Millwrights' Local 1113

National Labor Relations Board - Board Decisions

Mar 22, 1966

157 N.L.R.B. 996 (N.L.R.B. 1966)

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 1, shall, after being duly signed by a representative of Respondent, be posted
by the Respondent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by
other material.
(e) Notify the Regional Director for Region 1, in writing, within 20 days from
the receipt of this Decision, what steps have been taken to comply herewith.9
It is recommended that the complaint be dismissed as to the allegations of unfair
labor practices not herein specifically found to have been engaged in.
O In the event that 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 EMPLOYEES
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, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning membership in or activ-
ities on behalf of Amalgamated Meat Cutters, Butchers, Food Store, Seafood,
Allied Workers of North America, District Union Local 2, AFL-CIO.
WE WILL NOT discriminate against or threaten employees with reprisals for
their support of that Union nor will we in any way interfere with, restrain, or
coerce employees in their union activities.
WE WILL offer Donald Giguere, Ralph Boulette, and Neil Cramer, immediate
and full /reinstatement to their former or equivalent positions, and make them
whole for loss of pay suffered as a result of their discharges.
HONEY FARM DAIRY STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act, 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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 223-3358. _
Millwrights' Local 1113, affiliated with United Brotherhood of
Carpenters and Joiners of America , AFL-CIO; and San Ber-
nardino & Riverside District Council of Carpenters and
Brogdex Company and International Association of Machin-
ists, and Aerospace Workers, Machinists District Lodge No. 120,
in behalf of Its Local Lodge No . 1586, AFL-CIO. Case No. p1-
CD-202. March 2 ,1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Brogdex Com-
157 NLRB No. 84.
MILLWRIGHTS' LOCAL 1113 997
pally, a California corporation, herein called Brogdex or the Company
or the Employer, alleging that Millwrights' Local 1113, affiliated with
the United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, and San Bernardino and Riverside District Council of Carpen-
ters, had violated Section 8 (b) (4) (D) of the Act. Pursuant to notice,
a hearing was held before Hearing Officer Louis A. Gordon of the
National Labor Relations Board on November 4 and 5,1965. Brogdex
Company, Local 1113, and District Council and Machinists District
Lodge No. 120, in behalf of its Local 1586, International Association
of Machinists, AFL-CIO, hereinafter called IAM, appeared at the
hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence bearing upon the
issues.' The rulings of the Hearing Officer made at the hearing are
free from prejudicial error and are hereby affirmed. The Employers
and the Respondents filed briefs which have been duly considered.2
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 McCulloch and Members Brown and Jenkins].
Upon the entire record in this case, the Board makes the following
findings :
1. The business of the Employer
The parties stipulated that the Company is a California corporation
with its principal office located in Pomona, California, where it is
engaged in the manufacture of citrus and vegetable packing and proc-
essing equipment for installation at its customers' plants, and that
during the preceding 12 months the Employer sold and shipped goods
valued in excess of $50,000 to points outside the State of California.
The Employer is engaged in interstate commerce within the meaning
of the Act.
2. The labor organizations involved
The parties stipulated that Respondent Unions Local 1113 and
District Council, and District Lodge 120 and Local Lodge 1586, -are
labor organizations within the meaning of the Act.
3. The dispute
A. The work in dispute; background facts
The Company has since 1922 manufactured , according to its own
design and specifications , a complete line of citrus and vegetable pack-
'A Grand Lodge representative of IAM noted his appearance at the hearing on behalf
of District Lodge No. 120 and Local Lodge No. 1586 but offered no testimony or evidence in
the proceedings.
9 On the basis of the entire record herein , the Respondents ' motion to dismiss this
proceeding as to the San Bernardino and Riverside District Council of Carpenters is
hereby denied.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inghouse equipment . This equipment is sold and installed in cus-
tomers' plants . As an adjunct to its manufacturing and installation
business , it also services and maintains the packing , grading, process-
ing, and treating equipment which is installed in its customers ' plants.
The instant dispute concerns the work of installation of citrus packing
and processing equipment at the fruit processing plant of the Victoria
Avenue Citrus Association, Arlington, California. Under its agree-
ment with Victoria , the Company was to manufacture the above-
described equipment and install it in the Victoria plant, construction
of which began in July 1965.
In 1950 the Employer entered into a collective -baragining agree-
ment with the IAM for production and maintenance employees and
has maintained continuous contractual relations with that union since
that date . The union agreement in effect from June 1, 1963 , to June 1,
1965, provided , inter alia , that all outside installation , erection, and
service employees shall be members of the union, and that supervisory
and nonunit personnel were ' prohibited from using tools of the trade.
For several months prior -to the expiration of the latter agreement,
the Employer and the union engaged in discussions pertaining to the
possibility of making other arrangements regarding such outside work.
These discussions were brought about by the Employer's concern about
delays on installation work which made it impossible to meet instal-
lation contract deadlines . The union blamed such delays on the
Employer 's failure to assign the proper employees to such work. The
record discloses that, although the union agreement with Brogdex did
prohibit the use of nonunit employees on outside installation work, a
practice had developed where at times nonunit employees were used
on such work.
The current contract, negotiations for which were completed on
September 7, 1965, signed October 5 and made retroactive to June 1,
1965, amended the prior contract to provide that, inter alia , the union
would retain jurisdiction over installation and erection work; how-
ever, service employees were excluded from coverage , and the
Employer was given the right to use supervisory , nonunit, and out-
side employees if qualified unit employees declined to perform the
said work . The new contract also granted additional benefits to unit
employees doing installation work.
On September 2, 1965, prior to the completion of negotiations on
the current union agreement , Richard Trail, business representative
and financial secretary of the Millwrights and president of the Dis-
trict Council , phoned the Employer 's field installation manager, Smith,
at the Victoria site, informed him that the installation of the Com-
pany's equipment at the Victoria plant was within the jurisdiction of
the Millwrights , and asked for a meeting to arrive at an agreement as
MILLWRIGHTS' LOCAL 1113 999
to such allocation. Further, Trail stated that if such allocation was
not made, pickets would have to be put on the jobsite. Smith informed
Trail that labor matters were handled by Gould, the Company's vice
president, and that Trail should contact Gould. About September 9,
Trail again contacted Smith by phone at the jobsite and asked Smith
if the Company had come to a decision as to the allocation of the
installation work. Smith again referred Trail to Gould. A few days
after the latter conversation, Trail phoned Gould and claimed juris-
diction over the questioned work, but was informed by Gould that
the Employer had a contract with the IAM covering such work. On
September 16, Trail again called Gould and informed him that the
Millwrights' jurisdiction had been confirmed by the Internationals
concerned and that if the Millwrights were not allocated the work it
could strike and force the rest of the trades to go out, or the Mill-
wrights could let the Company go ahead with its own employees, but
then the Millwrights would come in, audit the company books, and
charge the Company the difference between the Millwrights' rate
($4.85 per hour) and the company installation employees' rate ($2.85
per hour). Gould informed Trail that the company attorney would
have to be consulted.
Wallace, the Company's president, had been made aware of the
Millwrights' claim prior to the completion of the negotiations for the
current contract with the IAM. On September 7, 1965, when oral
agreement was reached as to the contract, Wallace told IAM Repre-
sentative Weigand of the Millwrights' claim. Weigand informed
Wallace that he did not know why the Millwrights claimed the work.
When asked by Wallace what the IAM employees would do if the
Millwrights picketed the jobsite, Weigand informed Wallace that "if
they did, as far as he is concerned, his men would be happy to go
through a picket line if and when one is thrown up."
During the period between September 3 and 16, Trail visited the
jobsite and spoke to the Employer's employees and other employees.
He also conferred with IAM officials and directed their attention to
a 1954 jurisdictional agreement between the Carpenters and Machin-
ists' Internationals which, in part, awarded to Millwrights the instal-
lation of equipment on new construction and additions.
On September 20, IAM Representative Magers, who had partici-
pated along with Weigand in the contract negotiations with the Com-
pany, told Wallace that his International had informed him that
under the 1954 agreement with the Carpenters the Millwrights had
jurisdiction over the work at the Victoria jobsite. Also, Magers stated
he had not become aware of the Internationals' agreement until after
the contract negotiations had been completed. Magers further
informed Wallace that the JAM was sending a letter disclaiming the
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Victoria installation work and Wallace replied that he would look to
the IAM employees to perform the work pursuant to the terms of the
collective-bargaining agreement. On September 21 or 22, Wallace
received the "disclaimer" letter which stated that, "this specific job
has been determined to belong to the Millwrights Union and should be
performed by their members" and that "the Union will not claim that
the work on this job must be performed by our bargaining unit per-
sonnel with the understanding that the Company employ Union
members of the 1llillwrights Union." [Emphasis supplied.] The let-
ter further stated that "this release [is not] an automatic release on
other installation jobs of the future as circumstances could be differ-
ent and require further consideration in determining the jurisdic-
tional rights."
Trail met with the District Council on September 17 regarding the
Brogdex matter and discussed picketing of the Victoria jobsite.
On September 23, pickets appeared at the Victoria jobsite carrying
placards bearing the following legend : "EMPLOYEES OF
BROGDE [X] PERFORMING INSTALLATION WORK FOR
SUBSTANDARD WAGES, MILLWRIGHTS LOCAL 1113,
SAN BERNARDINO AND RIVERSIDE COUNCIL OF CAR-
PENTERS." The picketing continued through September 24.
A number of employees of the general construction contractor and
of its subcontractors at the Victoria plant respected the picket line
for the 2 days that the picketing continued. Employees of Brogdex
at the jobsite stopped work for several hours when they were informed
of the picketing, but they then resumed working.
Upon being informed of the picketing Brogdex asked its employ-
ees if they would work at the jobsite, and seven employees indicated
their willingness to do so. On September 26, however, Victoria
directed Brogdex to leave the jobsite in order to stop further delay on
the construction work.
Smith stated at the instant hearing that if the installation work
was not performed by Brogdex's employees it would necessitate a
layoff of shop workers.
B. Contentions of the parties
The Respondents contend that the record does not reveal a juris-
dictional dispute cognizable under Section 10(k) of the statute, and,
in the alternative, contend that if an award is made by the Board,
such award should assign the disputed installation work to the
Millwrights.
Brogdex argues that the evidence supports a finding that Respond-
ents' object was at all times to compel Brogdex to cease using its own
MILLWRIGHTS' LOCAL 1113 1001
employees and assign the work they were doing to members of the
Millwrights, that there is reasonable cause to believe that there has
been a violation of Section 8(b) (4) (D), that the dispute is properly
before the Board, "and that the Board should award the disputed
work to the employees of Brogdex who are represented by the TAM
and to the employees of Brogdex who normally perform such
work...."
C. Applicability of the statute
Before the Board proceeds with a determination of dispute pur-
suant to Section 10(k) of the Act, it must be satisfied that there is
reasonable cause to believe that Section 8(b) (4) (D) has been vio-
lated. There can be little question on the record that the object of
Respondents' conduct was to have the work then being done by Brog-
dex's employees assigned to members of Local No. 1113. Concededly,
the IAM acquiesced in the demands of the Respondents and disclaimed
the disputed work, but it is pertinent to observe in this connection
that some of Employer's employees continued to perform the work
and other employees agreed to perform the work if requested to do so.
The record also shows that Respondents' threats of picketing and the
actual picketing caused a shutdown of work being performed by other
contractors at the jobsite who were not involved in any contractual
relation with Brogdex. We therefore find that there is reasonable
cause to believe that a violation of Section 8(b) (4) (D) has occurred.
Accordingly, we also find that the dispute is properly before the
Board for determination under Section 10(k) of the Act.
D. Merits of the dispel to
Section 10(k) of the Act requires the Board to make an affirmative
award of disputed work after giving due consideration to various
relevant factors, and as the Board has stated, its determination in a
jurisdictional dispute case is an act of judgment based upon common
sense and experience and a balancing of such factors.-3 In this case,
the factors discussed below are determinative.
Certification ; contract
Neither the Millwrights nor the Machinists has been certified with
respect to any employees involved in the instant proceeding.4
8 N.L.R.B. v. Radio & Television Broadcast Engineers Union Local 1212, International
Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System ), 364 U S
573; International Association of Machinists , Lodge No. 1743, AFL-CIO (J. A. Jones
Construction Company ), 135 NLRB 1402.
* Brogdex, in its charge , brief, and at the hearing , referred to the IAM unit as the cer-
tified unit . There is , however, no evidence in the record relating to a Board certification
of the IAM.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Carpenters' and Machinists' Internationals have a written
agreement entered into in 1954 which recognizes and delineates the
jurisdiction as to the installation of equipment by Millwrights and
Machinists. The only provision of such agreement that is pertinent
here is the one that awards the installation of equipment on new con-
struction to Millwrights.
Brogdex since 1950 has had collective-bargaining agreements with
the IAM, which predate and postdate the 1954 Carpenters' and
Machinists' agreement, covering inter alias, shop work and outside
work. Brogdex was not informed of the terms of the agreement
between the Carpenters' and Machinists' Internationals until the
instant dispute arose. Brogdex has in fact at all times since 1950
performed outside installation work with its own employees. The
JAM has attempted unilaterally to disclaim the disputed work in
the instant case in favor of the Millwrights but with a further stipu-
lation that such disclaimer is ineffective unless the work is assigned
only to the Millwrights.
The Millwrights claim that the Internationals' agreement and the
"disclaimer" by the JAM should be dispositive of the instant dispute.
We cannot agree that the purported disclaimer, under the circum-
stances of this case, is a controlling factor particularly since employ-
ees of the Employer have expressed their willingness' to perform the
work.,' On the other hand, we find that the assignment of the disputed
work to the Employer's own employees would be consistent with the
Employer's long established and uncontested practice. Moreover, such
an assignment allows the Employer to use employees skilled in the
production of the Employer's specialized type of equipment for the
installation of the same equipment. Further, the record discloses that
the assignment of the instant work by Brogdex to its employees is
more efficient and economical. There is no dispute as to the com-
petency of Brogdex's employees to do the work. Although the Mill-
wrights are a skilled craft in the installation of equipment, if Brogdex
had assigned the work to the Millwrights, it would have required the
preparation of blueprints and subsequent delay and additional cost,
without the compensating benefit of receiving a more efficient job than
would be done by its own employees, some of whom would have faced
layoffs if an assignment to the Millwrihts had been made.
The record discloses no conclusive evidence of area practice as to
the installation of citrus fruit and vegetable packinghouse equipment
6 See Local No. 2 of Detroit, Bricklayers , Masons, and Plasterers International Union
of America, AFL-CIO ( Decors, Inc.), 152 NLRB 278.
MILLWRIGHTS' LOCAL 1113 - 1003
by the Millwrights which would outweigh the previously unchal-
lenged practice followed by Brogdex for many' years. -
CONCLUSION
Upon consideration of all the pertinent factors in the entire record,
including the long-existing contractual history confining or giving
priority to the performance of the work in dispute to Brogdex's
employees in the bargaining unit represented by the International
Association of Machinists, and the Employer's method of functioning,
we shall award the disputed work to the employees of Brogdes
assigned by Brogdex to such work in accordance with the provisions
of its contract with the International Association of Machinists.
Accordingly, we find that the Respondents are not and were not
entitled by means proscribed by Section 8(b) (4) (D) to force or
require Brogdex to assign the disputed work to Millwrights' Local
1113 members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings and the entire
record in this proceeding, the National Labor Relations Board hereby
makes the following determination of the dispute :
1. Employees of Brogdex Company assigned by Brogdex to such
work in accordance with the provisions of its contract with the Inter-
national Association of Machinists are entitled to perform the work
of installation of citrus fruit and vegetable packinghouse equipment
at the plant of the Victoria Avenue Citrus Association Building,
Arlington, California.
2. Millwrights' Local 1113, affiliated with the United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, and San Bernar-
dino and Riverside District Council of Carpenters, are not entitled,
by means proscribed by Section 8(b) (4) (D) of the Act, to force or
require Brogdex Company to assign the above-described disputed
work to members of Millwrights' Local 1113.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Millwrights' Local 113 and the District Council shall
notify the Regional Director for Region 21, in writing, whether or
not they will refrain from forcing or requiring Brogdex Company,
by means proscribed by Section 8(b) (4) (D), to assign the work in
dispute to members of Millwrights' Local 1113.