Local Union No. 9

National Labor Relations Board - Board Decisions

Aug 26, 1955

113 N.L.R.B. 1237 (N.L.R.B. 1955)

LOCAL UNION NO. 9 1237
MEMBER RODGERS, concurring and dissenting :
I concur and dissent in the present case to the extent and for the
reasons indicated in my separate opinion in the Oregon Coast Opera-
tors case, supra.
APPENDIX
NOTICE TO ALL EMPLoYEEs
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with International
Woodworkers of America, Local 7-140, CIO, as the exclusive
representative of our employees in the appropriate unit described
below, by failing and refusing to furnish to said union relevant
and necessary information requested by said Union for purposes
of collective bargaining, or in any like or related manner inter-
fere with the efforts of the said Union as the exclusive representa-
tive of the employees to bargain collectively in their behalf.
WE WILL furnish the above-named Union relevant and necessary
information requested by said Union for purposes of collective
bargaining and in order that it may properly discharge its func-
tions as the statutory representative of the employees in the
appropriate unit. The appropriate bargaining unit is:
(The description of the bargaining unit for each Respondent
shall be that found in section III of this Decision.)
Employer.
Dated-- -------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Local Union No. 9, Wood, Wire & Metal Lathers International
Union, AFL and Anning-Johnson Company. Case No. 5-CD-13.
August 06,1955
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
113 NLRB No. 118.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen.. .."
On June 18, 1954, Anning-Johnson Company, herein called the
Company, filed with the Regional Director for the Fifth Region a
charge alleging that Local Union No. 9, Wood, Wire & Metal Lathers
International Union, AFL, herein called Lathers Local 9, had en-
gaged in and was engaging in certain activities proscribed by Section
8 (b) (4) (D) of the amended Act. An amended charge was filed on
June 28, 1954. It was charged, in substance, that Lathers Local 9 in-
duced and encouraged employees of the Company to engage in a strike
or a concerted refusal to work in the course of their employment with
an object of forcing the Company to assign particular work to lathers
rather than to carpenters.
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 provided for an appropriate
hearing upon due notice to all the parties. The hearing was held be-
fore David C. Sachs, hearing officer, on December 7, 8, 9, 15, and 16,
1954. Both 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 are free from prejudicial error and are
hereby affirmed. Both parties filed briefs with the Board.
At the close of the hearing Lathers Local 9 moved to quash the no-
tice of hearing and to dismiss the charge on the ground that the evi-
dence did not establish a violation of Section 8 (b) (4) (D) as alleged
in the charge. The hearing officer referred the motion to the Board
for ruling. Such motion is hereby denied for reasons hereinafter
stated.
The Company's request for oral argument is hereby denied as the
record and briefs adequately present the issues and positions of the
parties.
Upon the entire record in the case, the Board finds :
1. The Company is engaged in commerce within the meaning of the
Act.
2. Lathers Local 9 is a labor organization within the meaning of the
Act.
3. The dispute :
The Facts
The Company, an Illinois corporation, maintains various offices
throughout the country, one of which is in Alexandria, Virginia, and
is involved herein. It is engaged generally in gypsum roof deck con-
LOCAL UNION NO. 9 1239
struction, the iilsLallation of acoustical tile, and the installation of
special wall coverings. In these operations it regularly employs vari-
ous crafts, including lathers and carpenters.
The Company is a member of the Construction Contractors Council
which has a contract with Carpenters Local Union 1590, setting forth
the working conditions of carpenters. Although not bound ,by any
contract covering lathers, the Company for several years has em-
ployed lathers through Lathers Local 9 in accordance with the terms
and conditions of the contracts between Lathers Local 9 and the Em-
ploying Plasterers Association, herein called EPA. In 1951, the
Company and several other acoustical contractors formed the
Acoustical Contractors Association, herein called ACA, for the pur-
pose of establishing uniform labor and trade policies for acoustical
contractors.
In April 1954, Lathers Local 9 and EPA signed a new contract
which contained for the first time rather detailed provisions 1 requir-
ing that certain work be assigned to lathers. In June 1954, Lathers
Local 9 requested the ACA, including the Company, a member of
ACA, to sign the same contract. This was the first request ever
made by Lathers Local 9 that the ACA or the Company sign a con-
tract with it. The ACA, including the Company, refused to sign
the proposed contract because of the work-assignment provisions in-
sisted on by Lathers Local 9 which would require members of the ACA
to assign certain work to lathers which they had in the past normally
assigned to carpenters.
The disputed contract provisions concerned that intermediate step
in the construction of an acoustical tile ceiling involving the installa-
tion of backup and supporting materials for the acoustical tile itself.
Prior work steps are-normally assigned to lathers while the installa-
tion of the actual tile is normally assigned to carpenters. As to the
-work step in dispute, it has been the Company's practice to assign
portions of this work to lathers and a portion to carpenters, depending
on the method of support and type of material used. Generally speak-
ing, 1 of 2 methods of supporting tile is used: either (1) attaching
-the tile to board such as gypsum board laid horizontally; or (2)
-holding the tile by means of a metal supporting device. When method
(1) is used, the Company assigns the installation of gypsum, sheath-
ing, and wallboard to carpenters, and gypsum lath, a smaller type
board, to the lathers. When method (2) is used, the Company assigns
those metal suspension systems which can go up separately from the
tile to the lathers but assigns those systems which go up together
with the tile to the carpenters. However, the proposed work-assign-
Sections 1-4 and 9-11 of article V.
379288-56-vol. 113-79
1240 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
ment provisions would, have required that all such work be assigned
to lathers to the exclusion of carpenters.'
The record clearly establishes the fact that Lathers Local 9's in-
sistence on the inclusion of the disputed work-assignment provisions
in the proposed contract was the sole reason that bargaining negotia-
tions failed with the result that no contract between the Company and
Lathers Local 9 was signed. On June 16 and 17, the Lathers threat-
ened the Company with a strike unless it signed the contract which
included the work-assignment provisions, as proposed by it.
On or about June 17, 1954, the Company was engaged in opera-
tions as a subcontractor on a job known as the Hill Road Pumping
Station in Prince Georges County, Maryland, where the Company was
installing an acoustical tile ceiling. Two lathers and at least one
carpenter were working at this job. This particular job involved
the installation of a metal-supporting device for acoustical tile of the
type which the Company normally assigned to lathers. This work
had accordingly been assigned to lathers and thus there was no dispute
on this,job as to the assignment of work. -
On Friday,.June 18, the lathers appeared on the job but refused
to work pursuant to instructions from Lathers Local 9 because the
Company had not signed the contract containing the work-assign-
ment provisions in question. The Company thereupon assigned the
work, which it had previously assigned to lathers, to carpenters. On
Monday, June 21, Lathers Local 9 picketed the job with the result
that employees of other subcontractors refused to cross the picket
line. Thereupon, the Company was asked by the general contractor
to relinquish its contract. The Company did so, and another sub-
contractor, a party to Lathers Local 9's 1954 contract, completed the
work.
Contentions of the -Parties
The Company contends that the sole object of the Respondent's
conduct was to compel the Company, in contravention of Section 8
(b) (4) (D), to assign the disputed work tasks to lathers rather than
to carpenters.
Lathers Local 9 contends, in substance, that it has not violated
8 (b) (4) (D), because (1) the only object of its conduct was to
force the Company to sign a collective-bargaining contract, and (2)
there was no actual dispute over the assignment of work at the time
of the strike.
2 although there was little evidence in the record on this point, it also appears that the
proposed work-assignment provisions would require the Company to assign to lathers the
installation of reinforcing steel mesh used in gypsum roof construction , which work it
has been the Company's practice to assign to rodmen,
LOCAL UNION NO . 9 1241
Applicability of the Statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D),of the Act, and the Re-
gional Director was satisfied upon the basis of such investigation
that there was reasonable cause to believe that a violation of Section
8 (b) (4) (D) of the Act had been committed.
However, as indicated above, Lathers Local 9 contends that it was
merely striking for lawful, contract purposes. Moreover, the Lathers
argue, there was no dispute properly before the Board for determina-
tion as, at the time of the strike, there was no dispute over work ac-
tually being performed on the job in question. The Company, on the
other hand, contends that, viewed in substance rather than form, the
real purpose of Lathers Local 9's conduct was to compel the Company
to assign the disputed work to lathers rather than to carpenters under
the guise of a collective-bargaining demand.
It is well established that a labor organization has a right under
the Act to strike for lawful contract purposes. However, the record
here clearly establishes that a fundamental jurisdictional conflict cur-
rently exists between the Lathers Local 9 and the Carpenters Local
1590 over the disputed work described above, and that the insistent
demand for specific contract provisions assigning such disputed work
to the lathers rather than to the carpenters went to the very heart of
this basic jurisdictional dispute. Thus, the strike by Lathers Local 9,
to force the Company to sign a contract containing the disputed work-
assignment provisions was a direct effort on the part of Lathers Local
9 to resolve the existing jurisdictional dispute by means of a strike,
with an object of forcing the Company to assign the particular work
in dispute to lathers rather than to carpenters. Such conduct falls
squarely within the proscription of Section 8 (b) (4) (D), which
makes it an unfair labor practice for a labor organization to strike
where an object of such strike is that of :
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 to employees in another labor or-
ganization, or in another trade, 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. . . .
To hold, as contended by Lathers Local 9, that the strike was merely
for lawful contract purposes, would permit a labor organization to
gain immunity from this section of the Act by merely demanding that
provisions covering any work in dispute be included in its contract.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, from the above-described facts and the entire record,
we find there is reasonable cause to believe that Lathers Local 9 en-
gaged in conduct proscribed by Section 8 (b) (4) (D) of the Act, with
an object of forcing the Company to assign the disputed work in ques-
tion to lathers rather than to carpenters.
There remains for consideration Lathers Local 9's contention that
the dispute in question is not properly before us for determination
because at the time of the strike there was no dispute over work actu-
ally being done on the job which was struck. In support of its posi-
tion, Lathers Local 9 relies on the Board's decision in Anheuser-
Busch, Inc., 101 NLRB 346. However, in that case, the TAM struck
in support of a demand for a contract provision which would continue
in effect an existing limitation on the employer's selection of subcon-
tractors doing millwright work by confining it to subcontractors who
were under contract with the IAM. At the time of the strike, the
only millwright work being performed was by a subcontractor whose
employees were, in fact, covered by an IAM contract. The Board held
that the disagreement over the contract provision to limit the employ-
er's selection of subcontractors was not tantamount to "a present de-
mand for the assignment of work such as is contemplated by Section
8 (b) (4) (D) of the Act." In reaching this conclusion, however, the
Board emphasized the fact that no controversy existed "with respect
to the assignment of work to any of the Employer's employees." Sig-
nificantly, the Board further stated : rt
Moreover, it seems clear from the record that the IAM, at the
times in question, was not demanding the assignment of any par-
ticular work, as that term is used in the Act, in that the IAM
made no demand upon any contractor doing millwright work for
the Employer that such work be done by employees covered by an
IAM contract.
Under these circumstances, there was no work assignment con-
troversy affecting the Employer's employees-as to them the
parties concede the absence of a dispute-nor was there a work
assignment controversy as to the employees of a contractor doing
millwright work for the Employer.
These facts are unlike those in the instant case, where there clearly
exists a work controversy involving the Company's own employees,
together with a present demand upon the Company by Lathers Local
9 for a contract containing provisions which, in effect, call for the as -
signment of the disputed work to one group of its employees to the ex-
clusion of another. That Lathers Local 9 chose to strike on a job on
which, at that particular point in time, the actual work was not in dis-
pute does not, in the Board's opinion, alter the fact that the basic juris-
dictional dispute was alive and active, and concerned a type of work
LOCAL UNION NO. 9 1243
which the Company, by the very nature of its business, was regularly
performing, both immediately' before and after the work-assignment
provision demand.
In these circumstances, and upon the entire record, we find that
the dispute in question is properly before us for determination under
Section 10 (k) of the Act.
The Merits of the Dispute
It is clear from the record that Lathers Local 9 has no rights in
any outstanding Board certification or order affecting the disputed
work. These facts, including the fact that the disputed work has been
assigned to carpenters by the Company are determinative of the pres-
ent disputed.' The Board has specifically held that Sections 8 (b) (4)
(D) and 10 (k) do not deprive an employer of the right to assign work
to his own employees, nor were they intended to interfere with an em-
ployer's freedom to hire, subject only to the requirement against dis-
crimination as contained in Section 8 (a) (3).4 Moreover, contrary
to the Company's contention, we find that evidence relating to custom
and practice is immaterial where, as here, Lathers Local 9 has no bar-
gaining or representative status. I
Accordingly, we find that Lathers Local 9 is not lawfully entitled to
force or require the Company to incorporate in a contract the dis-
puted work-assignment provisions in question, or otherwise force or
require the Company to assign the work in dispute to lathers in its
employ rather than to employees of the Company who are carpenters.
However, we are not by this action to be regarded as "assigning" the
work in question to carpenters or any other particular group of em-
ployees.
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 pur-
suant to Section 10 (k) of the Act:
1. Local Union No. 9, Wood, Wire & Metal Lathers International
Union, AFL, and its agents, are not and have not been lawfully en-
titled to force or require the Anning-Johnson Company or any em-
ployer in the greater Washington area 6 to incorporate in a contract
3 United Brotherhood of Carpenters and Joiners of America ( Stroh Brewery Company),
88 NLRB 844.
4 See, e g., Los Angeles Bucldting and Construction Trades Council ( Westinghouse Electric
Corporation), 83 NLRB 477.
5lbcd
D in making a broad determination covering other employers in the area , we note that
Lathers Local 9 also requested the Acoustical Contractors Association , representing sev-
eral employers in the Washington , D. C., area to sign the proposed contract which in-
cludes the disputed work provisions in question . Another phase of the same underlying
jurisdictional dispute is reflected in 113 NLRB 947, a companion case which involves
Lathers Local 9 and A. W. Lee, Inc., also an area employer . Therefore , in order to effectu-
1244 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
the disputed work-assignment provisions in question, or otherwise
force or require the Anning-Johnson Company or any employer in the
greater Washington area to assign the work in dispute to lathers in
their employ rather than to carpenters in their employ.
2. Said Local Union No. 9 shall, within ten (10) days from the date
of this Decision and Determination, notify, in writing, the Regional
Director for the Fifth Region of the National 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 Anning-
Johnson Company or any employer in the greater Washington area,
by means proscribed by Section 8 (b) (4) (D) of the Act, to assign
the work in dispute to lathers in their employ rather than to carpen-
ters in their employ.
MEMBER MURDOCk, dissenting :
I cannot agree with the majority that the record in this case war-
rants a conclusion that there is reasonable cause to believe that Lathers
Local 9 engaged in conduct proscribed by Section 8 (b) (4) (D) of
the Act. I would, accordingly, as the Act contemplates in such a cir-
cumstance, quash the notice of hearing.
In June 1954, Lathers Local 9 requested the ACA, an acoustical
contractors association of which the Company was a member, to sign
a contract containing certain work-assignment provisions favorable
to lathers to which the EPA had already agreed. Negotiations on the
contract became stalemated upon the Lathers' insistence upon these
work provisions, an impasse was reached, and the Lathers threatened
the Company with a strike unless it signed. Lathers Local 9 there-
upon, on or 'about June 17, 1954, struck the Company's job on the
Hill Road Pumping Station. There was no dispute on this job as
to the assignment of work. These are the essential facts upon which
the majority finds reasonable cause to believe that Lathers Local 9
violated Section 8 (b) (4) (D). For the following reasons I would
find nothing unlawful in this conduct.
Lathers Local 9 attempted to resolve the assignment of work by
members of the ACA by collective bargaining-an admittedly legiti-
mate and lawful purpose. A contract containing such a provision
would have protected a strike by the Lathers even if there had been
in existence a controversy over a present work assignment. In United
Association of Journeymen and Apprentices of the Plumbing and
Pipe fitting Industry, Local 428, et al., 108 NLRB 186, at 199, the
Board stated that the contracts in that case would have "insulated"
ate the policies of the Act , we have broadened our determination so as to protect all
employers in the greater Washington , D. C., area from an unwarranted continuation of this
jurisdictional strife. See United Association of Journeymen and Apprentices of the
Plumbing and Pipe fitting Industry of the United States and Canada, Locals 420 and 428,
AFL (Phtiladelphia Association ), 108 NLRB 186.
LOCAL UNION NO. 9 1245
the Union's action if two conditions had been met-that the con-
tract covered the work in dispute and that it had been a valid, enforce-
able agreement.
I submit that the ' maj ority has failed to sustain the proposition
that, while on the one hand, the Union had a right to negotiate certain
contractual provisions and to strike to enforce those provisions, on
the other hand, a strike to secure such provisions is unlawful. It is
recognized by the majority, in its opinion, that a labor organization
has a right to strike for lawful purposes. An impasse having been
reached in the negotiations for bargainable contract provisions, there-
fore, the Union, had the right to, strike the, Hill Road job, and the
strike was lawful.
The Act, as amended, was not designed by Congress to prohibit
any and all strikes when the Board, in its opinion, believed that a
strike was unwise or unwarranted. Quite to the contrary, Congress
enacted clear and certain safeguards about the right of labor oganiza-
tions to strike. On this subject the meaning of Section 13 of the Act is
unmistakable :
Sec. 13. Nothing in this Act, ' except as specifically provided
for herein, shall be construed so as either to interfere with or
impede or diminish in any way the right to strike, or to affect the
limitations or qualifications on that right.
The only rationale given in the majority opinion for finding that
this lawful strike gives reasonable cause to believe that Lathers Local 9
engaged in conduct proscribed by Section 8 (b) (4) (D) is a single
sentence stating that to hold otherwise would "permit a labor organiza-
tion to gain immunity from this section of the Act by merely demand-
ing that provisions covering any work in dispute be included in its
contract." This type of reasoning, in my opinion, is extremely illogi-
cal, and its application can forseeably lead to absurd results. The
line of this rationale could be applied to other aspects of the Act and
is essentially that, in the context of this case, immunity from the pro-
scriptions of Section 8 (b) (4) (D) may not be acquired although
the conduct engaged in is lawful.
This rationale of the majority would have pertinence to a situation
where at the time of a strike there was an existing work assignment
to one union, and another union cloaked its demand for the work in
the guise of a request for a contract giving it the work. In this case,
however, the strike was for a contract covering future work assign-
ments by the Company, there being no present assignment of particular
work in dispute. It is clear that at the Hill Road job the lathers
and the carpenter were performing the work customarily done by
those classifications, and that the work which was the subject of the
Lathers' contract request was not being performed at all. In these
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances the Board's decision in Anheuser-Busch, Inc., 101
NLRB 346, is applicable-there was no dispute "as to the assignment
of work in existence at the time of the strike." [Emphasis supplied.]
For the above reasons, I would quash the notice of hearing on this
case.
T-H Products Company and Robert G. Myers, et al., Petitioners
and Truck Drivers and Helpers, Dairy Employees , Warehouse
Workers, Taxi Drivers, Local 414, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL. Case No. 13-RD-248. August 26, 1955
DECISION AND ORDER
Upon a petition for decertification duly filed under Section 9 (c)
of the National Labor Relations Act, a hearing was held before Albert
Kleen, hearing officer. The hearing officer's rulings are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is an Indiana corporation engaged in the manu-
facture of grease fittings. Total production for the preceding year
exceeded $300,000 all of which was shipped directly to points outside
the State of Indiana. Upon these facts we find that the Employer is
engaged in commerce within the meaning of the Act.
2. The Petitioners assert that the Union is no longer the bargain-
ing representative, as defined in Section 9 (a) of the Act, of certain
employees of the Employer. As appears below, the Union is currently
recognized by the Employer as the collective-bargaining representa-
tive of the employees involved.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
Pursuant to a consent-election agreement, an election was held on
February 2, 1955, under the auspices of the Indiana State Labor Divi-
sion. Having won the election, the Union was certified on February
23, 1955, by the State board as the exclusive bargaining representa-
tive for a production and maintenance unit. Negotiations for a con-
tract followed immediately thereafter with no success. As a result,
on April 25, the Union called a strike which at the time of the Board's
hearing on 'July 12 was still in effect. No bargaining sessions have
been held since June 1.
The decertification Petitioners and the Employer urge that, as the
Employer is clearly engaged in commerce within the meaning of the
113 NLRB No. 112.