United Mine Workers of America

National Labor Relations Board - Board Decisions

Apr 13, 1962

136 N.L.R.B. 1068 (N.L.R.B. 1962)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have already found that the strike was an economic rather than an unfair labor
practice strike. I find no problem exists concerning the reinstatement of the strikers
for the reasons that: ( 1) the Company 's undenied testimony that all strikers were
replaced prior to November 10, 1960, when they were terminated on that ground,
and (2) there is no evidence indicating the strikers made application - for reinstate-
ment before the date of their replacement.
I have considered other arguments and contentions advanced by counsel for the
parties but in view of my findings and conclusions herein I do not deem it necessary
to discuss them."
On the law and facts of this case I find and conclude the Respondents have not
engaged in unfair labor practices as alleged in the complaint.
Upon the basis of the foregoing findings of fact and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of W. L. Rives Company and W-M Corporation, and each of
them, occur in commerce within the meaning of Section 2(6) and (7 )of the Act.
2. Sheet Metal Workers' International Association, AFL-CIO, and Local 234,
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, are each labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondents have not engaged in unfair labor practices within the mean-
ing of Section 8(a)(1), (2 ), ( 3), and (5) of the Act as alleged in the complaint.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law , I recom-
mend that the complaint be dismissed.
n I find no evidence to suport the assertion that W-M is in fact "an employer engaged
primarily in the building and construction industry ," as defined in Section 8(f) of the
Act. Therefore, the execution of the contract was not protected by that section.
United Mine Workers of America, District 50 and Turman Con-
struction Company. Case No. 9-OD-57. April 13, 1962
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
determine the dispute out of which such unfair labor practice shall
have arisen...."
On September 13, 1961, Turman Construction Company, herein
called Turman, filed with the Regional Director for the Ninth Region
a charge alleging that United Mine Workers of America, District 50,
herein called District 50, had violated Section 8(b) (4) (ii) (D) of
the Act by threatening, coercing, and restraining Turman and Wilson
Construction Company, herein called Wilson, from carrying on cer-
tain construction work, with an object of requiring both employers to
assign the work to members of District 50 rather than to their current
personnel.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, as
136 NLRB No. 91.
UNITED MINE WORKERS OF AMERICA, DISTRICT 50 1069
amended, the Regional Director investigated the charge and provided
for an appropriate hearing upon due notice to all the parties. The
hearing was held before James M. Fitzpatrick, hearing officer, on Oc-
tober 24, 1961. Constructors' Labor Council of West Virginia, Inc., a
multi-employer association herein called Constructors, and various la-
bor organizations noted below, were permitted to intervene as parties
in interest to the proceeding. 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 are free from pre-
judicial error and are hereby affirmed. The Board has considered a
brief filed jointly on behalf of International Union of Operating
Engineers, Local 132, AFL-CIO, and Laborers' Locals of West Vir-
ginia, AFL-CIO.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Wilson Construction Company, a partnership, is engaged in the
construction industry as a general contractor, with its main office
in Huntington, West Virginia. It is under contract with the U.S.
Corps of Engineers to construct a flood control wall at Williamson,
West Virginia. The value of this contract is in excess of $750,000 and
is directly related to the national defense. During the course of 1
year in which Wilson is to perform the contract, it will receive goods
shipped from points outside the State of West Virginia valued in
excess of $50,000.
Turman Construction Company, a corporation, is engaged in the
construction industry, with its main office in Huntington, West Vir-
ginia. It is under subcontract to Wilson for certain construction work
on the flood control wall project. Turman's contract with Wilson is
valued in excess of $200,000, and is directly related to the national
defense.
We find that both Wilson and Turman are engaged in commerce
within the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction in this proceeding.
II. TIIE LABOR ORGANIZATIONS
The following unions are labor organizations within the meaning
of the Act: United Mine Workers of America, District 50; Interna-
tional Union of Operating Engineers, Local 132, AFL-CIO ; La-
borers' Locals of West Virginia, AFL-CIO, including Locals 379,
453, 686, 714, 984,1085,1149,1132, and 1353.1
' Several other labor organizations , unnecessary to list here, but named on the record,
were also represented at the hearing.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE DISPUTE
Wilson, the general contractor on the flood control project at Wil-
liamson, West Virginia, and Turman, a subcontractor on the same
project, are members of Constructors, an employer association. In
December 1960, Constructors entered into a single 2-year heavy con-
struction collective-bargaining agreement with the various labor
organizations noted above and together called the Construction
Trades, except for District 50, which is not a party to the agreement
or a member of that group.
In August 1961, prior to the commencement of work on the project,
W. L. Wilson, president of the Wilson Company, was contacted by
E. A. Hutchinson, field representative for District 50, who asked
Wilson to sign a contract covering the employees to be used on the
project. Wilson rejected this proposal, advising District 50 that its
employees were already represented by the Construction Trades. On
September 6, 1961, about 1 week after work was begun on the project
by Turman, and while Turman's employees were excavating in an
alley, Hutchinson appeared in the alley accompanied by a group of
from 50 to 75 men. Hutchinson shouted to W. C. Turman, Turman's
president, "Shut it down, get out, get out, and stay out." After Tur-
man inquired of Hutchinson's authority for such an order, Hutchin-
son replied that the group of men was his authority for Turman to
shut down, "or he would blow it out of there." Turman advised
Hutchinson that his employees were covered by contract with the
Construction Trades, to which Hutchinson replied that such contract
was not binding and he threatened violence if Turman continued to op-
erate. Turman shut down. Later that day, at a conference in the
office of the mayor of Williamson, Hutchinson asked Turman and
Wilson to sign a contract with District 50 and threatened another
work stoppage if they refused to hire members of District 50 to re-
place employees already employed on the job. Turman and Wilson
refused this proposal.
Turman attempted to resume work on September 11, 1961, but was
again prevented from doing so by the appearance of Hutchinson ac-
companied this time by 40 or 50 men at the entrance to the alley, the
group blocking Turman and his employees from entering the jobsite.
On the following day, another meeting was held in the mayor's office,
at which time Hutchinson again insisted that either members of
District 50 work on the project or no one else would be permitted
to do so. On September 13, 1961, Turman filed a charge with the
Board's Regional Director.
IV. CONTENTIONS OF THE PARTIES
Turman, Wilson, and Construction Trades contend that the em-
ployees currently employed on the project are entitled to the work
UNITED MINE WORKERS OF AMERICA, DISTRICT 50 1071
assignment, in view of the existing contract and an established custom
and practice that shows that these parties, for a number of years, have
had contractural relations covering the same categories of employees.
They further contend that District 50 violated Section 8(b) (4)
(ii) (D) of the Act by its conduct described above.
District 50 presented no evidence relating to the dispute. Instead,
it contends that the charges should be dismissed because it has dis-
claimed any interest in representing the employees now employed
by Turman and Wilson. District 50 said it reserves the right, how-
ever, to seek to represent these employees pursuant to an election pro-
cedure contained in Section 9 of the Act.
V. APPLICABILITY OF THE STATUTE
The charge alleges a violation of Section 8(b) (4) (ii) (D) and the
record clearly manifests that District 50 threatened, coerced, and re-
strained Turman and Wilson for the purpose of forcing assignment of
the disputed work to members of District 50. Although at the hear-
ing District 50 disclaimed any current interest in the existing work
assignments made by Turman and Wilson, there is no sufficient assur-
ance that further work interruption may not be caused by District
50, or that the dispute has been "adjusted." 2 We therefore deny
District 50's request for dismissal of the charge. Accordingly, we find
that there is reasonable cause to believe that a violation of 8(b) (4)
(ii) (D) has occurred and that the dispute is properly before the Board
for determination under Section 10(k).
VI. MERITS OF THE DISPUTE
Although District 50 expressed to the company representatives be-
fore the hearing its contention that its members are entitled to the
work in dispute, it has advanced neither evidence nor argument to
support such claim. And its literal disavowal of any "present claim"
at the hearing only serves to emphasize the total lack of any relevant
basis upon which this Board could predicate an affirmative work
award at variance with the Employer's current and long-standing
practice.
Instead, the only pertinent facts appearing on the entire record
point persuasively to a conclusion that the employees presently doing
the work, represented by the aforementioned labor organizations un-
der a conventional collective-bargaining agreement with their em-
ployers, are fully entitled to continue at work on this project. Thus,
the record as a whole is not only barren of evidence supporting District
50's claim but affirmatively establishes the complete and conventional
regularity of the existing work assignments. In these circumstances,
2Di8trtct Council of the Unated Brotherhood of Carpenters, etc. (Artcraft Venetian
Blind Manufacturing Company), 110 NLRB 2162, 2164-2165.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we perceive no reason whatsoever for disturbing Wilson's and Tur-
man's method of operations.
Accordingly, we shall determine the existing jurisdictional dispute
by deciding that the present employees of Wilson and Turman, rep
resented by the various unions forming the Construction Trades,
rather than the workmen represented by District 50, are entitled to
these contractors' work at the project in question. In making this
determination, we are assigning the disputed work to the present com-
plement of employees, but not to the members of the various labor
organizations constituting the Construction Trades.
In view of the above, we find that District 50 was not and is not
entitled by means proscribed by Section 8(b) (4) (D) to force or re-
quire Wilson or Turman to assign the work in dispute to its members
rather than to the present complement of employees.
DETERMINATION OF THE DISPUTE
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case, the Board makes the following Determination
of Dispute pursuant to Section 10(k) of the Act :
1. Employees currently employed by Wilson and Turman, currently
represented by Construction Trades Unions, are entitled to perform
the work required by these contractors at the Williamson, West Vir-
ginia, flood control project.
2. United Mine Workers of America, District 50, is not and has
not been lawfully entitled to force or require Turman Construction
Company or Wilson Construction Company to assign the disputed
work to workmen currently represented by District 50.
3. Within 10 days from the date of this Decision and Determination
of Dispute, United Mine Workers of America, District 50, shall notify
the Regional Director for the Ninth Region, in writing, whether or
not it will refrain from forcing or requiring Turman Construction
Company and Wilson Construction Company by means proscribed by
Section 8(b) (4) (D) to assign the work in dispute to its members.
Local 46, Wood, Wire and Metal Lathers International Union,
AFL-CIO, and Brian Dillon, its Business Representative and
Precrete, Inc. Case No. 2-CD-216. April 13, 1962
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 see-
tion 8 (b); the Board is empowered and directed to hear and determine
136 NLRB No. 92.