Local 46, Wood, Wire and Metal Lathers, Etc.

National Labor Relations Board - Board Decisions

Dec 7, 1962

140 N.L.R.B. 1 (N.L.R.B. 1962)

Local 46, Wood, Wire and Metal Lathers International Union,
AFL-CIO, and Brian Dillon, its Business Representative and
Precrete, Inc. Case No. 2-CD-216. December 7, 1962
DECISION AND ORDER
On September 13, 1962, Trial Examiner Samuel Ross issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report.'
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 Leedom, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
The Board hereby adopts as its Order the Recommended Order of
the Trial Examiner.
1 In part, the Respondents ' exceptions are in the nature of a motion to reconsider the
Board 's Decision and Determination of Dispute issued on April 13, 1962 ( 136 NLRB 1072).
We have examined the arguments in support of the motion and find that they contain
nothing not previously considered by the Board . Moreover , with respect to the Respond-
ents' contention that the Section 10(k) proceeding did not reveal a claim by Local 1175
to the work in dispute , the record affirmatively establishes that Local 1175, which had
a contract with Precrete covering the disputed work , did make such claim. Accordingly,
the motion for reconsideration is denied . Cf Wood, Ware & Metal Lathers International
Union, Local No . 328 (Acoustics & Specialties, Inc.), 139 NLRB 598. Member Leedom
agrees that Respondents ' exceptions are without merit, but regards the question whether
Local 1175 affirmatively claimed the disputed work as immaterial . See the dissenting
opinion in Sheet Metal Workers International Association , Local Union No. 272, et al.
( Valley Sheet Metal Company ), 136 NLRB 1402.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on May 19, 1961, by Precrete, Inc. (herein called Precrete),
the General Counsel of the National Labor Relations Board issued a complaint
dated May 16, 1962 , against Local 46, Wood, Wire and Metal Lathers International
Union , AFL-CIO (herein called Local 46), and Brian Dillon, its business rep-
resentative , alleging that Respondents have engaged in unfair labor practices within
the meaning of Section 8(b)(4)(i) and (ii )(D) and Section 2(6) and (7) of the
Act. In substance, the complaint alleges that in furtherance of a demand that
Precrete assign the work of installing and tying metal reinforcing materials in pre-
140 NLRB No. 1.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stressed concrete slabs and other construction components to employees represented
by Local 46 rather than to employees represented by Local 1175, International Hod
Carriers, Building and Common Laborers of America, AFL-CIO (herein called
Local 1175), Respondents threatened to picket and thereafter picketed Precrete from
May 19 until June 1, 1961; that thereafter on April 13, 1962, in a proceeding pursuant
to Section 10(k) of the Act, the Board issued its Decision and Determination of Dis-
pute in which the Board concluded that the employees of Precrete currently rep-
resented by Local 1175 are entitled to place and tie the reinforcing material, and
that the Respondents are not entitled to force or require Precrete to assign the said
disputed work to employees represented by Local 46; that the Respondents have not
complied with the Board's Decision and Determination of Dispute, and that thereby,
Respondents have engaged in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (D) of the Act. The Respondents have filed an answer
denying generally the unfair labor practice allegations of the complaint.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross
at New York, New York, on July 2,1962. All parties appeared, were represented
by counsel, and were afforded full opportunity to be heard, to adduce relevant
evidence, to argue orally, and to file briefs. No witnesses were called to testify.
Instead, a written stipulation signed by all of the parties was presented in which they
agreed that the testimony adduced, the motions made, and the arguments of counsel
at the hearing before the National Labor Relations Board in the Section 10(k) pro-
ceeding, including all the exhibits, stipulations, admissions, and concessions made
therein shall constitute the entire record in this proceeding with the same force
and effect as if the witnesses personally had appeared and given such testimony
herein.
Counsel for the Respondents, the Charging Party, and the General Counsel made
brief oral arguments before the close of the hearing. All parties waive their
rights to file briefs except that a copy of the brief submitted to the Board by the Re-
spondents in the Section 10(k) proceeding was presented for my consideration in
the instant proceeding.
Upon the entire record in this case, I make the following:
FINDINGS OF FACTS
1. COMMERCE
,Precrete, a New York corporation whose principal office and place of business is
located in Astoria, Long Island, New York, is engaged in the manufacture and sale of
prestressed concrete products used in piers, buildings, bridges, and other construction
projects. According to the stipulation of the parties, Precrete annually purchases
and causes materials valued in excess of $50,000 to be shipped to its plant in New
York from points and places outside the State of New York. Accordingly, I find
that Precrete is engaged in interstate commerce within the meaning of Section 2(6)
and (7) of the Act.'
II. THE LABOR ORGANIZATIONS INVOLVED
The parties have stipulated that both Local 46 and Local 1175 are labor organiza-
tions within the meaning of Section 2(5) of the Act.2
III. THE UNFAIR LABOR PRACTICES
A. Background of the dispute
1. A description of Precrete's process for manufacturing
prestressed concrete products
Precrete has four beds at its Astoria plant which it uses in the manufacture of pre-
stressed concrete products for the construction industry. These beds vary in length
from 450 to 600 feet, and have steam, electric, and water lines running through them.
The process by which Precrete's products are made in these beds is as follows:
Strands of wire or cable are strung lengthwise in the bed from the so-called dead
end to the loose or jacking end, and the strands are pulled taut by hydraulic jacks,
thereby placing stress or tension of approximately 7 tons on each of the cables or
wire strands. Steel reinforcing rods, previously cut and bent to specified lengths and
shape, are then placed horizontally across the taut cables and wire strands, and
'The Board has asserted jurisdiction over Precrete in Case No. 2-CA-7184 132
NLRB 986.
a Respondents' answer admits that Respondent Brian Dillon is a business representative
of Local 46, and its agent within the meaning of Section 2(13) of the Act
LOCAL 46, WOOD, WIRE AND METAL LATHERS, ETC. 3
tied to them with light wire. Bulkheads are then placed across the bed at designated
places, depending on the length of the beam or slab being made, and side forms are
placed at the outer edges of the bed. Concrete is then poured into the forms, the bed
is covered by tarpaulins, and steam is released under the tarpaulins to speed the
curing of the concrete. When the concrete has hardened, the pressure on the wire
strands is released, causing them to endeavor to contract to their original lengths, but
restrained from doing so by the hardened concrete. The instant dispute involves only
the placing and tying of the steel reinforcing rods in the beds.
2. Precrete's work assignments
Precrete started in business in 1954. It employs members of Local 1175 and Re-
spondent Local 46, and carpenters and operating engineers to perform various duties
at its Astoria plant. Initially, Precrete assigned the work of cutting and bending
the steel reinforcing bars to members of Local 46 and the placing and tying of the
bars in the beds to members of Local 1175. After a few weeks, at the request of a
customer, Precrete assigned the placing and tying to members of Local 46. There-
after, except for one job performed by Precrete for Consolidated Edison Company,
metal lathers did all the placing and tying of steel reinforcing material in Precrete's
four beds .3
Since July 1954, Precrete has been a party to successive collective-bargaining
contracts with Local 1175. However, except for a short period in 1957, when it
was a party to an associationwide bargaining contract with Respondent Local 46,
Precrete had no written agreement with the latter union. Nevertheless, Precrete
has paid its lathers the rates negotiated by Local 46 with other companies in the
industry, and has observed the other terms and conditions of the industry contract.4
3. Precrete's efforts to secure a reduced wage rate from Respondent Local 46
In the summer of 1959, Precrete engaged John C. Garvin & Associates, Inc., of
Washington, D.C., consultants in industrial management, to make a survey of the
wage rates and the extent of union organization of Precrete's competitors in the areas
adjacent to New York City. Following completion of this survey, officials of
Precrete met several times in 1959 with representatives of Respondent Local 46,
asserted that, because of the higher construction site rates which it paid to its
metal lathers, Precrete could not meet the low bids of its competitors on various
construction contracts, and requested that Respondent Local 46 agree to the payment
of "shop rates," substantially lower than the rates Precrete was then paying. No
such agreement was obtained.
4. Subsequent background events
On December 31, 1959 , Precrete closed down its plant and released all its em-
ployees. On January 5, 1960, Precrete reopened its plant and hired laborers to
perform all of the work previously assigned to the metal lathers, including the disputed
work of placing and tying of reinforcing steel bars .5 It continued to operate in this
manner until February 8, 1960, when it was shut down again , this time, because
of a picket line established by Respondent Local 46.
Precrete did not resume operation of its Astoria plant until the following year.
However, in June 1960, the directors and stockholders of Precrete organized an
affiliated company, Prefabricated, Inc. (herein called Prefab ), to manufacture pre-
stressed and precast concrete products at a plant in Cedarhurst , Long Island. Prefab
assigned the work of cutting, bending, placing, and tying of reinforcing materials
to employees represented by Local 3127, United Brotherhood of Carpenters and
Joiners of America (herein called Carpenters)s On July 26, 1960, Respondent
9 Members of Local 1175 did this work on the Consolidated Edison job
4 Precrete is closely affiliated , by joint directors and stockholders , with Precast, Inc ,
located in Flushing , New York , which makes precast concrete products , similar to pre-
stressed products , except that the reinforcing material is not subjected to tension or
pressure before the concrete is poured Since 1957 , members of Local 46 have performed
the cutting and bending of reinforcing materials at Precast's plant, and members of Local
1175 did the placing and tying
5In Precrete , Inc., 132 NLRB 986, the Board dismissed the complaint of the General
Counsel based on the foregoing events, which charged Precrete with violations of Section
8(a) (3), (5 ), and (1 ) of the Act.
6In July 1960, Carpenters was certified as the collective-bargaining representative of
Prefab's employees (Case No. 2-RC-19862, not published in NLRB volumes)
681-492-63-vol. 140-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 46, picketed Prefab, assertedly to publicize the payment by Prefab of less
than prevailing area rates for work generally performed by metal lathers. On
August 12, 1960, in a Section 10(1) proceeding based on Prefab's charge that
the picketing violated Section 8(b) (4) (D) of the Act, the United States District
Court for the Eastern District of New York enjoined the picketing.' Thereafter,
a notice of hearing issued under Section 10(k) of the Act on Prefab's charge .8
While the 10(k) hearing was in progress, the parties began to talk of settlement,
not only of that case, but of all the problems between Respondent Local 46 and the
affiliated companies Precrete, Precast, and Prefab. After a number of conferences,
the parties reached agreement on the settlement of their differences, and on Novem-
ber 30, 1960, executed two agreements in writing, one between Respondent Local 46
and Precrete and Precast, and the other between that Union and Prefab. The
agreements provided for the termination of the litigation between them, which
included: (1) An obligation by Respondent Local 46 to request its members to
withdraw the unfair labor practice charges , against Precrete in Case No. 2-CA-7184; 9
(2) discontinuance by Prefab of its district court action for damages against Local
46; and (3) agreement by Prefab to request withdrawal of its Section 8(b)(4)(D)
charges against Respondent Local 46. The agreements further provided as follows:
(a) A new affiliated company, Cut & Bend, Inc, established in the yard imme-
diately adjacent to Precrete's Astoria plant, would do all the cutting, bending, and
prefabricating for Precrete, Precast, and Prefab, utilizing metal lathers paid in
accordance with the prevailing wages established by Respondent Local 46's current
area agreement with the industry. Cut & Bend would execute a contract recognizing
Local 46 as exclusive bargaining representative for its metal lathers embodying
these provisions.
(b) "If Precrete or any successor goes into business again at its Astoria site, at
least one wire lather foreman in a supervisory capacity will be employed in that yard.
Such wire lather foreman shall manually assist in and direct the placing of stirrups
and other reinforcement."
(c) "Precast will employ a wire lather foreman when it is engaged in manu-
facturing building products and construction members, such as wall sections, column
sections, beams, girders and similar products. At all other times Precast shall not be
obligated to employ a wire lather foreman. Insofar as the employment of wire
lathers by Precast is concerned, there will be no change in the present practice
of the Company with respect to the extent and type of work that has been performed
by wire lathers under the last signed contract between Precast and Local 46, except
to the extent that work formerly performed by wire lathers at Precast will now be
performed by wire lathers at Cut & Bend."
(d) With respect to Prefab, the contract provided: "A wire lather foreman in a
supervisory capacity only will be employed by Prefabricated at its Cedarhurst, Long
Island, plant, and be paid the prevailing rate of pay for such work."
B. The current dispute
In January 19'61, in anticipation of reopening its plan, Precrete executed a new
collective-bargaining agreement with Local 1175, in which it recognized the union
"as the sole collective bargaining agent for the employees under its jurisdiction,
engaged in the manufacture of precast, prestressed and plant-produced concrete
products." The agreement set forth wage rates for setup men, hi-lo operators, weld-
ers, and maintenance men, and provided, inter alia, that "employees post-tensioning
shall receive 100 above minimum hourly rate." On March 15, 1961, Precrete
reopened its Astoria plant and prepared to resume the manufacture of prestressed
concrete products. About April 20, 1961, Precrete received its initial shipment of
reinforcing steel rods which had been cut and bent by the metal lathers employed
by its adjacent affiliate, Cut & Bend. Precrete assigned the work of placing and
tying the metal rods to laborers represented by Local 1175, and to metal lather
foremen, one for each bed, who supervised the laborers and manually assisted them.
A few days later, Precrete's president, O'Rourke, received a telephone call from
Respondent Dillon, in which the latter complained that laborers were doing lathers'
work, and requested that Precrete desist from placing and tying the steel reinforcing
7 Samuel M. Kaynard v Metallic Lathers and Reinforced Concrete Steel Workers Union,
etc., 186 F. Supp. 326 Prefab also instituted an action for damages against Respondent
Local 46 in the United States District Court.
R Case No. 2-CD-193.
9 Apparently these charges were not withdrawn See footnote 5, above.
LOCAL 46, WOOD, WIRE AND METAL LATHERS, ETC.
bars until the parties met on May 2, 1961. O'Rourke agreed. Thereafter, the
representatives of Precrete and Respondents met as scheduled. A representative
of Respondent Local 46 accused Precrete of giving the work of metal lathers to
laborers, by assigning to the latter craft the work of placing and tying reinforcing
material. Precrete's counsel replied that the assignment was in accordance with
the terms of the November 30 settlement agreement. Respondent Dillon said the
agreement was ambiguous, and that if Precrete persisted in its current assignment
of the disputed work, he would picket the plant and "pull the job at Brookfield's
construction site at the George Washington Bridge." 10 Precrete's representatives
replied they would think it over. On May 4, 1961, after another meeting at its yard,
Precrete sent Local 46 a telegram to the effect that it would continue "with the work
assignments" as they were.
On May 19, 1961, Respondent Local 46 commenced picketing Precrete and
Cut & Bend with two signs which reads as follows:
UNFAIR
PRECRETE, INC., HAS UNJUSTLY DISCHARGED WIRE LATHER
FOREMEN BASED ON MISINTERPRETATION OF ITS COLLECTIVE
BARGAINING AGREEMENT WITH WOOD, WIRE, & METAL LATHERS
INTERNATIONAL UNION, LOCAL 46, AFL-CIO
The other sign read-
PRECRETE, INC., IS PAYING EMPLOYEES ENGAGED IN REINFORC-
ING CONCRETE ON WORK BEING PERFORMED FOR THE PORT
AUTHORITY LESS THAN THE PREVAILING RATE IN THIS LABOR
AREA FOR SUCH WORK, IN VIOLATION OF THE LABOR LAW OF
THE STATE OF NEW YORK
The metal lathers employed by Cut & Bend refused to cross the picket line and
Cut & Bend shut down.
On May 19, the day picketing commenced, Precrete filed the instant charge al-
leging violations by Respondents of Section 8(b)(4)(i) and (ii)(D) of the Act.
The picketing continued until June 1, 1961, when it was enjoined by a United States
District Court in a Section 10(1) proceeding.ii Thereafter, on April 13, 1962, the
Board issued its Decision and Determination of Dispuite, in the Section 10(k)
proceeding, in which it concluded that Precrete's employees represented by Laborers
Local 1175 are entitled to place and tie the reinforce material at Precrete's Astoria
plant, and that Respondents are not entitled to force or require Precrete to assign
said work to employees represented by Respondent Local 46.12 Respondents' answer
herein admits that they have not complied with the Board's said Decision and
Determination.
C. Concluding findings
As noted above, the complaint herein alleges that Respondents, by the threat to
picket Precrete's plant and "pull" the George Washington Bridge job, and by
picketing Precrete between May 19 and June 1, 1961, engaged in unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (D) of the Act.13 The
10 Precrete was supplying concrete products to that Job
11 Ivan C McLeod v Wood, Wire and Metal Lathers International Union 48 LRRM
2689
12 136 NLRB 1072.
13 Section 8(b) (4) (1) and (Ii) (D) of the Act provides as follows .
Sec. 8(b) It shall be an unfair labor practice for a labor organzation or its agents--
4 t ® R t F f
(4)(i) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services ; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in either
case an object thereof is .
• e s • a
(D) forcing or requiring any employer to assign particular work to employees in
a particular labor organization or in a particular trade, craft, or class rather than
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents contend that the current dispute with Precrete is not a jurisdictional
one within the meaning of Sections 10(k) and 8(b)(4)(D) of the Act, that it is
merely a new facet of their earlier economic dispute over wages and the discharge
of metal lathers in December 1959, that unlike the CBS case,14 Precrete is not a
neutral employer caught between conflicting demands by two unions for the assign-
ment of the same work, and that in any event, the objectives of Respondents' cur-
rent conduct is not that proscribed by Section 8(b)(4)(D). The Respondents
further contend that even assuming that the Board had jurisdiction of their dispute
with Precrete under Section 10(k) of the Act, it erred in its Decision and Determina-
tion of Dispute by not giving controlling weight to Local 46's historical jurisdiction
over the disputed work, and by basing its assignment of the work to employees repre-
sented by Laborers Local 1175 on an interpretation of the ambiguous settlement
agreements, a matter within the exclusive jurisdiction of the courts under Section 301
of the Act.
In respect to Respondents' contentions, I regard the function of the Trial Examiner
in this proceeding to be limited to a determination of whether the record by a pre-
ponderance of the evidence, substantiates the allegations of the complaint, which
does not include a review of the correctness of the Board's determination as to
which union is entitled to perform the disputed work."
The facts upon which the General Counsel relies to establish the violations herein
are uncontroverted in the record. As noted above, on May 2, 1961, Respondent
Dillon, an admitted agent of Respondent Local 46, threatened that Respondents
would picket Precrete and "pull" the Brookfield job at the George Washington
Bridge, unless Precrete assigned the placing and tying of reinforcing materials to
lathers represented by Local 46 instead of to the laborers represented by Local
1175. Thereafter, commencing on May 19, and continuing until June 1, 1961,
Precrete and Cut & Bend were picketed as threatened. Respondents stipulated that
Local 46 was responsible for the picketing. Whether by in advertence or otherwise,
the stipulation did not refer to Dillon's responsibility for the picketing. However,
since the threat to picket was made by Local 46's Business Agent Dillon, the
picketing as threatened by Dillon thereafter occurred, and Dillon exercised authority
for Local 46 in the territory in which Precrete's plant is located, in the absence of
any testimony or contention that Dillon was not also responsible for the picketing,
I find and conclude that Respondent Dillon was also liable therefor.
I therefore conclude that by the threat to picket Precrete and to "pull" the
George Washington Bridge job, and the subsequent picketing of Precrete and
Cut & Bend, Respondents threatened, restrained, and coerced persons engaged in
commerce within the meaning of Section 8(b) (4) (ii) of the Act.16 I further con-
clude that by the picketing of Precrete and Cut & Bend, Respondents also induced
and encouraged employees of those Companies to engage in a strike or a refusal to
perform services within the meaning of Section 8(b) (4) (i).17
There remains for consideration the question of whether Respondents' conduct
was for the proscribed objective of forcing or requiring Precrete to assign the work
of placing and tying reinforcing materials to employees represented by Local 46,
rather than to employees represented by Laborers Local 1175 As noted above.
Respondents contend that the "picketing [of Precrete] was nothing more than a
continuation of the [earlier] legal picketing" in January and February 1960, when
Precrete allegedly "wrongfully discharged" its lather employees. and that it was
motivated by "basically economic differences " I regard these contentions as without
merit Whatever the objective of the earlier picketing in 1960 may have been,
there is no testimony in the record that Respondents' current dispute with Precrete
and its affiliated companies. was concerned with restoring to work any of the lathers
who were terminated by Precrete on December 31, 1959. On the contrary, the
to employees in another labor organization or in another trade, craft, or class, unless
such employer is failing to conform to an order or certification of the Board deter-
mining the bargaining representative for employees performing such work: . . . .
14 N L R. I? v. Radio and Television Bi oadcast Engineers Union Local 1212, IBEW
(Columbia Broadcasting System ), 364 U.S 573.
1-o Chicago Typographical Union No 16 , AFL-CIO ( Central Typesetting and Electro-
typing Co ), 138 NLRB 231
le International Hod Carriers , Building and Common Laborers Union of America, Local
1140 ( Gilmore Construction Company ), 127 NLRB 541 ; Local 282, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ( Twin County
Transit Mix, Inc.), 137 NLRB 858
17 Hotel, Motel d Club Employee's Union, Local 568 (Leonard Shaffer Company, Inc.),
135 NLRB 567.
LOCAL 46, WOOD, WIRE AND METAL LATHERS, ETC. 7
record of (1) the negotiations leading to the execution of the settlement agreements;
(2) the terms of the agreements which, although ambiguous, were obviously intended
to delineate which work was to be assigned to employees represented by Local 46,
and which could be assigned to employees represented by other unions; 18 (3) the
subsequent assignment by Precrete to laborers of placing and tying of reinforcing
material; and (4) the ensuing threat of picketing and other economic sanctions unless
said work was reassigned to wire lathers; compels the conclusion, which I make, that
an object, if not the sole object, of Respondents' threat and picketing was to force
or require Precrete to assign the disputed work to employees represented by Local 46
rather than to employees represented by Laborers Local 1175.
I reached this conclusion despite the fact that the language on the picket signs
seems to indicate other objective for Respondents' picketing. Thus, one of the
signs implies than an object of the picketing was to maintain prevailing area wage
rates; but the record fails to disclose that Respondents were at any time concerned
with the wage rates which Precrete paid to its laborers or other employees for
lathers work. Instead, the evidence shows that the Respondents were interested
only in the assignment of such work to employees represented by Local 46. More-
over, I find no testimony supporting the assertion, appearing on the other picket sign,
that Local 46 in fact sought to protest the discharge of any foremen, none that any
lather foremen were released, nor any that the picketing was motivated by such
discharges, if they did occur. Further, even assuming record evidence supporting
the conclusion that Respondents' picketing was also for the further objectives indi-
cated by the picket signs, the illegal objective would still have been proved because
the violation alleged in the complaint requires only that "an object" of the picketing,
not the sole object, be that proscribed by Section 8(b)(4)(D).19
The Respondents' final contention, based on the CBS case, supra, is that no juris-
dictional dispute is involved herein because Precrete, unlike the employer in that
case, is not a neutral caught between conflicting demands by two unions for the
assignment of the same work. However, even assuming record support for the
assertion that Precrete was not being pressured by Laborers Local 1175 for the
disputed work, the Board, contrary to Respondents' contention, has construed
the Supreme Court's decision in CBS to apply to disputes where the employer making
the work assignment is not a "neutral." Thus, in a recent decision,20 the Board held:
The underlying rationale of the [CBS] decision clearly indicates that the Court
was laying down a guide for the disposition of all jurisdictional disputes and not
simply those in which the employer is truly indifferent as to which group of
claimants shall perform the disputed work.
Moreover, I have already concluded that the record cleanly substantiates that an
object, if not the sole object, of Respondents' conduct was to force or require Precrete
to reassign work to employees represented by Local 46, which Precrete had already
assigned to employees represented by Laborers Local 1175. Furthermore, as noted
above, the Board, in its Decision and Determination of Dispute in this case, found
"that the dispute is properly before the Board for determination under Section 10(k)
of the Act," and further concluded "that laborers, rather than lathers, are entitled
to place and tie reinforce material to the concrete beds." I regard the Board's
said decision as an adjudication, binding upon me, that a jurisdictional dispute
within the meaning of the Act is involved herein.21 Accordingly, I reject as without
merit, Respondents' contention that no jurisdictional dispute is presented by this case.
For all the foregoing reasons, including Respondents' noncompliance with the
Board's Decision and Determination of Dispute, I conclude that by the threat to
picket Precrete's plant and to "pull" the George Washington Bridge job, and by their
picketing of Precrete and Cut & Bend between May 19 and June 1, 1961, Respondents
engared in unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii) (D) of the Act
"In this connection, Respondents' witnesses testified that Local 46 agreed to give up
the lavine and pretensioning of wire cables to which it also claimed jurisdiction
11 N L R B v Denver Building cf Construction Trades Council (Gontld 4 Preisner), 341
US 675. 689
a' Local 991, International Longshoremen's Association (Union Carbide Chemical Com-
pany), 137 NLRB 750
a In cases where the Board concludes that the dispute is not over "the assignment of
work," it normally finds that the dispute is not one within the meaning of Section 10(k),
and quashes the notice of hearing See, eg, International Brotherhood of Electrical
Workers, Local 292 (Franklin Broadcasting Company), 126 NLRB 1212, 1215
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of Precrete described in section I, above, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Local 46, Wood, Wire and Metal Lathers International
Union, AFL-CIO, and Local 1175, International Hod Carriers, Building and Com-
mon Laborers of America, AFL-CIO, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. The Respondent Dillon is an agent, within the meaning of Section 2(13) of
the Act, of Respondent , Local 46, Wood, Wire and Metal Lathers International
Union, AFL-CIO.
3. By inducing and encouraging individuals employed by Precrete and Cut &
Bend to engage in a strike and a refusal in the course of employment to perform
services, and by threatening, coercing, and restraining Precrete, with an object in each
case of forcing or requiring Precrete to assign the work of placing and tying rein-
force materials to employees engaged as metal lathers who are represented by
Respondent Local 46, Wood, Wire and Metal Lathers International Union, AFL-CIO,
and who were not then lawfully entitled to such work rather than to employees
engaged as laborers who were represented by Local 1175, International Hod
Carriers, Building and Common Laborers of America, AFL-CIO, and who were
lawfully entitled to such work, the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (D) of
the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning 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, I recommend that Respondent Local 46, Wood,
Wire and Metal Lathers International Union, AFL-CIO, its officers, representatives,
agents, successors, and assigns, and Respondent Brian Dillon, its business representa-
tive, shall:
1. Cease and desist from engaging in, or inducing or encouraging any individual
employed by Precrete, Inc., Cut & Bend, Inc., or by any other person engaged
in commerce or in an industry affecting commerce, to engage in, a strike or refusal
in the course of his employment to perform any services, or from threatening,
coercing, or restraining the above-named companies and persons, where an object
thereof in either case is to force or require Precrete, Inc , to assign the work of
placing and tying reinforce material to employees engaged as metal lathers who
are represented by Respondent Local 46, Wood, Wire and Metal Lathers Interna-
tional Union, AFL-CIO, rather than to employees represented by another labor
organization, except insofar as any such action is permitted under Section 8 (b) (4) (D)
of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Post at the business office of Respondent Local 46, Wood, Wire and Metal
Lathers International Union, AFL-CIO, copies of the attached notice marked
"Appendix A." 22 Copies of said notice, to be furnished by the Regional Director
221n the event that this Recommended Order is adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations 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 Circuit Court of Appeals, the words "Pursuant to a Decree of
of the United States Circuit Court of Appeals, Enforcing an Order" shall be substituted
for the words "Pursuant to a Decision and Order."
PACIFIC MARITIME ASSOCIATION 9
for the Second Region, shall, after being duly signed by the Respondents, be posted
by them immediately upon receipt thereof, and be maintained for 60 consecutive
days thereafter in conspicuous places, including all places where notices to em-
ployees and members are customarily posted. Reasonable steps shall be taken
by Respondents to insure that such notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for ,the Second Region signed copies of said
notice for posting by the above-named companies, if willing, in places where notices
to employees are customarily .posted. Copies of said notice, to be furnished by the
Regional Director, shall, after being signed by ,the Respondents, 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 this Intermediate Report and Recommended Order, what steps the Respondents
have taken to comply herewith 2s
•-' 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 Respondents have taken to comply herewith."
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF PRECRETE, INC., AND
CUT & BEND, INC.
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage any individual employed by
Precrete, Inc., Cut & Bend , Inc., or by any other person engaged in commerce
or in an industry affecting commerce, to engage in, a strike or refusal in the
course of his employment to perform any services, or threaten, coerce, or re-
strain the above-named Companies and persons , where an object thereof in
either case is to force or require Precrete, Inc., to assign the work of placing
and tying reinforce materials to employees engaged as metal lathers who are rep-
resented by Local 46, Wood, Wire and Metal Lathers International Union,
AFL-CIO,,rather than to employees represented by another labor organization,
except insofar as any such action is permitted under Section 8(b) (4) (D) of the
Act.
LOCAL 46, WOOD, WIRE AND METAL LATHERS
INTERNATIONAL UNION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- By-------------------------------------------
(BRIAN DILLON , Business Representative)
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, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone
No. Plaza 1-5500, if they have any question concerning this notice or compliance
with its provisions.
Pacific Maritime Association and John A. Mahoney. Case No.
19-CA-2208. December 7,1962
DECISION AND ORDER
On August 24, 1962, Trial Examiner Herman Marx issued his
Intermediate Report and Recommended Order in the above-entitled
proceeding, finding that the Respondent had not engaged in the un-
fair labor practices alleged in the complaint and recommending that
140 NLRB No. 3.