Pile Drivers, Bridge, Wharf and Dock Builders

National Labor Relations Board - Board Decisions

Jun 12, 1953

105 N.L.R.B. 562 (N.L.R.B. 1953)

5 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing bargaining unit with respect to rates of pay, wages , hours of employment , and other
conditions of employment , and, if an understanding is reached , embody such understanding
in a signed agreement:
All employees at our Hartford , Wisconsin , place of business , excluding salesmen,
foremen , and office clerical employees as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of District No. 48 , International
Association of Machinists , AFL, to negotiate for or represent the employees in the afore-
said unit as their exclusive bargaining agent.
P. A. MUELLER AND SONS, INC.,
Employer.
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.
PILE DRIVERS, BRIDGE, WHARF AND DOCK BUILDERS,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, LOCAL UNION NO. 34 , AFLi and SAMUEL
A. AGNEW , d/b/a KLAMATH CEDAR COMPANY . Case No.
20-CD-33 . June 12, 1953
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, which
provides that "Whenever it is charged that any person has
engaged in an unfair labor practice within the meaning of para-
graph 4 (D) of section 8 (b), the Board is empowered and
directed to hear and determine the dispute out of which such
unfair labor practice shall have arisen . . . ."
On March 17, 1953, Samuel A. Agnew, d/b/a Klamath Cedar
Company, hereinafter called the Company, filed with the
Regional Director for the Twentieth Region of the Board a
charge, and on March 24, 1953, an amended charge , against
Pile Drivers, Bridge , Wharf and Dock Builders , United Brother-
hood of Carpenters and Joiners of America , Local Union No. 34,
AFL, hereinafter called the Respondent , alleging that it had
engaged in and was engaging in certain activities , proscribed
by Section 8 (b) (4) (D) of the Act. It was alleged , in substance,
that the Respondent had induced and encouraged the employees
of the Company to engage in a concerted refusal to work in
the course of their employment with the object of forcing or
requiring the Company to assign particular work to members
of the Respondent rather than to employees of the Company.
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
t The Union's name appears as corrected at the hearing.
105 NLRB No. 64.
PILE DRIVERS, BRIDGE, WHARF AND DOCK BUILDERS 563
appropriate hearing upon due notice to both parties . A hearing
was held before M . C. Dempster , hearing officer , on April 9
and 13, 1953 . The Company and the Respondent 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 . Although the parties were afforded an opportunity
to file briefs with the Board , they did not do so.
Upon the entire record in the case , the Board = makes the
following:
FINDINGS OF FACT
1. The Company' s business
The Company is engaged in the logging and sawmill business
near Klamath, California. During 1952, sales of approximately
$700,000 were made, consisting mostly of lumber, over 50
percent of which, by value, was shipped to points outside the
State . We find that the Company is engaged in interstate com-
merce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction in this case.
2. The dispute
a. The facts
The Company ' s plant borders on the Klamath River. About
January 17, 1953, part of the plant was washed away during a
flood . A substantial amount of machinery and equipment was
swept into the river , and it was necessary to cease production
entirely at the plant . To salvage the equipment , pile driving
was instituted around February 1, 1953, in order to build a
staging from which salvage operations could be conducted.
Approximately six men were employed at this task .' Other
employees were assigned to repair and salvage work.
On Monday , February 16, a business agent of the Respondent,
later identified as Glenn Ackerman, appeared at the Company's
office . He spoke to Mrs. Motschman , bookkeeper and office
manager of the Company .4 He told her that he wished to see
either Agnew, the owner , or Cochran , the plant superintendent.
She testified that he said he wanted to see them because pile
driving "was their [the Respondent's] job." As neither man was
in, Ackerman gave her his business card and told her to have
2Pursu.int to the provisions of Section 3 (b) of the Act the Board has delegated its powers in
connection with this case to a three- nieniber panel [Members Murdock, Styles, and Peterson).
3 Two of the men were specialists at pile driving They had been employed by another
company in which Samuel Agnew, the owner of the Company involved herein, is a partner. The
rest were normally engaged in production work.
4 Mrs. Motschrtian has authority to sign collective-bargaining agreements for the Company.
and did in fact sign the contract with Local No. 598.
G
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agnew contact him. This testimony was uncontradicted.
Ackerman did not appear or testify at the hearing.
The next day, Tuesday, pickets appeared at the plant, carry-
ing banners stating "AFL Picket Line. Construction WorkOnly.
Local 34." On Wednesday morning Agnew directed the plant
superintendent to find out why the pickets were there. The
superintendent, accompanied by the chief engineer , spoke to
the apparent leader of the picketers; he found out later that the
person to whom he spoke was Ackerman, the business agent
who had visited the Company's office earlier in the week. The
superintendent testified that Ackerman said "he was going to
put their [the Respondent' s] men on that- -pile driver." In turn,
the chief engineer also testified that Ackerman stated that the
superintendent "would have to get the scab qs ... off that job,
and they [the Respondent] would take over, and after the pile
driving was done, that they would also take over the construction
work." None of this testimony was contradicted.
Williams, business representative of the Respondent, in his
testimony at the hearing, admitted that his organization had
engaged in the picketing beginning on February 17, 1953.
The men employed at pile driving ceased work at this task
Thursday noon, February 19, 1953. Some of the employees
engaged in salvage work also ceased temporarily. It appears
that the pile drivers were later reassigned to repair and salvage
work along with the other employees. At the time of the hearing,
pile driving had not resumed and the picketing was continuing.
It is clear from the record that the Respondent has no con-
tract with the Company and neither is, nor claims to be, the
bargaining representative of any of the Company's employees.
The Company did have an agreement with Lumber and Sawmill
Workers Union, United Brotherhood of Carpenters and Joiners
of America, Local Union No. 598, AFL, which was executed
October 13, 1951, and supplemented February 20, 1952, covering
all employees engaged in sawmill and logging operations. This
agreement expired April 1, 1953. Local No. 598, although it was
served with notice, did not appear at the hearing.5
b. Contentions of the parties
The Company contends that the Respondent, by its conduct
in attempting to force or require it to replace its employees
engaged in pile driving by members of the Respondent and by
instituting picketing in furtherance of this objective, violated
Section 8 (b) (4) (D) of the Act.
The Respondent contends that it has picketed the plant only
for the purpose of bringing about discussions with the Company
in order to have the Company pay the local prevailing wage
5 Redwood District Council with which Local No 598 is affiliated sent a letter to the Regional
Office indicating that it did not assert jurisdiction over pile-driving work. However, it does
not appear from the record that the employees engaged in pile driving were members of
Local No 598. Indeed, at least two of the employees assigned to pile driving had been working
for another company elsewhere on the West Coast.
PILE DRIVERS, BRIDGE, WHARF AND DOCK BUILDERS 565
scales for pile driving ; that the picketing was peaceful; that
the Respondent customarily pickets in order to protect the
wage scales and working condition of its members ; that the
pile -driving employees have continued to work for the Company
and have not been induced or forced to leave such employment;
and that the Company is free to continue to employ its present
employees at pile-driving work.
c. 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.
The Regional Director was satisfied that , upon the basis of
such investigation , a violation of Section 8 (b) (4) (D ) has been
committed . On the record before us , we find that there is
reasonable cause to believe that the Respondent engaged in
activities proscribed by that section of the Act, with the object
of forcing or requiring the Company to assign work in connec-
tion with the pile-driving operations to members of its union
rather than to the Company ' s employees.
The Respondent , admitting that it has engaged in the picket-
ing in question , asserted that the purpose of the picketing was
to attempt to bring about discussions toward establishing
prevailing rates of wages for the particular work on that
particular job. However , it is clear from the record that the
Respondent ' s business agent who spoke to the Company's
representatives specifically claimed the pile-driving work for
the Respondent ' s members, and that the picketing was for that
stated purpose . Moreover , Williams, the Respondent ' s business
representative , who attempted to show in his testimony that the
Respondent had a policy of picketing jobs in order to establish
wage rates , admitted on cross-examination that at no time had
his organization discussed or considered the application of such
policy to this particular job.6
Under all the circumstances , we find that the dispute in ques-
tion is properly before us for determination in a proceeding
under Section 10 (k).
d. The merits of the dispute
It is clear from the record that at the time the Respondent
demanded of the Company the pile-driving work for its mem-
bers, the Company had assigned such work to its own em-
ployees. The Company neither then nor at any other time had
6 We find no merit in the Respondent ' s other contentions : the nature of the picketing is
immaterial ( See N. L. R. B. v International Brotherhood of Electrical Workers, 341 U S
694); contrary to the Respondent , the record shows that pile- driving work did cease within
2 days after the picketing began; and even on the date of the hearing pile- driving work had
not resumed.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any bargaining relationship with the Respondent . The dispute
was therefore over an employer ' s assignment of work to its
own employees rather than to members of a labor organization.
The Board stated in Juneau Spruce Corporation:'
As we read Sections 8 (b) (4) (D ) and 10 (k), these Sections
do not deprive an employer of the right to assign work to his
own employees ; nor were they intended to interfere with
an employer ' s freedom to hire, subject only to the require-
ment against discrimination as contained in Section 8
(a) (3).
It is also well established that an employer is free to make
such assignments without bein ubjected to the pressures
proscribed by Section 8 (b) (4) (D )
s
, "unless such employer is
failing to conform to an order or certification of the Board
determining the bargaining representative for employees per-
forming such work."s It is clear that the Respondent does not
claim to be the certified bargaining representative for em-
ployees performing pile driving work.
We find, accordingly , that the Respondent was not lawfully
entitled to force or require the Company to assign pile -driving
work to its members rather than to the Company ' s employees.
DETERMINATION OF DISPUTE 9
On the basis of the foregoing findings of fact, and upon the
entire record in this case , the Board makes the following
determination of dispute , pursuant to Section 10 (k) of the
Act:
1. Pile Drivers, Bridge , Wharf and Dock Builders, United
Brotherhood of Carpenters and Joiners of America, Local
Union No. 34, AFL, is not and has not lawfully been entitled
to force or require Samuel A. Agnew, d/b/a Klamath Cedar
Company to assign the pile-driving work to its members rather
than to employees of the Company.
2. Within ten (10) days from the date of this Decision and
Determination of Dispute , the Respondent shall notify the Re-
gional Director for the Twentieth Region in writing as to what
steps the Respondent has taken to comply with the terms of
this Decision and Determination of Dispute.
7Juneau Spruce Corporation , 82 NLRB 650
8United Brotherhood of Carpenters and Joiners of America, Local 581 et al. (Ora Collard),
98 NLRB 346.
9 The Respondent , on April 20 , 1953, requested that the decision in the instant matter be
postponed as it intended to file forthwith a motion before the Board At the date of this deter -
initiation of dispute , however , no motion had been filed.