General Drivers

National Labor Relations Board - Board DecisionsFeb 28, 1956

115 N.L.R.B. 617 (N.L.R.B. 1956)

GENERAL DRIVERS 617' 2.United. Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States and Canada , Local 231, AFL, is a labor organization- within the meaning of Section 2 (5) of the Act. 3. By maintaining an agreement which contains and involves terms and condi- tions of employment requiring membership in good standing in Respondent, Re- spoodent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (b) (1) (A) and (2 ) of the Act. 4. The unfair labor practices found herein are unfair labor practices within theâ€¢ meaning of Section 2 (6) and (7) of the Act. 5. Respondent has not engaged in unfair labor practices within the meaning of the Act with respect to Vernon L. Bryant. [Recommendations omitted from publication.? General Drivers , Warehousemen and Helpers , Local Union No. 968, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO; and Houston Building and Construction Trades Council , AFL-CIO and Farnsworth & Chambers Co., Inc. Case No. 39-CD-18. Febru- ary 28,1956 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which provides 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 determine the dispute out of which such unfair labor practice shall have arisen. On October 3, 1955, Farnsworth & Chambers Co., Inc., herein called the Company, filed with the Regional Director for the Sixteenth Region a charge against General Drivers, Warehousemen and Help-- ers, Local Union No. 968, International Brotherhood of Teamsters,, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, herein called the Teamsters, and Houston Building and Construction Trades Council, AFL-CIO, herein called the Council, alleging that they had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. The charge alleged in substance that the Teamsters and the Council had induced and en- couraged employees of the Company to engage in a strike or con- certed refusal to work in the course of their employment with an object of forcing or requiring the Company to assign particular work on the San Jacinto Water Treater Plant project, Harris County,, Texas; hereinafter called the San Jacinto project, to employees who, are members of the Teamsters, rather than to other employees. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charges and provided for a hearing upon 115 NLRB No. 95. X618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -due notice to all the parties. The hearing was held before Evert P. Rhea, hearing officer, on January 5, 6, and 9, 1956, at Houston, Texas. At the hearing, the Teamsters, the Council, and the Company appeared and were afforded full opportunity to be heard, to examine and cross- ,examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. The Company filed a brief with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. The business of the Company The Company is a corporation engaged as a general contractor in ,construction work in the States of Texas, Oklahoma, Georgia, New Mexico, Tennessee, and other States of the United States. Its dollar volume of business for the calendar year 1955 exceeded $50,000,000. Of this dollar volume, services valued in excess of $10,000,000 were ren- dered to other enterprises directly engaged in interstate commerce. We find that the Company is engaged in commerce within the meaning ,of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case. 2. The labor organizations The Teamsters and the Council are labor organizations within the meaning of the Act. 3. The dispute a. The facts On Wednesday, September 28, 1955, two business agents of the Teamsters, Moreau and Murphree, arrived during working hours at the San Jacinto project site where they made certain demands upon Lewis A. Duncan, project manager for the Company. Demands in- cluded, inter alia, that all materials delivered to the project site, with certain exceptions, be signed for exclusively by material checkers,' who were members of the Teamsters. Duncan refused to accede to these demands, and thereafter, on the same day, Teamster Steward Johns called the men off the job on instructions from Murphree. The next day, Thursday, September 29, Duncan received a visit from a committee of the Council including, in addition to Moreau, ' Other demands not material here resulted in a charge against the Teamsters and the 'Council in Case No 39-CC-26 (not reported in printed volumes of Board Decisions and Orders) That case was settled on the basis of a settlement agreement executed between the Teamsters and the Company on December 23, 1955, and approved by the Officer in Charge of the Houston Subregional Office on December 27, 1955. Subsequently, the charge .against the Council in that case was withdrawn. GENERAL DRIVERS 619 Murphree, and Johns, the Council's executive secretary, Joe Marasek, and the business agents of at least two other building trades unions on the job. The committee's demands were substantially identical to those that the Teamsters had made the day before. As Duncan re- jected the demand, the Council began picketing the San Jacinto project site the following day, Friday, September 30. The picket sign bore the legend : HOUSTON BUILDING TRADES COUNCIL IN DISPUTE WITH FARNSWORTH & CHAMBERS CO., INC. THIS JOB A. F. OF L. Ch-5428 A complete stoppage of work on the project resulted from this picketing both Friday and the following Monday, October 3, 1955, the date on which the charge herein was filed. On advice of counsel for the Teamsters, the strike and all picketing was called off there- after, and there has been no interruption in the work on this project since October 3. b. Contentions of the parties The Company contends that by the aforesaid conduct the Council and the Teamsters violated Section 8 (b) (4) (D) of the Act. The Council moved at the beginning of the hearing that the charges be dismissed with respect to the Council as the dispute is between the Company and the Teamsters. Thereafter, the Council did not further participate in the hearing. The Teamsters joined the Council in this motion.' The.Teamsters contends that its members are entitled to the work under the terms of its contract with Houston Chapter of the Associated General Contractors of America, Inc., hereafter called the AGC, to which the Company is a party. It also asserts that there is an- agreed-upon method for adjustment of this dispute under Section 10 (k) of the Act. 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 Act, and the Regional Director was satisfied, on the basis of his investigation, that there was reasonable cause to believe that a violation of the section had been committed. However, under Section 10 (k) of the Act, which empowers and directs the Board to hear and determine such disputes, the Board is prohibited from determining the dispute where there is evidence that L The motion to dismiss the charges with respect to the Council is hereby denied, as it is clear from the inscription on the picket sign and the participation of the Council in making demands on the Company, that the Council was a party to the inducement and encouragement of employees. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the parties have agreed upon methods for the voluntary adjustment of the dispute. It appears that the National Joint Board for Settle- ment of Jurisdictional Disputes has refused to consider the dispute herein, apparently because this is not a dispute between two or more" unions. 'Moreover, we find nothing in the AGC contract which can be deemed to constitute an agreed-upon method for adjustment of the kind of dispute involved in this case. We find, therefore, that the parties have not agreed upon a method for the adjustment of this dis- pute. In a proceeding under Section 10 (k), the Board is required to find that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated before proceeding with a determination of the dis- pute out of which the alleged unfair labor practice has arisen. The record before us establishes that there is reasonable cause to believe that the Respondents induced and encouraged employees of the Com- pany to engage in a concerted refusal to perform services in order to force or require the Company to assign to members of the Teamsters the duty of signing for incoming materials although the Company had assigned this task to others. The Board has held that such circum- stances are sufficient to invoke the Board's jurisdiction to hear and determine a dispute within the meaning of Sections 8 (b) (4) (D) and 10 (k) of the Act.' We find, therefore, that the dispute in ques- tion is properly before us for determination under Section 10 (k) of the Act. d. The merits of the dispute At the time that this dispute occurred, the duty of signing for in- coming materials, for which the Teamsters here demands the exclu- sive right, was being performed on the basis of convenience at the discretion of the project manager. Some of the signing was being per- formed by the Teamsters' material checkers. Others also signing in- cluded Project Manager Duncan himself, other supervisors, office clerical employees, tnuekeepers, guards, and various other employees, some of whom are members of building trades unions on the project. It is well established that an employer is free to make work assign- ments without being subject to strike pressure of a labor organization seeking work for its members, unless the employer thereby is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing the disputed work, or unless the employer is bound by an agreement to assign the disputed work to the claiming union.4 As it does not appear that there is an order or certification of the Board invoked in this case, there 3Local 450 , Inteâ€¢nat2onal Union of Operating Engcneeis , AFL, 112 NLRB 437 * Local Union No 48, Sheet Metal Wo,ke,s ' International Assmatton . AFL-C10, 114 NLRB 1415 GENERAL DRIVERS 621 remains for consideration in determining this dispute the Teamsters' contention that it has a contractual right to the work. The Teamsters' contention that its members are contractually en- titled to the work is primarily based upon section 7 of the working conditions, expressly made "an integral part of the agreement" with the AGC by section 3 thereof. Section 7 provides : The first Material Checkers employed on the job shall include the operation of a pick-up truck that may be assigned exclusively to a jobsite warehouse. The Teamsters also call attention to section 1 (b) of the working con- ditions which provides : When there is overtime to be worked, the truck driver, truck Fore- man, warehouse Foreman, material checker, warehouseman, or helpers who have been performing their duty will be allowed to work the overtime. [Emphasis supplied.] In addition, testimony of record indicates that none of the AGC con- tracts with other unions, to which the Company is bound, provide for a material checker. - We find nothing in these contract provisions which has the effect of exclusively assigning to employees represented by the Teamsters the duty of signing for materials. In fact, these provisions do not men- tion the duty of signing for materials as being among the material checkers' duties. Accordingly, it is clear that the contract on its face makes no exclusive assignment of the disputed work to employees rep- resented by the Teamsters. Further, uncontradicted evidence intro- duced by the Company shows that during 1954 contract negotiations the Teamsters had proposed contractual assignment of the disputed work, that the AGC negotiators had refused to agree to this proposal, and that the proposal had been withdrawn by the Teamsters. Appar- ently the Teamsters did not reiterate its demand during the 1955 ne- gotiations resulting in the current contract which is unchanged with respect to the matters at issue here, as compared to the 1954 agreement. We find, accordingly, that the Teamsters and the Council are not lawfully entitled to require the Company to assign the work in dispute to company employees who are members of the Teamsters. DETERMINATION OF THE DISPUTE Upon the basis of the foregoing findings, and the entire record in this case, the Board makes the following determination of dispute pur- suant to Section 10 (k) of the Act. 1. General Drivers, Warehousemen and Helpers, Local Union No. 968, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, and Houston Building and 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Construction Trades Council , AFL-CIO , are not and have not been lawfully entitled to force or require Farnsworth & Chambers Co., Inc., to assign the duty of signing for all materials to members of-,the Teamsters rather than to other employees. 2. Within ten (10 ) days from the date of this Decision and Determi- nation of Dispute , the Respondents , the Teamsters and the Council, shall notify the Regional Director for the Sixteenth Region , in writ- ing, as to what steps they have taken to comply with the terms of this Decision and Determination of Dispute. Orkin Exterminating Company, Inc. (of Kentucky ) ' and Inter- national Chemical Workers Union , AFL-CIO,' Petitioner. Case No. 9-RC-2508. February 28,1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Richard C. Curry, hearing 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, and the entire record and decision in Case No. 5-RC-1498,3 which is hereby incorporated in and made a part of the record in this case, the Board finds : 1. The Employer, a Kentucky corporation, is engaged in termite and exterminating work in and around Louisville, Kentucky. The Petitioner herein seeks to represent a unit of all production and main- tenance employees at the Employer's operations in Louisville. The Employer contends that the petition should be dismissed because its operations are local in character and do not meet the Board 's minimum - standards for the assertion of jurisdiction. The record shows that for the fiscal year ending October 31, 19549 the Employer's purchases from out of State amounted to approximate- ly $9,620. For the same period the total sales and services rendered by the Employer amounted to approximately $131,402, of which amount $26 ,594 were out-of-State sales. These operations of the Em- ployer, considered alone, do not meet the Board's jurisdictional stand- ards.' The Petitioner contends, however, that the Employer is an integral part of a multistate enterprise whose total operations meet The name of the Employer appears in the caption as amended at the hearing n The AFL-CIO having merged since the hearing in this case, we are amending the identification of the Petitioner 's affiliation. 8 Orkin "The Rat Man," Incorporated, 112 NLRB 762 The parties herein requested the Board to take official notice of the record and decision in that representation case * Jonesboro Crain D) gang Cooperate ce, 110 NLRB 481 ; Central Valley Pipe Companyâ€ž 111 NLRB 233 115 NLRB No. 93.