Panama City Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Apr 11, 1962

136 N.L.R.B. 1002 (N.L.R.B. 1962)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Panama City Building and Construction Trades Council, AFL-
CIO and Marvin Ray and Albert Ray, partners , d/b/a Ray
Fabricating and Manufacturing Company. Case No. 15-CD-17.
April 11, 1962
ORDER QUASHING NOTICE
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 September 6,1960, Marvin Ray and Albert Ray, partners, d/b/a
Ray Fabricating and Manufacturing Company, herein called the Em-
ployer, filed with the Regional Director for the Fifteenth Region, a
charge alleging that Panama City Building and Construction Trades
Council, AFL-CIO, herein called the Union, had violated Section
8 (b) (4) (D) of the Act by picketing to induce or encourage employees
of the Employer to engage in a stirke, and threatening, coercing, or
restraining the Employer with the purpose of requiring the employer
to assign certain work to members of the Union, rather than the Em-
ployer's own employees, who were doing the work.
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 investigated the charges and provided for an appropriate
hearing upon due notice to all the parties. The hearing was held
before Fallon W. Bentz, hearing officer, on October 11, 1960. All
parties appeared at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. The rulings of the hearing officer made
at the hearing are free from prejudicial error and are hereby affirmed.
The parties were also afforded full opportunity to file briefs but did
not do so.
Upon the entire record in the case, the Board makes the following
findings :
I. THE BUSINESS OF THE EMPLOYER
Ray Fabricating and Manufacturing Company, the Charging
Party, has its office and principal place of business in Birmingham,
Alabama, where it is engaged in the construction business and in
building repair and maintenance as a contractor and subcontractor.
It also bids on and performs such contracting work in areas outside
that State. During the 12-month period before the hearing, it received
in excess of $75,000 for such services performed outside of Alabama.
136 NLRB No. 95.
PANAMA CITY BLDG. & CONSTRUCTION TRADES COUNCIL 1003
During the same period, it also purchased directly from suppliers
outside the State of Alabama goods, materials, and supplies valued
in excess of $15,000 and, from suppliers located in Alabama, who them-
selves made annual purchases in excess of $50,000 from out-of-State
sources, additional supplies and materials valued in excess of $50,000.
We find that the Employer is engaged in commerce within the meaning
of the Act.
II. TIIE LABOR ORGANIZATIONS
Panama City Building and Construction Trades Council, AFL-
CIO, is a labor organization within the meaning of the Act.
III. TIIE DISPUTE
This proceeding resulted from a dispute which arose between the
Employer and the Respondent Council when, in the summer of 1960,
the Employer contracted for and commenced work in Port St. Joe,
Florida, for the St. Joe Paper Company, which operates a large
papermill there. The contract, at a cost of about $50,000, called for
rehabilitation of a boilerhouse and required about 4 or 5 weeks' of
work for completion. The Employer started work at the jobsite on
August 8 with five or six of its regular employees whom it brought for
the purpose from Birmingham, Alabama. These workmen, as well
as others regularly used by the Employer in Alabama, are members
of what was only referred to at the hearing as a "steelworkers" union,
"Local 1099," but the Employer does not recognize any union under
contract. Other than indicating that the out-of-State workers were
"skilled" and did work generally falling in the classifications of iron-
worker, boilermaker, or mechanic, the record as it stands does not
reveal precisely what their work duties were scheduled to be on this job.
As the work was starting, representatives of the Respondent Build-
ing and Construction Trades Council advised officials of the Employer
that in the opinion of the Council skilled or craft construction work
in that area was properly the work of local workmen represented by
the various constituent local union members of the Council, and that
the Employer should therefore hire the needed craftsmen at that loca-
tion, rather than import them from another State. These claims for
work were voiced not only by the president of the Council, Mr.
Thomas, who was also head of the Panama City IBEW local, but
also by various business agents and representatives of other local craft
unions, such as the Pipefitters, Boilermakers, Ironworkers, IAM, etc.
Precisely what part of the work had to be performed by each of the
local unions claiming, and just which employees these unions sought
to replace or to have hired, is not shown on the record at all. Indeed,
in one of the meetings between the parties there began to develop
disagreement between two of the local business agents over what work
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might belong to boilermaker journeymen as against ironworker
journeymen.
Whatever the Council's demands may exactly have been-be it to
displace the Birmingham employees who had already arrived or to
prevent further importation of workmen-the parties did not agree.
And the Council picketed the jobsite. There was no work stoppage
as a result, either by the contractors' employees, or by the regular
workmen of the St. Joe Paper Company. No deliveries by suppliers
were interrupted. In a matter of days the picketing was confined to
a single gate established for exclusive use by the contractors' work-
men, and shortly thereafter it was discontinued entirely, although the
contractors' work in due course was completed. The Employer filed
the charge, which eventually caused issuance of the notice of hearing
under Section 10(k), on September 9, a week after all picketing had
ceased. No injunctive remedy was sought by the General Counsel of
the Board in the district court.
Applicability of the Statute and the Present Posture of the Case
On January 9, 1961, before the Board could issue a decision in this
case, the Supreme Court handed down an opinion in the CBS case, in
which it held that the Board's past construction of Section 10 (k)
and of its duties thereunder had been erroneous, the decision com-
pelling fundamental reappraisal of many aspects of Board proceed-
ings under Section 10 (k) generally.' The inordinate delay in the
administrative processing of this particular 10 (k) proceeding was
occasioned directly by such studies. One of the further procedural
steps now made necessary in this case by the CBS decision would be a
remand and reopened hearing for the purpose of receiving extensive
evidence pertaining to the merits of the dispute? For the reasons set
out below, we are of the opinion that the purposes of the Act as a
whole would not be furthered by continuing to process this proceeding,
and we shall therefore quash the notice of hearing.
In view of our decision to quash the notice of hearing, we deem
it unnecessary to resolve the conflicting testimony on the preliminary
question of whether there is reasonable cause for the Board to believe
that the Respondent engaged in conduct violative of Section
8('b) (4) (D).
Administration Division To Quash Notice of Hearing
Under principles long established by Board precedent as of Octo-
ber 1960, when this hearing was held, the only objective facts pertinent
1 N L R B. v Radio and Television Broadcast Engineers Union Local 1212, etc . ( Colum-
bia Broadcasting System ), 364 U S 573
'See, International Association of Machinists, Lodge No . 1743, AFL-CIO (J A. Jones
Construction Company ), 135 NLRB 1402; and Highway Truck Drivers and Helpers,
Local 107 , International Brotherhood of Chauffeurs, Warehousemen and Helpers of
America, Independent ( Safeway Stores, Incorporated ), 134 NLRB 1320.
PANAMA CITY BLDG. & CONSTRUCTION TRADES COUNCIL 1005
to the Respondent's right to force assignment of work to its members
or to a class of employees, were whether or not the Employer was
assigning work in violation of a current collective-bargaining agree-
ment or of an outstanding Board certification of representatives. The
record as then made is therefore barren of any evidence on such mat-
ters as practiced in the industry, custom in the area, traditional work
assignments or union representation, comparative skills, relevant de-
terminations of other impartial boards or abritrators, and other facts
equally pertinent to the substantive merits of the dispute. Evidence
on these subjects was not, and could not have been, offered for it was
then deemed inadmissible. Under the CBS decision, such evidence
would have to be received and considered today.
There is every indication that the Panama City Building and Con-
struction Trades Council intended to advance a far broader basis for
its work claim than might apply to the five or six out-of-State employ-
ees Ray Fabricating brought to Florida in August 1960. It urged the
principle that local area craftsmen, long represented by their own tra-
ditional and distinctive craft unions, are entitled to preferential hiring
in the construction industry where they live, vis-a-vis like craftsmen
from other geographic localities. That the Respondent Council was
not only concerned with Ray Fabricating's 4- or 5-week job, with a
limited number of men, in Port St. Joe, is shown by the fact it picketed
only briefly, restricted this activity on request, and discontinued it
entirely when requested by the paper company. More directly, its
representatives told both the Employer's agents and the paper com-
pany that its real worry was that this small incursion by out-of-State
craftsmen in Florida might endanger a much larger construction proj-
ect then being contemplated. And when Ray Fabricating resumed its
work, the Respondent Council ignored it completely.
Full justice to any employers or labor organizations in this industry
who may hereafter be confronted by a like situation requires as a
minimum that all the relevant facts, which must now be evaluated
before the merits of a jurisdictional dispute may be decided, be fully
aired. Chief among these now pertinent factors, particularly with
respect to the dispute here involved, are custom and practice in the
industry generally and in the area in particular. We think it highly
unlikely that such an adequate record could be fashioned in this case
so long after the events.
Ray Fabricating has completed its Port St. Joe job and in all like-
lihood is no longer interested in this particular proceeding. Its prin-
cipal place of business is Birmingham, Alabama, and although Mr.
Ray testified his company does work in other States, he could not recall
any other job it had ever performed in Florida. Moreover, that it did
not consider the Council's claim in this instance too great a concern
is indicated by the Employer's offer to place his Alabama workmen
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elsewhere in a week or so and to hire local craftsmen as requested. He
also proposed, in an effort to adjust the dispute, to divide the work
between the two groups. But all this is further indication that even
if a further hearing were directed now in this particular proceeding,
the very parties involved would not litigate it fully, as the case
requires.
Given the long period of time that has elapsed since the events, now
almost 2 years, the fact that the project itself has long been completed,
the absence from Florida now of the Charging Employer itself, and
the serious important impact upon employer-employees relations in
the construction industry generally which a determination of the
merits of the dispute in this case would be considered as having, we do
not believe the true underlying objectives of Section 10(k) of this
statute would be furthered by attempting now to hear and determine
adequately the dispute which long ago gave rise to this proceeding.
Accordingly, we shall quash the notice of hearing.
[The Board quashed the notice of hearing.]
E. H. Koester Bakery Co., Inc.' and American Bakery and Con-
fectionery Workers International Union, Local No. 68, AFL-
CIO, Petitioner. Case No. 5-RC-3455. April 10, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. His rulings made at
the hearing are free from prejudicial error and are affirmed.
Upon the entire record, the Board finds : 2
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit : The Employer, a Maryland corporation,
is engaged in the manufacture of bakery products with its plant at
Baltimore and distribution centers at Easton, Salisbury, Waldorf,
and Silver Spring, Maryland. Products baked at the Baltimore plant
are shipped daily via company-owned transport trucks for distribu-
1 The name of the Employer appears as amended at the hearing.
2 The Petitioner's request for oral argument is denied as in our opinion the record and
briefs adequately present the positions of the parties.
136 NLRB No. 100.