Local 106

National Labor Relations Board - Board Decisions

Feb 10, 1958

119 N.L.R.B. 1525 (N.L.R.B. 1958)

LOCAL 106 1525
by Brown to Handelsman, and which is so different from the receipt described in
detail by Brown, casts substantial doubt upon the reliability of Brown's entire testi-
mony If this receipt is not the one written out by Handelsman on November 14,
as Brown has testified, then it cannot be accepted as evidence of any point in the case
Brown's testimony is undisputed in this record, and is not inherently implausible
Therefore, I have accepted it, on this point of the receipt, as well as on all other
points In consequence, I find that receipt No 14016 is not connected with the
Ernest Brown here involved, and there is no evidence to support the contention of
the General Counsel on this point 13
The General Counsel also contends that the union-security provision of the
contract was not effective until 31 days after June 23, 1955, and that according to
receipt No. 14016, Handelsman had asked Brown to pay dues for the second, third,
and fourth quarter of 1955, and that the payment for the second quarter of that
year was in excess of the right of the Union That contention, however, is partially
subject to the same infirmity in that it is based in part on receipt No. 14016, which
Brown has rejected
Putting the receipt aside, and relying on Brown's testimony, then it appears that
he told Handelsman that he had filed an application for membership from the
Mormacrey, early in the year. On that basis, both Brown and Handelsman were
in agreement on November 14, that Brown owed dues for three quarters in 1955
In these last two contentions the General Counsel asks in effect that I disregard
the positive testimony of Brown, which is reinforced by numerous significant details,
and find that Brown is mistaken as to that portion of his testimony, but entirely
reliable as to everything else I do not deem Brown to be that kind of a witness. He
is young, intelligent, and alert I have credited his testimony on all other points.
I can find no reason in this record why I should not credit him on this point, also.
Counsel for the Company urges, with the Union, that Brown quit his employment.
I cannot find that to be the case. It appears that, technically, it may be true that
only the master of a vessel can discharge a member of the crew, but here the chief
steward acceded to Handelsman's request, and the purser paid Brown off, and the
master did not disavow their acts when he heard of them.
Upon all the evidence I find that the Company discharged Brown at the instance
and request of the Union However, I find that the action of the Union in causing
the discharge of Brown, and the action of the Company in discharging Brown were
not violations of any section of the Act I find that Brown's employment was
terminated by the action of the Union and the Company, pursuant to a valid union-
security provision of the contract between the parties, and was in all respects lawful.
Therefore I recommend that the complaint be dismissed in its entirety.
is As noted previously, this document was received with all counsel aware of the fact
that it was received subject to qualifications arising from the surrounding testimony
Local 106, International Union of Operating Engineers, AFL-
CIO, and Daniel J. McGraw, its agent and Plattsburgh
Ready-Mix Concrete Company, Inc. Case No . 2-CD-147.
February 10, 1958
DECISION AND DETERMINATION OF DISPUTE
On May 27, 1957, Plattsburgh Ready-Mix Concrete Company, Inc.,
filed a charge with the Regional Director for the Second Region , alleg-
ing that Local 106, International Union of Operating Engineers, AFL-
CIO, and Daniel J, McGraw, its agent, had engaged and were engag-
ing in certain unfair labor practices within the meaning of Section 8
(b) (4) (D) of the Act.
Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71
and 102.72 of the Board's Rules and Regulations, Series 6, as amended,
119 NLRB No. 192.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director investigated the charge and provided for an
appropriate hearing upon due notice. The hearing was held at Platts-
burgh, New York, on August 5, 1957, and at Albany, New York, on
August 27, 1957, before I. L. Broadwin, hearing officer. 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 issues. The rulings of the hearing officer made at the
hearing were free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. The Company is engaged in commerce within the meaning of the
Act.
2. Local 106, International Union of Operating Engineers, AFL-
CIO, is a labor organization within the meaning of the Act, and Daniel
J. McGraw is its agent within the meaning of the Act.
3. On April 18, 1957, McGraw demanded of the Company's presi-
dent, Maurice Estes, that the Company employ members of Local 106
to operate and maintain the Company's conveyors, or else Local 106
would picket the Company. Local 106 had no order or certification of
the Board determining that it was the' bargaining representative for
employees performing such work. The Company was performing this
work with its own employees, who were not members of Local 106,
and refused to accede to this demand. At McGraw's instigation, Lo-
cal 106 accordingly began picketing the Company on April 22, 1957.
The picket sign asserted that the picketing was for organizational pur-
poses, and Estes testified that while the picketing was in progress
Thomas McGraw, a representative of Local 106 or the International,
advised him that the Company would not have any more labor trouble
if its employees joined the Operating Engineers. Despite this latter
evidence we are satisfied that Local 106 continued its picketing to en-
force its demand for the assignment to its members of the work of op-
erating and maintaining the Company's conveyors. The picketing ap-
parently continued, with an intervening interruption, until sometime
in July.
On the second day of the hearing, counsel for Local 106 failed to
resume his appearance, but authorized-a formal statement on the rec-
ord that the Respondents would abide by the Board's determination
of the dispute upon the uncontroverted evidence.
CONTENTIONS OF THE PARTIES
The Company contends that Local 106's claim to the disputed work
is without legal justification.
l Notice of hearing was duly served on Local 638 , International Brotherhood of
Teamsters , but that union did not appear at the hearing.
LOCAL 106 1527
The Respondents offered no evidence and filed no brief. Their
principal contention at the hearing appeared to be that the Company
had agreed to Local 106's claim.
APPLICABILITY OF THE STATUTE
The record before us establishes that there is reasonable cause to
believe that by the picketing, Local 106 and McGraw induced and
encouraged employees to engage in a concerted refusal to perform
services in order to force or require the Company to assign particular
work to members of Local 106, rather than to its own employees, who
were not members of Local 106.
Accordingly, we find that this dispute comes within the meaning of
Section 10 (k) of the Act, and is properly before us for determination.
MERITS OF THE DISPUTE
As stated above, the Respondents appear to base their claim on
the Company's alleged agreement to assign the disputed work to
Local 106. However, the record shows clearly and without contradic-
tion that the so-called agreement consisted of no more than a former
promise by Estes to employ some members of Local 106 on certain
construction work then in progress in order to avoid being picketed
and blacklisted on those jobs. This promise was a verbal one, made
without valid consideration, and appears to have related only to work
which was completed before the time of the events involved in this
proceeding. In view of all these facts, we find no merit in the
Respondents' contention.
We find that the Respondents are not lawfully entitled to force
or require the Company to assign the disputed work to members of
Local 106 rather than to employees who are not members of Local 106.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act :
1. The Respondents, Local 106, International Union of Operating
Engineers, AFL-CIO, and Daniel J. McGraw, its agent, are not and
have not been lawfully entitled to force or require Plattsburgh- Ready-
Mix Concrete Company, Inc., to assign particular work to members
of Local 106, rather than to employees of the Company who are not
members of Local 106.
2. The Respondents shall, within ten (10) days from the date of
this Decision and Determination, notify the Regional Director for
the Second Region in writing whether or not they accept the Board's
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination of this dispute, and whether or not they will refrain
from forcing or requiring the Company, by means proscribed in Sec-
tion 8 (b) (4) (D) of the Act, to assign particular work to members
of Local 106 rather than to employees of the Company who are not
members of Local 106.
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Decision and Determination of Dispute.
United States Gypsum Company, Petitioner and Local Union
7-278, Oil, Chemical and Atomic Workers International
Union , AFL-CIO. Cases Nos. 13-RM-344 and 13-RM-3I5.
February 10, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert G. Mayberry,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Rodgers, Bean, and Jenkins].
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. Local Union 7-278, Oil, Chemical and Atomic Workers Inter-
national Union, AFL-CIO, herein called the Union, is a labor or-
ganization and claims to represent employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer manufactures gypsum, cement and asbestos prod-
ucts at its East Chicago, Indiana, plant, which is the only plant
involved herein.
In Case No. 13-RM-345 the Employer seeks a determination of
bargaining representative in a unit of production and maintenance
1 At the hearing the Union moved to dismiss the petitions on the ground that the unit
questions involved herein were determined in United States Gypsum Company, 105 NLRB
931 and 107 NLRB 122. We find no merit in the Union 's contention . The Employer, in
a letter to the Union prior to filing the petitions herein , advised the Union that it doubted
the Union represented a majority of the employees in the appropriate units, and was filing
an employer 's petition with the Board for an election to determine the Union 's repre-
sentative status. At the hearing the Employer again stated that it doubted the Union's
majority status. In such circumstances , as the Employer filed petitions for a determina-
tion of the Union's majority representative status , we deny the Union's motion to dismiss
the petition.
119 NLRB No.191.