Local 181, Int'l Operating Engineers

National Labor Relations Board - Board Decisions

Jan 28, 1965

150 N.L.R.B. 1353 (N.L.R.B. 1965)

LOCAL 181, INT'L OPERATING ENGINEERS 1353`
WE WILL NOT maintain or enforce any rule against employees ' circulating
union literature on nonworking time; or maintain or enforce any rule forbidding
employees to engage in self-organization activities which may involve criticism
of company policies.
WE WILL NOT solicit employees to withdraw from participation in union activ-
ities; or ask employees about the union activities of other employees.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to organize , perform, join, or assist a
labor organization , bargain collectively through a bargaining agent chosen by
themselves , engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any such
activities. -
WE WILL offer Lloyd Robinson, Edwin Tollie, Maston Turner, Raymond Jarvis,
and Kent Owens their former or substantially equivalent jobs (without prejudice
to seniority or other employment rights and privileges) and WE WILL pay them
for any loss suffered because of our .discrimination against them.
All our employees are free to become or remain members of any labor organization.
LEXINGTON CHAIR COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE-We will notify the above-named employees if serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective' Service Act, and the Universal Military Training and Service
Act of 1948, as amended, after discharge from'the Armed Forces.
This notice must remain posted for 60 consecutive -days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees , may communicate directly with the Board's Regional Office, 1831
Nissen Building , 310 West Fourth Street , Winston-Salem , North Carolina, Telephone
No. 723-2911, if they have any questions concerning this notice or. compliance with
its provisions. ,
Local Union No . 181, International Union of Operating Engi-
neers, AFL-CIO and Service Electric Company. Case No.
9-CD-69-1. January 28, 1965
DECISION AND ORDER
On December 14, 1964, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceeding, finding that, the Respond-
ent.had engaged in and was engaging in certain unfair labor prac-
tices and- recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision.- Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
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-
member panel [Members Fanning, Brown, and Jenkins]. '
The Board has reviewed the rulings of the Trial Examiner made
at'the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
150 NLRB No. 128.
1354 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
record in this case,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner?
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Local
Union No. 181, International Union of Operating Engineers, AFL-
CIO, its officers, agents, and representatives, shall take the, action
set forth in the Trial Examiner's Recommended Order.
1 The parties agreed to incorporate the record in the 10 ( k) proceeding in the present
proceeding.
2 Respondent 's exceptions relate to findings originally made in the Board's Decision
and Determination issued on March 25, 1964 ( 146 NLRB 483 ). We have examined the
brief in * support of Respondent ' s exceptions and find that it contains nothing not pre-
viously considered and rejected by the Board . Local 1291 , International Longshoremen's
Association, AFL-CIO ( Northern Metal Company ), 142 NLRB 1228.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Following the filing of a charge on September 16, 1963, by Service Electric Com-
pany, herein called the Employer or Charging Party, alleging that Local Union No.
181, International Union of Operating Engineers , AFL-CIO, herein called the
Respondent, had violated Section 8 (b)(4)(D) of the Act in connection with a work
assignment jurisdictional dispute, the Board , pursuant to Section 10(k) of the
National Labor Relations Act, as amended , conducted a hearing before Trial Exam-
iner George " J. Bott at Lexington , Kentucky , on October 24 and 25, 1963, to determine
the dispute.
On March 25, 1964 , the Board handed down its Decision and Determination of
Dispute which is reported at 146 NLRB 483. The Board found that there was "rea-
sonable cause to believe that a violation of Section 8(b) (4) (D ) has occurred and
that the dispute is properly before the Board for determination under Section 10(k)
of the Act." The Board then proceeded to determine the merits of the dispute and
found that "Employees engaged as electricians , currently represented by Local Union
No. 183, International Brotherhood of Electrical Workers, AFL-CIO, are entitled to
operate the Pitman Hydra -Lift for Service Electric Company at the East Kentucky
Rural Electrical Corporation project , Burnside , Kentucky ." It also found that
Respondent is not entitled by means proscribed by Section 8(b)(4)(D ) of the Act
to force or require the Employer to assign such work to employees engaged as'dperat-
ing engineers , who are currently represented by Respondent Local Union No. '181,
International Union of Operating Engineers , AFL-CIO. The Board accordingly
directed Respondent to notify the Regional Director , in writing , whether or not, in
compliance with the Decision and Determination of Dispute , it will refrain from
the proscribed conduct. Thereafter, on May 6, 1964, the General Counsel issued a
complaint alleging that the Respondent refused to abide by the Determination of
Dispute by failing to notify the Regional Director that Respondent will refrain from
forcing or requiring the Employer by means proscribed by Section 8(b) (4) (D) to
assign the work in dispute to Respondent 's members rather than members of •IBEW. .
The complaint also alleged that, on or about August 20 and 26, 1963 , the Respondent
demanded that the operation of the hydra -lift be assigned to members of Respondent
and threatened to strike to enforce the demand , and, on or about October 17, 1963,
Respondent 's members struck to enforce the demand , all in violation of Section 8(b)
(4) (i) and ( ii) (D) of the Act. Respondent filed an answer denying that it engaged
in unfair labor practices.
On June 17, 1964, a hearing was held before me in Lexington , Kentucky, on the
complaint of General Counsel. General Counsel , Respondent, and the Charging
Party were ' represented by counsel . At the hearing the parties agreed that the record
in the Section 10(k) hearing should be introduced and that I should decide the, case
on the basis of that record and the testimony of one witness for the General Counsel.
LOCAL 181, INT'L OPERATING ENGINEERS 1355
Upon the basis of the record thus made , and upon my observation of the witness
who appeared before me , I make the following:,
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Upon the basis of the facts alleged in the complaint , admitted by Respondent and,
-found by the Board in the Section 10 (k) proceeding , I find that the Employer is
engaged in commerce within the meaning- of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
As alleged - in the complaint , admitted in the answer, and found by the Board in
the Section 10(k) proceeding , both Respondent and Local Union No. 183, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, herein called the IBEW, are
labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues before the Trial Examiner
In the Section 10 (k) proceeding, the Board must determine , at the outset , whether
there exists reasonable cause to believe that a violation of Section 8(b) (4) (D) of
the Act has occurred . If the Board finds that such reasonable cause does exist and
that the parties have not settled or agreed upon a method for settling their dispute,
then it proceeds , as it is required to do under - the statute , to determine the dispute.
If after the Board issues its Decision and Determination of Dispute , the parties do
not comply with the Board 's determination , a complaint is issued upon the unfair
labor practice charge.
An award of disputed work made by the Board in a Decision and Determination
of Dispute is not open to review by a Trial Examiner in a proceeding on a Section
8(b) (4) (D) complaint .' Accordingly; the findings of the Board as to who is entitled
to perform the work in dispute are adopted as part of the findings herein.
. The sole issues before me in this case, therefore , are whether there has
been compliance with the Board 's determination and whether Respondent has
violated Section 8(b)(4)(i ) and (ii )(D), as alleged . This latter issue , although
considered preliminarily in the Section 10(k) proceeding , may be tried de novo in
the unfair labor , proceeding , because the standard of proof in the unfair labor prac-
tice proceeding is "not reasonable cause to believe," as in the Section 10 (k) proceed-
ing, but "preponderance of,the evidence ," as required by the Act in all unfair labor
practice cases.
B. Respondent 's failure to comply with the Board's determination of dispute
The complaint alleged that since on or about March 26, 1964 , the Respondent has
refused to abide by the Determination of Dispute by failing to notify the Regional
Director of the Board , in writing , as required by the Board's Determination of Dis-
pute , that Respondent will refrain from forcing or requiring the Employer by means
proscribed by Section 8(b)(4)(D ) of the Act to assign the work in dispute to
Respondent 's members rather than members of the IBEW . The Respondent 's answer
admitted this allegation , and I find , therefore , that Respondent has failed to comply
with the Board 's Determination of Dispute.
C. Facts and conclusions with respect to the unfair labor practices
W. R. Painter , job superintendent for Service Electric Company,, testified in the
proceeding before me . Painter was the only witness called , and he credibly testified
as follows: On or about August 20, 1963, a dispute arose over the operation of the
Pitman hydra-lift, for, on that date , Jim Waldin , job steward for Respondent Union,
told Painter that the operation of the equipment belonged to the Respondent Operat-
ing Engineers Union and that if the Employer continued to use an IBEW member
to operate it there would be a strike of Respondent 's members. On or about August 26,
1963 , Russell Pierce , Respondent 's business agent, accompanied by Waldin, made
the same statements to Painter about a strike as Waldin had made earlier and said he
1 N.L.R.B. v. Local 450 , International Union of Operating Engineers, AFL-CIO (Sline
Industrial Painters ), 275 F. 2d 408 , 413 (C.A. 5) ; Chicago Typographical Union No. 16,
AFL-CIO ( Central Typesetting and Electroplating Company ), 138 NLRB 231; Local
,1291, , International Longshoremen's Association, AFL-CIO (Northern Metal Company),
142 NLRB 1228.
0
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"was backing up his job steward ." On or about October 15 , when the Pitman hydra-
lift was being moved by an IBEW operator to a place on the jobsite where pictures
could be made of it , Job Steward Waldin "had some words" with the IBEW operator
and then left the job . On the following day all members of the Respondent left the
job and remained away until the following Monday. Painter's testimony , which I
credit , is essentially what the Board found in the Section 10 (k) proceeding. 1-find
that Respondent on or about August 20 and 26 , 1963, threatened to strike, and on
or about October 15, 1963, engaged in a work stoppage , an object of all of this
conduct being to force or require the Employer to assign the work in dispute to
operating engineers , who are represented by it , rather than to electricians , who are
represented by the IBEW, despite the fact that the Employer was not failing to con-
form to any form or certification of the Board determining the bargaining repre-
sentative for employees performing such work . I also find and conclude .that by such
conduct Respondent violated Section 8(b) (4) (i ) and (ii ) (D) ,of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the Employer , described herein , have a close , intimate , and substantial
relation to trade, traffic , and commerce among the several States , and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent 'Union has engaged in certain unfair labor prac-
tices, I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The 'Respondent, Local Union No. 181, International Union of Operating
Engineers, AFL-CIO, and Local Union No. 183, International Union of Electrical
Workers, AFL-CIO, are labor organizations within the meaning of. Section 2(5)
of the Act.
2. By engaging in a strike and refusal in the course of their employment, to per-
form services, and by threatening, coercing, and restraining the Employer, with an
object of forcing or requiring the Employer to assign the work of operating the hydra-
lift to employees represented by Respondent rather than to employees represented by
the'IBEW, Respondent has^engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b) (4) (i) and (ii) (D) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act. '
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Local Union
No. 181, International Union of Operating Engineers, AFL-CIO, its officers, repre-
sentatives, and agents, shall: ,
1. Cease and desist from engaging in, or inducing or encouraging any individual
employed by Service Electric Company to engage in, a strike or a refusal in the course
of his employment to perform any services, and from threatening, coercing, or
restraining the above-named Employer, where an object thereof in either case is to
force or require Service Electric Company to assign the work of operating the hydra-
lift to employees represented by Respondent rather than to employees represented by
the IBEW, except insofar as any such action is permitted under Section 8(b)-(4) (D)
of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) "Post at the business office of Respondent, copies of the attached, notice marked
"Appendix." 2 Copies of said notice, to be furnished, by the Regional Director for
In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words, "a Decision
and Order".
a
AMERICAN GRINDING & MACHINE CO. 1357
Region 9, shall, after being duly signed by the Respondent , be posted by it immedi-
ately upon receipt thereof , and be maintained for a period of 60 consecutive days
thereafter , in conspicuous places, including all places where notices to employees and
members are customarily posted . Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered , defaced, or covered by any other
material.
(b) Furnish to the said Regional Director signed copies of said notice for posting
by the above-named Employer, if willing, in places where notices to employees are
customarily posted . Copies of said notice , to be furnished by the said Regional
Director , shall, after being signed by the Respondent , be forthwith returned to the
Regional Director for disposition by him.
(c) Notify the said Regional Director , in writing , within 20 days from the date
of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken
to comply herewith.3
$ In the event this Recommended Order Is adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director , In writing , within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYERS OF
SERVICE ELECTRIC COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage any individual employed
by Service Electric Company to engage in , a strike or refusal in the course of
employment to perform any services , or threaten , coerce , or restrain the above-
named Employer , where an object thereof is to force or require Service Electric
Company to assign the work of operating the hydra-lift to employees who are
represented by our Union rather than to employees represented by Local Union
No. 183, International Brotherhood of Electrical Workers, AFL-CIO, except
insofar as any such action is permitted under Section 8(b) (4) (D ) of the Act.
LOCAL UNION No. 181 , INTERNATIONAL UNION
OF OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
2023 , Federal Office Building, 550 Main Street , Cincinnati, Ohio , Telephone No.
381-2200 , if they have any questions concerning this notice or compliance with its
provisions.
American Grinding & Machine Co. and District No. 8, Inter-
national Association of Machinists , AFL-CIO. Case No. 13-
CA-6016. January 09, 1965
DECISION AND ORDER
On May 28, 1964, Trial Examiner James V. Constantine issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
150 NLRB No. 129.