William Fargo

National Labor Relations Board - Board Decisions

Oct 17, 1950

91 N.L.R.B. 1003 (N.L.R.B. 1950)

In the Matter Of WILLIAM FARGO, BUSINESS AGENT, LOCAL 30, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, ET AL.j
and NEW LONDON MILLS, INCORPORATED
Case No. 1-CD-16.Decided October 17, 1950
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act. On
March 27, 1950, New London Mills, Incorporated, herein called the
Company, filed with the Regional Director for the First Region a
charge, and on April 18, 1950, an amended charge, against William
Fargo, business agent, Local 30, United Brotherhood of Carpenters
& Joiners of America, AFL, and Local 30, herein called the Carpen-
ters; Frank E. Connor, business agent, Local 15, International Associ-
ation of Bridge, Structural & Ornamental Iron Workers, AFL, and
Local 15, herein called the Iron Workers ; Joseph Stanley, business
agent, Construction & General Laborers Union, Local 547 of the Inter-
national Hod Carriers' Building and Common Laborers' Union of
America, . AFL, and Local 547, herein called the Laborers ; Edward
Rice, business agent, Local 493, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen &, Helpers of America, AFL, and
Local 493, herein called the Teamsters; William Lyden, business agent,
Local 305, United Association of Journeymen & Apprentices of the
Plumbing & Pipefitting Industry, AFL, and Local 305, herein called
the Plumbers; and New London Building Trades Council, AFL,
herein called the Council, alleging that they had engaged in and were
engaging in certain activities proscribed by Section 8 (b) (4) (D)
of the Act.. It was alleged, in substance, that Respondents 1 had
induced and encouraged the employees of another employer to engage
in a refusal to work for the purpose of forcing or requiring the Com-
pany to assign particular work in its plant to those persons who were
I The individual Respondents moved to dismiss as to themselves because they had been
designated in the pleadings as "business Agents" whereas they allegedly were acting only
as "delegates of the Council" ; the Locals moved to dismiss as to themselves on the ground
the Council was the , only acting'.,party ; the Council •mo ved to dismiss on the ground that
it was not a labor organization . In denying each of these motions it is sufficient to observe
that the record does not support any of these contentions.
91 NLRB No. 86.
1003
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOAhl)
members of the named labor organizations rather than to the present
.employees of the Company.
Pursuant to Sections 203.74 and 203.75 of Board Rules and Regula-
tions, the Regional Director investigated the' charge and provided
for an :appropriate hearing, upon due notice to all the parties. In
.accordance therewith, a hearing was held before James V. Constantine,
hearing officer of the Board, on May 4, 1950. All the parties ap-
peared at the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
ing on the issues. The rulings of the hearing officer made at the hear-
ing are free from prejudicial error and are hereby affirmed. All
the parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
1. The Company's business
New London Mills, Incorporated, is a New York corporation organ-
ized in 1948 for the purpose of engaging in the manufacture and dis-
tribution of hard-surface floor coverings. In preparation for its
manufacturing operations, the Company purchased an existing plant
an New London, Connecticut, and began to remodel the plant to
provide the necessary manufacturing facilities. It is in connection
with this remodeling operation that the present dispute has arisen.
Although the Company has not as yet engaged in actual production,
its operations thus far have occasioned the inflow into Connecticut of
,over $140,000 worth of material. Of this amount, $114,000 worth
represented materials or equipment of a capital nature to be used for
the production of goods for commerce, and $26,000 worth of manufac-
turing supplies. According to the Employer's uncontradicted state-
.nient, it intends to manufacture at this plant products valued at over
$100,000, a substantial portion of which product is to be shipped to
points outside the State.' It appears that the Company's out-of-State
:sales will exceed the minimum requirement for the exercise of juris-
diction recently adopted by the Board.3 Under these circumstances,
we find that the Company's operations affect commerce within the
meaning of the Act and that the policies of the Act will be effectuated
by exercising jurisdiction in this case.
2 Contrary to the Respondent we regard this evidence as relevant to the issue of whether
it would effectuate the policies of the Act to assert jurisdiction . The reasonableness of the
Employer 's estimate is indicative by the substantial investment made in plant facilities.
3 See Stanislaus Implement & Hardware Company, Ltd ., 91 NLRB 618.
WILLIAM FARGO, BUSINESS AGENT, LOCAL 30 1005
2. The dispute,
a. The facts
The .remodeeling operation, previously referred to, has been and is
being carried out by the Company, partially on the basis of separate
contracts with independent contractors to furnish and install specified
building materials, and partially by the Company using its own em-
ployees. In March 1950, King, a general contractor using union
employees, was engaged upon contracts to furnish certain remodeling
work and certain ironwork. Upon the completion of King's con-
tract with respect to the ironwork, King's ironworkers were laid off.
Thereafter, the Company utilized its own employees together with
certain technicians furnished by the European vendor of certain
imported manufacturing machinery to install this particular machin-
-ery which involved certain ironwork. On March 17, 1950, pickets
appeared at the plant, carrying banners stating "work being done
.unfair to New London Building Trades Council, AFL." As a result
of the picketing, King's employees refused to work on the Company's
project. Included among the craftsmen who stayed off the job were
carpenters and brickmasons as well as common laborers who had
previously been working. The picketing and resultant work stop-
page have continued and were still current at the time of the hearing.
Since the picketing began, two meetings have been held between
the parties. The first occurred on March 17 between representa-
tives of the Company, King, and Respondent Fargo of the Council.
Langner, the Company's representative and the manager of its New
London plant, requested Fargo to have the pickets removed to enable
the remodeling to continue. Fargo replied, in effect, that the iron-
workers considered themselves locked out inasmuch as they had all
been laid off at a time when ironwork was being continued at the
plant. Fargo also informed Langner that the picketing had been
directed by the Building Trades Council and that there was nothing
he, individually, could do to have the picket removed. On March 21,
1950, the second meeting was held at the instigation of the Connecti-
cut State Mediation Board, attended by the Respondents, the Com-
pany, King, and the State Mediation Board. During this meeting,
representatives of the Respondents advised Langner, in effect, that
if he wished to have union members work on his project, he would
have to correct "the mixed conditions," namely, the presence of non-
member workers on the same job with members of the Respondent
Unions. Connor, of the Iron Workers, insisted that the Iron Workers'
members had been locked out and that he did not permit his men to
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work where nonunion men were doing the same work. Langner
-replied that it was necessary for the Company to continue to install
the European equipment with its own personnel. Connor stated that
it would be possible for the Company to hire ironworkers directly.
Langner offered to agree that any remaining contracts for remodeling
would be let to union contractors but insisted that the Company's
employees would continue to do some of the work. Rice of the
Teamsters suggested that the Respondents "segregate" the work at
the plant so that the Company's employees would not be working
with union men. Langner, however, declined to agree, and the meet-
ing concluded with no progress.
b. Contentions of the parties
The Company contends that the Respondents by their conduct in
attempting to induce it to replace its own employees on the installa-
tion of the European equipment with members of the Iron Workers
and by placing a picket line at the project in .furtherance of such
objective, have violated provisions of Section 8 (b) (4) (D).
Respondents contend that Section 10 (k) does not apply to the
present situation because: (1) Section 10 (k) is limited to jurisdic-
tional disputes involving rival unions; (2) that the word "class" in
Section 8 (b) (4) (D), with which Section 10 (k) is coterminous,
is not synonymous with "group" but rather with "classification" and
that as such the record does not depict a situation within the ambit
of the Act; and (3) that, in any event, if Section 8 (b) (4) (D) is
construed to prohibit the type of activity present in this case, the
section is unconstitutional 4
c. Applicability of the statute
On the record before us, it is clear that the dispute in this proceed-
ing involves the joint effort by the Respondent labor organizations
to force or require the Company to assign machinery installation work
to members of the Iron Workers, although the work was being per-
formed by the Company's employees who were not represented by any
union. The only distinction between this case and the Stroh case,-, re-
cently decided, appears to be that in the present case the employees
whom the Respondents sought to displace with their own members are
not organized, whereas in the Stroh case, the employees sought to be
displaced were represented by the International Association of Ma-
chinists. However this distinction doesnot:afcct,the, applicability, of.
° This issue was not herein considered . See Rite -Form Corset Company, Inc., 75 NLRB
174.
88 NLRB 844.
WILLIAM FARGO, BUSINESS AGENT, LOCAL 30 1007
Section 8 (b) (4) (D) as finally enacted. If any ambiguity exists in
the words "trade, craft or class" which were added to the original ver-
sion of the Senate bill, S 1126, such ambiguity is completely removed
for' us by Senator Taft's explanation of the section prior to the present
Act's passage to the effect that "this subsection applies not only to
strikes over the assignment of work to one particular union rather
than another, but also to the assignment of work to one union rather
than another group of employees." e [Emphasis added.]
d. The merits of the dispute
Thus it appears that neither the Iron Workers, nor the other Re-
spondents, nor King, the employer of the Iron Workers' members, has
any immediate or derivative rights under existing contracts executed
by the Company to the work, the assignment of which precipitated this
dispute. Nor does it appear that these Respondents have any rights
in any outstanding Board certification or order,7 affecting this work.
Under the foregoing circumstances, the Board may not be concerned
with the appropriateness of the Company's assignment of the disputed
work. The Board has specifically held that Sections 8 (b) (4) (D)
and 10 (k) do not deprive the employer of the right to assign work to
his own employees, and that these sections were not intended to inter-
fere with an employer's freedom to hire, subject only to the require-
ment against discrimination as contained in Section 8 (a) (3).11 Con-
sequently, in determining this dispute, it is sufficient on the facts before
us that the Company engaged employees to install the manufacturing
machinery and that the Respondents acted to force or require the
Company to assign this work to their own members.
The Respondents contend, in effect, that in any event the dispute
in this proceeding is settled or otherwise moot. However, the record
shows that as. of the time of the hearing approximately 2 months'
work remained to be done at the Company's project and that the project
continued to be picketed by the Respondents. Under these circum-
0 93 Cong. Rec . 7002, June 12, 1947.
Mr. Houston notes that the position of his colleagues of the minority is consistent with
his dissent in the Moore Drydock case , 81 NLRB 1108 . However, the majority in that case
rejected. his view that Sections 10 (k) and 8 ( b) (4) (D) are not coterminous and held
that the Board must invoke 10 (k) "whenever it is charged" that a union has violated
Section 8 ( b) (4) (D). Accordingly , as he believes that the instant charge alleges con-
duct encompassed by Section 8 (b) (4) (D ), and as he feels bound by the decision of the
majority in the Moore Drydock case and by subsequent decisions , which are comprehensive
enough to include the situation in which only one union is engaged in the dispute, Mr.
Houston joins with Chairman Herzog and Member Reynolds in the determination of this
dispute.
7Section . 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. . . .
s Juneau Spruce Corporation, 82 NLRB 650 ; United Brotherhood of Carpenters and
Joiners of 'Ameriea, et al. (Stroh Brewery Company ), 88 NLRB 844.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, apart from other considerations, we find no merit in this con-
tention of the Respondents.
Accordingly, we find that neither the Council nor the other named
Respondents is lawfully entitled to force or require New London Mills,
Incorporated, to assign the work in dispute to members of the Respond-
ent Unions rather than employees of New London Mills, Incorporated.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings of fact and the entire record
in this case, the Board makes the following Determination of Dispute,.
pursuant to Section 10 (k) of the amended Act:
1. William Fargo, business agent, Local 30, United Brotherhood
of Carpenters & Joiners of America, AFL, and Local 30, and Frank E.
Connor, business agent, Local 15, International Association of Bridge
Structural & Ornamental Iron Workers, AFL, and Local 15, and Jo-
seph Stanley, business agent, Construction & General Laborers Union,
Local 547 of the International Hod Carriers' Building and Common
Laborers' Union of America, AFL, and Local 547, and Edward Rice,
business agent, Local 493, International Brotherhood of Teamsters;
Chauffeurs, Warehousemen & Helpers of America, AFL, and^Local;
493, and William Lydell, business agent, Local; 305.,, United Association
of Journeymen & Apprentices of the Plumbing & Pipe Fitting Indus-
try, AFL, and Local 305, and New London Building Trades Council,
AFL, are not, and have not been lawfully entitled to force or require.
New London Mills, Incorporated, to assign work on the installation of
machinery at that Company's new plant in New London, Connecticut,
to members of the aforesaid Unions rather than to employees of the.
Company.
2. Within (10) ten days from the date of this Decision and Deter-
mination of Dispute, each of the Respondents may notify the Regional.
Director for the First,Region in writing, as to what steps the Respond-
ents have taken to comply with the terms of this Decision and Deter-
mination of Dispute.
MEMBERS MURDOCK and STYLES, dissenting :
In determining the dispute in the Stroh Brewery Company case, the
Board held that it was sufficient that the employer engaged employees
to perform the work and that the respondent unions acted to force the.
employer to assign the work to their own members. Accepting the
validity of that decision, as well as that of_ the majority's views in,
Moore Drydock Company, 81 NLRB 1108, and Juneau Spruce Cor-
poration, 82 NLRB 650,9 we nevertheless do not believe that any of
Member Murdock dissented in both cases . Member Styles did not participate.
WILLIAM FARGO, BUSINESS AGENT, LOCAL 30 10091
these decisions necessarily control in the present case, because of the
very distinction pointed out by the majority. In this case, unlike
Stroh, or any other proceeding in which the Board has undertaken
to determine a jurisdictional dispute under Section 10 (k) of the
amended Act, there is only one union (that is, the associated Respond-
ents) engaged in the dispute. No union is claiming the work for the
employees to whom the Company has assigned it; the only controversy
here is between the Company and the Respondents over the issue of
preferential hiring. We believe that the absence of at least two
opposed labor organizations makes it utterly impossible to treat this
dispute as if it were a "jurisdictional" dispute of the kind that the
Board is supposed to settle under Section 10 (k) of the Act.'