Local 825, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Aug 22, 1960

128 N.L.R.B. 725 (N.L.R.B. 1960)

LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 725
Local 825, International Union of Operating Engineers, AFL-
CIO and Fluoro Electric Corporation . Case No. 4-CD-48.
August 22, 1960
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the Act. On March 11
and 21, 1960, Fluoro Electric Corporation, herein called the Com-
pany, filed a charge and amended charge alleging that Local 825,
International Union of Operating Engineers, AFL-CIO, herein called
the Respondent, was engaging in unfair labor practices within the
meaning of Section 8(b) (4) (D) and 8(b) (4) (ii) (D) of the Act, in
that Respondent threatened, restrained, and coerced employees of the
Company with an object of forcing assignment of certain work to
Respondent's members. On April 20, 1960, the Regional Director
for the Fourth Region issued a notice of hearing. All parties were
duly notified.' On May 16, 1960, the hearing was held at Philadel-
phia, Pennsylvania, before George A. Burnstein, hearing officer. All
parties 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. All parties were afforded
full opportunity to file briefs. A brief was filed by Respondent.
Upon the entire record in the case, the Board 3 makes the following
findings :
1. The Company is engaged in business as an electrical subcon-
tractor with its principal place of business at Newark, New Jersey.
In the conduct of its business it annually purchases and receives
products and materials valued in excess of $50,000 from outside the
State of New Jersey, and it annually purchases within the State of
New Jersey products and materials valued in excess of $50,000 that
were produced and originated outside that State.
1 Copies of the charges and notice of hearing were also served upon Terminal Construc-
tion Company , the general contractor on the jobsite wherein the dispute arose , and upon
Local 269 , International Brotherhood of Electrical Workers, AFL-CIO, the union per-
forming the disputed work.
2 Only the Company appeared at the hearing. It was not represented by an attorney.
The company president appeared as his own counsel. The bearing officer opened the
hearing on schedule and introduced the formal documents . He recessed the bearing and
called Respondent 's office. It was established that notice of hearing had been received.
The hearing was resumed and taking of testimony begun while Respondent attempted to
locate its counsel. Counsel was located at an NLRB hearing in New York. The hearing
was again recessed to give counsel an opportunity to contact the hearing officer by tele-
phone. The hearing officer talked with Respondent 's counsel and it was agreed that the
hearing should proceed and that the hearing officer would have various documents go into
evidence on behalf of Respondent . The hearing resumed
S 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 [ Chairman L-dom and
Members Rodgers and Jenkins].
128 NLRB No. 88.
577684-61-vol. 128-47
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the Company is engaged in commerce and that it will
effectuate the policies of the Act to assert jurisdiction.
2. The Respondent and Local 269, International Brotherhood of
Electrical Workers, AFL-CIO, are labor organizations within the
meaning of the Act.
3. The Company is the electrical subcontractor to Terminal Con-
struction Company, herein called Terminal, the prime contractor on
a Capehart housing project at McGuire Air Force Base, Wrights-
town, New Jersey. As part of its performance of the contract with
Terminal, the Company is required to erect and install electric utility
poles and lines. This work is done with "power excavating augers"
and "A frame winch trucks." About 5 to 10 men work this equip-
ment. There are in these crews two men who operate the equipment.
The operation of the equipment by these two men is the subject of the
dispute herein.
Shortly after its contract with Terminal was signed on September
17, 1959, the Company and Terminal officials met to discuss the project
work. Attending this meeting were representatives of the Respondent
and representatives of Local 269, International Brotherhood of Elec-
trical Workers, AFL-CIO, herein called Local 269, with whom the
Company had a contractual relationship. At this meeting Terminal
and Respondent informed the Company that it would be necessary
for it to use Respondent's members to operate the equipment giving
rise to the dispute herein. Both the Company and Local 269 ques-
tioned this statement and informed Terminal and Respondent that
electricians, members of Local 269, were to be employed to operate
the equipment. The meeting ended with no agreement on the issue.
During the following few months some discussion and correspondence
concerning who would do the work of operating the equipment took
place between Terminal and the Company, without agreement being
reached.
On March 3, 1960, immediately prior to the time for the Company
to begin its work under the contract, a meeting to effect a compromise,
if possible, was held at the offices of the Respondent. Representatives
of Respondent, Terminal, and the Company were present. All parties
reiterated their previously stated positions as to who was to per-
form the disputed work. According to the Company's president, the
only witness at the hearing, Respondent's representative stated that
unless operating engineers operated the equipment giving rise to the
dispute, his men would stop work at the project site, and violence
would ensue. Also, according to the witness, Respondent's repre-
sentative, by reciting what had been done on another job in a similar
dispute with another subcontractor to Terminal, implied that the
Company would have to run over operating engineers if it moved the
equipment. This meeting ended without agreement.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 727
Thereafter, Terminal and Respondent submitted the dispute to the
National Joint Board for determination. The Company, then and
now, has declined to become a party to the submission, or to accept any
Joint Board action as a means of settlement, or as binding upon it.
The submission to the Joint Board was made according to Terminal
and Respondent pursuant to the terms of their contract requiring such
submissions of disputes. There does not appear to be any such pro-
vision in the contract placed in evidence by Respondent.
On April 11, 1960, the Company began its work at the project. The
operation of the equipment in dispute was assigned to electricians,
members of Local 269 employed by the Company. On April 12, all
operating engineers, about 30 in number, working at the project
walked off the job and remained away from work all that day. On
April 13, they returned to work, and have continued to work since
that time.
On April 23, 1960, the Joint Board awarded the disputed work to
the operating engineers. Immediately upon notification of this
award, Terminal advised the Company that if it did not intend to
abide by the award it was not to continue with the installation of the
exterior electrical distribution system after April 28. At the same
time, Terminal billed the Company for 224 hours of operating en-
gineers' time on the ground that it was "compelled" to employ Re-
spondent's members on a "standby basis," as a result of the employ-
ment of electricians on the disputed work.
CONTENTIONS OF THE PARTIES
The Company's contention is that by reason of its contract with
Local 52, International Brotherhood of Electrical Workers, it is re-
quired to assign the disputed work to members of the Electrical
Workers' Local in any area in which it does business, in this case Local
269. It further contends it has the right to assign the work to its
employees, electricians; that it has no contract with Respondent, nor
has the Operating Engineers ever been certified by the Board in re-
spect to the Company's operations, and, therefore, even absent its
contract with IBEW, Respondent has no valid claim upon the work;
and that there is nothing in its agreement with Terminal, or with any
union, that makes this dispute subject to National Joint Board action.
Respondent contends it is entitled to the work by reason of its con-
tract with Terminal, which provides :
This Agreement shall bind all sub-contractors while working for
an Employer who is a party to this Agreement. Any Employer
who sublets any of his work must sublet the same subject to all the
terms and conditions of this Agreement.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It further contends it is entitled to the work since it was awarded such
work by the Joint Board in 1958 on a Capehart project at Fort Dix,
New Jersey; and it has been awarded the work here in dispute by the
Joint Board's decision in April 1960; and, as a subcontractor, the
Company is bound by this decision.
Terminal contends it is bound by its contract with Respondent to
have the Company perform the disputed work with Respondent's
members; and both it and the Company are bound by virtue of its
contract with Respondent to submit such disputes to the Joint Board,
and are bound by any award tendered.
APPLICABILITY OP THE STATUTE
In a proceeding under Section 10(k) of the Act, the Board is di-
rected to hear and determine the dispute over the assignment of par-
ticular work by an employer to one group of employees rather than to
another, if a charge is filed alleging violation of Section 8(b) (4) (D)
with respect to the work assignment, and if the Board finds reasonable
cause to believe the charge is true. On the basis of all the evidence,
we find that there is reasonable cause to believe that Respondent en-
gaged in, and induced and encouraged employees of Terminal and
other employers to engage in, a refusal to perform the work assigned
to them, and did threaten the Company, with an object of forcing or
requiring the Company to assign the work of operating the "A frame
winch" and the "power excavating augers" to its members, although
the Company has assigned such work to employees who were members
of Local 269.
Accordingly, we find that the dispute is properly before the Board
for determination under Section 10 (k) of the Act.
MERITS OF THE DISPUTE
As indicated above, Respondent demanded of the Company that it
employ its members to operate certain machinery rather than assign-
ing the work to electricians, the Company's own employees and mem-
bers of Local 269, and, in furtherance of this demand, that Respondent
threatened a work stoppage, and did cause all operating engineers
employed at the project site to walk off the job on the day after the
Company began its work. However, Respondent claims a contractual
right to the disputed work, and, therefore, claims its actions are not
violative of the Act. While there is evidence of a contract between
Respondent and Terminal requiring the employment of operating
engineers on heavy equipment and certain machinery, it is clear that
the Company was not a party to this agreement, or, in fact, a party to
any agreement with Respondent. The fact that Terminal was bound
by its contract with Respondent to subcontract subject to the contract's
terms is not binding upon the Company, absent an express provision
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 729
in its subcontract with the Company incorporating the contract with
Respondent therein. No such provision is found in the subcontract
between Terminal and the Company. We find, therefore, that Re-
spondent has no contractual claim to the disputed work'
Respondent's further contention that it is entitled to the disputed
work because of a Joint Board determination of a similar dispute in
another case involving a different subcontractor to Terminal, and
because of a Joint Board determination in this case that it is entitled
to the disputed work, is without merit. The Company here cannot be
bound by any prior determination to which it was not a party. Nor
is it bound by the determination of the Joint Board in this particular
dispute since the evidence falls short of establishing that it ever sub-
mitted, or acquiesced in the submission of, the dispute to the Joint
Board .5 In fact, the evidence is to the contrary.
Therefore, inasmuch as the Company is not failing to conform to any
agreement requiring it to assign the disputed work to Respondent, or
failing to conform to any method of adjustment of the dispute by
which it is bound, it is legally free to assign such work to any em-
ployees it chooses, free of economic pressure by the Respondent.
We find, accordingly, that the Respondent is not lawfully entitled,
by means proscribed by Section 8(b) (4) (D), to force or require the
Company to assign the disputed work to employees who are members
of the Respondent rather than to employees who are members of an-
other labor organization, or to any other 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: 6
1. Local 825, International Union of Operating Engineers, AFL-
CIO, is not and has not been lawfully entitled to force or require
'Local 450, International Union of Operating Engineers , AFL (W. J. Hedrick and
H. W. Marshall, Jr, d/b/a Industrial Painters and Sand Blasters ), 115 NLRB 964.
6Local 450 , International Union of Operating Engineers, AFL-CIO ( C. A. Turner
Construction Company and Hinote Electric Company ), 119 NLRB 339. Pittsburgh Plate
Class Company, 125 NLRB 1035 , cited by Respondent as authority that the Company is
subject to the Joint Board decision , is inapposite. There the subcontract expressly
stated it was "subject to conditions on the reverse side " of the purchase order contract,
and such purchase order contract included an agreement to be bound by the Joint Board.
As shown, no such express provision Is evident in the contract between Terminal and
the Company herein.
6 In its brief Respondent urges that the Board should make an arbitration type settle-
ment of this dispute In accordance with decisions of certain United States courts of
appeal. In declining to make such an affirmative award, we respectfully disagree with
court decisions to the contrary . See Newark & Essex Plastering Company, 121 NLRB
1094, at 1108-1113. See also , N.L.R.B. v. Local 450, Inte,national Union of Operating
Engineers , AFL-CIO ( Shine Industrial Painters ), 275 F . 2d 408 (C A. 5). Moreover,
the validity of the Board ' s Interpretation of Section 10(k) in this respect is now before
the Supreme Court in N .L.R B. v. Radio & Television Broadcast Engineers Union Local
1212 , et al. ( Columbia Broadcasting System), cert. granted 362 U.S. 802.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fluoro Electric Corporation to assign the work in dispute to members
of the Engineers rather than to members of any other labor organiza-
tion or to nonmembers of any labor organization.
2. Said Local 825 of the Operating Engineers shall, within 10 days
from the date of this Decision and Determination, notify, in writing,
the Regional Director for the Fourth Region whether or not it accepts
the Board's determination of this dispute, and whether or not it will
refrain from forcing or requiring Fluoro Electric Company, by means
proscribed by Section 8(b) (4) (D) of the Act, to assign the work in
dispute to members of Local 25 rather than to members of any other
labor organization or to nonmembers of any labor organization.
Jet Research Center, Inc. and Lodge 1591, International Associa-
tion of Machinists, AFL-CIO, Petitioner. Case No. 16-RC-
2661. August 22, 1960
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 Charles H. Steere, 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-member
panel [Chairman Leedom and Members Rodgers and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer, within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer, at its plant in Arlington, Texas, is engaged in
research, development, and manufacturing of shaped charges used in
the perforation of oil well casings. The Petitioner seeks to represent
the production and maintenance employees, including the assistant
technicians and helpers in the core laboratory, laboratory assistants in
the research laboratory, inspectors and machinists in the experimental
machine shop. The Employer contends that the latter employees are
technicals and should be excluded.
The plant is organized into separate departments-administration,
patent, research and engineering, and manufacturing. All of the dis-
puted employees herein are employed in the research and engineering
128 NLRB No. 93.