International Association of Machinists, AFL-CIO

National Labor Relations Board - Board Decisions

Apr 20, 1962

136 N.L.R.B. 1216 (N.L.R.B. 1962)

1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent did not engage in unfair labor practices in violation of
Section 8(a) (1) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions , and upon the entire
record , it is recommended that the complaint heretofore filed herein be dismissed.
International Association of Machinists , AFL-CIO and Carling
Brewing Company, Inc. (Atlanta Plant)
International Brotherhood of Firemen and Oilers , AFL-CIO
and Carling Brewing Company, Inc . ( Atlanta Plant ). Cases
Nos. 10-CD-148 and 10-CD-149. April 20, 1962
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph 4(D) of
section 8(b), the Board is empowered and directed to hear and de-
termine the dispute out of which such unfair labor practice shall
have arisen . . . ."
On February 8, 1961, Carling Brewing Company, herein called
Carling, filed charges numbered 10-CD-148 and 10-CD-149, alleging,
respectively, that International Association of Machinists, AFL-CIO,
herein called IAM, and International Brotherhood of Firemen and
Oilers, AFL-CIO, herein called FOI, had been and were threatening,
coercing, and restraining Carling with an object of forcing and re-
quiring Carling 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 particular labor organization or in another
trade, craft, or class, in violation of Section 8(b) (4) (ii) (D) of the
Act.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director for the Tenth Region of the Board investigated the
charges and provided for an appropriate consolidated hearing upon
due notice to all parties. The hearing was held before Charles B.
Slaughter, hearing officer, on June 19 and 20, 1961. All parties ap-
peared at the hearing and were offered full opportunity to be heard,
to examine and cross-examine witnesses , and to adduce evidence bear-
ing on the issues. The rulings of the hearing officer are free from
prejudicial error and are hereby affirmed. Carling and IAM filed
136 NLRB No. 120.
INTERNATIONAL ASSOCIATION OE MACHINISTS, AFL-CIO 1217
briefs which have been duly considered. Upon the entire record in
this case, the Board makes the following :
FINDINGS OF FACT
Carling is a Virginia corporation engaged in the manufacture and
distribution of beer and ale. In connection with the operations at its
Atlanta, Georgia, plant (the plant here involved), Carling receives
from points outside the State of Georgia materials and supplies valued
in excess of $50,000 annually, and ships to points outside the State of
Georgia beer and ale valued in excess of $50,000 annually.
We find that Carling is an employer engaged in commerce within
the meaning of the Act.
The Labor Organizations Involved
IAM and FOI are both labor organizations within the meaning of
the Act. District 56 and Local 285 are constituent parts of IAM and
FOI, respectively.
The Dispute
The dispute underlying this proceeding arose over the Employer's
assignment of maintenance or repair work on certain equipment in its
brewery plant. Since 1958, the two unions involved have been the
bargaining representatives for separate groups of employees in this
single plant. Without delineating the precise limits of the overlap-
ping claims for work advanced by the unions, it is clear that the
IAM's group works predominantly on the production and processing
equipment and machinery, and the FOI's on the general house service
and maintenance installations such as generators, water lines, heating
lines, etc. In view of the limited grounds for decision here, no useful
purpose would be served by explaining in detail the exact work duties
over which the two quarreled, or the grounds on which they predicate
their conflicting demands. It suffices that the record does show that
they have, since 1958, been claiming the same work assignments and
that all parties have at all times been aware of the jurisdictional
dispute.
While full details of the history of the dispute and the varied
grounds advanced from time to time by the parties in support of
their conflicting contentions are not material to our present decision,
a brief statement of the checkered course of the dispute over a 3-year
period will aid in understanding the basis for our disposition of the
notice of hearing.
The dispute was first evidenced when the IAM filed a grievance
under its contract, protesting assignment of work to install a steam
heater to FOI employees. After some correspondence, the Employer
conceded it had erred and that the IAM was entitled to that type of
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. The IAM expressed satisfaction. Later that year, the FOI
filed a grievance, under its contract, claiming work on a steam line
and a solution tank. This grievance was processed through arbitration
under the FOI contract, and FOI won. Nevertheless the Employer
refused to abide by the arbitration award, on the ground that it con-
flicted with an NLRB unit determination. Early in 1959, all three
parties, the Company and both Unions, joined in submitting the dis-
pute to the vice presidents of the two international unions, and agreed
to accept their decision as final; it does not appear that this effort pro-
duced any results.
In 1960, there was a decision on at least a partial aspect of this dis-
pute by an impartial umpire under the AFL-CIO "no-raiding" agree-
ment, in which he found that FOI, in pressing its demands, had vio-
lated the no-raiding agreement. When early in 1961 the Company
called on the Unions to state their positions with respect to the im-
partial umpire's decision, they took conflicting views, TAM asserting
it was binding on all parties, and FOI disputing its validity.
While these various attempts at amicable adjustment were being car-
ried on, the Company made several separate contracts with the
Unions, in some of which there appears ambiguous language seemingly
adding further confusion to the entire question in dispute. It was
during these events, in February of 1961, that the Company filed
charges accusing both Unions of having committed unfair labor prac-
tices in violation of Section 8 (b) (4) (D) of the Act.
Applicability of the Statute
Section 10 (k) of the Act empowers and directs the Board to hear
and determine disputes out of which Section 8(b) (4) (D) charges
have arisen. However, before making a determination of the dispute
in Section 10 (k) proceedings, the Board is required to find that there
is reasonable cause to believe that Section 8(b) (4) (D) has been
violated.
One of the essential elements supporting a finding of violation of
this section of the statute is that the respondent union must have en-
gaged in prohibited conduct toward employees or other persons. The
charge in this case alleges such conduct toward the Employer, Carling,
as distinguished from any of the employees.' In pertinent part, Sec-
tion 8 (b) (4) (D) reads as follows :
It shall be an unfair labor practice for a labor organization or its
agents . . . to threaten, coerce, or restrain any person engaged in
commerce . . . where . . . an object thereof is ..."
1 In point of fact, there is no evidence here of inducement or encouragement of employees
INTERNATIONAL ASSOCIATION OE MACHINISTS, AFL-CIO 1219
On this point, we find that there is insufficient evidence to support
the conclusion that there is reasonable cause to believe that either of
the Respondent Unions resorted to prohibited methods in pressing
its claim for work assignments. Neither Union struck the plant nor
picketed.
There is no evidence in the entire record that the IAM voiced direct
threat to anyone, or made any statement that could be construed as
coercion or restrain in connection with the disputed work. In his
opening statement at the hearing, counsel for Carling expressed a
belief that "in a brief" filed with the Board, IAM had threatened to
strike, but there was no further identifying information and no sup-
porting evidence.' When, in January of 1961, the IAM responded
to the Company's inquiry as to its position respecting the impartial
umpire's award under the no-raiding agreement, it stated that it
believed the award (of which it was the beneficiary) was a proper
subject for court action. At best, this last statement announced the
IAM's intention to defend the award in a court of law if it should be
attacked; at worst, it indicated a belief the FOI could attack it in
court if it wished.
As for the FOI, the sum total of the facts offered as proof of illegal
threat, coercion, or restraint upon the Employer- appears in conver-
sation between Warner Currie, company counsel, and International
Representative Bartlett of that Union on January 16, 1961, several
weeks before the charges were filed. Currie told Bartlett "he needed
to know what the FOI union would do if the work currently being
assigned to them were to be assigned by the Company to the IAM."
Bartlett replied that "the company need not worry about a threat from
the FOI, because the FOI would certainly take such action it deemed
necessary if the company tried to assign the work to the IAM ...."
In order to form the basis for any proceeding herein, a threat must
inferred from the statement that FOI would take whatever "action it
deemed necessary" if in the future the Company sought to change the
existing assignment. A direct threat or other intimidation there was
not. Given the circumstances of the moment, and in view of the ami-
cable pattern of the events during the preceding years, we deem it
very unreasonable to read into Bartlett's highly ambiguous words any
illegal threat. Bartlett did not himself offer information about his
Union's intention for the future. He only answered the Employer's
2 We are aware, as pointed out by our dissenting colleagues, that IAM, in an appeal from
a dismissal of a representation petition, represented to the Board that a failure to get the
relief sought would leave no alternative "than to be forced into a jurisdictional strike "
At the same time, it unequivocally told the Company that it believed its claim to the dis-
puted work was a proper subject for court action In context-considering also that,
over 3 years of unsuccessful efforts to be assigned the work, IAM had never exerted eco-
nomic pressure-we cannot read into this situation a threat to strike.
641795-63-vol. 136-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquiry inviting him to speculate upon future developments which
might never materialize. His Union was in the favored position with
respect to the running dispute with the IAM and he therefore had
no occasion to think in terms of bringing any pressure on anyone,
much less to make threats. More important, in a fair appraisal of this
purported proof of "reasonable cause to believe" an unfair labor
practice was committed, is the fact that for several years, both Unions
did no more than resort to those measures which proper collective bar-
gaining and traditional internal union arrangements have always
provided for voluntary and amicable adjustment of disputes of this
kind. Their past conduct shows commendable restraint, and more
persuasively warrants an inference that FOI intended to continue its
lawful attempts to win the point than that it would engage in illegal
conduct where it had not done so before.3
Under these circumstances, we find that there is not reasonable
cause to believe that Section 8 (b) (4) (D) has been violated. There-
fore we find that the Board is without authority to determine this
dispute. Accordingly, we shall quash the notice of hearing issued
herein.4
[The Board quashed the notice of hearing.]
MEMBERS RODGERS and LEEDOM, dissenting:
We disagree with our colleagues' holding that neither of the Unions
here involved resorted to prohibited methods in pressing their claim
for work assignments.
As to the FOI, the record shows that FOI Representative Bartlett
told Company Counsel Currie that "the FOI would certainly take
such action it deemed necessary if the Company tried to assign the
work to the IAM ...." The majority finds this statement of intent
to be "highly ambiguous" and construes Bartlett's words not to be a
threat to bring unlawful pressure upon the Company. However, we
note first that Currie had no doubts as to what Bartlett meant. Thus
an affidavit, which the parties stipulated could be used as evidence
herein, recites that Currie "was left with the clear impression that the
FOI would strike." Secondly, and more importantly, we note that
the FOI has not made any claim whatsoever in this proceeding that
Currie was wrong in his understanding of what Bartlett meant, or
8 Our dissenting colleagues would have us give dispositive weight to the failure of any
party here to dispute that company counsel "was left with the clear impression that the
FOI would strike." But the primary facts , as recited above, speak more loudly than the
parties' conclusionary stipulation respecting one individual ' s "impression."
* Local Union No. 1, Sheet Metal Workers International Association , AFL, et at (Meyer
Furnace Company ), 114 NLRB 924.
INTERNATIONAL ASSOCIATION OE MACHINISTS, AFL-CIO 1221
that Bartlett was not in fact threatening strike action. Accordingly,
even assuming that something more were necessary to understand
Bartlett's language, that something has been supplied in no uncertain
terms by the parties themselves.
As to the IAM, our colleagues note that in his opening statement
counsel for the Company "expressed a belief that `in a brief' filed with
the Board, IAM had threatened to strike." But, say our colleagues
concerning this threat, "there was no further identifying information
and no supporting evidence." Our colleagues are in error in this
respect. The dispute herein is one of long standing. It dates back to
1958 when both the TAM and the FOI protested certain work assign-
ments made by the Company to the other. The record 5 in this case
clearly shows that on January 5, 1961, the IAM filed a petition in
Case No. 10-RC-4890 seeking to become the bargaining agent of the
then FOI-represented employees, and thereby obtain jurisdiction
over the disputed work. The Regional Director dismissed the pe-
tition. The IAM then, on January 23, 1961, filed with the Board a
"Request for Review" stating therein :
Therefore, of necessity, if the Board in its wisdom does not re-
verse the Regional Director in his action in this instant case,
there will be no other alternative for the petitioner to follow if
it can not get relief other than to be forced into a jurisdictional
strike on this matter as it appears that the issues in this case are
serious.
After this request for review was filed by the IAM, the Company, on
February 8, 1961, filed the instant Section 8(b) (4) (D) charges, ad-
vising both Unions that it was taking this action "in order to prevent
threatened work stoppages . . . . "
Thus, contrary to our colleagues' assertion, the record not only
identifies the "brief" referred to by the Company's counsel, but clearly
establishes that a strike threat was in fact made.
Moreover, as is the case with the FOI, the IAM does not deny that
it threatened strike action; again it is our colleagues who are inject-
ing the matter of "no threat" into the case.
For the foregoing reasons, we would find that both the FOI and
the IAM threatened the Company in pressing their claims for the
disputed work, and that all the elements of a jurisdictional dispute
are present here. We would therefore proceed to resolve that dispute.
5 These facts are set forth in the above-mentioned affidavit of Currie which the parties
stipulated could be used as evidence herein In any event, the Board can take official
notice of its own proceedings in Case No. 10-RC-4890.