924, 929-930.
12 See Local Union No. 9, etc. (A. W. Lee, Inc.), supra, p. 953.
-1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bylaws of the Painting and Decorating Contractors Association
requires association members, when working out of their usual area
to "respect and comply with all terms, conditions, regulations and
practices as. established by the Painting and Decorating Contractors
Association's chapter in the area." However, Sline's Superintendent
May testified without contradiction that Sline's obligation under
this provision was to abide.only..by the terms of the local agreement
dealing with its wage rates and working conditions, and that contract
clauses dealing with the settlement of jurisdictional disputes have
never been followed. In such circumstances, we.are unable to find
that Sline was bound by the agreed-upon method for the Joint Board's
settlement. of jurisdictional disputes contained in the Galveston Chap-
ter's bargaining agreement. .
As indicated above, the Operating Engineers also contends that
Sline, by its conduct, submitted to the Joint Board's processes. In
support of its position, the Operating Engineers relies on Sline's co-
operation in supplying the Joint Board with information requested
by it and the fact that it did not object to the Joint Board's assumption
of jurisdiction over the work dispute until after the Joint Board made
its award. However, we are not convinced that such cooperation is
sufficient to establish that Sline thereby agreed to an adjustment of the
work dispute by the Joint Board. The facts in the present case are
plainly distinguishable from those in the Lee and Meyer Furnace
Cases, 13 which the Operating Engineers urges upon us for a contrary
result. In the Lee case, this Board found that employer had sub-
mitted to the Joint Board's processes because, among other things, the
employer had fully complied with the Joint Board's decision, requested
the Joint Board to intervene to ,halt the union's work stoppage, re-
quested it to reconsider its initial decision, and previously acquiesced in
the Joint Board's control of its job. In the Meyer Furnace case, the
employer submitted to the Joint Board's processes by itself submitting
the dispute to the Joint Board for its determination. It is clear that
the facts which persuaded the Board to find a voluntary submission in
the decided cases are absent in the present case.
As the record does not contain satisfactory evidence of a voluntary
adjustment, or agreed-upon method for voluntary adjustment, of the
dispute in question within the meaning of Section 10 (k), we deny
the Operating Engineers' motion to quash and dismiss the charge
herein.
D. Merits .of the dispute
It is well established that an employer is free to make work assign-
ments without being subject to pressures proscribed by Section 8 (b)
Local Union No. 9 etc. (A. W. Lee, Inc.), supra ; Local Union No. 1 etc. ( Meyer
Furnace Company ), supra.
MOSS PLANING MILL CO. 1733
(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." The Operating Engineers
does not claim to be the certified collective-bargaining representative
for the employees performing the work of operating the air compressor
here in dispute, nor does it claim any contract with Sline which would
entitle it to represent such employees. Accordingly, we find that the
Operating Engineers was not entitled, by means proscribed by Section
8 (b) (4) (D), to force or require Sline Industrial Painters to assign
the disputed work to employees who were members of the Operating
Engineers to the exclusion of other employees.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact and upon 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, is not and has not been lawfully entitled to force or require Sline
Industrial Painters to assign the work of operating the air compressor
to employees who are members of Local 450, rather than to Sline In-
dustrial Painters' own employees who are not members of that labor
organization.
2. The Respondent shall, within ten (10) days from the date of
this Decision and Determination, notify the Regional Director for the
Sixteenth Region in writing whether, or not it accepts the Board's de-
termination of this dispute, and whether or not it will refrain from
forcing or requiring Sline Industrial Painters of Houston, Texas, by
means proscribed in Section 8 (b) (4) (D). of the Act, to assign the
work of operating the air compressors to members of Local 450 rather
than to employees of Sline Industrial Painters who are not members
of Local 450.
MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.
Moss Planing Mill Co . and International Woodworkers of Amer-
ica, AFL-CIO.' Case No. 11-CA-308 (formerly 34-CA-308).
February 27, 1958
THIRD SUPPLEMENTAL DECISION AND
RECOMMENDATION
On November 19, 1954, in.a. supplemental proceeding to determine
the amounts of back pay due Roy E. Fulcher and Lee A. Wynne from
i The AFL and the CIO having merged subsequent to the initial hearing in this case, we
hereby amend the identification of the, affiliation- of the Charging Union.
119 NLRB No. 222.