International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1481 (N.L.R.B. 1952)

KANMAK MILLS, INC. 1481
]Program, "LATP" for short. All obligation documents and vouchers prepared
for Legal Assistants should be marked with this identification in order that the
Regional Office allotment account will not be charged, and also to enable the
Fiscal Section to figure the cost of the training program. Inasmuch as the de-
tails of this program are being controlled from Washington, the additional infor-
mation called for in Section II-E-5 of Memorandum M-274 need not be furnished.
G. J. B.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCALS 17, 17A, AND
17B, AND FRANCIS CUFFE, INDIVIDUALLY AND AS BUSINESS AGENT
FOR TIIE SAID LOCALS and EMPIRE STATE PAINTING AND WATER-
PROOFING Co. INC. ' Case No. 3-CD--6. June 30, 1952
Decision and Determination of Dispute
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen. . .
On January 10, 1952, Empire State Painting and Waterproofing
Co. Inc., filed with the Regional Director for the Third Region a
charge against International Union of Operating Engineers, Locals
17, 17A, and 17B, herein jointly called Operating Engineers, and
Francis Cuffe, individually and as business agent for said Locals,
alleging that they had engaged in unfair labor practices within the
meaning of Section 8 (b) (4) (D) of the Act.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.74 and 102.75 of the Board's Rules and Reg-Ilations, the Regional
Director investigated the charge and provided for a hearing upon
due notice to all parties. The hearing was held before William Nai-
mark, hearing officer, on May 26, 1952. All parties appeared at the
hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence bearing on the
issues.,
International Hod Carriers, Building and Common Laborers' Union of America,
A. F. L., Local 210, and District Council No. 4 of Buffalo and Vicinity, Brotherhood of
Painters, Decorators, and Paperhangers of America, A. F. L. were served with notice of
hearing but did not enter an appearance or intervene.
99 NLRB No. 168.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings of the hmmaring officer made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded,
an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board 2 finds:
1. The Employer's business :
The Employer, Empire State Painting and Waterproofing Co., Inc.,
a corporation with its principal office in Buffalo, New York, is en-
gaged in waterproofing and painting buildings, and restoration work
in connection with these operations. During 1951, the total services
rendered by the Employer in the State of New York amounted to be-
tween $350,000 and $400,000, and services rendered by it during the
same period in the States of Pennsylvania and Ohio amounted to ap-
proximately $80,000. Of the services rendered in the State of New
York, a total of over $155,000 was performed in Buffalo, New York,.
to firms each of which is engaged in commerce within the meaning of
the Act and over four of which the Board has previously asserted
jurisdiction.3
We find, contrary to Operating Engineers' contention, that the Em-
ployer is engaged in commerce within the meaning of the Act, and
that it will effectuate the policies of the Act to assert jurisdiction over-
its operations.4 .
2. The dispute :
a. The facts
The Employer employs approximately 100 employees. Of these,.
90 are painters represented by District Council No. 4 of Buffalo and
Vicinity, Brotherhood of Painters, Decorators, and Paperhangers of
America, A. F. L., herein called Painters; 4 are laborers represented
by International Hod Carriers, Building and Common Laborers'
Union of America, A. F. L., Local 210, herein called Hod Carriers;
3 or 4 are bricklayers represented by Local 45 of the Bricklayers'
Union; and 5 are cement finishers represented by a Buffalo Local of
the Cement Finishers' Union. The Employer has contracts with each
of these unions. Neither the bricklayers nor the cement finishers are
involved in this dispute.
On November 15, 19515 the Employer was engaged in painting oper-
ations at the site of Buffalo Merchandise Warehouse at Great Arrow
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Styles and Peterson].
8 Buffalo Arms, Inc, 57 NLRB 1560; American Radiator and Standard Sanitary Corpo-
ration, 93 NLRB 7; E I. Du Pont de Nemours if Co., 77 NLRB 1002; Russell Miller Mill-
{ng Co., 14 NLRB 1093.
1 See United Brotherhood of Carpenters and Joiners of America. Local 581, et al. (Ora
Collard), 98 NLRB No. 47.
INTERNATIONAL UNION OF OPERATING ENGINEERS, ETC. 1483
Avenue, Buffalo, New York, under a contract with that concern.
Seven of the Employer's employees were assigned to this job. These
were painters , cement finishers, and laborers. One of the initial oper-
ations consisted of chipping out concrete on the surface of the building
so as to prepare it for painting. In doing so, the Employer used
chipping hammers which utilized air supplied by an air compressor.
The air compressor was operated by Herbert Burandt, one of the Em-
ployer's employees. Burandt was a laborer who spent approximately
90 percent of his time at manual work such as mixing cement, sand,
and water, and the remainder of his time in operating the air com-
pressor. The latter task consisted of starting the machine by push-
ing a button and applying a small lever, stopping it when necessary,
and occasionally oiling it during the course of its operation. Burandt
was a member of the Hod Carriers.
Murphy, the Employer's vice president and general manager, testi-
fied that a day earlier, November 14, he had received a message at
his office that a representative of Operating Engineers telephoned
and left word that the Employer was to put an operator of that
Union on the compressor. Burandt testified that on November 15,
while he was doing manual work on the job, after he had started the
air compressor running, he was approached by a man from Operating
Engineers who told him that he (Burandt) was not supposed to run
the compressor; that somewhat later another individual came to him
and asserted that he, not Budrant "is the engineer that . . . should
run the compressor." Murphy testified that on the same day (Novem-
ber 15) he had received word that Operating Engineers "had manned
the machines," and that thereupon he went to the job site. There he
met an individual who identified himself as Kraft and said that he
had been sent by "the Hall." He also stated to Murphy that he was
employed by "Empire State." Murphy told him that this was not
so, that the Employer had neither requested nor engaged him, and
that he was not to touch any of the equipment. After some discus-
sion , Kraft left.
The next morning, November 16, at about 8 o'clock, the Employer's
president, Broderson, went to the job site. There were four pickets 5
stationed at a driveway through which motor vehicles and individ-
uals entered in 'order to gain access to the warehouse. The pickets
carried signs variously described as stating "strike," "unfair," as
carrying the names of Locals 17,17A, and 17B of Operating Engineers,
and according to Cuff e, Operating Engineers' business representative,
the words "This place does not employ members of the International
Union of Operating Engineers." Broderson spoke to Hopkins, a
5 Business Representative Cuffe of Operating Engineers in his testimony at the hearing
described them as "pickets," thus corroborating the testimony of the Employer' s witnesses.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business agent of Operating Engineers, who was at the scene. When
he asked Hopkins what the pickets were doing there, Hopkins replied,
"we are picketing the place. We want to keep them here until you
put an Engineer on the job." Broderson refused.
The record further shows that when the Employer's employees who
had been assigned to the job at the warehouse arrived there at about
8 a. in. and saw the pickets, they turned back and did not go to
work. On the same day, the Employer had the equipment removed
and suspended operations on the job. Thereupon the pickets left.
There was additional testimony by the Employer's Vice-President
Murphy that sometime after this occurrence, on December 10, 1951,
Cuffe of the Operating Engineers telephoned him and asked about
another job of the Employer's-the one at "Chevrolet"-and whether
they were using air. Murphy stated that they were, and Cuffe said,
"You have to have one of our operators . . . to put on the compressor."
When Murphy refused to comply, Cuffe said, "our pickets are broad
and tough." Murphy asked, "What do you mean by that?" And
Cuffe replied, "meaning that we will picket."
There was no substantial dispute as to the testimony thus adduced
by the Employer. Cuffe, appearing as a witness, testified that he had
a conversation with Murphy; that he told Murphy that it was the
area practice to place engineers in the maintenance and operation of
air compressors; that Operating Engineers wanted one of their mem-
bers to do this work in preference to Burandt who was a member of
the Hod Carriers; and that Operating Engineers sent four pickets to
the job "to advertise the fact that our people were not employed on
the job."
b. Contentions of the parties
The Employer, the charging party, asserts that by the above conduct
the Respondents, herein also jointly called Operating Engineers, vio-
lated Section 8 (b) (4) (D) of the amended Act.
The Respondents contend (a) that the operation of the air com-
pressor belongs to the exclusive jurisdiction of Operating Engineers;
(b) that there is no jurisdictional dispute within the meaning of the
Act; and (c) that, in substance, the matter has been referred to the
National Joint Board for the Settlement of Jurisdictional Disputes,
A. F. of L., herein called Dunlop Board, and an agreement reached
as to the division of the work in question.
c. Applicability of the statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D) of the amended Act, and
the Regional Director was satisfied that upon the basis of such in-
INTERNATIONAL UNION OF OPERATING ENGINEERS, ETC. 1485
vestigation, a violation of Section 8 (b) (4) (D) has been committed.
On the record before us, we find that there is reasonable cause to be-
lieve that the Respondents engaged in activities proscribed by that sec-
tion of the Act, with the object of forcing or requiring the Employer
to assign work on the air compressor to members of its Union rather
than to the Employer's own employees who were members of other
labor organizations.
As already indicated, the Respondents do not take substantial issue
with the facts as alleged by the Employer and on which we base the
above finding. They contend, however, that the dispute was referred
to the Dunlop Board and that an agreement was reached as to the
"division of the work." They apparently seek to rely upon the lan-
guage in Section 10 (k) which requires dismissal of the charge upon
submission to the National Labor Relations Board by the parties to
the dispute, within 10 days after notice that a charge alleging a vio-
lation of Section 8 (b) (4) (D) has been filed, of "satisfactory evi-
dence that they have adjusted, or agreed upon methods for the volun-
tary adjustment of, the dispute."
We have carefully considered the record in this case, but have
found no evidence therein that the parties have in fact adjusted their
dispute or agreed upon methods for the voluntary adjustment of the
dispute. All that the record shows is that on February 25, 1952, coun-
sel for the Employer received a telegram from Mr. Dunlop, in which
he advised the Employer to proceed with the work immediately "as
originally assigned"; that Operating Engineers were directed to cease
interference; that the presidents of the two Unions had been requested
to submit their positions so that the National Joint Board might con-
sider the dispute at its February 29 meeting; and that the Employer
was requested to furnish the National Joint Board a description of
the disputed work and details of the controversy by that date. There
is no evidence of any agreement by the interested parties to submit
the dispute to the Dunlop Board and to be bound by its determination.
Unlike the Manhattan Constrwction Company case,e and similar
cases,7 the Employer here did not agree to be bound by the "terms and
provisions" of the Dunlop Board or by any "decision or interpreta-
tion" of that board. Furthermore, there is no evidence that any deci-
sion or interpretation has been issued by the Dunlop Board or any
agreement reached by the parties. Indeed, the Respondents sub-
penaed a business representative of the Painters who testified that, as
of the hearing date, he had not seen any letter or other document from
a United Brotherhood of Carpenters and Joiners of America , Local 943 , AFL (Manhattan
Construction Company, Inc.), 98 NLRB 1053.
'International Brotherhood of Teamsters , etc. (William F. Traylor), 97 NLRB 1003;
General Warehousemen and Employers Union, etc . ( Roy Stone Transfer Corporation), 99
NLRB 662 (decided on an analogous basis although not involving the Dunlop Board).
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the general president of that union as to the jurisdiction of air com-
pressor work. Nor does the record disclose any evidence as to the
position adopted by the Hod Carriers, of which Burandt, the employee
who operated the air compressor was a member, or whether that union
participated in any way before the Dunlop Board in connection with
this dispute. In the light of these circumstances, we see no basis for
finding that an agreement had been made for the voluntary adjust-
ment of the dispute, or that the dispute had been adjusted." Accord-
ingly, we find that the dispute in question is properly before us for
determination in a proceeding under Section 10 (k).
d. The merits of the dispute
It is clear from the record that at the time Operating Engineers
demanded of the Employer the work on the air compressor for one
of its members, the Employer had assigned such work to Burandt,
one of its own employees, a member of the Hod Carriers. The Em-
ployer neither then nor any other time had any bargaining relation-
ship with Operating Engineers; the Employer's employees were mem-
bers of four other labor organizations with which the Employer had
successive collective bargaining agreements. The dispute was there-
fore over an employer's assignment of work to members of one labor
organization, rather than to employees of the employer who were
members of other labor organizations.
The Board stated in Juneau Spruce Corporation: 0
As we read Sections 8 (b) (4) (D) and 10 (k), these sections
do not deprive an employer of the right to assign work to his
own employees; nor were they intended to interfere with an em-
ployer's freedom to hire, subject only to the requirement against
discrimination as contained in Section 8 (a) (3).
It is also well established that an employer is free to make such as-
signments without being subjected to the pressures proscribed by
Section 8 (b) (4) (D), "unless such employer is failing to conform
to an order or certification of the Board determining the bargaining
representative for employees performing such work." 10 It is clear
that the Respondents do not claim that Operating Engineers is the
certified bargaining representative for employees performing work on
the air compressor.
We find, accordingly, that the Respondents were not lawfully en-
titled to force or require the Employer to assign work on the air com-
8 United Brotherhood of Carpenters and Joiners of America, Local 581, at at. (Ora
Collard), supra.
e Juneau Spruce Corporation, 82 NLRB 650.
M United Brotherhood of Carpenters and Joiners of America, Local 581, et al. (Ora
Collard), supra.
INTERNATIONAL UNION OF OPERATING ENGINEERS, ETC. 1487
pressor to its members rather than to the Employer's own employees
who were members of other labor organizations.
We are, not, however, by this action to be regarded as "assigning"
the air compressor work to members of any of the contract Unions."
Determination of Dispute
Upon the basis of the foregoing findings of fact, and upon the entire
record in this case, the Board makes the following determination of
•dispute pursuant to Section 10 (k) of the amended Act :
1. International Union of Operating Engineers, Locals 17,17A, and
17B, and Francis Cuffe, individually and as business agent for the said
Locals, are not, and have not been, lawfully entitled to force or require
Empire State Painting and Waterproofing Co., Inc., to assign air
compressor work to their members rather than to the Company's
employees who are members of another labor organization.
2. Within 10 days from the date of this Decision and Determination
-of Dispute, the Respondents shall notify the Regional Director for the
Third Region, in writing, as to what steps the Respondents have taken
to comply with the terms of this Decision and Determination of
Dispute.
11 Los Angeles Building and Construction Trades Council , AFL (Westinghouse Electric
Corporation ), 83 NLRB 477.
THE D. M. BARE PAPER COMPANY and HUGII R. LOBB, PETITIONER and
UNITED PAPERWORKERS OF AMERICA, C. I. O., AND ITS LOCAL 415,
C. 1. 0. Case No. 6-UD-2. Jwne 30,195'
Decision and Order
Upon a petition duly filed under Section 9 (e) of the National Labor
Relations Act, a hearing was held before William A. McGowan, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
,of the Employer.
3. On November 2, 1951, the Employer executed a 1-year collective
bargaining agreement with United Paperworkers of America, C. I. 0.,
1 The request for oral argument by the Union is hereby denied, as the record and briefs.
in our opinion , adequately present the issues and positions of the parties.
99 NLRB No. 164.