Los Angeles Building and Construction Trades Council

National Labor Relations Board - Board Decisions

May 11, 1951

94 N.L.R.B. 415 (N.L.R.B. 1951)

LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 415
The unfair labor practices found to have been engaged in by the Respondent
are of such character and scope that in order to insure to employees and pros-
pective employees their full rights guaranteed them by the Act, it will be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees or prospective employees in their
right to self-organization,' as guaranteed in Section 7 of the Act.
On the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Lodge No. 1276 International Association of machinists is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2 By disci iminating in regard to the hire and tenure of employment of James
Blair, Lampton Eugene Martin, and Lewis Even, thereby discouraging member-
ship in Lodge No. 1276 International Association of machinists and encouraging
membership in United Brotherhood of Carpenters and Joiners, AFL and/or its
Local 1316, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this Volume.]
T May Department Stores, 326 U. S 376.
Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, A. F. L.,
AND LLOYD A. MASIIBURN, ITS AGENT; MILLWRIGHT AND MACHINERY
ERECTORS LOCAL 1607 OF THE UN LTED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, A. F. L., AND HERMAN F. BARBAGLIA, ITS
AGENT and INTERNATIONAL ASSOCIATION OF MACIIINISTS, FOR ITS
LOCAL LODGE 1235. Case No. V1-CD-19. May 11, 1951
Decision and Order
On August 31, 1949, Trial Examiner Peter F. Ward issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices in viola-
tion of Section 8 (b) (4) (D) of the Act, and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondents. filed exceptions to the Intermediate Re-
port and a supporting brief. On January 5, 1950, the Board heard
oral argument at Washington, D. C.; the Respondents, the charging
IAM, the General Counsel, Westinghouse, and Edison participated.
94 NLRL' No. 63
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 14, 1950, the Board remanded the proceeding to the Trial
Examiner,' in substance to permit the General Counsel to plead and
prove the Respondents' noncompliance with the Board's earlier deci-
sion and determination of dispute under Section 10 (k) of the amended
Act'
On November 20, 1950, the Trial Examiner issued a Supplemental
Intermediate Report, a copy of which is attached hereto, finding that
the General Counsel had proved noncompliance by the Respondents
with the terms of the determination, and recommending that the
Board issue an order in conformity with the Intermediate Report.
Thereafter, the Respondents and the General Counsel filed exceptions
to the Supplemental Intermediate Report and briefs, and Edison and
Westinghouse filed a brief. The Respondents' request for further
oral argument is denied, as the positions of the parties are adequately
reflected in the record, the briefs, and the oral argument already held.
The Board has reviewed the rulings of the Trial Examiner at the
hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Supplemental Intermediate Report, the excep-
tions and briefs, and the entire record in the case, and hereby overrules
the findings, conclusions, and recommendations of the Trial Examiner.
The Trial Examiner concluded that the Respondents did not comply
with the determination because they "made no-effort whatsoever to
comply ... at no time intended to comply . . ., and the General
Counsel has by the introduction of competent and credible evidence
sustained the burden of proof and by preponderance of the evidence
has proved noncompliance by the Respondents." He based these
conclusions on the following findings: (1) A strike by the riggers
on April 11, 1949, before the determination issued; (2) a refusal by
Respondents to clear riggers for transfer from another Westinghouse
job to Redondo Beach, shortly after the determination issued and
again about a month later; (3) unsuccessful attempts by Westing-
house, also shortly after the determination issued, to get its former
Redondo Beach riggers to report to work; and (4) the failure of the
Respondents to submit to the Regional Director for the Twenty-first
Region any notice of steps taken to comply with the determination.
The evidence does not support the Trial Examiner's first three find-
ings. The determination stated that the Respondents (1) were not
lawfully entitled to "force or require" Westinghouse to assign certain
work at Redondo Beach to Millwrights rather than to its own em-
ployees who were Machinists, and (2) might notify the Regional Di-
rector within 10 days "what steps the Respondents have taken to
'88 NLRB 1101 (Chairman Herzog and Member Reynolds dissenting).
s 83 NLRB 477, herein called the determination.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL '417
comply with the terms" of the determination. Clearly, the strike
before the determination cannot prove noncompliance with the deter-
mination. The only supporting testimony with respect to the other
two items was that of various Westinghouse officials, who stated that
various riggers told them that the Respondents refused to give them
"clearance" to transfer to or work at Redondo. This testimony is
clearly hearsay with respect to implicating the Respondents; there-
fore the Trial Examiner's factual findings are in fact based upon
incompetent evidence. Furthermore, the hearsay does not purport
to establish the Respondents' object, even assuming that they did re-
fuse clearance. -
Thus the Respondents were not proven by substantial evidence to
have engaged in any strike or other compulsive activity that could
constitute noncompliance with the terms of the Board's determination.
Moreover, that determination imposed no obligation upon Respond-
ents to take any particular steps to achieve the desired result of com-
pliance. Their failure to furnish the Regional Director with a notice
survives as the only fact upon which the Trial Examiner could have
relied. But this failure, standing alone, is hardly sufficient to estab-
lish noncompliance with the terms of the Board's determination.
We believe that, because no affirmative action was required by the
Board's determination, the failure to notify the Regional Director
of what was or was not done does not alone establish noncompliance.
Accordingly, we find, contrary to the Trial Examiner, that the Gen-
eral Counsel has failed to prove that the Respondents have not com-
plied with the Board's decision and determination of dispute.
Because Section 10 (k) directs that the case be dismissed upon com-
pliance with the determination, we shall dismiss the complaint in its
entirety.
Order
Upon the entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board orders that the complaint against the Respond-
ents, Los Angeles Building and Construction Trades Council, A. F. L.,
and Lloyd A. Mashburn, its agent; Millwright and Machinery
Erectors Local 1607 of the United Brotherhood of Carpenters and
Joiners of America, A. F. L., and Herman F. Barbaglia, its agent,
be, and it hereby is, dismissed.
CHAIRMAN HERZOG and MEMBER REYNOLDS, concurring :
We join in the result, considering it inevitable in view of the
absence of probative evidence to establish the actual noncompliance
which our colleagues thought the General Counsel was obliged to
953841-52-vol. 94-28
418W DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prove before an order could issue against the Respondent Unions.
As indicated in our dissenting opinion in the 1950 proceeding (88
NLRB 1101), we believe that the burden actually lay, rather, upon
the Respondents affirmatively to establish the fact that they had
complied with the earlier determination.
Supplemental Intermediate Report
Mr. Jerome Smith, for the General Counsel
Mr. Arthur Garrett and Mr. James M. Nticoson, of Los Angeles, Calif, for
the Respondents
Mr. Edward M. Skagen, of Los Angeles, Calif , for the IAM
The original hearing in the above-entitled matter was held at Los Angeles,
California, before the undersigned from June 14 to 23, 1949; and the Inter-
mediate Report was issued on August 31, 1949.
On March 14, 1950, the National Labor Relations Board, herein called the
Board, issued its Order Remanding Case,'- whereby the undersigned was
directed :
To reopen the record; to permit the General Counsel to amend the com-
plaint to allege the Respondents noncompliance with the Board's 10 (k)
Decision and Determination of Dispute; to permit the pasties to adduce
relevant evidence; and to prepare and issue an appropriate supplementary
Intermediate Report.
On April 14, 1950, pursuant to the Board's Oider aforesaid, the undersigned
issued and duly served his order reopening record and fixed the time and place
for said reopened hearing.
On April 28, 1950, the General Counsel filed his amendment to the complaint,
by adding Paragraph XIX, which alleged in substance: (a) That on or about
May 11, 1949, the Board, in a proceeding held pursuant to Section 10 (k) of the
Act, issued and served on Respondents its Decision and Determination of Dis-
pute,' herein, at times, referred to as the 10 (k) case, determining therein that
the Respondents "are not and have not been lawfully entitled to tol ce or iequiu e
Westinghouse Electric Corporation to assign" certain work on the installation
of certain steam turbine generators at Southern California Edison Company's
plant, herein called Edison, at Redondo Beach, California, to certain members
of the Respondents rather than to the employees of Westinghouse Electric Cor-
poration, herein called Westinghouse, who are members of International Asso-
ciation of Machinists, Local Lodge 1235, herein called IAM, and (b) that at all
times since the date of issuance and service of said Decision and Determination
of Dispute, Respondents have failed to comply thereww ith, and have failed to
notify the Regional Director of the Twenty-first Region that any steps to comply
have been taken or would be taken.
On May 5, 1950, Respondents filed their answer to the amendment to the com-
plaint wherein they admitted that on or about May 11, 1949, the Board "in a
proceeding purporting to have been held pursuant to Section 10 (k)" of the Act
issued a document entitled "Decision and Determination of Dispute" and denied
each and every allegation in said amendment to complaint "not herein above
specifically admitted."
188 NLRB 1101.
2 Respondents will at times herein be referred to as Trade Council or Council.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 419
Pursuant to order and due notice, a hearing was held at Los Angeles, Califor-
nia, on May 31, June 1 and 2, 1950, before the undersigned Trial Examiner duly
designated in the Board's Order of Remand. The General Counsel and the
Respondents were represented by counsel and the IAM was represented by an
TAM Grand Lodge representative. All participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. At the close of the hearing
oral argument before the undersigned was waived. At the suggestion of the
undersigned memorandum briefs were filed by the General Counsel and counsel
for the Respondents. During the hearing ruling on the Respondents' motion to
strike General Counsel's Exhibits No. 10-a to 10-f inclusive was reserved by
the undersigned The notion to strike is hereby denied
A. The tissues
The only issue for determination here is whether the Respondents complied
with the Board's Decision and Determination of Dispute in the 10 (k) case.
1 Events-leading up to the Board's decision in the 10 (k) case
The facts in this connection are found and set forth in the Board's 10 (k)
decision which is hereby referred to and incorporated herein by reference, and
the case will be at times referred to as the 10 (k) case. In such 10 (k) decision,
the Board, in part said:
a. The facts
Early in 1946, Edison entered into contracts with various contractors for
the construction of a new power plant at Redondo Beach, California Chief
among these contractors was Stone, which also acts in an advisory capacity
to Edison for the entire project. Before construction of the power plant
began, Edison had made arrangements for the purchase and installation of
five steam turbine generator units. Two of these generators have already
been installed, one each by Westinghouse and General Electric Company ;
the third was being installed by Westinghouse when the dispute with which
we are now concerned began; the fourth is to be supplied and installed by
General Electric, and operations on it are scheduled to begin about June 1,
1949; and the fifth is to be supplied and installed at some future date by
Westinghouse
Stone and the other contractors working on the Redondo Beach project, with
the exception of Westinghouse and General Electric, have employed only Trades
Council members since the construction began. Westinghouse and General Elec-
tric had installed the first two generators using two Machinists' members, as
well as some Trade Council members. A short time before the installation of
the third generator was scheduled to begin, representatives of the Trades Council
and the Millwrights approached Stone and attempted to persuade Stone to have
Westinghouse replace the Machinists with Millwrights. Stone disclaimed respon-
sibility for the employment of these Machinists, saying that they were Westing-
house employees. On January 31, 1949, installation work on this third generator
started. Shortly thereafter, a Trades Council representative, Mashburn, asked
Willman Budge, supervisor of the installation for Westinghouse, to replace the
Machinists with Millwrights. Budge refused, whereupon Mashburn said that
be had no other recourse "except to take action "
On February 2, 1949, the Trades Council called a general strike of all the
building riades emplo}ees on the project to enforce its demand on Westinghouse.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of the approximately 650 employees walked out, except the 2 Machinists
employed by Westinghouse. The latter worked until February 11, 1949, when
Edison requested Westinghouse to cease its installation work until the dispute
was resolved. At the time of the hearing, no further installation work had
been done on the generator, although work on the rest of the project had been
resumed.
On February 2, 1949, the International Association of Machinists on behalf of
its Local Lodge 1235, herein called IAM, filed with the Regional Director of the
Twenty-first Region a charge alleging Respondents and its agents had engaged
in and were engaging in certain activities proscribed by Section 8 (b) (4) (D)
of the Act; thereafter, the 10 (k) hearing was held before a hearing officer on
various dates between March 10 and 24, 1949.
On or about March 29 or 30, 1949, a fourth turbine generator to be installed
by Westinghouse arrived at the project's site; Westinghouse then employed rig-
gers for the purpose of unloading the generator which arrived in a number of
freight cars. The riggers so employed were members of Iron Workers Local
433, a constituent union of the Council. These riggers worked from March 29
to April 11, 1949. On March 29 Paul D'Antoni, a Westinghouse engineer, in-
formed Saul M. Scanlan, field service engineer for Westinghouse, that riggers
on the job were going to be called off the job pursuant to orders from Karon,
the Iron Workers' agent.
Scanlan went to the Redondo Steam Plant or job site, contacted D'Antoni,
and then noted that the riggers had stopped work. Scanlan then called the
riggers' General Foreman Scoggins, who informed Scanlon that Karon had
appeared in person on the job and directed there be no further work on the
job until such time as the "Building Trades Council had given instructions to
continue." At about 2 to 2: 30 p. m. on April 11, Scanlan called Karon in con-
nection with the work stoppage. In this connection Scanlan testified :
The WITNESS. I asked Mr Karen what disposition he was going to make
in regards to the Redondo job and a supply of riggers so that we might con-
tinue, whereupon he volunteered the information that he was sorry that
this dispute had come up, and that it was not necessarily in sympathy with
his own views, but it had come down from the Building Trades Council and
he was working under directions "The same as you." And said, "work"
that was geting his instructions from some superior, and until such time
as the orders would be changed he was not at liberty to supply any men
on the "Redondo" job.
While Karon stated that his orders had come from the Building Trades Coun-
cil he mentioned no names?
Under date of May 11, 1949, the Board handed its Decision and Determination
of Dispute of the Board in the Section 10 (k) hearing which said Decision and
Determination held in part, as follows :
1. Los Angeles Building and Construction Trades Council A. F L, and
Lloyd A. Mashburn, its agent, and Millwright and Machinery Erectors Local
3In their brief, counsel for Respondent contend that testimony covering incident, prior
to May 11, 1949 ( date of the Board ' s 10 (k ) decision ) may not be considered In de-
termining whether Respondents have complied with the Board 's 10 (k ) decision In
as much as such testimony discloses that the Respondents continued and renewed Its
8 (b) (4) (D) violations immediately after the close of the hearing in the 10 (k) case
prior to the issuance of the Board's decision therein, this contention is without merit.
Such testimony discloses that Business Agent Karon of the Iron Workers, after calling the
riggers off the job on April 11, 1949, informed Scanlan that until the Council changed
its orders, he "was not at liberty to supply any men to the Redondo job" No witness
on behalf of the Council testified that such orders were ever changed.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 421
1607, of the United Brotherhood of Carpenters and Joiners of America,
A. F. L., and Herman Barbaglia, its agent, are not, and have not been, law-
fully entitled to force.or require Westinghouse Electric Corporation to as-
sign work on the installation of steam turbine generators at the Southern
California Edison Company's plant at Redondo Beach, California, to mem-
bers of the Millwright and Machinery Erectors Local 1607, of the United
Brotherhood of Carpenters and Joiners of America, A.F.L., rather than to
employees of Westinghouse Electric Corporation who are members of In-
ternational Association of Machinists, Local Lodge 1235.`
2. Events subsequent to May 11, 1949
On May 14, following the issuance of the Board's Determination and Decision
in the Section 10 (k) proceedings Budge and Scanlan made personal calls at the
home of the six riggers who had engaged in the work stoppage on April 11, in
an attempt to get them to report on the following Monday or on May 16, 1949.
Such efforts were unsuccessful. Westinghouse had three riggers, one of whom
was a rigger foreman, employed at the Harbor project and attempted to transfer
the three to the Redondo Beach project but without success. Jake Beauford, one
of the riggers employed at the Harbor project, stated that he would report.
Thereafter he talked to Karon by telephone and stated, "I don't know whether I
can go to work over there or not." Beauford did not report to work at Redondo
Beach on this occasion
As indicated hereinabove, the Board issued its Decision and Determination of
Dispute wherein it held (1) that Respondent Council and its constituent
members and their Agents are not, and have not been, legally entitled to force
or require Westinghouse Electric Corporation to assign work on the installa-
tion of steam turbine generators at Southern California Edison Company's plant
at Redondo Beach, California, to members of Millwright and Machinery Erectors
Local 1607, of the United Brotherhood of Carpenters and Joiners of America,
A. F. L., rather than to employees of Westinghouse Electric Corporation who are
members of International Association of Machinists, Local Lodge 1235; and
directed that "Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, each of the Respondents may notify the Regional Director
for the Twenty-First Region, in writing, what steps the Respondents have taken
to comply with this Decision and Determination of Dispute." Dated at Washing-
ton, D. C. May 11, 1949.°
4 The record indicates that the 10 (k) Decision and Determination of Dispute was
served upon the parties on or about May 13, 1949.
5 During the hearing on remand, Scanlan, with reference to his attempt to obtain clear-
ance from the Iron Workers Local to transfer from the Harbor Steam plant to Redondo
Beach plant on or about April 14, 1949, testified :
Q. (By Mr. Garrett ) Tell us, as nearly as you can , what Mr. Scoggins told you
on that occasion concerning clearance or work permits.
A. He said that they had gone to their Local and discussed the matter, where the
business agent had told them that lie couldn't give them a clearance, but he wasn't
telling them that they couldn't go to work.
6 The record in the instant case discloses without dispute that no evidence has been
submitted to the Regional Director of the Twenty-first Region of the National Labor
Relations Board by any party respondent herein of compliance or intended steps of com=
pliance with said Decision and Determination of Dispute rendered by the Board on May
11, 1949, and that said Regional Director has not otherwise been informed, nor have
Respondents, or any of them to the knowledge of said Regional Director asserted, that
any evidence of compliance or intended steps of compliance have ever been submitted to
said Regional Director , or to any Board agent, pursuant to the requirements of Section
203 77 of the Board's Rules and Regulations, Series 5, or otherwise
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to charges and amended charges duly filed by the IAM, the Regional
Director for the Twenty-first Region, Los Angeles, California, issued a com-
plaint under date of May 24, 1949, against the above-named Respondents alleging
that said Respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (b) (4) (D) and
Section 2 (6) and (7) of the National Labor Relations Act. The complaint set
forth the acts of Respondents which were alleged to be in violation of said
Section 8 (b) (4) and (D) of the Act.
Pursuant to notice, hearing was held at Los Angeles, California, between
June 14 and 23, 1949, before the undersigned as Trial Examiner. Under date of
August 31, 1949, the undersigned issued his Intermediate Report wherein it was
found that Respondent Council and its Agents violated Section 8 (b) (4) (D)
of the Act.
Under date of May 26, 1949, pursuant to proceedings had in the United States
District Court, Southern District of California, Central Division, before the
Honorable Leon R. Yankwich, Judge, in re Howard L. Le Baron, Regional Direc-
tor of the Twenty-first Region of the National Labor Relations Board, for and
on behalf of said Board, as Petitioner v. Los Angeles Building and Construction
Trades Council, et al, Respondents, No. 9629-Civil, the court granted a tem-
porary injunction against Respondents therein who are also Respondents herein.
From competent evidence had in the record of proceedings before the under-
signed it appears that the injunction was served on Respondents on or about
June 15, 1949.'
3. Particular events-occurring between May 14 and July 15, 1949
Some 3 or 4 days following the issuance of the injunction referred to herein-
above, Scanlan called a meeting of certain Westinghouse employees engaged at
the City of Los Angeles Harbor Plant, where Westinghouse has a contract for
installation of turbine generators. The meeting was held at Westinghouse office,
and was attended by Scoggins, a working foreman, "Red" Evans and Jake Beau-
fort, riggers, and 8 to 10 pipe fitters. Scoggins acted as spokesman for the riggers
and Foreman Bund spoke for the pipe fitters.
A. B. Leckie, referred to indirectly in the record as a confidential investigator,
attended the meeting on behalf of Westinghouse and read the injunction to the
assembled riggers and pipe fitters.
Following the reading of the injunction Scanlan asked the group if any part
of them, or all, as required on the job, would be willing to transfer to the Redondo
Beach job. The group informed Scanlan that they would have to get clearance
from their Locals before they could accept the transfer.
Scoggins told Scanlan that he would contact his Local ; and later on that
evening reported that he was unable to get a clearance. When Scanlan sought
to induce Evans and Beaufort to transfer, each stated that Scoggins was acting
as spokesman and when he cleared it through the Local it would be all right
with them.
Some 4 or 5 days after the reading of the injunction referred to above, Scoggins,
in Scanlan's presence, called his Local's office on the phone. After the phone
conversation Scoggins told Scanlan that in such phone talk he was advised
that he would have to "obtain all of his information from Mr. Garrett (Respond-
ents' counsel) in the future."
As disclosed herein below there is evidence to the effect that the injunction was read
to certain employees of Westinghouse, by an agent of the latter, sometime between May
14 and June 23, 1949
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 423
Two or three days after his talk with his Local, Scoggins called Garrett and
located hint at his home. After this phone talk Scoggins reported to Scanlan
that he was unable to obtain clearance which would allow him to transfer to
Redondo Beach steam plant.8
Between the issuance of the injunction and June 23 Scanlitn contacted Karon
by phone at the Iron Workers' Riggers Local and sought to have him furnish
riggers for the Redondo job. Karon stated that he had no riggers available and
that as soon as men were available lie would call Scanlan. The latter left his
phone number but received no call from Karon thereafter.
On or about June 21 Scanlan caused ads to be placed in two Los Angeles papers
for riggers and caused Westinghouse office personnel to get in touch with em-
ployment bureau at Los Angeles and at Long Beach, California.
As a result of these two mediums some 50 persons applied at Harbor Plant
gate on June 23 From this group Scanlan selected and hired 7 men to work
as riggers and sent them to the Redondo Beach plant. None of these 7 men
was sent by the Riggers Local and none had been employed by or worked under
Scanlan prior to June 23, 1949.
On about June 25, one Rust, who carried a Riggers card, contacted Scanlan
at Harbor steam plant and requested employment as a rigger. Scanlan gave
Rust an unsigned blank authorization card or slip and requested that he get the
Riggers Local to sign it Rust took the slip but did not return it to Scanlan.
Rust, however, went to the Redondo job site on June 29 and ate lunch with Ma-
chinist Foreman Keegan and Machinist Merritt o Rust asked "what the trouble
was all about TI--Merritt gave his version, after which Rust displayed his mem-
bership card in ."the Riggers Local" and said that he "was asked by the Inter-
national to come out and see what the trouble was all about." On the following
day, June 30, Rust went to work as a rigger on the Redondo Beach job.
On July 1, Scoggins called the Riggers Local to obtain clearance to work at
Redondo job. After making the phone call he stated, according to Scanlan's rec-
ollection, "To hell with the Union. I am going to work on the Redondo job."
Scoggins and Evans immediately on July 1 transferred to Redondo job. Beau-
fort remained at the Haibor Steam plant replacing Scoggins as foreman until
the completion of certain work there on or about July 15, when he too transferred
to the Redondo job
The record discloses that by July 15, 1949, the seven men hired as riggers on
June 23 and Rust had left the Redondo job. All remaining employees except
the machinists were members of A. F. L. unions.
4. Issues ; contentions, conclusions
The Respondents contend in substance and effect :
(a) That since Congress fixed no time limit within which parties must comply
with a 10 (k) decision, the Board may not do so.
(b) That inasmuch as the Respondents did not call its members off the job
after their return to work on February 11, 1949, or after the hiring of riggers on
June 23, 30, and July 1, 1949, such forbearance constituted compliance.
8 Garrett did not testify, but by his examination of Scanlan indicated that Scanlan
was in error in assuming that Scoggins had got Gairett at his office, since Scoggins had
reached him at his bonne about 4 o'clock in the afternoon
9 Merritt had been one of the two machinists on the job on February 2 when the Trade
Council went on strike to force Westinghouse to replace machinists with A F L mill-
wrights Merritt was removed from Redondo job site about February 10 He returned
about May 16, 1949.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) That since the Redondo project is long since completed, further proceed-
ings, other than dismissal of the case herein, would serve no useful purpose as the
dispute herein is moot.
As to contention (a) Respondent's brief points out "... upon compliance by
the parties to the dispute with the decision of the Board or upon such voluntary
adjustment of the dispute, such charge shall be dismissed." Respondent's brief
further contends that "Congress designedly did not put any particular time
limit within which parties must comply with the determination of the
Board . . ." and that the Board regulations for administration of 10 (k) "like-
wise recognizes" that no specific time is set forth for the compliance with the
determination rendered by it under the provisions of Section 10 (k) ; that while
Section 203.77 of the Board's Rules and Regulations provides that if the parties
do not submit satisfactory evidence of compliance to the Regional Director,
the latter "will issue a charge," but the Board by such regulation did not pre-
scribe any particular time in which evidence of compliance must be submitted.
Respondents in their brief argue in effect that since the "Act itself makes no
provision for the submission to the Regional Director or to anyone else that the
determination has been complied with," Respondent's failure to report to such
Director is not proof of noncompliance. This contention is without merit.
Under Section 6_ of the Act, the Board has authority to make such rules and
regulations as are necessary to carry out the provisions of the Act. Under such
authority the Board made and adopted Section 203.74 to 203.82 and Section 202 29
to 202 35. Under Section 203.77, the Regional Director is authorized to proceed
with the issuance of a complaint under a charge where no satisfactory evidence
of compliance is submitted. In the instant case it is undisputed that no evidence
of any kind or character was ever submitted to the Regional Director. Section
10 (1) of the Act, in part provides; "(1) Whenever it is charged that any person
has engaged in an unfair labor practice within the meaning of paragraph (4)
(A), (B), or (C) of section 8 (b), the priliminary investigation of such charge
shall be made forthwith and given priority over all other cases except cases of
like character in the office where it is filed or to which it is referred.... "In
situations where such relief is appropriate the procedure prescribed herein shall
apply to charges with respect to section 8 (b) (4) (D)." From the foregoing it
is apparent that it was the intent of Congress that where an injunction may
issue pending final adjudication of a case arising under Section 8 (b) (4) (D)
by the Board, the Board is required to process such case with dispatch and with
priority over all other cases except cases of a like character, thus, it is clear
that a respondent is not entitled to delay and refuse to comply with the Board's
determination of dispute in a Section 10 (k) proceedings indefinitely and there-
after be heard to contend that its negative conduct towards compliance consti-
tutes such compliance.
By its Determination of Dispute, the Board fixed the period during which the
Respondents might "notify the Regional Director for the Twenty-First Region,
in writing, what steps the Respondents have taken to comply with the terms of
this Decision and Determination of Dispute," as 10 days from the date of such
Decision and Determination of Dispute which was dated May 11, 1949.
As herein above stated, it is undisputed that the Respondents at no time since
May 11, 1949, have notified said Regional Director in writing or otherwise of
any steps taken to comply with said Decision and Determination of Dispute.
In an analogous case 10 the Board directed respondents therein as follows:
3. Within ten (10) days from the date of this Decision and Determination
of Dispute, the Respondents may notify, in writing, the Regional Director
10 Moore Drydoek Company, 81 NLRB 1108.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 425
for the Twentieth Region for the National Labor Relations Board as to what
steps the Respondents have taken to comply with the terms of said Decision
and Determination of Dispute.
In connection with a discussion of a dissent by Board Member Murdock, the
Board, in a footnote 17 of its opinion, stated in part:'
. . . Nor can we agree with our colleague that our determination does
not specify what the parties should do about compliance. On the contrary,
our conclusion that Lodge 68 of the I. A. M. and the I. A. M. at no time, on
or after January 28, 1948, had any right to force or require the Employer
to assign the" work task in question to their members rather than to
members of any other labor organization, imposes a clear-out obligation,
namely, to agree to discontinue picketing in furtherance of the unlawful
object proscribed by the Act. [Emphasis added.]
Since it is clear that the Respondents did not notify the Regional Director
for the Twenty-first Region within 10 days from the date of the Board's De-
cision and Determination of Dispute or within 10 days from the service of said
Decision and Determination of Dispute upon the Respondents, or at all,
contention (a) is without merit and it is so found
As to contention (b), whereby the Respondents contend in effect, that its
forbearance in not calling its members off the job after February 11, 1949, or
after hiring of the riggers on June 23, 30, and July 1, 1949, constitutes com-
pliance, overlooks the fact that the Respondents, after the close of the 10 (k)
proceedings and hearing had been completed, and before decision therein, caused
the riggers who were members of Iron Workers Local 433, a constituent union
of the Council, who were hired by Westinghouse on March 29, 1949, to go on
strike on April 11, 1949, and Respondents thereafter refused to grant a clearance
for riggers Scoggins, Evans, and Beaufort to transfer from the Harbor Steam
plant to Redondo Beach job, thereby disclosing an intent on the part of the
Respondents not to comply with the Board's Decision and Determination of
Dispute of May 11, 1949.
Moreover, it should be noted that an injunction issued by the U. S. District
Court for the Southern District of California, Central Division, was outstanding
at the time riggers were hired on June 23, June 30, and July 1, 1949. The Board
has held :
. . . The Respondents argue, and we agree, that even if the post-injunction
conduct be found legal, it could in no event render moot any unfair labor
practices committed prior thereto, because, apart from other considerations,
conduct engaged in under an injunction is necessarily ambiguous, it being
impossible to determine whether such conduct is voluntary or springs from
the compulsion of the injunction. .. ." ", [Emphasis added.]
Under the provisions of 10 (k) the Respondents could have stopped 10 (k)
proceedings from being held, if they had, within 10 days after notice that a
charge had been filed, submitted to the Board or to the Regional Director of the
Twenty-first Region evidence that they had adjusted or agreed upon methods
for the voluntary adjustment of the dispute. This they did not do. Following
the issuance of the Board's Decision and Determination of Dispute, the Re-
spondents were again granted 10 days in which to notify, in writing, the Regional
Director for the Twenty-first Region for the National Labor Relations Board
what steps the Respondents have taken to comply with the terms of such Decision
11 American Newspaper Publishers Association, 86 NLRB 951 at 961.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Determination of Dispute. But again, the Respondents failed to submit any
evidence of compliance or of an intention to comply. The preponderance of
the evidence submitted by and on behalf of the General Counsel discloses that
the Respondents not only failed to comply with the Board's Decision and De-
termination of Dispute but that the Respondents at no time intended to so
comply. It is so found.
Contention (b) is without merit
As to contention (c), wherein Respondents seek to evade the consequences
of their unfair labor practices and profit from their failure to comply with the
Board's Decision and Determination of Dispute which implicitly and affirma-
tively ". . . imposes a clear-cut obligation . . ." to agree to discontinue its illegal
conduct in furtherance of the unlawful object proscribed by the Act. Moore
Drydock Company, supra.
In any event the instant case is not moot. The Board has not. as yet, finally
passed upon the Intermediate Report (Recommended Order) of the undersigned
issued August 31, 1949, clue to the fact that it required the case to be remanded in
order that the General Counsel might plead and prove noncompliance of the
Board's direction in the 10 (k) proceedings.
Since the undersigned finds herein that the Respondents have not complied
with the Decision and Determination of Dispute, the Board is required to pass
upon Respondents' alleged violation of Section 8 (b) (4) (D) of the Act and if
it appears that the Respondents are in violation of said section of the Act it is
further required to issue its order directing the Respondents to cease and desist
from such unfair labor practices and to take such other and further action as the
Board may direct as necessary to effectuate the policies of the Act. Such an
order when issued by the Board would not be moot.
In a recent case 12 the United States Court of Appeals for the Tenth Circuit,
tinder date of August 14, 1950, held in part.
An order of the kind issued by the Board in this instance, if lawful when
issued, does not become moot merely because it has been obeyed. Neither
does it become moot merely because changing circumstances indicate a
dimunition in need for it. And the discontinuance or abandonment of an
unfair labor practice after entry of such order does not deprive the Board
of its right to secure an order of enforcement from the Court of Appeals
having jurisdiction in the premises.
N. L. R. B. v. Pennsylvania Gi eyhound Llnes, Inc, 303 U S 261, N. L. R. B. v.
Mexia Tentile Mills, Inc. 339 U. S. 563; N. L. R. B. v. Pool Manutacturing Co.,
339 U. S. 577.
Respondents' contention (c) is without merit. It is so found.
Concluding Findings and Recommendation
From the foregoing and upon the entire record it appears and the undersigned
finds that following the Board's Decision and Determination of Dispute in the
10 (k) case on May 11, 1949, Respondents made no effort whatsoever to comply
with said Decision and Determination of Dispute ; that the Respondents at no
time intended to comply with said Decision and that the General Counsel has
by the introduction of competent and credible evidence sustained the burden of
proof and by preponderance of the evidence has proved noncompliance by the
Respondents.
12 N. L R. B. v. United Brotherhood of Carpenters and Joiners of America, District
Council of Kansas City, Missouri,, and Vicinity, AFL, et al, 184 F 2d GO (C. A 10).
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 427
The Respondents called no witnesses in either the unfair labor practice case
hearing before the undersigned or in the case on remand. The Respondents
had an opportunity at the close of the General Counsel's case-in-chief to present
any evidence they might have to support their contention that the Respondents
had complied with the said Decision and Determination of Dispute at the close
of the General Counsel's case-in-chief, at which time the Respondents had the
burden of going forward in support of their contention of compliance. This
Respondents failed to do.
Since the General Counsel has both pleaded and proven noncompliance with
the Board's Decision and Determination of Dispute as required by the Board's
Order of Remand, it is recommended that the Board issue its order and decision
in conformity with the Intermediate Report of the undersigned issued in the
above-entitled matter under date of August 31, 1949.
It is further recommended that unless the Respondents shall within twenty
(20) days from receipt of this Supplemental Intermediate Report notify the
Regional Director for the Twenty-first Region in writing that it will comply
with the recommendations contained in the Intermediate Report of the under-
signed dated August 31, 1949, the National Labor Relations Board issue an order
requiring the Respondents to take the action aforesaid.
Intermediate Report
Messrs. Charles K. Hackler and Jerome Smith, for the General Counsel.
Mr. Arthur Garrett, of Los Angeles, Calif , for the Respondents.
Mr. Edward M. Skagen, for the IAM.
STATEMENT OF THE CASE
Upon a charge and amended charges 1 duly filed by International Association
of Machinists for its Local Lodge 1235, herein called IAM, the General Counsel
for the National Labor Relations Board 2 by the Regional Director for the
Twenty-first Region (Los Angeles, California), issued a complaint dated May
24, 1949, against Los Angeles Building and Construction Trades Council, A. F. L.,
and Lloyd A. Mashburn, its Agent, jointly herein referred to as the Council;
and Millwright and Machinery Erectors Local 1607, of the United Brotherhood
of Carpenters and Joiners of America, A P. L., and Herman F. Barbaglia, its
Agent, herein jointly referred to as the Millwrights, or on occasion as Local
1607, or 1607, alleging that the Respondents had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning of Section
1 The charge brought against Los Angeles Building and Construction Trades Council
and Lloyd A Mashburn, its Agent, was filed on February 2 , the first amended charge,
brought against Los Angeles Building and Construction Trade Council and Lloyd A.
Mashburn, its Agent, and United Brotherhood of Carpenters, Joiners, and Helpers of
America, Local No 1607, A. F. L, and Herman F Barbaglia its Agent was filed on
March 8, 1948; the second amended charge brought against Los Angeles Building and
Construction Trades Council and Lloyd A Mashburn, its Agent ; and Millwright and
Machinery Erector Local 1607, affiliated with United Brotherhood of Carpenters and
Joiners of America, A. F. L., and Herman F. Barbaglia, its Agent, was filed April 15,
1949 ; and the third amended charge , brought against the identical parties named in the
second amended charge, was filed on May 24, 1949.
2 The General Counsel and his representatives at the hearing are referred to as the
General Counsel, and the National Labor Relations Board, as the Board.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (b) (4) (D) ' and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, with
charges attached and notice of hearing thereupon were duly served upon the
Respondents and each of them, and upon the IAM.
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) On or about February 2, 1949, Respondents by orders, directions, and
instructions induced and encouraged the employees of Stone and Webster,
contractors, and other employers, to engage in a strike, with an object of
forcing and requiring Westinghouse Electric Corporation, herein called West-
inghouse, and other employers on the Redondo Beach project, Redondo Beach,
California, to assign particular work to the Millwrights rather than to the
employees of Westinghouse who were and are members of the IAM; (2) on or
about April 11, 1949, and at all times thereafter to the date of the complaint,
and particularly on May 13 and 16, 1949, the Respondents by orders, directions,
and instructions induced and encouraged the riggers employed by Westinghouse
in the unloading operations of certain turbines to engage in a strike, an object
thereof being to force or require Westinghouse to assign the work of installing
the steam turbine generators at Redondo Beach Station to members of Respond-
ent Millwrights rather than to employees of Westinghouse who were members
of the IAM ; and (3) by the acts described above the Respondents and each
of them restrained and coerced the employees of Westinghouse in the exercise of
the rights guaranteed in Section 7 of the Act, all in violation of Section 8 (b)
(4) (D) of the Act.
On or about June 9, 1949, the Respondents filed an answer to the complaint
wherein it was alleged that the Respondents were without knowledge of the
allegations to the effect that Southern California Edison Company, herein called
Edison, Stone and Webster Engineering Corporation (herein at times called
Stone), and Westinghouse were .engaged in interstate commerce, therefore
denied the same and requested strict proof thereof. The Respondents' answer
admitted that the Los Angeles Building and Construction Trades Council is an
unincorporated association, composed of 18 labor organizations, engaged in the
building trades industry, and that it is a labor organization within the meaning
of Section 2 (5) of the Act.
Its answer further admitted the Millwright and Machine Erectors Local 1607
of the United Brotherhood of Carpenters and Joiners of America, A F. L., is an
unincorporated association and a constituent member of the Council and is a
labor organization within the meaning of Section 2 (5) of the Act; Respondents'
answer admits that Lloyd A. Mashburn is an agent of the Respondent Council
engaged in promoting and protecting the interest of Respondent Council's constitu-
ent unions and their employee members ; and that Respondent Herman F. Bar-
baglia is an agent of Respondent Millwrights engaged in promoting and protect-
ing the interest of Respondent Millwright's employee members.
8 The relevant portions of Section 8 of the Act are as follows .
(b) It shall be unfair labor practice for a labor organization or its agents . . .
s a r s s s
(4) To engage in, or to induce or encourage the employees of any employer to
engage in, a strike or 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 ob)ect thereof
is :
(D) Forcing or requiring any employer to assign particular work to employees in
a 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 employer is failing to conform to any order or certification of the Board de-
termining the bargaining representative of employees performing such work . . .
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 429
Respondents' answer further alleged affirmatively and in effect that as to the
strike or concerted refusal of the employee members of the Respondents to work
on the Redondo Beach project "a labor dispute occurred on February 2, 1949,
at the Edison Redondo Beach plant, resulting in the withdrawal of the services
of certain members of these Respondents and-that such withdrawal of services
was solely for the purposes of protesting certain unfair labor practice which
Westinghouse and International Association of Machinists was then and there
engaged in and that such withdrawal of service is protective concerted activity
under Section 7 of the Act."
Its answer further and affirmatively alleged as to the acts alleged in the
complaint to have occurred upon April 11, 1949, and at all times thereafter
and particularly on May 13 and 16, 1949, that if such acts did occur they are
improperly included in the complaint since they are acts (if they occurred) which
have not been considered by the Board in a Section 10 (k) proceeding or as
provided under the Rules and Regulations of the Board, Sections 203 74 through
203 77, and until so considered they are not proper subjects for the issuance of a
complaint thereon; and that Section 8 (b) (4) (D) of the Act, under which the
alleged charges are purportedly filed is unconstitutional and void in that it
contravenes the Constitution of the United States, amendments I, V, and XIII.
Pursuant to notice, a hearing was held at Los Angeles, California, on divers
dates between June 14 and 23, 1949, before the undersigned Trial Examiner,
duly ,designated by the Chief Trial Examiner. The General Counsel and the
Respondents were represented by counsel and the IAM was represented by a
Grand Lodge representative. All participated in the hearing and were afforded
full opportunity to be beard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues, and at the close of the hearing, the
parties were afforded an opportunity to argue orally before the undersigned
which argument was waived by all parties except the representative of the IAM,
whose comments were included in the transcript of proceedings herein. The
parties were advised they might file briefs and/or proposed findings of fact and
conclusions of law with the undersigned. Briefs were filed by the General
Counsel and counsel for the Respondent.
During the hearing counsel for the Respondents argued a motion to dismiss the
proceedings on the ground that the Board lacked jurisdiction to hear the same
in that the complaint was filed under color of authority of the Act as amended,
which purports to confer jurisdiction on the Board to hear and determine
activities prescribed by paragraph (4) (D) of Section 8 (b) of said Act but
said sections are contrary to the Constitution of the United States, amendments
1, V, and XIII. The undersigned denied the motion but permitted a renewal
of the same at the close of the hearing The motion was renewed at the close
of the hearing, the undersigned reserved ruling thereon and now rules that the
motion be denied 4 Also during the hearing the undersigned reserved ruling on
Respondents' motion to strike paragraphs 13 and 14 of the complaint, since said
paragraphs referred to incidents occurring after the close of the 10 (k) hearing
herein. For reasons discussed in detail below the motion to strike is denied. The
General Counsel's motion to conform the pleadings to the proof on formal matters
was granted without objection.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
4 Hite-Form Corcrt Company, Inc, 75 NLRB 174
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES 3
Westinghouse Electric Corporation maintains, inter alia, two plants in the
Commonwealth of Pennsylvania, where it is engaged in the manufacture of
turbines and generators. The record reveals that a substantial amount of the
raw materials used in the production of these turbines and generators comes
from outside the Commonwealth of Pennsylvania. The turbine generator with
which the instant dispute is concerned was shipped to California by Westinghouse
from its Pennsylvania plants, and is being installed by Westinghouse in Cali-
fornia. The Board has heretofore found that Westinghouse is engaged in com-
merce.'
Southern California Edison Company, herein called Edison, is a utility com-
pany, and delivers electric power to consumers in Southern California. During
1948, approximately 39 percent of its total sales was to industrial consumers,
a substantial number of which are engaged in commerce. It purchases much
or its equipment, including turbine generators here involved, from outside the
State of California. The Board has heretofore found that Edison is engaged
in commerce.'
H. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists, and its Local Lodge 1325, Los Angeles
Building and Construction Trades Council, A. F. L.,8 and Millwright and Machin-
ery Erectors Local 1607 of the United Brotherhood of Carpenters and Joiners of
America, A. F. L., are each labor organizations within the meaning of Section 2
(5) of the Act.
A. The violations of Section 8 (b) (4) (D) by Respondents
1. The strike of February 2, 1949
a. Events leading up to the strike
Early in 1946, Edison entered into contracts with vai ions contractors for
the construction of the new power plant at Redondo Beach, California. Chief
among the contractors was Webster and Stone, herein called Stone. Before
construction of the power plant began, Edison had made arrangements for the
purchase and installation of five steam turbine generator units. Three of these
c The findings in this section are based upon the Board's Decision and Determination of
Dispute issued in a proceeding arising under Section 10 (k) of the Act, which said decision
was issued by the Board under date of May 11, 1949. The Respondents' contention to
the effect that the Board may not rely upon the testimony and evidence taken in the 10
(k) proceedings in the unfair labor practice case is found to be without merit, and is
further discussed in detail under "Contentions of the Respondents" set forth below.
8 Westinghouse Electric Corporation, 72 NLRB 60. See also M. L. Townsend, 81 NLRB
739
7 Southern California Edison Company, 70 NLRB 81
8 The complaint alleges and the answer admits that the Council is composed of some
18 labor organizations engaged in the building trades industry Counsel for
the parties stipulated that Local 11, International Brotherhood of Electrical Workers,
Local 802, International Hod Carriers Building and Common Labor Union ; Local 250,
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada ; and Local 433, Intei national Association of
Bridge, Structural and Ornamental Iron Workers, are all unincorporated associations and
constituent members of the Council.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 431
generators have already been installed, one each by Westinghouse and General
Electric Company ; the fourth and fifth are now being installed by Westing-
house ; and a sixth is to be supplied and installed at a future date by General
Electric Company. Stone and the other contractors working on the Redondo
Beach project, with the exception of Westinghouse and General Electric, have
employed only Trades Council members since the construction began. West-
inghouse and General Electric had installed the first three generators using
Machinists members and also some members of the Trades Council.'
b. The strikes
The record herein, and in the 10 (k) proceedings, indicates and discloses that
the Council had at all times contended that the Millwrights was entitled to
the work that had been assigned to the Machinists by Westinghouse on the
construction of the units that had been completed prior to January 1949. Under
date of December 10, 1948, Respondent Mashburn wrote Stone and Webster
Engineering Corporation on behalf of Millwrights Local No 1607 to the effect
that the Millwrights claimed jurisdiction over the installation of machinery and
asked Stone and Webster to make arrangements with Westinghouse or General
Electric or "whoever is going to install the turbines, to assign such work to the
Millwrights." The letter concluded with the following :
In order to avoid any controversy in this matter we ask that you see what
can be done to see that the Millwrights' jurisdiction is retained throughout
the entire job.10
On or about January 31, 1949, Westinghouse began the installation of an
additional turbine generator on the Redondo Beach job site. And also on Janu-
ary 31 it transferred two machinists, members of the IAM, and two riggers,
members of Ironworkers 433, from the Harbor Steam plant" to perform the
installation work on the new installation.
On January 31, Mashburn, as secretary of the Council, telephoned William L
Budge, who was the steam service supervisor for Westinghouse, and asked him
when he was going to replace the Machinists with Millwrights on that job. To
which Budge replied, in substance, that such a replacement would be made if
the "customer (Edison) insisted that he do so," whereupon Mashburn replied
that he had "no other course but to take action."
On or about January 31, 1949,12 Saul M. Scanlan, a field service supervisor
engineer for Westinghouse, attended a meeting at the office of Stone and Webster
at the request or suggestion of Paul D'Antoni, a Westinghouse erecting engineer
at the office of one Sheets, superintendent for Stone and Webster, where he met
Respondent Herman F. Baibaglia. During this meeting Sheets stated to Bar-
baglia, "Here is the man (Scanlan) you should talk to." In a discussion between
Scanlan and Barbaglia the latter stated that Scanlan would have to remove the
Machinists from the job and replace them with Millwrights, or he (Barbaglia)
would have to take action that had been directed by the Building Trades Council.
Barbaglia further asked Scanlan to intercede with the Machinists on the job
and request them to change their union affiliation. Scanlan refused to' agree
to a withdrawal of the machinists or to suggest to the machinists that they
9 The findings in this subsection are based upon the Decision and Determination of Dis-
putes issued by the Boaid in the 10 (]c) proceedings under date of May 11, 1049
10 Mashburn's letter above is not referred to as evidence of any unfan labor practice in
itself but is referred as showing that he was agent for the Council and that the Council
was acting as agent tor Local 1607
11 Westinghouse had installed it number of generators at the Harbor Steam plant, located
some 20 miles from the Redondo job site, for the city of Los Angeles
12 Unless otherwise indicated all events reterred to herein occurred during 1949.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join the Millwrights, stating that he was a representative of the management
of Westinghouse and could not join in any union activities. Thereupon Barbaglia
stated that he had no further alternative but to shut the job down.
At or about this same time, Barbaglia told Machinist Merritt, "I advise you
boys (2 machinists) not to start this job " Merritt stated that he was not work-
ing for Barbaglia but was working for Westinghouse, and would have to have
authority from them before he stopped work. When Barbaglia asked Merritt
where his "boss" was the latter pointed to D'Antoni, his foreman, and said,
"There he is over there." Barbaglia then stated, "Well, I advise you not to start
work or we will have to start job action."
On February 1, Floyd E. Smith, business representative of Local Lodge 1235,
was informed that the Building Trades Council was going to take job action
on February 2. On February 2, lie accompanied machinists Lew Merritt and
Ralph Sinclair to the Redondo Beach job site. Upon arrival Smith noticed
several hundred construction workers standing at the employees' gate and several
construction workers standing at the truck gate of the project. Smith noticed
a number of representatives of different crafts standing about the truck gate :
Dan Barton, representative of the Millwrights, Local 1607, John Condon, rep-
resentative of the Carpenters' Local in Redondo Beach ; Charley Blay, a rep-
resentative of the Pipefitters Local 250; and Leo Vie, representative of the
Building Trades Council.
Smith asked Barton what the trouble was and the latter replied that the
Building Trades had gone on a holiday. To this Smith stated, "Yes, I know
what you mean. I have been on a few of those myself." Barton stated, "Well,
then, you know what it is all about." Smith then told Barton that he knew
that the Building Trades Council was taking job action against the Machinists'
union.
Smith also noted the presence of one Mercer, an agent of one McLain, business
manager of Laborers Union 802. When Smith approached Mercer the latter
stated, "Mack (McLain) isn't going to like this." And added that he could not
help it, "The Building Trades know it is against the Machinists, it is an action
against the Machinists Union."
Smith then spoke to Hap Rogers, repesentative of the Electricians Local 11,
and asked him what was going on. Rogers replied that everything was out of
his hands, that it was an action of the Building Trades Council, and he could
not place his boys back to work without the "0. K." of the Building Trades
Council.
The record discloses without dispute that all employees on the Redondo Beach
project (other than the machinists, Merritt and Sinclair), numbering in excess
of 500 employees, went on strike on February 2 33
Between February 2 and 10, Floyd Smith visited the Redondo job site daily
during working days with the exception of February 8 and 9. On the occasion
of these visits Smith noted that either Barton or Barbaglia was always present
at the gate and that other than the two machinists no employees were at work 14
On February 10 at the instruction of Edison, Budge ordered the withdrawal of
the two machinists from the job and notified Smith to inform them of such
action. Smith did so.
On this same day (February 10), Smith contacted Rogers of the Electricians
Union by telephone and told him he (Smith) had been informed that the
13 Included in this group were the two riggers who had been transferred by Westinghouse
from the Harbor Plant project on January 31 along with the two machinists.
14 During the time between February 2 and 10 , the machinists did odd jobs, but no work
of installation. There was equipment on the job site to be installed but no iiggers to
move such equipment to the point where it was to be installed.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 433
electricians . were returning to work February 11. Rogers stated that the Council
had, by telegram, instructed him to have his members on the job February 11.
Smith then called Congo of Laborers Union 802 and asked if he too had received
such instructions. Congo replied that lie had.
On February 11 Smith accompanied Merritt and Sinclair to the job site to
pick up their tools and found the construction workers employed by Stone and
Webster were back on the job. The record discloses that the two machinists
who were withdrawn on February 10 have not been replaced and work of
installing the generatcr upon which they started work on January 31 had not
been resumed at the time of the hearing.
c. The events occurring subsequent to March 10, 1940, the date of the closing
of the 10 (lc) proceedings
On or about March 29 or 30, the fourth turbine generator to be installed by
Westinghouse arrived at the project site. Westinghouse then employed riggers
for the purpose of unloading the generator which had come "knocked down" and
in a number of freight cars. The riggers so employed were members of Iron
Workers Local 433, a constituent union of the Council. The riggers then em-
ployed worked from March 29 until on or about April 11, on which elate
Paul D'Antoni, Westinghouse engineer, informed Scanlan, field service engineer
for Westinghouse, that he had been informed by the riggers on the job that they
were going to be called off the job, that the order had come down from the Iron
Workers' agent, a Mr Karon. Thereafter Scanlan went from the Harbor Steam
plant to the Redondo Steam plant or job site and on arrival contacted D'Antoni
at about 11 a. in. at which time he noted that the riggers had stopped work.
Scanlan then called the riggers' General Foreman Scoggins, who informed
Scanlan that Karon had appeared in person on the job and directed that there
be no further work on the job until such time as the "Building Trades Council
had given instructions to continue." At about 2 to 2: 30 p. m. on April 11,
Scanlan called Karon in connection with the stoppage. In this connection
Scanlan testified :
The WITNESS. I asked Mr. Karon what disposition he was going to make
in regards to the Redondo job and the supply of riggers so that we might
continue, whereupon he volunteered the information that lie was sorry that
this dispute had come up, and that it was not necessarily in sympathy with
his own views, but that it had come down from the Building Trades Council
and he was working under directions, "The same as you." And said, "work"
that was getting his instructions from some superior, and until such time as
the orders would be changed he was not at liberty to supply any men to the
Redondo job.
While Karon stated that his orders had come from the Building Trades Council
he mentioned no names.
Scanlan notified his superior, Budge, and the latter called Karon by telephone
and stated, "I understand there is difficulty at Redondo. Can you give me any
details." Karon replied, "We are just not going to work down there, because
we have too much trouble on the job." Budge then told Karon, "Can you tell
me what the trouble is? I can't recall any trouble with the Iron Workers."
Karon then stated, "If-you want to know, call Mr LEO Vie of the Building and
Construction Trades Council." Budge then called Leo Vie and told him that he
understood the riggers had stopped at Redondo; and that their business agent had
told him to call Vie to find out the reason and asked, "Can you give me the infor-
mation, can you give me any information?" Vie replied, "I certainly can. It is
953841-52-vol. 94-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not our practice to work without a written contract." Budge then asked, "What
do you mean, a contract for this one job or a contract for this one craft?" Vie
replied, "A running contract and one for all the labor furnished by the Building
Construction Trades on the job." Budge asked, "You mean a contract like you
have with the A. G C.?" " Vie replied, "Something on that order."
Under date of May 11, 1949, the Board handed its Decision and Determination
of Dispute of the Board in the Section 10 (k) hearing which said Decision and
Determination held in part, as follows :
1. Los Angeles Building and Construction Trades Council A F. L, and
Lloyd A. Mashburn, its agent, and Millwright and Machinery Erectors Local
1607, of the United Brotherhood of Carpenters and Joiners of America,
A. F. L., and Herman Barbaglia, its agent, are not, and have not been, law-
fully entitled to force or require Westinghouse Electric Corporation to assign
work on the installation of steam turbine generators at the Southern Cali-
fornia Edison Company's plant at Redondo Beach, California, to members
of the Millwright and Machinery Erectors Local 1607, of the United Brother-
hood of Carpenters and Joiners of America, A. F. L., rather than to em-
ployees of Westinghouse Electric Corporation who are members of Inter-
national Association of Machinists, Local Lodge 1235.
On May 14, following the issuance of the Board's Determination and Decision
in the Section 10 (k) proceedings, Budge and Scanlan made personal calls at
the home of the six riggers who had engaged in the work stoppage on April 11,
in an attempt to get them to report on the following Monday or on May 16, 1949.
Such efforts were unsuccessful. Westinghouse had three riggers, one of whom
was a rigger foreman, employed at the Harbor project and attempted to transfer
the three to the Redondo Beach project but without success. Jake Beauford,
one of the riggers employed at the Harbor project, stated that he would report.
Thereafter he talked to Karon by telephone and stated, "I don't know whether
I can go to work over there or not." And with the result that he did not report.
2. Issues; contentions; conclusions
The Respondents contend in substance and effect that: (a) The General Coun-
sel failed to prove in the instant, or unfair labor practice case, that Edison and
Westinghouse were engaged in commerce within the meaning of the Act and
improperly sought to rely upon the evidence contained in the Section 10 (k)
proceedings held before a hearing examiner for the Board between March 10
and 24, 1949, as proof of such commerce; (b) "The Board lacks jurisdiction
to find an unfair labor practice against Respondents, Millwrights and Machinery
Erectors Local 1607 because those Respondents were denied the right to
participate in the 10 (k) hearing of notice and due process"; (c) that the unfair
labor practices alleged to have arisen after the close of the 10 (k) proceedings,
and enumerated in amended charges, may not be found as unfair labor practices
in the instant case since no 10 (k) proceedings had been had thereon; (d) the
work stoppage of February 2, 1949, was solely in resistance to an unfair labor
practice, arising out of an illegal closed-shop agreement between Westinghouse
and the Machinists; and (e) "If it was intended by Congress that Section
8 (b) (4) (d) Title I of the Labor Management Act of 1947 should prohibit a
union and its members to strike to win from an enemy union or from non-union
employees contested work opportunities or to refuse to perform services for the
employer in that situation, said Section of said Act is in that respect unconsti-
15 The "A. G. C." refers to the Associated General Contractors and the A F of L. Build-
ing and Construction Trades Union ; and the master labor agreement existing between
the Association and the Unions.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 435
tutional and void, because in violation of the First, Fifth, and Thirteenth
Amendments of the Constitution of the United States."
As to contention (a) the General Counsel relies in part upon Section 203.78
of the Board's Rules and Regulations which read as follows :
Review of Certification.-The record of the proceeding under section 10 (k)
and the certification of the Board thereon, shall become a part of the record
in such unfair labor practice proceeding and shall be subject to judicial
review insofar as it is in issue, in proceedings to enforce or review the final
order of the Board under 10 (e) and (f) of the act.
While the General Counsel contends that such proceedings become a part of the
unfair labor practice case for all purposes, counsel for the Respondents contends
that Section 203.78 of the Rules goes no farther than to make the record of the
10 (k) hearing a part of the record of the unfair labor practice proceeding for
the limited purpose of permitting review of the 10 (k) certification on proceedings
for the enforcement or review of the Board's decision on the complaint ; and
that the allegations of the complaint necessary to a decision thereon by the
Board must be proved by proofs thereon adduced at the hearing on the complaint.
The Respondents' counsel's interpretation of such section, would, in effect,
cause such section to read in part as follows : "Shall become a part of the record
in such unfair labor practice proceedings" for the purpose of subjecting such
10 (k) proceedings to judicial review. The undersigned disagrees with such
interpretation. The record in the 10 (k) proceedings discloses that both West-
inghouse and Edison were represented by counsel in such 10 (k) proceedings,
although neither company appeared as "parties" therein. Inasmuch as the
Bo:u d was empowered and directed to conduct the 10 (k) proceedings it neces-
sarily follows that the Board was empowered to determine whether or not it
had jurisdiction therein. In its Decision and Determination of Dispute in the
10 (k) proceedings, the Board found as a matter of fact that Westinghouse
Electric Corporation and Southern California Edison Company and each of
them were engaged in interstate commerce. The undersigned concludes and
finds that upon the basis of such Decision and Determination of Dispute and
upon the record in the 10 (k) proceedings, as a part of the proceedings in the in-
stant, or unfair labor practice, case, the record herein 16 as a whole clearly proves
that Westinghouse and Edison are engaged in interstate commerce as defined
by the Act and the Board has jurisdiction herein. Contention (a) is without
merit
As to contention (b), the record herein discloses that the original charge herein
was filed on February 2, 1949, and named Los Angeles Building and Construction
Trades Council and Lloyd A. Mashburn, its agent, as the "labor organization or
its agent against which charge is brought"; that a notice of charge filed and
notice of hearing was served upon Millwright and Machinery Erector's Local 1607
"ATT," Herman Barbaglia under date of February 21, 1949, giving notice of hear-
ing to be held under date of March 7, 1949; under date of March 2, 1949, a copy of
an order postponing hearing until March 10, 1949, at the same time and place was
served upon Millwright and Machinery Erector's Local 1607, attention Herman
Barbaglia ; under date of March 8, 1949, the first amended charge was filed
named Los Angeles Building and Construction Trades Council and Lloyd A.
Mashburn, its Agent ; and United Brotherhood of Carpenters, Joiners and Help-
.ers of America, Local No. 1607, A.F L. and Herman F. Barbaglia, its Agent, as
the labor organization or its agents against which charge was brought ; the first
11 When the undersigned uses the expression "the record herein," such expression refers
to the record in both the 10 (k) proceedings and in the instant unfair labor practice
proceedings jointly.
436 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended charge was served on the Council and upon Millwrights' Local 1607 and
upon Barbaglia on March 9, the day before the hearing in the 10 (k) proceedings
was scheduled to begin ; at the opening of such hearing on March 10, James N.
Nicoson as attorney for Millwrights' Local 1607 and for Barbaglia moved the
hearing officer conducting such hearing for a 10-day continuance on the grounds
and for the reason that he had just been retained, had other commitments and
would need some time to prepare the case for his clients. The hearing officer
granted a 1-day continuance and then proceeded with the hearing in the absence
of Attorney Nicoson who did not appear or participate further in such hearing.
Counsel for the Respondents contend that a 10 (k) hearing is a condition
precedent to the issuance of a complaint against Millwirights' Local No. 1607
and Barbaglia. As detailed hereinabove the Millwrights' Local 1607 and Bar-
baglia had timely notice of the hearing in that they were served with such
notice under the original, charge. The Board found and the record discloses
that Millwrights' Local 1607 was a constituent member of the Council, and the
only "affiliate" of the Carpenters involved in the dispute, and, on the basis of the
record in the 10 (k) proceedings found in effect that Millwrights' Local 1607
and Barbaglia had received due notice of the hearing which began on March 10.
In its Decision and Determination of Dispute, the 13oard found, inter alia,
as follows :
1. Los Angeles Building and Construction Trades Council, A. F. L., and
Lloyd A. Mashburn, its agent, and Millwright and Machinery Erectors Local
1607, of the United Brotherhood of Carpenters and Joiners of America,
A. F. L., and Herman F. Barbaglia, its agent, are not and have not been,
lawfully entitled to force or require Westinghouse Electric Corporation
to assign work on the installation of steam turbine generators, at Southern
California Edison Company's plant at Redondo Beach, California, to mem-
bers of Millwright and Machinery Erector's Local 1607 of the United Broth-
erhood of Carpenters and Joiners of America, A. F. L., rather than to em-
ployees of Westinghouse Electric Corporation who are members of Inter-
national Association of Machinists, Local Lodge 1235.
From the foregoing in the record it is clear that the Board determined that
it had jurisdiction over Millwrights' Local 1607 and Barbaglia in the 10 (k)
proceeding and assumed such jurisdiction. Such Decision and Determination
of Dispute, wherein the Board determined that Millwrights' Local No. 1607 and
Barbaglia had been duly served with notice of charge filed and notice of hearing,
and had thus been afforded an opportunity to participate in the 10 (k) proceed-
ings had they so desired, is binding upon the undersigned. Contention (b) is
without merit.
As to contention (c), wherein counsel for the Respondents contend that certain
alleged acts and conduct of the Respondent occurring after the close of the
10 (k) proceedings may not form the basis of unfair labor practices finding
against the Respondent for the reason that no 10 (k) proceedings have been
held as provided by the Act 17
17 Section 10 ( k) reads as follows:
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 practice
shall have arisen, unless, within ten days after notice that such charge has been
filed, the parties to such dispute submit to the Board satisfactory evidence that they
have adjusted, or agreed upon methods for voluntary adjustment of the dispute.
Upon compliance by the parties to the dispute with the decision of the Board or
upon such voluntary adjustment of the dispute, such charge shall be dismissed.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 437
Paragraphs XIII and XIV of the complaint°referred to certain acts-and conduct
alleged to have been committed by the Respondents on April 11, May 13 and 16,
1949, which counsel for Respondent contends was not properly before the Exam-
iner in the unfair labor practice hearing.
Under the theory of Respondents' counsel, any time a charge in an
8 (b) (4) (D) case is amended, a new 10 (k) hearing would be necessary. The
undersigned does not so interpret the language of the Act or the Board's Rules
and Regulations. Section 10 (k) provides for a hearing and determination of
"the dispute out of which such unfair labor practices have arisen." In the
instant case the only "dispute" is whether the Machinists employed by Westing-
house or members of Millwrights' Local No. 1607 shall perform certain work neces-
sary in the installation of turbine generators. This was the only "dispute" that
remained after the close of the 10 (k) proceedings hearing on March 24, 1949.
The fact, as found hereinabove, that certain riggers of the Iron Workers Union
Local 433 were called out on strike on April 11 did not create a new "dispute" 18
as of the date. It is undisputed that the renewed strike by the riggers was had
at the instigation of the Council, not as a result of a new dispute, in a continuing
effort to force Westinghouse to replace Machinists with Millwrights 39
It is clear from the record that the original charge had been amended, not as a
result of a new "dispute" but as a result of further strike activities in connection
with the original work dispute between the Machinists and the Millwrights.
While the Board has held that the holding of a 10 (k) proceeding is, in effect,
mandatory, and a condition precedent, to the filing of a complaint whenever a
charge alleging a violation of Section 8 (b) (4) (D) of the Act is filed," it does
not necessarily follow that further 10 (k) proceeding must be had on amended
charges, where, as here, the amended charges merely charged facts constituting
further and continued violations of 8 (b) (4) (D) of the same class as those
charged in the original charge and were continuations of the original charges
in pursuance of the same objects.
In an analogous situation, the Supreme Court of the United States held in the
National Licorice Company case : 21
Whatever restrictions the requirement of the charge may be brought to
place upon subsequent proceeding by the Board, we can find no warrant in
the language or purposes of the Act for saying that it precludes the Board
from dealing adequately with unfair labor practices which are related to
those alleged in the charge and which grew out of them while the proceeding
is pending before the Board. The violations alleged in the complaint and
found by the Board were but a prolongation of the attempt to form the
company union and to secure the contracts alleged in the charge. All are
of the same class of violations as those set up in the charge and were con-
tinuous of them in pursuance of the same objects. The Board's jurisdiction
having been invoked to deal with the first steps, it had authority to deal
with those which followed as a consequence of those already taken. We
18 The record discloses that the two riggers of Iron Workers Local 433, who were
employed by Westinghouse on the Redondo Beach project on February 2, went out on
strike in connection with the "dispute" between the Machinists and the Millwrights for
the positions in installing turbine generators
19 While the Machinists had been withdra®n on February 10 at the request of Edison,
Westinghouse had made no effort to return the Machinists to the project nor did it agree
to replacing the Machinists with Millwrights.
20 Lodge 68 of International Association of Machinists, and the International Association
of Machinists and Moore Drydock Company 81 NLRB 1108 (20-CD-1).
u 309 U. S. 350.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
think the Court below correctly held that "The Board was within its power
in treating the whole sequence as one." 22
It is clear from the foregoing and the record that there is but one "dispute"
involved herein, namely, that between the Machinists and Millwrights concern-
ing the mechanical installation of turbine generators ; that the proceedings re-
quired by Section 10 (k) and by the Board's decision were duly and properly had;
and that the allegations contained in paragraphs 13 and 14 of the complaint were
properly included in such complaint and conferred jurisdiction upon the under-
signed to take testimony thereon. Contention (c) is without merit.
As to contention (d), wherein the Respondents contend that the work stoppage
of February 2, 1949, grew out of an alleged illegal closed-shop contract between
the Machinists and Westinghouse.
The record, at the most, discloses that Westinghouse had a practice of calling
on the Machinists, the Electricians, the Ironworkers, and the Pipefitters when
and as it had need for any workmen of those various crafts ; that Westinghouse
had no written contracts with any of the afore-mentioned craft unions ; and the
record will not support a finding that the Machinists had a contract, illegal or
otherwise, with Westinghouse. Assuming, arguendo, that the Machinists and
Westinghouse had a signed, closed-shop contract, one that was admittedly illegal
under the Act, such fact would not, under the circumstances existing in the
instant case, provide a defense for the Respondents' violation of Section 8 (b)
(4) (D) of the Act.23 It is so found. Contention (d) is without merit.
As to contention (e), wherein the Respondents' counsel attacks the constitu-
tionality of Section 8 (b) (4) (D) which is referred to at this point, notwith-
standing the undersigned has ruled hereinbefore that Respondents' motion for
dismissal of complaint on constitutional grounds be denied, for the purpose of
emphasizing the fact that Respondents timely and vigorously questioned the
constitutionality of the Act and particularly Section 8 (b) (4) (D) of the
Act under which the Respondents are charged herein. The major portion of
Respondents' brief is devoted to this contention, and although the brief appears
to be the result of a wide research and analysis of the applicable legal author-
ities, the undersigned, under the principles laid down in the Rtite-Form Corset
case,24 will assume the constitutionality of the Act. Contention (e) is without
merit.
3. Conclusions
From the foregoing and the record it appears and the undersigned finds that the
Council and its agents and Millwrights' Local 1607, and its agents engaged in, and
u See also Biggs Antique Co., Inc., 80 NLRB 345.
.m In dealing with a similar contention in the Sunset Line and Twine Co. case, 79 NLRB
1487, the Board stated :
The Trial Examiner found (1) that the strike of August 25 "was precipitated by
action of the Company" In leaving the bargaining conference on August 21 after
its Vice-President Johnson presented to Vail a written "offer" ; and (2) that "at
least since November 7, 1947, the Company has refused to negotiate with Local 6
concerning either a contract or settlement of the strike." We find it unnecessary
to pass upon these conclusions, for neither of them is material in this case. The
sole issue before us is whether or not the Respondent Unions unlawfully restrained
or coerced employees by certain of their activities during the course of the strike.
Unlawful conduct on the part of the.Company, if established, would neither ex-
tinguish the right of its employees, to be free of union restraint and coercion, nor
justify the Respondent Unions' alleged infringement of that right. See Amalgamated
Utility Workers v. Consolidated Edison Company of New York, Inc., 309 U. S. 261;
N. L. R. B. v. Fickett-Brown Mfg. Co., 140 F. 2d 883 (C. A. 5).
See also Cory Corporation, et al., 84 NLRB 110.
24 75 NLRB 174.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 439
induced and encouraged certain employees of Westinghouse, and the employees
and Stone and Webster, principal contractors, and the employees certain sub-
contractors, to engage in strikes, or concerted refusal in the course of their
employment to process, transport, or otherwise handle or work on any goods,
articles, or materials or to perform any services, wherein the object thereof
was to force or require Westinghouse to assign particular work to employees in
a particular labor organization or in a particular trade, craft, or class, namely,
Millwright members of Local 1607, rather than to employees in another trade,
craft, or class, namely, to Machinists members of Local Lodge 1235; and that
by the conduct found above the Respondents Council and Millwrights' Local 1607
and their Agents Mashburn and Barbaglia violated Section 8 (b) (4) (D) of
the Act.
It is further found that the Board has issued no order or certification deter-
mining the bargaining representative for employees performing such work.
It is further found that, pursuant to the Board's Determination of Dispute
in the Section 10 (k) proceeding held herein :
Los Angeles Building and Construction Trades Council, A. F. L., and Lloyd
A. Mashburn, its agent, and Millwright and Machinery Erectors, Local 1607,
of the United Brotherhood of Carpenters and Joiners of America, A. F. L.,
and Herman F. Barbaglia, its agent, are not, and have not been, lawfully
entitled to force or require Westinghouse Electric Corporation to assign
work on the installation of steam turbine generators at Southern California
Edison Company's plant at Redondo Beach, California, to members of Mill-
wright and Machinery Erectors Local 1607, of the United Brotherhood of
Carpenters and Joiners of America, A F. L., rather than to employees of
Westinghouse Electric Corporation who are members of International Asso-
ciation of Machinists, Local Lodge 1235.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of the Westinghouse Electric Corporation and
Southern California Edison Company, set forth in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead, and have led, to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated Section 8 (b) (4) (D)
of the Act, it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Respondents cease and desist from inducing
or encouraging the employees of those employers engaged in construction work
on the Redondo Beach project to engage in a strike or concerted refusal in the
course of their employment to refuse to perform services for their employer
where an object thereof is to force or require any employer to assign particular
work to employees in a particular labor organization or in a particular trade,
craft, or class, rather than to the employees in another labor organization or in
another trade, craft, or class, unless such employer is failing to conform to an
order or certification of the Board determining the bargaining repesentatives for
employees performing such work.
More specifically, it will be recommended that the Respondents withdraw its
instruction for, and support and sponsorship of, any work stoppage or any
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketing by its members on the Redondo Beach project for the purposes of
forcing or requiring Westinghouse to assign work heretofore performed by the
Machinists to the Millwrights, and further, that the Respondents notify its
members that Respondents have taken such action.
On the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
(1) International Association of Machinists, and its Local Lodge No. 1235;
Los Angeles Building and Construction Trades Council, A. b'. L.; and Millwright
and Machinery Erectors Local 1d07 of the United Brotherhood of Carpenters
and Joiners of America, A. F. L., are each labor organizations within the meaning
of Section 2 (5) of the Act.
(2) By inducing and encouraging employees of. Stone and Webster, Engineer-
ing Corporation, certain employees of Westinghouse Electric Corporation, and
the employees of other contractors and subcontractors engaged in construction
work on the Redondo Beach project, hereinabove more particularly referred to,
with the object of forcing or requiring Westinghouse to assign particular work
to employees in a particular organization, namely, Millwrights Local 1607, rather
than to employees in another labor organization, namely, International Associa-
tion of Machinists, Local Lodge 1225, the Respondents have engaged in unfair
labor practices within the meaning of Section 8 (b) (4) (D) of the Act.
(3) The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
STRAUSS STORES CORPORATION and MIERCHANDiSE DELIVERY DRIVERS
AND EMPLOYEES, LOCAL 804, INTERNATIONAL B1toTIrERHOOD or TEAM-
STERS, CHAUFFEURS, W'WWARI:1[OUSE EEN AND IIELI'ERS OF AMERICA,
AFL
RETAIL AND WHOLESALE EMPLOYEES UNaON, LOCAL 830 (INDEPEND-
ENT), FORMERLY KNOWN AS ITNiT1 D RETAIL AND WHOLESALE
EMPLOYEES OF AMERICA, CIO, LOCAL 830, AND '65', Tiiu WHOLESALE,
RETAIL AND WAREHOUSE Woiucniis' UNION OF Ni:w YORK AND NEW
JERSEY and MERCHANDISE DELIVERY DRIVERS AND EMPLOYEES, LOCAL
804, INTERNATIONAL BROTHERHOOD or, TEAMST1,MS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Cases Nos.
2-CA-793 and 2-CIS-257. May 15, 1951
Decision and Order
On December 20, 1950, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
94 NLRB No. 80.