United Brotherhood of Carpenters and Joiners of America

National Labor Relations Board - Board Decisions

Feb 27, 1950

88 N.L.R.B. 844 (N.L.R.B. 1950)

In the Matter Of UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, MILLWRIGHTS LOCAL No. 1102, A. F. L., AND DON HINER,
ITS AGENT, AND METROPOLITAN DETROIT BUILDING AND CONSTRUCTION
TRADES COUNCIL OF THE BUILDING AND CONSTRUCTION TRADES DE-
PARTMENT OF THE A. F. L., AND FINLAY C. ALLAN, ITS AGENT an
DISTRICT No. 60, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 7-CD 2. Decided February 27, 1950
DECISION
AND
DETERMINATION OF DISPUTE
STATEMENT OF THE CASE '
This proceeding arises under Section' 10 (k) of the Act, as amended
by. Labor Management Relations Act, 1947, which provides that
"Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph 4 (d) of Section 8 (b),
the Board is empowered and directed to hear and determine the dis-
pute out of which such unfair labor practice shall have arisen ...."
On November 14 and 15, 1949, District No. 60, International Asso-
ciation of Machinists, herein called the IAM, filed with the Regional
Director for the Seventh Region a charge and an amended charge
against the United Brotherhood of Carpenters and Joiners of America,
Millwrights Local. No. 1102, A. F. L., herein called the Millwrights, and
Don A. Hiner, its agent, against the Metropolitan Detroit Building
and Construction Trades Council of the Building and Construction
Trades Department of the A. F. L., herein called the Council, and
Finlay C. Allan, its agent, alleging that they had engaged in and
were engaging in certain activities proscribed by Section 8 (b) (4)
(D) of the amended Act. It was alleged, in substance, that the Re-
spondents, by their officers and agents, had induced and encouraged
the employees of several employers to engage.in a strike for the purpose
of forcing or requiring Stroh Brewery Company, herein called Stroh,
88 NLRB No. 169.
844
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 845
to assign particular work to millwrights and/or members of the Mill-
wrights instead of to members of the IAM.1
Pursuant to Sections 203.74 and 203.75 of the Board's Rules and
Regulations, the Regional Director investigated the charge and pro-
vided for an appropriate hearing, upon due notice to all the parties.
Thereafter, a hearing was held before James V. Constantine, a hear-
ing officer of the Board, on December 13, 14, 15, 16, 19, and 20, 1949.
All the parties appeared at the hearing and were afforded full oppor-
tunity 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 .2 All parties were afforded an opportunity to file
briefs with the Board.3
Upon the entire record in the case, the Board 4 makes the following :
FINDINGS OF FACT
1. Stroh's business .
Stroh Brewery Company is an Arizona corporation, with its prin-
cipal office and plants located at Detroit, Michigan. It is engaged in
the manufacture and sale of beer and ice cream. Its sales during the
fiscal year ending 1949 amounted to $14,300,000 for beer and $780,000
for ice cream. About 22 percent of the beer was sold directly to
customers outside the State of Michigan. During the same period,
it purchased materials used in manufacturing its products in the sum
of $3,500,000, of which 55 percent was received directly from points
outside the State of Michigan.
We find, contrary to the contention of the Respondents, that Stroh
is engaged in commerce within the meaning of the Act.
' The relevant portions of Section S of the Act are as follows :
(b) It shall he an unfair labor practice for a labor organization or its agents-
(4) to engage in, or to induce or encourage the employees of any employer to
engage in, a strike or a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services, where an object thereof
is . . .
(D) forcing or requiring any employer to assign particular work to employees in it
particular labor organization or in a particular trade, craft, or class rather than to
employees in another labor organization or in another trade, craft, or class, unless
such employee is failing to conform to any order or certification of the Board deter-
mining the bargaining representative for employees performing such work . . .
2 The hearing officer permitted Stroh to participate fully in the hearing, over the Re-
spondents' objection. we are of the opinion that an employer is a proper party to a Sec-
tion 10 (k) proceeding, and therefore affirm the hearing officer's ruling.
3 The request for. oral argument by the Millwrights and the Council is hereby denied
inasmuch as the record and the briefs, in our opinion, adequately present the issues and
the positions of the parties.
4 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor
Relations. Board has delegated its powers in connection with this case to a three-member
panel, [Members Houston, Reynolds, and Murdock].
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The dispute
a. The facts
In 1948, Stroh undertook a new building construction project con-
sisting of a new bottling plant and warehouse at a cost of approxi-
mately $3,500,000. All the work relating to the construction of the
new building and the installation of certain case conveyors Stroh let
out on contract, but under the terms of the purchase agreements with
the manufacturers of the new bottling machinery, which it acquired
for installation in the new building, Stroh undertook to install the.
bottling machinery itself.
Building construction began in the fall of 1948. The general con-
tractor, O. W. Burke Company, and a number of primary contractors,
and subcontractors, proceeded with the work of constructing the new
building. In addition, Alvey Conveyor Manufacturing Company of
St. Louis, Missouri, who sold the case conveyor equipment to Stroh,
subcontracted to another firm, the George Rehm Company of Cincin-
nati, Ohio, the work of installing this equipment. All construction
employees working on the building were building trades craftsmen
and members of unions affiliated with the Council. The employees
hired to work on the installation of the Alvey case conveyors were
millwrights by trade and members of the Millwrights, which is also
affiliated with the Council.
In October 1949, when the superstructures and a substantial portion
of the interior were completed, and the Alvey conveyors were being
installed, the first units of the new bottling machinery arrived at the
project site.' The first of this equipment was a bottle washer unit
which Stroh had purchased from the Michael Yundt Manufacturing
Company. Stroh's agreement with Yundt provided for Yundt to
have an erecting engineer on the job to supervise the installation work
and for Stroh to "furnish all skilled and unskilled labor," for install-
ing the equipment. Accordingly, Yundt sent one Urban, an erecting
engineer, to the project. Urban discussed the proposed installation
work with King, a representative of Stroh's firm of architects and the
individual who superintended the entire construction job for Stroh,
and suggested to King that machinists be engaged to do the work.
King, acting for Stroh, thereupon hired two machinists to do the pre-
liminary work of installing parts of the unit. Thereafter, Stroh hired
more machinists, bringing the total up to nine, to do the complete
bottling machinery installation job.. All nine machinists were
members of the IAM.
The record shows that on October 19, 1949, 1 day after the first two
machinists began to work, representatives of the Millwrights and the
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 847
Council complained to King (who was in charge of the project for
Stroh ) that the machinists were not members of the A. F. L. or the
Council. A number of meetings, the first of which took place that
day, were held between representatives of the Council and the Mill-
wrights and representatives of Stroh. During these meetings, repre-
sentatives of the Council and the Millwrights advised Stroh that if
Stroh wished to keep the project going , it would be necessary to dis-
charge the machinists ( members of the IAM ) ; that the Council had
an agreement with the Millwrights that any new building installation
of equipment "in this area" would belong to Millwrights and that the
installation of the bottling machinery be turned over to members of
the Millwrights . Also during these meetings, the Council and the
,Millwrights suggested to Stroh that the dispute might be settled either
by an equal division of the work between millwrights and machinists
or by having Stroh let out this installation work to a contractor. Stroh
turned down these requests and proposals of the Council and the
Millwrights.
On Friday , November 4, 1949, the Council 's Secretary telephoned
Shenefield , Stroh's treasurer , and said : '^I believe that the Millwrights
are going to have a picket line around your job tomorrow morning."
The next work day was Monday, November 7, 1949. On November 7,
a picket line was established on the project site, the pickets carrying
banners stating , "This job unfair to Millwrights ' Local 1102." None
of the craftsmen , except the IAM machinists , crossed the picket line.
Included among the A. F. L. craftsmen who stayed off the job while
the picketing was in progress were the members of the A . F. L. Mill-
wrights, who had been working on the installation of the Alvey con-
veyors. The picketing continued each day from November 7 to 28,
1949.
On November 23, 1949, Stroh laid off the IAM machinists. On
November 28, the picketing ceased, and the A. F. L. craftsmen re-
turned to work. No bottling machinery installation work has been
done since November 23, 1949.
b. Bargaining history
The record shows no bargaining history between Stroh and the Mill-
wrights or the Council, either with respect to the building construction
project or the brewery operations . As indicated above, all employees
on the project, with the exception of the machinists , were employed
either by primary contractors or subcontractors.
There is a bargaining history, however, with respect to Stroh and
.the IAM . According to the record , Stroh has recognized the IAM as
exclusive bargaining representative of a unit of machinists and auto
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mechanics since April 1941. On February 18, 1948, the IAM filed a
petition for a union -authorization election in a unit consisting of "all
machinists and auto mechanics employed by the Company [Stroh]." 5
A consent election was held on March 30, 1948, resulting in a UA cer-
tification of the IAM. In July 1949 , Stroh entered into a collective
bargaining agreement with the IAM covering "all machinists, auto
mechanics , and auto mechanics ' helpers employed by the Company."
The contract was effective as of April 1, 1949, and was to remain in
force for 1 year; it also contained an automatic renewal clause . Stroh .
agreed to recognize the IAM as the sole bargaining agent "in all mat-
ters pertaining to collective bargaining for all such employees." -In-
cluded in the agreement was a union -security provision . Except for
describing the employees covered by the agreement , it contained no
specific description of the work the "machinists " named in the agree-
ment were employed to perform; nor did it appear on the face of the
agreement that it was to apply to work other than maintenance in
connection with Stroh's existing brewery operations.
c. Contentions of the parties
The IAM ( charging party) contends that the Millwrights and the
Council, by their conduct in attempting to induce Stroh to replace
the machinists and to assign the bottling machinery installation work
to members of the Millwrights , and by placing a picket line at the
project site in furtherance of such objective, had violated the provi-
sions of Section 8 (b) (4) (D).
Stroh contends that the Millwrights has no bargaining rights for
any of Stroh 's employees ; that the bottling machinery and case con-
veying equipment are separate units , not part of one conveyor unit or
system as urged by the Millwrights and the Council, and that members
of the Millwrights who had been hired by a subcontractor to install
the case conveyors did not, by virtue of such work, have ,a right to an
assignment of the bottling machinery installation work; that Stroh is
not able to have the machinists complete the work because it fears that
the Council and the Millwrights "will call another strike',; and that the
Council and the Millwrights are not lawfully entitled to force or re-
quire Stroh to assign the disputed work to members of the Millwrights
rather than to members of the IAM. Like the IAM, Stroh also con-
tends that the Respondents have violated Section 8 (b) (4) (D).
Respondents Millwrights and Council contend that the members of
the Millwrights were first on the job in installing the bottling machin-
ery, that the bottling machinery and the case conveying system is one
single integrated and interdependent system, and that the Millwrights
6 Case No. 7-UA-136 (unpublished).
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 8491
are therefore entitled to continue with the bottling machinery installa-
tion work; that there is no "dispute" for the Board to consider at this
time because "any potential dispute" that might have existed has been
"terminated by the withdrawal of all of the machinists"; that the
activities of the Millwrights and Council in picketing the project were
solely for the purpose of protesting "against the invasion of their
Jurisdiction"; that the Millwrights did hot picket or quit their work
to force or require an Employer to assign work to them but rather
because "work which, had been originally assigned to them has been
reassigned to others while that very work was being carried on," and,
that, under these circumstances, they had not violated Section 8 (b).
(4) (D).
d. Applicability of the statute
On the record before us, it is clear that the "dispute" in this proceed-
ing involves efforts. by the Respondents Millwrights and Council to:
force or require Stroh to assign the bottling machinery installation
work to members of the Millwrights, although the work was being,
performed by Stroh's employees who were members of the IAM. We,
therefore find that dispute in question is properly before us.e
e. The merits of the dispute
The Respondents, in support of their claim to the disputed work,,
rely principally on the employment of members of the Millwrights in
the installation of the Alvey case conveyors prior to the date on which
Stroh hired the machinists to work on the installation of the bottling-
machinery.
The record does show that members of the Millwrights were working
on the project site before the arrival of the machinist members of the-
IAM. However, it is clear that the members of the Millwrights were-
employees of the George Rehm Company, which had been engaged,.
under contract, by the Alvey Conveyor Manufacturing Company to do.
the conveyor installation work; these Millwright members were not
Stroh's employees, and Stroh had no control over them. It is also,
clear that the contracts between Stroh and Alvey, and between Alvey
and the George Rehm Company, did not apply to the disputed work.
Thus it appears that neither the Millwrights nor the Council has.
any immediate or derivative rights under any of the afore-mentioned
contracts executed by Stroh as to the work in question; nor does either
O Moore Drydock Company , 81 NLRB 1108 ; Juneau Spruce Corporation, 82 NLRB 650;
Irwin-Lyons Lumber Company, 82 NLRB 916 ; Los Angeles Building and Construction.
Trades Council, at al . ( Westinghouse Electric Corporation ), 83 NLRB 477 ; cf. Ship.
Scaling Contractors Association, 87 NLRB 92.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these Respondents have any rights in any outstanding Board cer-
tification or order 7 affecting this work.
Under the foregoing circumstances, it is not necessary to determine
whether or not the bottling machinery constitutes a part of the con-
veyor, system ; nor is it necessary to determine whether the UA cer-
tification of the IAM and the IAM's subsequent contract cover the
machinists working on the disputed work. In determining this dis-
pute, it is sufficient on the facts before us that Stroh engaged em-
ployees to install the bottling machinery and that the Respondents
acted to force or require Stroh to assign this work to their own
members.8
The Respondents contend that in any event the dispute in this pro-
ceeding is settled or otherwise moot. They assert in this connection
that the absence of machinists on the job and the resumption of
work by all the employees belonging to unions affiliated with the
'Council, including the Millwrights, "effectively -settled" within the
meaning of Section 10 (k) 9 whatever dispute there may have been.
The record shows, however, that several months' work on general
construction and on the installation of machinery remained to be done,
and that Stroh has not recalled the machinist employees because it
fears that the Respondents will resume their conduct here in question
thus forcing "the building job to shut down." Under these circum-
stances it may scarcely be said that the dispute is moot or that it has
been voluntarily adjusted by the parties.
Accordingly, we find that neither the Council nor the Millwrights
is lawfully entitled to force or require Stroh to assign the work in
dispute to members of the Millwrights rather than to employees of
Stroh who are members of the IAM. However, we are not by this
7 Section 8 (b) (4) (D) contains a proviso as follows : ". . . unless such employer
is failing to conform to any order or certification of the Board determining . the bargaining
representative for employees performing such work . . .
6The 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 employer 's freedom to hire, subject only to the requirement against dis-
crimination as contained in Section 8 (a) (3). Juneau Spruce Corporation, supra.
Although Members Houston and Murdock dissented in that case , they are bound by the
decision therein.
Section 10 (k) provides, in part:
Whenever it is charged that any person has engaged in an unfair labor practice
within the meaning of paragraph 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 unless , within ten days after notice that such charge has been
filed, the parties to such dispute submit to Board satisfactory evidence that they have
adjusted , or agreed upon methods for the voluntary adjustment of the dispute . . .
( italicized portion is relied on by the Millwrights and the Council).
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 851
DETERMINATION OF DISPUTE
action to be regarded as "assigning " the work in question to the
IAM.1o
On the basis of the foregoing findings of fact and'the entire record
in this case , the Board makes the following determination of the
dispute, pursuant to Section 10 (k) of the amended Act:
1. United Brotherhood of Carpenters and Joiners of America, Mill-
wrights Local No. 1102 , A. F. L., and Don Hiner , its agent, and
Metropolitan Detroit Building and Construction Trades Council of
the Building and Construction Trades Department of the A. F. L.,
and Finlay C. Allan, its agent, are not, and have not been lawfully
entitled to force or require Stroh Brewery Company to assign work
on the installation of the bottling machinery at Stroh Brewery Com-
pany's new bottling plant, Detroit , Michigan , to members of the
United Brotherhood of Carpenters and Joiners of America, Mill-
wrights' Local No. 1102 , A.-F. L., rather than to employees of Stroh
Brewery Company, who are members of District No. 60, International
Association of Machinists.
2. Within ten (10 ) days from the date of this Decision and De-
termination of Dispute , each of the Respondents may notify the
Regional Director for the Seventh Region, in writing, as to what
steps the Respondents have taken to comply with the terms of this
Decision and Determination of Dispute.
10 See Los Angeles Building and Construction Trades Council , A. F. L. (Westinghouse
Electric Corporation ), supra.
882191-51-55