United Brotherhood of Carpenters & Joiners of America

National Labor Relations Board - Board Decisions

Apr 25, 1958

120 N.L.R.B. 610 (N.L.R.B. 1958)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 1 OF THE BRICKLAYERS, MASONS
AND PLASTERERS INTERNATIONAL UNION OF AMERICA , AFL-CIO, AND ITS
AGENT JAMES M . LEONARD
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board and in order to effectuate the policies of the National Labor Relations
Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage the employees of Leo Spear
Construction Co. Inc ., Hampden Construction Company, W. J. Quinn Con-
struction Company, or of any other employer to engage in .a strike or a con-
certed refusal in the course of their employment to perform services for their
respective employers where an object thereof is to force or require the towns of
Southwick or West Springfield or any other town , employer , or person to cease
doing business with Rogers Heating and Engineering , Company or Valley
Electric and Heating Service or with any other employer or person.
LOCAL UNION No. 1 OF THE BRICKLAYERS, MASONS
AND PLASTERERS INTERNATIONAL UNION OF AMER-
ICA, AFL-CIO, AND ITS AGENT JAMES M. LEONARD,
Labor Organization.
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.
United Brotherhood of Carpenters & Joiners of America, Local
Union No. 978 , AFL-CIO; International Hod Carriers , Build-
ing & Common Laborers Union of America , Local No. 676, AFL-
CIO ; International Union of Operating Engineers , Hoisting and
Portable Local No. 16-16B , AFL-CIO ; United Association of
Journeymen & Apprentices of the Plumbing and Pipefitting
Industry of the U. S. & Canada, Local No. 178, AFL-CIO and
Kenneth Markwell and William Hartz, Partners, d/b/a Mark-
well & Hartz Contractors . Case No. 17-CD-25. April 25, 1958
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
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 October 4, 1957, Markwell & Hartz Contractors, herein referred
to as the Company, filed charges with the Regional Director for the
Seventeenth Region, alleging that United Brotherhood of Carpenters
& Joiners of America, Local Union No. 978, AFL-CIO, herein called
the Carpenters; International Hod Carriers, Building & Common
Laborers Union of America, Local No. 676, AFL-CIO, herein called
the Laborers; International Union of Operating Engineers, Hoisting
120 NLRB No. 77.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 611
and Portable Local No. 16-16B, AFL-CIO, herein called the En-
gineers; and United Association of Journeymen &-, Apprentices of the
Plumbing and Pipefitting Industry of the U. S. & Canada, Local 178,
AFL-CIO, herein called the Plumbers, had engaged in and were en-
gaging in certain unfair labor practices within the meaning of Sec-
tion 8 (b) (4) (D) of the Act. It was charged, in substance, that on
or about August 23 and 26,1957, and thereafter the above labor organi-
zations through their officers, agents, and representatives by picketing
and otherwise have induced or encouraged the employees of various
contractors to engage in a concerted refusal to handle any goods or
materials in the course of their employment with an object of forcing
the Company to assign particular work at its Springfield, Missouri,
sewage treatment plant project to employees in a particular labor
organization rather than to employees in another labor organization
or in another class and that by the above acts and other conduct the
said labor organizations have violated Section 8 (b) (4) (D) of the
Act.
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 charges and provided for an appropriate
hearing upon due notice. The hearing was held at Springfield,
Missouri, on October 17 and 18, 1957, before Charles A. Fleming, hear-
ing officer. All 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, except as otherwise indicated below, are
free from prejudicial error and are hereby affirmed. A brief was filed
by the Respondents.
At the close of the General Counsel's case the Respondents moved to
quash the notice of hearing on the ground that the subject matter of
the present dispute has been investigated by the Regional Director
in Case No. 17-CC-69 involving an alleged violation of Section 8
(b) (4) (A) and (B) of the Act; that the Regional Director refused
to issue a complaint in that case and that for the General Counsel to
initiate under such circumstances a 10 (k) proceeding upon new
charges arising out of the same factual situation would be prejudicial
to the rights and interests of the Respondents. We find no merit in
the Respondents' contention.
The Employer filed two charges against the Respondents. The first
charge, alleging a violation of Section 8 (b) (4) (A) and (B), was
filed on August 27, 1957, was docketed as Case No. 17-CC-69 and was
assigned for investigation to a field examiner. Before the field ex-
aminer completed his investigation of this charge, the Company, on
October 4, filed its second charge alleging a violation of Section 8
(b) (4) (D). This charge was docketed as Case No. 17-CD-25. On
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. October 15 the Regional Director advised the Respondents that fur-
ther proceedings in Case No. 17-CC-69 were not warranted and that
a complaint would not issue "inasmuch as the facts and evidence iii
support of [the charges] will be introduced and considered in a hear-
ing pursuant to Section 10 (k) of the Act." The Regional Director's
refusal to issue a complaint became final when the Charging Party
failed to take an appeal from this action to the General Counsel. In
the light of these facts we fail to see how the Respondents were preju-
diced by the Regional Director's initiation of the 10 (k) proceeding.
All that happened was simply that pending an investigation of the
first charge and before it was completed, the Company filed another
charged based upon the same facts but alleging a violation of a differ-
ent section of the Act. Confronted with two charges against the same
Respondents arising out of the same factual situation, the Regional
Director concluded that the facts disclosed by the investigation war-
ranted proceeding on the Section 8 (b) (4) (D) charge and not on
the Section 8 (b) (4) (A) and (B) charge. We cannot see how the
Regional Director's election to proceed under Section 10 (k) of the
Act prejudiced the Respondents in any manner.'
Moreover, it is well established that the disposition of charges filed
and the question whether a complaint should be issued, litigated, and
brought to judgment is a matter which, by statute, is within the ex-
clusive province of the General Counsel. Section 3 (d) of the Act
confers upon the General Counsel "final authority, on behalf of the
Board, in respect of the investigation of charges and issuance of com -
plaints under Section 10, and in respect of the prosecution of such
complaints before the Board." The Board, therefore, may not review
the General Counsel's administrative determinations as to the issuance,
refusal to issue a complaint upon unfair labor practice charges, or
as to his election to proceed upon one charge rather than upon an-
other against the same respondent.2 Respondents' motion to quash
is, accordingly denied.
Upon the entire record in the case the Board finds:
1. Markwell & Hartz Contractors are engaged in commerce within
the meaning of the Act.
2. The Carpenters, the Laborers, the Engineers, and the Plumbers
are labor organizations within the meaning of the Act.
3. The dispute :
The principal office of the Company, which is engaged in the busi-
ness of general contracting, is in Memphis, Tennessee. On July 23,
1 Cf Local 562, United Association of Journeymen , et al (Northwest Heating Company
(Charles N Myles)), 107 NLRB 542, where the Board held that the fact that the Charg-
ing Party might have had a remedy under Section 8 (b) (4) (A) in no way deters the
Board from proceeding under Sections 8 (b) (4) (D) and 10 (k) of the Act, and that the
sections are not mutually exclusive
2 Times Square Stores Corporation, 79 NLRB 361 , 364; Colonial Provision Company, Inc.,
112 NLRB 1056 . Hughes Tool Company, 104 NLRB 318, 323.
YJNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 613
1957, the Company was awarded a contract for the construction of
sewage treatment plant for the city of Springfield, Missouri. A
few days later one of the Company's partners, Hartz, received a
long-distance call from Cline, secretary of the Springfield Building
Trades Council and business agent for the Engineers. Cline told
Hartz that he had been informed that the Company was awarded the
contract and that he would like Hartz on his next visit to Springfield
to meet with him and other craft representatives to discuss his labor
requirements for the project. Hartz said that he would, and on his
.next trip to Springfield, about August 10, Hartz met with the labor
representatives. Present at the meeting, in addition to Cline and
Hartz, were: Business Agent Pauley of the Carpenters, Business
Agent Shipley of the Laborers, and Murray, the representative of
the Ironworkers. Cline stated that the AFL unions have had long-
standing agreements with the local building contractors and heavy
construction industry providing for 100-percent AFL craft union
labor. Hartz replied that he did not operate a closed shop and
inquired as to the unions' policy with respect to contractors bringing
their own keymen into the area, which he intended to do. He fur-
ther stated that he would call upon the AFL unions to furnish the
balance of his crew. The labor representatives observed that they
had no objection to Hartz bringing in a limited number of keymen.
Cline, however, stated that his consent to Hartz's bringing in an
operating engineer was "subject to reviewing the conditions [existing
at the time] when [Hartz] actually got ready to start construction,"
that if at that time the Engineers had one of its members available
for work, he might withdraw his consent. Cline also asked Hartz
if his engineer had an Engineer's card, and Hartz replied that he did
not know. Cline then said that if the engineer did not have the card,
it would be necessary for him to apply to the Engineers for member-
ship. Hartz offered no objection. The meeting concluded with Hartz
stating that when he needed men in addition to his own keymen he
would get in touch with the respective AFL business agents.
Shortly after this meeting the Company began to move its equip-
ment to the job site. By August 12 the Company had 3 or 4 of its
so-called keymen working on the job site. On August 19, Gillmore,
assistant business representative of the Engineers, visited the job
site. Gillmore asked Hartz if he needed an operating engineer.
Hartz said that he had one on the job and that that was all he
needed at the present time, but that later he might need more. Gill-
more said that the engineer then working would have to apply for
membership in the Engineers and pay membership fees of $199.
Hartz said that the would so inform the operator and that he would
be willing to advance to the operator this sum for that purpose.
Hartz also told Gillmore that he would let him know when he needed
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another operator. Two days later Gillmore again visited the job
site and inquired of Hartz why his operator had not come down to
the Union hall to fill in a membership application. Hartz replied
that the man did not desire to join the Engineers and further asked
Gillmore if the Engineers could furnish him with an operator without
the operator presently on the job joining the Engineers. Gillmore
replied that that would be impossible, that it was against the policy
of the Engineers for its members to work on a project where some
of the workers were not members of the Engineers or another AFL
union.
On August 20 Pauley of the Carpenters and Shipley of the Labor-
ers visited the job site and met with Hartz in the Company's Trailer
office.' Shipley asked Hartz about the men on the construction site
running the wagon drill and Hartz assured him that they were Hartz
men. Pauley and Shipley said that the men should have registered
and cleared with the Unions. Hartz said that the men did not want
to join the AFL unions, that they had already joined United Con-
struction Workers. Hartz asked what would happen if the men did
not join the AFL unions and Pauley replied that AFL workmen
would not work with U. C. W. men on that project. Hartz then said
that he would talk to his men again.
On August 22 Hartz and Markwell visited the Carpenters' busi-
ness office. They informed Pauley that their men refused to join the
AFL unions. Pauley answered that he anticipated such a possi-
bility, had been in touch with the Union's Kansas City office, and
had been instructed to get the "banner" up immediately. Hartz and
Markwell asked Pauley if the AFL unions would agree to furnish the
Company with their members to work together with the men, who
refused to join the AFL unions, and Pauley said that this could not
be done. Hartz said that he had a U. C. W. contract lying on his
desk and if the AFL unions would not agree to U. C. W. men Work-
'At the healing the Respondents obtained from the hearing officer a subpoena daces
tecuoi requesting the production by the Company of a certain tape recording alleged
to have been made of this conversation . Subsequently , counsel for the Company filed a
petition to revoke the subpena on the ground that the tape recording was not the best
evidence as all the parties involved were present in the hearing room and could be called
upon to testify. The heating officer granted the Company's request The Respondents
now contend that the hearing officer had no power to pass on the motion to revoke the
subpena (citing N. L. R. B. v. Duval Jewelry Company of Miami, Ine, 243 F 2d 427
(C A. 5), cert granted 355 U. S. 809, that his failure to deny the motion to revoke the
subpena was prejudicial to the Respondents and that therefore the notice of hearing
should be quashed. We find it unnecessary to pass on the merit of the Respondents' con-
tention that the hearing officer was without power to grant the petition to revoke the
subpena as the foregoing account of whir transpned it the nieetin-, ui the Company s
Trailer office is based upon mutually corroborative testimony of the Company's wit-
ness, Hartz, and the Respondents' witnesses, rauley and Shipley, the only participants
in that meeting, rather than upon the testimony of Ilaitz alone whose testimony the
Respondents sought to impeach by the tape recording of the meeting As the Respondents
are not prejudiced by the hearing officer ' s ruling , the motion to quash the notice of hearing
on the ground is hereby denied
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 615
ing on the project he would sign the contract. Pauley retorted that
he would "use every possible legal means to obtain work for our
people."
The same morning Hartz and Markwell also talked to Shipley of
the Laborers in the Laborers' office. They informed Shipley, as they
did Pauley, that their men did not want to join the AFL unions and
asked him whether it would be possible for these men to remain on the
job and for the AFL to supply the additional crew to work with these
men. Shipley replied that that would be impossible; that the Labor-
ers' agreements with the local contractors required that they hire no
one but members of the Laborers; that he could not let his men work
on a job unless it was all an AFL job, and that he expected the Com-
pany to follow the local agreements. Hartz said that he did not
know what to do, that he had to work with these men when he re-
turned to Memphis, Tennessee. Shipley replied that his problem
would be solved if he moved his office to Springfield , Missouri.
On August 23 at the request of the Respondents a meeting was
held in the city manager's office. The meeting was attended by cer-
tain city officials, Hartz, and Pauley of the Carpenters. Hartz stated
that it was necessary for the Company to bring into the area from 6
to 10 keymen and that it wished to recruit additional workers from the
AFL unions. * He stated that these key employees were members of
U. C. W. and did not want to join the AFL unions, and that he "hoped
the AFL men would work with the U. C. W. men." Pauley said that
it could not be done, that the other crafts had been notified and that
they would start picketing the job. Hartz suggested that Pauley and
the other business representatives of the AFL unions talk to the
U. C. W. men. That afternoon Pauley of the Carpenters, Shipley
of the Laborers , and McCarthy of the Plumbers met with the Com-
pany 's employees on the job site . The union representatives invited
the men to join their respective unions . Hartz informed the U. C. W.
men that it was up to them whether they joined the AFL unions or
remained members of U. C. W., and that the Company would be be-
hind them 100 percent. Hartz also added : "We are aware that Mr.
Pauley will exercise every means to try to stop us but we will do
everything we can to keep the job rolling in the event that you decide
to stay with U. C. W., at any rate, it is your decision." The men re-
fused to join the AFL unions stating that they were satisfied with
their own union. Towards the end of the meeting Pauley in the pres-
ence of the other representatives told Hartz that they would put up
a picket line on the job site the following Monday.
Also, sometime on August 23 the Company's representatives signed
a contract with U. C. W. The record does not show whether the
Respondents learned of this fact before or after they established their
picket line on August 26.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Picketing: An August 26 Hartz arrived at the job site about 8
a. in. At the entrance to the job site he found McCarthy of the
Plumbers talking to a foreman of the utility crew who were members
of the IBEW. This crew, which normally started work on the job
site about 7 a. in., was not working. Hartz asked the foreman of the
crew why the men were not working. The foreman replied that he
had heard that there would be a picket line put up and that they were
waiting to see what would happen. A few minutes later, however,
the crew began working.
Pauley of the Carpenters arrived at the job site around 8: 15 that
morning. He had with him 6 inen and 2 picket signs. One of the
men began picketing in front of the entrance to the job site with a
sign reading as follows : "AFL CARPENTERS NOT EMPLOYED
BY MARKWELL HARTZ CONSTRUCTION COMPANY-
LOCAL UNION 976-KANSAS CITY DISTRICT COUNCIL
OF CARPENTERS." As soon as the foreman of the utility crew
noticed the picket line, the went over to Pauley, conferred with him,
and then informed Hartz that he was pulling his men out. Hartz
asked why,and the foreman replied that his men would be fined or
expelled from the IBEW if they disregarded the picket line. The
crew then left the job site.
At about 9: 15 o'clock Copeland, an employee of the Southwest
Plumbing Company arrived in a pickup truck to perform plumbing
work for the Company. When Copeland saw the picket line he
stopped the truck. Hartz came out and told Copeland to ask Pauley
if he could cross the picket line . Copeland refused saying that he
was not in the habit of crossing a picket line. Sometime later Cope-
land's employer, Henry, arrived at the job site and asked Pauley to
permit Copeland to cross the picket line but Pauley declined to give
his permission. Henry also talked to Shipley of the Laborers, but
with the same result. At 9: 30 the same morning a truck of Garret
Construction Company with a load of ready mixed concrete for the
Company arrived at the job site. When its driver, Dillard, saw the
picket line he stopped the truck and asked Pauley if he could deliver
the load across the picket line. Pauley replied that he would rather
Dillard did not. Dillard did not make the delivery. At 10 a. m.
the same day Moore, an employee of Aton Luce Electric Company
arrived in the company's truck at the job site to perform work for
the Company. When Moore saw the picket line he stopped his truck
and refused to cross the picket line to perform the work he had been
assigned by his employer . On September 19, a truck of Frisco
Transportation Company with a load of material for the Company
arrived at the job site . When its driver, Wilkinson, approached
the entrance to the job site a picket came out to his truck and told
Wilkinson that he could not go through , that this was a picket line.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 617
Wilkinson then stopped his truck and refused to make the delivery
of the material.
The picketing continued until about October 22, 1957, when the
U. S. District Court issued a temporary injunction in a Section 10'
(1) proceeding instituted against the Carpenters and the Laborers,
but dismissed the petition as to the Engineers and the Plumbers.
4. Contentions of the Parties :
The Company contends that the Respondents by picketing the job
site of the Company on August 26 and thereafter induced and en-
couraged employees of its subcontractors and suppliers to refuse
to deliver to the Company supplies and materials, and/or to perform
services for the Company for the purpose of forcing the Company
to assign the jobs filled by the Company's keymen, members of United
Construction Workers, to members of the Respondents.
The Respondents contend that this is not a jurisdictional dispute
under Section 8 (b) (4) (D) of the Act in that-at no time did the
Respondents make a demand on the Company for the assignment
of work to its members; that the Company at its prejob conference
with the Respondents had agreed to call upon the Respondents to
supply all of its needed personnel, and that the Company thereafter
failed to live up to such agreement; and that the United Construc-
tion Workers, rather than the Company or its key employees, is the
real party in interest in this dispute and that as United Construction
Workers is not in compliance with the filing requirements of Section
9 (f), (g), and (h), the Board is precluded from making an affirma-
tive determination that United Construction Workers is entitled to
the disputed work. The Respondents also contend that as the picket
line was established and maintained by the Carpenters alone, Re-
spondents Engineers, Laborers, and Plumbers are not responsible for
the picketing.
5. Applicability of the Statute :
Before the Board may proceed with a determination of a 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 by the Respondents.
The first question for us to consider is whether there has been any
"inducement" or "encouragement" by the Respondents, or any of
them, of employees of any employer to engage in a concerted refusal
in the course of their employment to handle any goods or perform
any services for the Company. This question must be answered in
the affirmative. The evidence shows that the Respondents have estab-
lished and maintained for a number of days a picket line in front of
the Company's project with a picket sign alleging that the Company
was not 'hiring members of the Respondent Carpenters ; that as a
result of such picketing employees of the Company's suppliers and
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subcontractors refused to cross the picket line to deliver materials and
supplies consigned to the Company, or to perform services for the
Company, and that in one instance public utility employees discon-
tinued their work for the Company and left the job site. While the
evidence is not entirely clear as to whether these employees were
instructed or persuaded by the Respondents to refuse to cross the
picket line, it indicates that some of the employees were requested not
to do so. Such showing however is not indispensable to a finding of
"inducement" within the meaning of Section 8 (b) (4) (D). It is
now well established that, apart from the literal appeal of picket
signs the picket line itself constitutes an act of inducement or en-
couragement of employees not to perform services for picketed em-
ployer, and that such picketing whether or not successful in bringing
about a strike or refusal to perform services for the employer is
within the proscription of Section 8 (b) (4) (D) of the Act.4
The evidence likewise leaves no doubt that the picket line was
established and maintained by the Respondents for the purpose of
forcing the Company to assign the jobs already filled by the Com-
pany's keymen who were members of United Construction Workers,
to members of the Respondent Unions. At the very first meeting with
the Company, the so-called prejob conference, Cline, the secretary of
the Building Trades Council in Springfield, made it clear that the
Respondents have a long-standing agreement with the local building
contractors requiring the contractors to hire no one but members of
the AFL unions, and that the Respondents were "used to working
100% union." At a subsequent meeting with Hartz, Shipley, business
agent for the Laborers, confirmed the existence of the same type of
agreement between the Laborers and local contractors and stated that
he, Shipley, "expected" Hartz to go along with such agreement.
Shipley also made it clear that he could not let members of his union
work on the project unless it was all AFL. Assistant business repre-
sentative of the Engineers, Gillmore, took the same position and in-
formed Hartz that it would be against the policy of the Engineers to
have its members work on a project where some of the employees did
not belong to the Engineers or to some other AFL union.
The Company consistently took the position that it did not operate
on a closed-shop basis and that, while it would be willing to call upon
the Respondents for the referral of their members when needed, it
wanted certain jobs on the project to be filled by the Company's own
keymen. Later the Company did bring into the area a number of
keymen and informed them that their acceptance or rejection of the
Respondents' invitation to join Respondents would not affect their
4Local 50, Bakery and Confectionary Workers etc (Arnold Bakers), 115 NLRB 1333;
Knit Goods Workers Union, Local 155 (James Knitting Mills, Inc. ), 117 NLRB 1468.
Local 450 , International Union of Operating Engineers etc. (Industrial Painters), 117
NLRB 1301.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 619
jobs with the Company. The Company thus served notice on the
Respondents that it wanted to remain neutral in this matter and de-
spite the threat of picketing would not force its key employees to join
the Respondents against their will or replace them with members of the
Respondents.
With the positions of the Company and the Respondents thus
sharply drawn, Pauley of the Carpenters reiterated to Hartz, in the
presence of Shipley of the Laborers and McCarthy of the Plumbers,
that he would put up a "banner" and start picketing the Company's
job site. Although the Respondents did not specifically request Hartz
to discharge his keymen and replace them with members of the Re-
spondents, we are satisfied under all the circumstances that it was
intention of the Respondents by means of the threat of picketing, and
subsequently by the picketing itself, to force the Company either to
compel its key employees to join the Respondents or to replace them
with members of the Respondents.'
That the dispute was over the jobs filled by the keymen clearly ap-
pears from the testimony of Pauley of the Carpenters. Thus, when
questioned about the reason for the picketing, Pauley testified that he
left the prejob conference with the impression that a "gentleman's
agreement" had been reached to the effect that the Company's project
would be "all A. F. L.," and that when the Company breached this
"verbal agreement" the Respondents decided to picket the Company's
project. Pauley did not attempt to define in what manner the Com-
pany broke the alleged agreement. The "breach" Pauley referred to
obviously consisted of the Company's decision to remain neutral and
retain its keymen despite their refusal to join the Respondents thereby
making it impossible to operate the project on a closed-shop basis as
he thought had been agreed. Also consistent with this interpretation
is Pauley's statement to Hartz, after the keymen refused to join the
Respondents, that he would use "every possible legal means to obtain
work for our people." Considering that the Company at all times
was willing to hire members of the Respondents when needed to work
with its keymen, it is reasonable to infer that the "work" to which
Pauley referred in this statement was the work being performed by
the keymen. Upon all the evidence we are satisfied and find that the
Respondents established and maintained the picket line in front of
the Company's project in order to force the Company to assign the
jobs or work performed by the keymen to members of their own
unions, an objective specifically proscribed by Section 8 (b) (4) (D)
of the Act.'
5 United Brotherhood of Carpenters , et al. ( Wendnagei & Company ), 119 NLRB 1444;
Local 562 , United Association of Joni neymen, etc (Northwest Heating Company
( Charles E. Myles) ), 107 NLRB 542.
8 Cf United Brotherhood of Carpenters et at. (Wendnagel & Company ), 119 NLRB 1444;
Lodge 68 of the International Association of Machinists et at. (Moore Drydock Company),
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record is barren of any evidence that would justify a conclusion
that the picketing might have been maintained for any reason other
than the dispute over the jobs filled by the keymen. The Respondents
did not ask the Company for recognition as the bargaining agent of its
employees, or for a contract. Indeed, the Respondents did not repre-
sent any of the employees of the Company. Nor did the Respondents
advance any contention either at the hearing or in its brief that the
picketing was for the purpose of organizing the Company's keymen
and therefore permissible 7 Assuming, however, that the Respondents
might have entertained as a remote possibility that the use of economic
pressure would coerce the keymen to abandon their own union and to
join the Respondent unions, such an objective would be but one of the
several objectives intended to be accomplished by the picketing. The
other, more important and a primary objective of the picketing was,
as shown before, to force the Company to assign the jobs filled by the
keymen to members of the Respondents. It is now well established
that when one of the two objectives is proscribed by Section 8 (b) (4)
(D), the fact that the other objective was not unlawful, would not
preclude the Board from proceeding with the determination of the
dispute .8
Responsibility of individual Respondent Unions: As indicated
above, the Respondents contend that the picket line was established and
81 NLRB 1108, where the respondent union by picketing the employer sought preferential
hiring of their members to the exclusion of members of other unions and where the
respondent union did not claim to represent employees of the picketed employer. The
Board found the dispute to be within the prohibition of Section 8 (b) (4) (D) ; Pile
Drivers, Bridge, Wharf and Dock Builders etc. (Klamath Cedar Company), 105 NLRB
562, where the respondent union who did not represent any of the Company's employees
established a picket line to force the company to replace Its employees engaged in pile
driving by members of the respondent union ; Parkersburg Building & Construction Trades
Council et at. ( Howard Price & Co.), 119 NLRB 1384 , where the Board , Member Jenkins
dissenting , found that the dispute was over the assignment of work within the meaning of
Section 8 (b) (4) (D) rather than over recognition of the union , as the dissenting Board
member would have found. No such request for recognition or for a contract has been
made In the instant case, but the dispute was over the jobs filed by the Company's
keymen . Member Jenkins is of the opinion that the facts In the present case are plainly
distinguishable from those in the Parkersburg case. Here , unlike the situation in the
cited case, the Respondents did not seek recognition and a union -security contract . Rather,
I find, in agreement with my colleagues, that the Respondents picketed in order to obtain
an assignment of the work of the Company 's keymen, if the keymen refused to join an
AFL organization.
7 Cf. Communications Workers of America , AFL-CIO, et al. ( The Mountain States Tele-
phone and Telegraph Co.), 118 NLRB 154, where the Board held that a demand for rec-
ognition does not connote a demand for assignment of work to particular employees rather
than to others . The Board has found In that case that the object of the picketing "was
not to require the Company to take work from anyone or to assign it to one group of
employees as against another. The union merely wanted the company to recognize It as
continuing to represent whatever employees were assigned to the work." In the instant
case, however , the Respondents did not ask for recognition as the bargaining representa-
tive of any employees, but upon the refusal of the key employees to join the AFL, and
the Company notice to the Respondents that such refusal would not affect the keymen's
jobs with the Company , made it clear to the Company that they wanted their jobs taken
away from them and filled by their own members.
8N. L. R B. v. Denver Building and Construction Trades Council, et al . ( Gould &
Preisner), 341 U. S. 675, 689.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 621
maintained by the Carpenters alone, and as the other Respondent
unions did not participate in the picketing, the responsibility for the
picketing, if any, does not attach to Respondent unions other than the
Carpenters. We do not agree. The record shows that representatives
of all Respondent Unions participated in the negotiations with the
Company which gave rise to the dispute and the picketing; that it was
the Respondents' common objective, in accordance with their own
policy, to make the project a 100 percent AFL job and thus to bring
all the jobs on the project within the control of the Respondents;
that after the keymen had refused to join the Respondent Unions,
Pauley of the Carpenters, in the presence of Shipley of the Laborers
and McCarthy of the Plumbers, warned Hartz that they would com-
mence picketing. Moreover, there is testimony that Shipley of the
Laborers and McCarthy of the Plumbers were at or near the picket
line talking to pickets on August 26. At no time has the Laborers or
the Plumbers disavowed the picketing. In view of the joint efforts of
the Carpenters, the Laborers and the Plumbers to obtain control over
all the jobs on the Company's project, their refusal to make any refer-
rals to the project after the keymen refused to join the Respondent
Unions, the failure of Shipley of the Laborers, and McCarthy of the
Plumbers to dissociate themselves from Pauley's threat to picket, we
are satisfied that there is reasonable cause to believe that the Laborers
and the Plumbers ratified, if not actually authorized, the picketing by
the Carpenters for a common objective, and that the Laborers and the
Plumbers, together with the Carpenters, are responsible for the main-
tenance of the picket line for an objective proscribed by Section 8 (b)
(4) (1)) -9
Although the Respondent Engineers also had an interest in the ef-
forts to secure control over all the jobs on the project, there is no evi-
dence that its representative was present at the meeting at which the
threat to establish a picket line was made or that any of its representa-
tives were present on the picket line, or that it authorized or ratified
such picketing. We find, therefore, that the record furnishes no basis
for attaching responsibility for the picketing to the Engineers. Ac-
cordingly, the notice of hearing in this proceeding as to the Respond-
ent Engineers is hereby quashed.
In the defense of the charges, the Respondents contend that the
picket line was established and maintained because of the breach by
the Company of a "gentleman's agreement" with the Respondents that
the Company would hire no one but members of the AFL unions.
However, the record does not show that the Company made any
definite commitment that it would hire only members of the AFL
unions. Indeed, at the prejob conference the Company made it clear
BLocal 552, United Association of Journeymen etc (Northwest Heating Company"
(Charles F, Myles) ), 107 NLRB 542.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Respondents that it intended to bring into the area its keymen.
Although not without some reservations the Respondents agreed.
Later on, when the Company began its operations and the keymen re-
fused to join the AFL unions the Company took the position that it
was up to the men themselves whether to join or not to join the AFL
unions and that any decision they make would not affect their jobs.
The Board has held that a written contract or an oral understanding
offered as a defense in a 10 ( k) proceeding must be unambiguous in its
terms.1° On the evidence before us we are unable to conclude that the
parties ever reached an understanding that the project would be 100
percent AFL.
The Respondents , relying upon the decision of the Court of Appeals
for the Third Circuit in N. L. R. B. v. Pipe fitters Local (Frank W.
Hake ),` argue that in a 10, ( k) proceeding the Board must make an
affirmative determination or certification as to which of the competing
unions is entitled to the disputed work, that inasmuch as the real party
in interest in this case is United Construction Workers, a noncomply-
ing union , no such affirmative determination could be made , and hence
the notice of hearing in this proceeding must be quashed . However,
ever since our decision in the Moore Drydock Company 12 case, where
we considered this argument , it has become a well-established policy of
the Board to limit our determination in a 10 ( k) proceeding to the
question of whether or not the respondent union is entitled to demand
the assignment of the disputed work for its members.13 To the extent,
therefore , that our decision herein may be in conflict with the decision
of the court in the Hake case we must respectfully disagree with that
decision . Nor do we agree with the Respondents' contention that the
United Construction Workers is the real party in interest in this pro-
ceeding. It is the Company , whose right to assign work to its em-
ployees, and the keymen , who already occupy the jobs, that are directly
affected by our determination of the dispute , not the United Construc-
tion Workers . That United Construction Workers, a noncomplying
union, may derive some incidental benefit from our determination, is
no reason to refuse to determine the dispute.
Upon the entire record, we find that there is reasonable cause to
believe that the Respondents Carpenters , the Laborers , and the
Plumbers by means of the picketing of the Company 's project have
induced or encouraged employees of the Company 's various subcon-
10Local 675 , International Union of Operating Engineers AFL-CIO , et al (Port
Everglades Terminal Company Inc.), 116 NLRB 27; Local 16, Internattional Longshore-
men's and Warehousemen's Union (Denals-McCray Construction Company), 118 NLRB
109
11 N L R B v. United Association of Journeymen and Apprentices etc, Locals 420 and
428 (Frank W. Hake), 242 F. 2d 722 (C A 3).
13 Lodge 68 of the International Association of Machinists , at al. ( Moore Drydock Corn-
paini ), 81 NLRB 1108.
13 Denaln-McC-ay Coast) action Company , 118 NLRB 109 ; International Longshoremen's
Association Independent , etc (Bellco Industrial Engineering Co, at at ), 119 NLRB 59.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 623
tractors and suppliers to refrain from the delivery of materials and/or
performing services for the purpose of forcing the Company to assign
the jobs already filled by the Company's keymen, who are members of
United Construction Workers, to members of the said Respondent
Unions, and that the said Respondent thereby violated Section 8 (b)
(4) (D) of the Act. We further find that the dispute in this proceed-
ing is properly before us for determination under Section 10 (k) of
the Act.
MERITS OF DISPUTE
When the Respondents Carpenters, Laborers, and Plumbers estab-
lished their picket line at the entrance to the project for the purpose
of forcing the Company to assign certain jobs on the project to mem-
bers of the said Respondents, these jobs were being performed by the
Company's own employees, who were either members of United Con-
struction Workers, or employees in other trades, crafts, or classes.
It is now well established that an employer has the right to make
such assignments free of strike pressure by a labor organization, "un-
less such an employer is failing to conform to an order or certification
of the Board determining the bargaining representative for employees
performing such work," or the claimant union has an immediate or
derivative right under an existing contract upon which to predicate a
lawful claim to the work in dispute.14 As the said Respondents are
not the beneficiaries of such order, certification, or contract claim to
the disputed work, we find that they are not now lawfully entitled by
means proscribed by Section 8 (b) (4) (D) to force or require Mark-
well & Hartz Contractors to assign the jobs filled by the keymen or
any of the work on the project to their members rather than to the
Company's own employees, who are members of United Construction
Workers. However, we are not by this action, to be regarded as
"assigning" the work in question to United Construction Workers."
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
pursuant to Section 10 (k) of the Act: -
1' International Longshoi eaten 's and Warehousemen's Union (Juneau Spruce Corp ),
82 NLRB 650, 660 , Bay Counties District Council of Carpenters, 115 NLRB 1757 ; Gen-
eral Drivers, lVai ehouscmen and Hclpeis, Local Union No 968, etc (Farnsworth cC
Chambers Co, Inc. ), 115 NLRB 617, 620 , International Longshoremen's Association
Independent et at (Bellco Industrial Engineering Co ), 119 NLRB 59
'` To the extent that our decision herein may be in conflict with the recent decision of
the Court of Appeals for the Thud District in N L 1? B v United Association of Jour-
neymen and Apprentices , etc, Locals 420 and 4 28 (Frank W. Hake ), 242 F. 2d 722
(C A 3) we must respectfully disagree with the decision of that court Local 16, In-
ternational Longshoremen's and We,ehouscinen's Union (Denali-McCray Construction
Company), 118 NLRB 109. C A. Twine, Constiaction Company and Hinote Electric
Company, 119 NLRB 339 ; Belleo Industrial Engineering Co , et at, 119 NLRB 59.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. United Brotherhood of Carpenters & Joiners of America, Local
Union No. 978, AFL-CIO; International Hod Carriers, Building &
Common Laborers Union of America, Local No. 676, AFL-CIO ; and
United Association of Journeymen & Apprentices of the Plumbing
and Pipefitting Industry of the U. S. & Canada, Local No. 178,
AFL-CIO, and their agents are not, and have not been lawfully en-
titled to force or require Markwell & Hartz Contractors to assign the
-disputed work to their members rather than to the employees assigned
.to that work by Markwell & Hartz Contractors, who are not mem-
bers of the said Respondents.
2. Within ten (10) days from the date of this Decision and Determi-
nation of Dispute, Respondents Local 978 of the Carpenters, Local 676
of the Laborers, and Local 178 of the Plumbers (Pipefitters) shall
notify, in writing, the Regional Director for the Seventeenth Region
of the National Labor Relations Board whether or not they will re-
frain from forcing or requiring Markwell & Hartz Contractors, by
-means proscribed by Section 8 (b) (4) (D) of the Act, to assign the
work in dispute on their projects in Springfield, Missouri, to their
members rather than to employees assigned to that work by Markwell
& Hartz Contractors, who are not members of the Respondent Unions.
3. Notice of hearing as to the International Union of Operating
Engineers, Hoisting and Portable Local No. 16-16B, AFL-CIO, here-
tofore issued herein, be, and it hereby is quashed.
CHAIRMAN LEEDOM and MEMBER BEAN took no part in the considera-
tion of the above Decision and Determination of Dispute.
Drennon Food Products Co. and Local 60, Bakery & Confection-
ery Union,' Petitioner. Case No. 10-RC-3832. April 25, 1958
DECISION AND ORDER
Following an election conducted on May 9, 1957, pursuant to a
,stipulation for certification upon consent election, the Petitioner was
certified on May 17, 1957, as the collective-bargaining representative
of the Employer's employees in the agreed appropriate unit. There-
after, under date of March 8, 1958, Local Union #60, American
Bakery and Confectionery Workers International Union, AFL-CIO,
herein called the Moving Party, filed with the Board its motion for
amendment of certification, alleging in substance that on December
12, 1957, Bakery and Confectionery Workers International Union,
herein called BCW, was expelled from the AFL-CIO which there-
i The Board having been notified by the AFL-CIO that it deems the Bakery Workers'
certificate of affiliation revoked by convention action, the identification of the Petitioner
is hereby amended
120 NLRB No. 88. A