137 N.L.R.B. 1444 (N.L.R.B. 1962)

Tri-County Building Trades Council of Akron

National Labor Relations Board - Board DecisionsJul 18, 1962

137 N.L.R.B. 1444 (N.L.R.B. 1962)

1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deliverers, who are currently represented by Newspaper and Mail De- liverers' Union of New York and Vicinity, Independent. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent, shall notify the Regional Director of the Second Region, in writing, whether or not it will refrain from forcing or requiring The New York Times Company by means proscribed by Section 8(b) (4) (D) to assign the work in dispute to deliverers rather than to mailers. MEMBER BROWN took no part in the consideration of the above Decision and Determination of Dispute. Tri-County Building and Construction Trades Council of Akron and Vicinity, AFL-CIO; Local No. 7, Bricklayers, Masons and Plasterers' International Union of America , AFL-CIO ; Car- penters District Council for Summit , Medina and Portage. Counties , and its Local No. 639, United Brotherhood of Car - penters and Joiners of America, AFL-CIO; Local 894, Inter- national Hod Carriers ' Building and Common Laborers' Union of America, AFL-CIO; Local No. 17, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; Local No. 219, United Association of Journeymen. and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Local No. 70,. Sheet Metal Workers' International Association , AFL-CIO and The John G. Ruhlin Construction Company (construc- tion project of Goodyear Tire and Rubber Company Research Building, Akron , Ohio). Case No. 8-CD-22. July 18, 1962 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed by The John G. Ruhlin Construction Company, herein called Ruhlin, alleging that the above-named Respondent labor or- ganizations , herein called the Building Trades Council, have induced or encouraged employees to strike for the purpose of forcing Good- year Tire & Rubber Company, herein called Goodyear, to assign par- ticular work to members of the Respondent Unions rather than to Goodyear's own employees represented by Local No. 2, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Rubber Workers. A hearing was held before Charles B. Slaughter, hearing officer , on October 9 and 10, 1961, and thereafter before Alvin Lieberman, hearing officer, on December 11, 12, and 13, 137 NLRB No. 159. TRI-COUNTY BUILDING TRADES COUNCIL OF AKRON 1445 1961. All parties who appeared at the hearing were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officers made at the hearing are free from prejudicial error and are hereby affirmed. Ruhlin, Building Trades Council, and Goodyear have filed briefs which have been duly considered. Upon the entire record in the case, the Board makes the following findings : 1. Ruhlin is an Ohio corporation engaged in the construction busi- ness. It annually receives materials and supplies valued at more than $50,000 from places outside the State of Ohio. Goodyear is an Ohio corporation which annually receives and ships products valued at more than $1,000,000 to and from places outside the State of Ohio. We find that Ruhlin and Goodyear are engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. Building Trades Council and its members and Rubber Workers are labor organizations within the meaning of the Act. 3. The dispute : A. The facts Since 1953, Goodyear and the Rubber Workers have been parties to collective-bargaining agreements which have provided that : Work of a type for which the Engineering Department is equipped and qualified to do within the allotted time will not be subcontracted, if such work can be handled by increasing the standard work day to eight (8) hours and the employees involved agree to such work schedule .... Pursuant to this contract provision, Goodyear in the past has allotted part of new construction work to employees in the engineering de- partment, although the bulk of the work was contracted out to com- panies in the construction industry. Instances of such assignments occurred in 1953, in connection with the construction of a new power- house; in 1957, in connection with the construction of an addition to a metal products plant; in 1958, in connection with the construction of a garage and an airplane tire testing building; and in 1960, in connec- tion with the building of a tire curing plant. In April 1961, Goodyear let a contract to Ruhlin for the construc- tion of a large addition to its research facilities in Akron, Ohio. How- ever, it reserved for the employees in its own engineering department certain work which included the installation of an underground sprinkler and pipe headers, the setting and piping of laboratory sinks, the setting of laboratory benches, painting, and all inside sheet- metal and electrical work. Ruhlin subcontracted certain phases of 1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its work to other employers in the building and construction industry whose employees were represented, as were Ruhlin's, by unions affil- iated with the Building Trades Council. On May 4,1961, Ruhlin and its subcontractors commenced construc- tion of the addition to the research center. Later that month, the Building Trades Council complained to Goodyear that the work which had been reserved for its own employees should have been let to outside contractors. On July 12, 1961, the president of the Building Trades Council wrote to Goodyear as follows : The policy of your Company relating to contractors in the construction field is the primary reason for this communication. The Akron Building Trades Council and the building con- tractors have confidence in our competitive position and the free enterprise system, however, in our relations with the rubber in- dustry, we find that the Union and Company have undercut our competitive position by the practice of boycotting our services. We are aware of the practical aspects of labor relations from your viewpoint. However, we felt that your office should be apprised of our position since we do not intend that practices which undercut our position contrary to the current labor laws should continue. As customers of the rubber industry, were we to advertise in our national publications the boycott by your Company of our services, I am sure that it would be of concern. I do not suggest retaliation of a boycott of Goodyear Tire & Rubber products by the construction industry at this time. We are concerned in this matter, however, and are working toward a solution. We believe that those who do not recognize that this is a major problem that should be discussed are guilty of immature judgment. This matter has been directed to the attention of all parties in Labor including Mr. George Burdon, President of the United Rubber Workers, Goodyear Local Union #2, U.R.W. and Mr. C. J. Haggerty of the Building Trades Department. The enclosed letter from Mr. Burdon reflects the current attitude of the U.R.W. We do not intend to remain static on this subject. Your firm is currently constructing a "new" building in which a general con- tract has been let with some of the work subcontracted and some of the work reserved for the Rubber Workers' Union. The United Rubber Workers Union is certified by the National Labor Rela- tions Board to represent "production and maintenance" employees only. Their entrance into "new construction" is a trespass which goes beyond the legal bounds of their certification. The same certification which prohibits a raid into their field of maintenance and production equally prohibits the U.R.W. from invading the "new construction" field. TRI-COUNTY BUILDING TRADES COUNCIL OF AKRON 1447 We respectfully request that your Company cease and desist the policy of boycotting the services of outside contractors under the guise of labor relations expediency. Goodyear in reply said that the disputed assignment of work was made in conformance with its bargaining contract with the Rubber Workers and with its past practice. There is testimony that on August 4, 1961, the president of the Building Trades Council told Ruhlin's job superintendent and its masonry subcontractor that if picketing started, employees on the job were not to cross the picket line; that on August 7, 1961, the day the picketing started, the vice president of the Building Trades Council made a similar statement to Ruhlin's superintendent; and that on August 4, a business representative of Respondent Local 639, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, told a carpenter employed at the jobsite by Ruhlin that in the event of picketing he was not to cross the picket line.' From August 7, 1961, until September 8, 1961, the Building Trades Council picketed the entrance to the construction site used by con- struction workers with signs reading : Goodyear Tire & Rubber Company unfair to Akron Building Trades, AFL-CIO. During the period that the picketing was in progress the only em- ployees who worked at the jobsite were Goodyear's own employees who entered through a separate entrance which was not picketed. On August 10, Ruhlin sent a telegram to the president of the Build- ing Trades Council demanding that "workmen return to the job site and resume construction work." The Building Trades Council replied the same day : This is to advise you that the members of the Akron Building Trades Council are not on strike over any violations by your Company. Our tradesmen are protesting the arbitrary assign- ment of work by the Goodyear Tire & Rubber Company, con- trary to provisions of the Miami Agreement. The refusal of the Goodyear Tire & Rubber Company to recognize the jurisdiction of the Building Trades on new construction is the basis for our informational picketing against the unfair practices of the United Rubber Workers Union and the Company. The workmen have voluntarily joined in this protest. Should your firm desire to meet, we are willing. However, mem- bers of our Union's are standing on their right to protest the arbi- trary action of the Goodyear Tire & Rubber Company and the 'The above statements as to representations made by union officials is based on the testimony of Ruhlin's job superintendent , Ruhlin's masonry subcontractor , and a car- penter employed by Ruhlin . The union officials denied making these statements. 1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Rubber Workers which has created a double standard of labor contracts on this project. We have filed an unfair labor practice charge against the United Rubber Workers and the Goodyear Tire & Rubber Company on this matter. We will return to work when the National Labor Relations Board takes jurisdiction of this matter and renders its decision. B. Contentions of the parties Ruhlin contends that Respondents violated Section 8(b) (4) (D) of the Act by picketing the jobsite for the purpose of forcing Goodyear to assign the disputed work to members of the Respondent Unions rather than to its own employees represented by the Rubber Workers. Respondents deny there was a dispute with Goodyear over work assignments or that they had requested Goodyear to reassign any work. The picketing, they contend, was only to inform the public that dual standards existed in the construction industry in the Akron area. The Respondents deny any threat or coercion and allege that Ruhlin's job superintendent locked the only gate used by the construc- tion workers and did not unlock it during the picketing. Goodyear asserts that the dispute with the Building Trades Council is jurisdictional and that its assignment of work to the Rubber Work- ers was in accordance with its collective-bargaining agreement with that labor organization and its past practice. The Rubber Workers, which intervened at the hearing, takes sub- stantially the same position as Goodyear. C. Applicability of the statute Before the Board proceeds with a determination of dispute pursuant 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 violated. The Building Trades Council's letter of July 12 to Goodyear and its August 10 letter to Ruhlin clearly establish that it was Goodyear's assignment of certain work to its own employees instead of contracting out such work to employers employing members of the construction trades which brought on the dispute and the picketing. It is also clear, particularly from the letter of August 10, that an object of the picketing was to secure the replacement of Goodyear employees with building construction trades workers.2 Finally, without any necessity to decide conflicts in the testimony, we find that there is reasonable cause to believe that Respondents engaged in a strike, that by their 2 Respondent's contentions that by the picketing it sought only to advertise the exist- ence of dual standards on the job , that is, that employees working on the same project were working under the terms of different collective -bargaining agreements , and that Ruhlin 's job superintendent voluntarily shut down the operation after the start of the picketing, are patently without merit in view of Ruhlin's August 10 telegram and the reply thereto by the Building Trades Council TRI-COUNTY BUILDING TRADES COUNCIL OF AKRON 1449 picketing and by direct representations to a carpenter at the jobsite they induced employees to engage in a strike, and that at least by the picketing and the statement in the July 12 letter to Goodyear that they did not "intend to remain static on this subject," they threatened, co- erced, and restrained Goodyear and Ruhlin. On the basis of the foregoing, we find that there is reasonable cause to believe that Respondents have engaged in, or induced or encouraged employees to engage in, a strike, and have threatened, coerced, and restrained Goodyear and Ruhlin for an object of forcing or requiring Goodyear to assign particular work to building construction trades workers rather than to Goodyear's own employees in its engineering department in violation of Section 8(b) (4) (D) of the Act. We fur- ther find that the foregoing dispute is properly before the Board for determination under Section 10 (k) of the Act. D. Merits of the dispute Goodyear assigned the disputed work to its own employees pursuant to a provision in collective-bargaining contracts with the Rubber Workers which goes back many years. There have been other similar assignments in the past. There is no dispute about the competence of the Goodyear employees to perform such work. The Rubber Work- ers is also the long-time collective-bargaining representative of the Goodyear employees. The Respondent's claim to the disputed work is based essentially on the allegation that the work assigned to the members of the Rubber Workers is "new construction" which members of the construction trades are entitled to perform under the terms of the AFL-CIO Miami Agreement in 1958 to which the construction trades and other unions, including the Rubber Workers' parent International, subscribed. In relevant part this agreement provides : (a) In general, new building construction, on the one hand, should be the work of the workers represented by the building trades craft unions; production and running maintenance work, on the other, should be the work of the workers represented by the industrial unions. (b) Doubtful cases in these two areas and doubtful cases in the areas involving such work as alterations, major repairs and re- location of existing facilities, changeovers and other types of maintenance shall be settled on the basis of appropriate estab- lished past practices. The Rubber Workers International contends the work falls in the doubtful category in paragraph (b) above and should be decided on the basis of past practice. The present dispute was presented, in ac- cordance with the agreed-upon machinery setup by the Miami Agree- 1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, to the Industrial and Building Trades Departments of the AFL- CIO. Apparently this machinery broke down at the initial step, for a committee created to investigate and make an initial decision never appeared to investigate the disputed work. The very hearing in the proceeding now before us was adjourned expressly to give the parties another chance to settle the dispute. However no settlement was ever reached. Despite the 1958 Miami Agreement it should be again noted that in 1958 and 1960 new construction projects by Goodyear were manned in much the same way as the current project, without ap- parent dispute. Thus in view of the uncertainty concerning the ap- plication of the Miami Agreement and the inability of the parties to resolve their disagreement, according to the terms of that agreement, we do not believe that the Board should nullify the work assignment provisions of the collective-bargaining contract between Goodyear and the Rubber Workers and the past practice, particularly since these both predate and postdate the Miami Agreement. We shall therefore award the disputed work to engineering department employees of Goodyear. In making this determination we are assigning the work to these employees, but not to Local No. 2, United Rubber, Cork, Lino- leum and Plastic Workers of America, AFL-CIO, or to its members. Accordingly, we find that the Building Trades Council is not and was not entitled by means proscribed by Section 8(b) (4) (D) to force or require Goodyear or Ruhlin to subcontract the disputed work to em- ployers employing construction trades workers, rather than to assign it to Goodyear's own employees in the engineering department. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the en- tire record in this case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. Engineering department employees of the Goodyear Tire and Rubber Company, who are represented by Local No. 2, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, are en- titled to perform all the work reserved to them by Goodyear in the construction of the additional research facility at the Goodyear job- site in Akron, Ohio. 2. Tri-County Building and Construction Trades Council of Akron and Vicinity, AFL-CIO ; Local No. 7, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO; Carpenters District Council for Summit, Medina and Portage Counties, and its Local No. 639, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 894, International Hod Carriers, Building and Common Laborers' Union of America, AFL-CIO; Local No. 17, LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 1451 International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; Local No. 219, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO ; and Local No. 70, Sheet Metal Workers' International Association, AFL-CIO, are not and have not been lawfully entitled to force or require Goodyear or any other employer to subcontract the disputed work to employers em- ploying construction trades workers. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, the Tri-County Building and Construction Trades Council of Akron and Vicinity, AFL-CIO, and each of its above- named members shall notify the Regional Director for the Eighth Region, in writing, whether or not they will refrain from forcing or requiring Goodyear Tire and Rubber Company by means proscribed in Section 8(b) (4) (D) to assign the work in dispute directly or in- directly to construction trades workers rather than to Goodyear's own employees in its engineering department. MEMBER BROWN took no part in the consideration of the above Decision and Determination of Dispute. Local 1291 , International Longshoremen 's Association, AFL- CIO and Northern Metal Company . Case No. 4-CD-51. July 18, 1962 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed by Northern Metal Company, herein called the Employer or Northern, alleging that Local 1291, International Longshoremen's Association, AFL-CIO, herein called the ILA or Respondent, had in- duced and encouraged employees to refuse to work for the purpose of forcing or requiring the Employer to assign particular work to mem- bers of the Respondent rather than to members of Local 14, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, herein called Local 14. A hearing was held before Seymour X. Alsher, hearing officer, between August 24 and October 13, 1960. All parties who appeared at the hearing 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. Northern and the ILA have filed briefs which have been duly considered. 137 NLRB No. 153.