Local 450

National Labor Relations Board - Board Decisions

Nov 5, 1957

119 N.L.R.B. 339 (N.L.R.B. 1957)

LOCAL 450 339
certification of representatives to the Petitioner if selected by a ma-
jority of the employees in the pooled group, which the Board in such
circumstances finds to be appropriate for purposes of collective
bargaining.
[Text of Direction of Election omitted from publication.]
Local 450, International Union of Operating Engineers, AFL-
CIO and C. A. Turner Construction Company and Hinote Elec-
tric Company . Case No. 39-CD-23. November 5, 1957
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
determine the dispute out of which such unfair labor practice shall
have arisen...."
On March 20, 1957, C. A. Turner Construction Company, herein
called Turner, filed with the Regional Director for the Sixteenth
Region a charge alleging that Local 450, International Union of
Operating Engineers, AFL-CIO, herein called the Engineers, had
engaged in and was engaging in certain activities proscribed by Sec-
tion 8 (b) (4) (D) of the Act. It was alleged, in substance, that,
on or about March 7, 1957, and thereafter, the Engineers induced and
encouraged employees of various contractors to engage in a strike
or concerted refusal to work in the course of their employment with
an object of forcing Hinote Electric Company, herein called Hinote,
to assign the work of operating an A-frame winch truck used in the
erection of an electrical substation for The Texas Company, at its
Port Arthur, Texas, refinery, to members of he Engineers instead
of to members of Local No. 479, International Brotherhood of Elec-
trical Workers, AFL-CIO, herein called the Electricians.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge and on March 28, 1957, duly issued
and served on all parties a notice of charge filed and notice of hear-
ing. A hearing was held before Edwin Youngblood, hearing officer,
on May 14 and 15 and June 4, 1957. All parties 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
1 The Southeast Texas Chapter of the National Electrical Contractors Association, herein
called the Intervenor, intervened at the hearing.
119 NLRB No. 44.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues. The rulings of the hearing officer made at the hearing are
free from prejudicial error and are hereby affirmed 2 Briefs were
filed by the Engineers, Electricians, and by Hinote and the Intervenor.
Upon the entire record, the Board finds : 3
1. Turner and Hinote are engaged in commerce within the meaning
of the Act.
2. Local 450, International Union of Operating Engineers, AFL-
CIO, and Locals 390 and 479, International Brotherhood of Electrical
Workers, AFL-CIO, are labor organizations within the meaning
of the Act.
3. A dispute exists as follows :
The Facts
In March 1957, Hinote was engaged as a prime contractor in the
construction of an electrical substation at the Port Arthur, Texas, re-
finery of The Texas Company. Hinote was also performing other
services elsewhere on the refinery premises as a subcontractor. On or
about March 4, Hinote requested Local 390 of the Electricians to refer
a lineman for employment. The Electricians referred journeyman
lineman Bob Crisp, a member of its Local 479, whom Hinote hired to
do lineman work and to operate an A-frame winch truck in connection
therewith 4 A few days later Musgrove, business agent of the Engi-
neers, contacted Rivet, manager of Hinote's Port Arthur branch, and
asked him to remove the truck from the job because it was engaged in
engineers' work. Rivet replied that the truck was being used in con-
nection with electrician's work and referred Musgrove to the Elec-
tricians for discussion of the matter.' Crisp continued to operate the
truck on the job. Musgrove also brought the matter to the attention
of Eisler, assistant superintendent of The Texas Company, stating
that "the operation of the truck should be handled with operating
engineers and not an electrician," that the truck "was not a line gang
truck used by electricians, but was a winch truck used by engineers,"
and that "there should be an operating engineer on that type of
truck." Musgrove further stated "his men were dissatisfied due to the
2 The hearing officer referred to the Board the Respondent 's motion to quash the notice
of hearing . For reasons given hereinafter, the motion to quash is denied.
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Leedom and Members Murdock and Rodgers].
' The truck is a 1-ton vehicle with a cab , a winch , 2 toolboxes mounted on the sides, and
a stiff-leg A-frame. Hinote 's assignment of the operation of the truck to a lineman for
work on the substation would appear to have been within the contemplation of the agree-
ment between Local 390 of the Electricians and the Sabine Division of the Southeast Texas
Chapter of the National Electrical Contractors Association . The Association is herein
called NECA. This agreement is binding on Hinote because of its membership in the
Intervenor and representation by the Intervenor for bargaining purposes.
5 Contrary to the Engineers , it is clear , and we find , that this conversation occurred before
the work stoppage.
LOCAL 450 341
fact that electricians were operating that truck." The record reveals
that the Engineers thereafter instructed its stewards on the refinery
premises to withdraw the engineers from their jobs, and the stewards
did withdraw the engineers as instructed. Thus witness Barling, an
employee of Turner, testified credibly that he was present at and heard
a conversation between job stewards at which the steward on the Riley
Stoker job stated he had instructions from Musgrove to pull the engi-
neers from their jobs, that Shepherd, the steward for Turner, tele-
phoned Musgrove and received confirmation of the instructions, and
that he saw Shepherd stop the engineers on his job from working, tell-
ing them "he had orders to knock them off over the winch truck deal,
over the electrician driving the winch truck." During the aforesaid
conversation the Riley Stoker steward stated : "The American Bridge
is all going and everybody else is supposed to go."
On or about March 7, all engineers employed by the various con-
tractors at the refinery, including Turner, Trotti, and Thompson,
American Bridge Division of the U. S. Steel Company, and Riley
Stoker Company, walked off their jobs. They remained away from
their jobs until approximately March 22. Hinote employed no engi-
neers. Comeaux, superintendent for Turner, testified that Musgrove
ascribed the reason for the walkout as "they couldn't stand to see the
winch truck being operated by the electricians." On or about March
15, Musgrove again communicated with Rivet and asked him "to get
the truck off of the job, it was engineers' work...."
The dispute concerning operation of the truck was submitted to the
National Joint Board for Settlement of Jurisdictional Disputes, here-
in called the Joint Board, by Maloney, general president of the En-
gineers. The Engineers and the Electricians appeared at the hear-
ing, the latter, however, contesting the Joint Board's jurisdiction to
consider the dispute. Hinote was requested by the Joint Board to
submit information but declined to do so. Neither the Intervenor nor
NECA participated.
By letter dated April 16, 1957, the Joint Board made the following
award : 8
At its meeting April 12, 1957, the Joint Board considered the
jurisdictional dispute between the International Union of Oper-
ating Engineers and the International Brotherhood of Electrical
Workers, Texas Company Refinery Power Plant job, Port Ar-
thur, Texas, Riley Stoker Company contractor, Hinote Electric
Company subcontractor.
The Joint Board voted to make the following job decision: The
A-frame winch truck used to erect substation or switchyard steel
6 No appeal was taken from the award by the Electricians.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(sic) on the construction project site should be assigned to Oper-
ating Engineers.
This action of the Joint Board was predicated upon particular
facts and evidence before it regarding this dispute and shall be
effective on this particular job only.
Very truly yours,
(Signed ) JOHN T. DUNLOP,
Chairman.
Hinote was advised of the Dunlop award, but refused to change its
operations as a result . It continued to use the same electrician to
operate the truck. At the time of the hearing, work was still in
progress.
Contentions of the Parties
The Engineers argues, in effect : (1) Its conduct did not constitute
a violation of Section 8 (b) (4) (D) of the Act because no demand
was made that the work of operating the truck be assigned to the
Engineers instead of the Electricians; and (2) the parties to the dis-
pute have agreed upon methods for the voluntary adjustment of the
dispute within the meaning of the Act, and the dispute is now, in fact,
adjusted by the award of the Joint Board.7 The Electricians, Hinote,
and the Intervenor argue, in substance, that the clear intent of the
Engineers' conduct was to force or require Hinote to assign the work
of operating the truck to the Engineers instead of the Electricians;
that the assignment of the work was Hinote's prerogative, and, in
addition, supported by the agreement referred to, supra, and by custom
of contractors in the area; and that the Joint Board lacked jurisdiction
to entertain the dispute and make an award, if, in fact, it ever really
did make an award as to the particular matter herein involved.
Applicability of the Statute
In this proceeding under Section 10 (k) of the Act, the Board is
required to find there is a reasonable cause to believe that Section 8
(b) (4) (D) has been violated before proceeding with a determination
of the dispute out of which the alleged unfair labor practice has
arisen.
As heretofore noted, the Engineers contends that its conduct does
not constitute a demand for the assignment of any particular work,
and there is, therefore, lacking an essential element to a finding of
reasonable cause to believe that Section 8 (b) (4) (D) has been vio-
lated, namely, the existence of a work assignment dispute. This con-
tention is grounded upon the alleged absence of an express oral or
7 The Engineers asserts no Board order or certification , or contract claim for the work
in dispute or as justification for its activities.
LOCAL 450 343
written demand that the work of operating the the truck be trans-
ferred from the Electricians to the Engineers. However, it does not
.follow that there was no demand for a reassignment of work because
the demand was not spelled out in so many words.8 Indeed, the nature
,of the controversy is revealed by the fact that the Engineers saw fit
to submit the dispute to the Joint Board. For such submission was
tantamount to an acknowledgment that there existed a work assign-
iment dispute rather than a mere question of whether a winch truck
was rightfully on the job. Moreover, the Joint Board appears to
have had no doubt that the Engineers was submitting a work contro-
versy, judging from the tenor of its award of April 16, 1957. In
addition, the demands upon Hinote for removal of the truck because
Engineers' work was involved are implicitly demands to resolve the
'dispute by replacing the electrician operating the truck with an engi-
neer inasmuch as Hinote had to use an A-frame winch truck in its
work. Further, Musgrove's statement to Eisler that "there should
be an operating engineer on that type of truck" coupled with his
Lreference to dissatisfaction among the engineers can only be inter-
preted as a demand for work reassignment. Similarly, the work
:stoppages of the Engineers employed by the various contractors, real-
istically viewed, constitute a demand that The Texas Company
resolve the dispute by bringing pressure to bear on Hinote to replace
the electrician with an engineer. Accordingly, we find that there
-exists a controversy with respect to the assignment of work to any
of the Employer's employees. It is also clear from the testimony of
Barling, above, that there has been inducement of employees to engage
in a strike to force the assignment of work herein to the Engineers.
As heretofore noted, the Engineers further contends the parties
'have agreed upon methods for the voluntary adjustment of the dis-
•pute, and the dispute is now adjusted. As to Hinote, the Engineers'
position is that Hinote is bound by the award of the Joint Board be-
cause of its membership in NECA. As to the Electricians, it argues
that the award is binding because the Electricians is a party to the
Joint Board. Hinote and the Intervenor contend there has never been
an adjustment of the dispute because NECA had no authority to bind
Hinote to an award of the Joint Board; and, in addition, the award
did not cover the particular job involved. The Electricians admits
the Joint Board has authority to bind it with respect to disputes
'within the Building and Construction Trades Department, but argues
that the instant matter involves a dispute outside that department
:and, therefore, the Joint Board has no jurisdiction over it.
It is sufficient for the purpose of disposing of this issue that the
evidence falls short of establishing that Hinote has ever submitted,
8 Cf. Anning-Johnson Company, 113 NLRB 1237, 1242.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or acquiesced in the submission of, the dispute to the Joint Board or
is bound by its determination? Thus, although NECA admits it was
one of the sponsors of the Joint Board, evidence is lacking that NECA
was a party to the Joint Board during the critical period, or that it
possessed authority to bind Hinote by virtue of its membership in
NECA to an award of the Joint Board, and, as already shown, Hinote
was requested, but refused, to submit evidence on the dispute to the
Joint Board.10 Accordingly, we do not consider ourselves precluded
from determining the dispute herein on the asserted grounds that the
parties have agreed upon methods of voluntary adjustment and that
the dispute is now adjusted."
In the circumstances, we find there is reasonable cause to believe
that the Engineers violated Section 8 (b) (4) (D). We further find
that the dispute involved in this proceeding is properly before us for
determination under Section 10 (k) of the Act."
Merits of the Dispute
It is well established that an employer is entitled to make work
assignments free of strike pressure by a labor organization, unless
the employer is failing to conform to an order or certification of the
Board determining the bargaining representative for employees per-
forming such work, or the claimant union has an immediate or deriva-
tive right under an existing contract upon which to predicate a lawful
claim to the work in dispute.13 As the Engineers has no order, certi-
fication, or contract claim to the work, we find that they are not en-
titled, by means proscribed by Section 8 (b) (4) (D), to force or
require Hinote to assign the disputed work to its members. However,.
s It is unnecessary for us to determine whether the Joint Board 's award is controlling
with respect to the particular job herein involved or another dispute concerning a job for-
which IIinote was a subcontractor of Riley Stoker Company as the award states.
We also find it unnecessary to determine whether , as the Electricians claims, the dispute-
involves outside linework which is not encompassed by the authority of the Joint Board.
to Provisions of the constitution and bylaws of NECA do not require a finding that it
possessed authority to bind Hinote . Article I , section 3 of the bylaws of NECA provide that
it shall "speak for the electrical contracting industry as a whole and represent its interests
before legislative assemblies, governmental agencies and other bodies." We cannot infer-
any authority from this general provision to bind Hinote to determinations of the Joint
Board.
11 Nor do we find any merit in the Engineers' position that because the Charging Party
sought to withdraw the charge herein , a request which the Regional Director denied, the,
dispute should be deemed adjusted , In the light of the continued adherence of Hinote
and the unions to their respective positions such a conclusion is clearly unwarranted.
12 Farnsworth & Chambers Co., Inc. , 111 NLRB 1307 , 1312 ; Bay Counties District Coun-
cil of Carpenters , etc., 115 NLRB 1757, 1768 . The cases of A. W. Lee, Inc., 113 NLRB
947, and Meyer Furnace Company ( Refrigeration and Air Conditioning Contractors As-
sociation ), 114 NLRB 924 , cited by the Engineers are distinguishable . In the Lee case, a.
local union was considered bound by a determination of the Joint Board where its Inter-
national Union was clearly bound and the local union had previously complied with de-
cisions of the Joint Board. In Meyer Furnace Company it was clear there had been a
voluntary submission of the dispute to the Joint Board by all the parties.
18 Bay Counties District Council of Carpenters , etc., supra ; Farnsworth & Chambers Co.,
Inc. supra.
DETROIT NEWS 345
'we are not by this action to be regarded as "assigning" the work in
question to electricians or to any other particular group of
employees."
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. International Union of Operating Engineers, Local 450, AFL-
CIO and its agents are not and have not been lawfully entitled to
force or require Hinote Electric Company or any other employer to
assign the work in dispute to members of the Engineers rather than
to members of any other labor organization or to nonmembers of any
labor organization.
2. Said Local 450 of the Operating Engineers 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 Na-
tional 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 Hinote Electric Company, by means proscribed
by Section 8 (b) (4) (D) of the Act, to assign the work in dispute
to members of Local 450 rather than to members of any other labor
organization or to nonmembers of any labor organization.
14 The Engineers contends that the Board is obliged , if it finds the Engineers in viola-
tion of 8 (b) (4) (D), to determine whether the work in dispute is in the work area
,of the Engineers or the Electricians . In our view it is not incumbent upon us to make such
a determination . See Denali-McGray Construction Company, 118 NLRB 109, footnote 4.
The Evening News Association , d/b/a Detroit News; Knight
Newspaper , Incorporated , d/b/a Detroit Free Press ; Detroit
Times, Division of Hearst Publishing Company, Inc.' and Inter-
national Mailers Union , Petitioner . Case No. 7-RC-3335.2
November 5,1957
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 Emil C. Farkas, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
l Although the Employers were referred to throughout this proceeding as the Detroit
News, the Detroit Free Press, and the Detroit Times , the record indicates that their correct
'corporate names are as set forth . Accordingly, we hereby amend the names of the Em-
ployers , as they appear in all formal papers , to reflect their correct corporate names.
2 Originally consolidated with Cases Nos . 7-RC-3336 and 3337 for purposes of hearing
and thereafter severed by order of the hearing officer.
3 International Typographical Union and Detroit Mailers Union No. 40 , International
Typographical Union, hereinafter referred to collectively as the Intervenors or individually
119 NLRB No. 46.