Int'l Brotherhood of Electrical Workers, Etc.

National Labor Relations Board - Board Decisions

Sep 18, 1962

138 N.L.R.B. 689 (N.L.R.B. 1962)

INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 689
Finally, I deem wholly without merit the contention that the Respondent violated
Section 8 (a) (5) of the Act by replacing economic strikers as a means of forcing the
Union to accede to its bargaining proposals . If the Respondent had a lawful right to
operate its business by replacing its striking employees , which I found it had, Section
8(a) (5) is not violated merely because the clear effect of this action was to weaken
the Union's bargaining position and to make it more amendable to acceptance of
the Respondent 's proposals . This was no more unlawful than would have been the
successful conduct of the strike of the Union to weaken the position of the Respond-_
ent and thus to wring from it the concessions demanded by the Union.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. American Optical Company, Dubuque, Iowa, is engaged in commerce within,
the meaning of Section 2(6) and ( 7) of the Act.
2. United Optical Workers Union Local 853 is a labor organization within the.
meaning of the Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and!
( 5) of the Act have not been sustained.
[Recommendations omitted from publication.]
International Brotherhood of Electrical Workers, AFL-CIO,
and its Local 639 and Bendix Radio Division of The Bendix
Corporation
International Brotherhood of Electrical Workers, AFL-CIO,
and its Local 639 and Ets-Hokin & Galvan , Inc. Cases Nos.
21-CD-106-1 and ?1-CD-106-92. September 18, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following
charges filed by Bendix Radio Division of The Bendix Corporation,,
herein called Bendix, and by Ets-Hokin & Galvan, Inc., herein called
Ets-Hokin, alleging that International Brotherhood of Electrical
Workers, AFL-CIO, and its Local 639, herein together called the
IBEW or the Union, had violated Section 8 (b) (4) (D) of the Act,
by inducing or encouraging employees to engage in a work stoppage
and by threatening, coercing, or restraining employers for the purpose
of compelling Bendix to change work assignments from one group.
of employees to another. A hearing was held before Alvin Lieber-
man, hearing officer, between January 5 and 8, 1962, at which all par-
ties 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. Briefs filed by the Charg-
ing Parties and by the IBEW have been duly considered.
Upon the entire record in this proceeding, the Board makes the fol-_
lowing findings :
138 NLRB No. 78.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS Oil FACT
I. TILE BUSINESS OF THE COMPANIES
Bendix Radio Division, part of The Bendix Corporation, has its
-principal place of business in Towson, Maryland, and is engaged in
engineering, manufacturing, installing, and testing electronic equip-
ment and communications systems in various States of the United
States, including Camp Roberts, California, the place of business in-
volved in this proceeding. Annually, goods valued in excess of
$50,000 are shipped to Bendix's Camp Roberts operation from points
outside the State of California.
Ets-Hokin & Galvan, Inc., a California corporation, has its prin-
cipal office in San Francisco, California. It is engaged as an elec-
trical contractor in the building and construction industry in the va-
rious States of the United States, including Camp Roberts. Annually,
goods valued in excess of $50,000 are shipped to its Camp Roberts
operation from points outside the State of California.
We find that Bendix and Ets-Hokin are engaged in commerce with-
in the meaning of the Act and that it will effectuate the policies of the
Act to assert jurisdiction in this proceeding.
II. TILE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, AFL-CIO, and
its Local 639, are labor organizations within the meaning of the Act.
A. The dispute
1. The work in dispute
The work involved in the dispute which gave rise to this proceeding
.consists of the installation , calibration, and testing of electrical and
electronic equipment at Camp Roberts , California . For this work,
Bendix uses field engineers and service technicians who are not mem-
bers of any union. According to the charges filed, the IBEW claims
that its electrician members are entitled to do this work.
2. The issue presented
Bendix is one of three prime contractors for the United States Army
Signal Corps in establishing a satellite communications system known
as Project Advent at Camp Roberts, California. Ets-Hokin is the
electrical subcontractor for Sylvania Electrical Products Co., Inc.,
another prime contractor on the project. The employees of Ets-
Hokin, mainly electricians, are members of the II3EW.
When Bendix commenced work on this project on about October
:30, 1961, with engineers and technicians brought to the job from other
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 691
locations , there resulted several conversations among its officials, agents
of the IBEW, and representatives of other contractors on the project,
including Ets-Hokin. Bendix and the Union disagreed sharply on
matters that related to the project operation and that were of basic
importance to them. They could not settle their differences , and, in
consequence , the IBEW started picketing the project and continued
to do so until December 21, 1961, when a Federal district court en-
joined the activity.
The discussions that went on betwee.t Bendix and the IBEW, the
picketing that took place, and certain handbills distributed simultane-
ously by the IBEW, all related directly to the engineers and techni-
cians on the job, the work they were doing, and the wages they were
receiving. The principal question, indeed the only one of determina-
tive importance raised by this record, is whether, as the charges allege,
an object of the Union 's pressure upon Bendix was to compel it to
cease using its own employees and to assign the work they were do-
ing to IBEW electricians instead.
3. Contentions of the parties
The IBEW 's sole contention is that the record does not reveal a
jurisdictional dispute cognizable under Section 10(k) of the statute
and that, therefore , the notice of hearing must be quashed. This
argument rests on two separate asserted grounds: ( 1) that the object
of the picketing and other pressure tactics was only to compel an
increase in wage rates and that the evidence is insufficient to prove
an intent to force reassignment of work from one group of employees
to another; and (2) that because one group of employees-the engi-
neers and technicians employed by Bendix-are not represented by
any labor organization, they cannot be viewed as a claiming group
of employees within the intendment of Section 8(b) (4) (D).
Bendix, of course, argues that the evidence supports and requires
a finding that the Union was at all times attempting to have its
members employed in place of the existing complement of workers
and that the dispute is properly before the Board for determination
under Section 10(k). Ets-Hokin entered the proceeding also by filing
a charge only because the Union's picketing interfered with its opera-
tion; it agrees with the contentions of Bendix.
As to what an affirmative assignment of the work should be by this
Board in the event the notice of hearing is not quashed, all parties are
in agreement. Consistent with its present contention that it never
sought to force a change of work assignment, the IBEW stipulated
with Bendix on the record that any positive award the Board might
make should be in favor of the engineers and technicians presently
employed, as the Company wishes to continue to make it. There is
662353-63-vol 138-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore no occasion to set out in this document, or to appraise the
merits of the various factual reasons advanced by Bendix in justifica-
tion of its existing practice at this project.
4. Applicability of the statute
The IBEW's argument that nonunion, or unrepresented, employ-
ees performing disputed work on assignment by an employer may
not, as a matter of statutory construction, constitute a claiming class
or group of employees under Section 8(b) (4) (D) is clearly without
merit. Of the approximately 11 persons brought by Bendix to Camp
Roberts to do this work, 3 testified that they desire to continue on the
job. The Board has long held that such employees have standing
to claim disputed work in these proceedings even though no union
speaks on their behalf.' And the recent Supreme Court decision in
the CBS case lends some support to the Board's view. Thus the
Supreme Court said: ". .. Section 10(k), like Section 8(b) (4) (D),
extends to jurisdictional disputes between unions and unorganized
groups as well as to disputes between two or more unions, .. ." 2
Moreover, the legislative history indicates persuasively that this
interpretation of the statutory language comports with the congres-
sional intent. Senators Murray and Pepper, in criticizing the Joint
Conference Report which recommended the section as finally enacted,
confirmed this view. Thus, in an analysis directed to the Senate,
Senator Murray stated that :
. .. the changes made by the conference committee in paragraph
(D) [of Section 8 (b) (4) ] would make it possible for an employer
in the allocation of work tasks to favor the members of a non-
unionized craft at the expense of a craft which has been unionized.
The provision as it originally appeared in the Senate Bill pro-
hibited strikes or boycotts for the purpose of requiring an em-
ployer to assign to members of a particular union work tasks
assigned by the employer to members of some other union. The
Senate bill thus limited this prohibition to controversies between
two or more labor organizations over the right to perform par-
ticular work tasks. The provision as amended by the conference
committee, however, prohibits strikes or boycotts to require an
employer to assign particular work to employees in a particular
union or in a particular trade, craft, or class rather than to em-
ployees in another union or in another trade, craft, or class. The
effect of this change is to proscribe the use of strikes or boycotts
i Local Union No. 5-265, International Woodworkers (Willamette National Lumber Co ,
107 NLRB 1141, 1142-1143; International Longshoremen and Warehousemen's Union,
Local No 16, CIO. (Juneau Spruce Corp.), 82 NLRB 650
2 N L.R.B. v. Radio and Television Broadcasting Engineers Union, Local 1212 (Columbia
Broadea8ting System ), 364 U.S. 573, 584
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 693
where an employer attempts to undermine a craft union by dis-
criminatory assignments of work tasks to unorganized employees
in another trade, craft, or class. The conference committee
version thus goes far beyond the original objective of preventing
jurisdictional strikes and boycotts and creates a statutory tech-
nique for undermining craft unions-'
Senator Pepper's comments were of a similar nature :
... if in a given plant there is a carpenters' group, we will say,
engaged in certain work, the employer, if he wishes to break the
effect of the union, can start transferring work, not to another
union, but to another craft or class or another trade. He need
not transfer it to a union. He can transfer work from a union to
the nonunion group, and thereby break the union by taking the
work away from them. It is another case not of doing what the
President and the people of the country want, which is to resolve
jurisdictional strikes and bring about some kind of a solution
which will be effective, but the bill and the conference report deny
unions the right to strike and effectively to protest against their
work being taken away from them and given to nonunion workers.
That is not the case of a jurisdictional strike; it is a denial of the
right of the workers to defend themselves by their collective
action. The American Federation of Labor would be particularly
affected by this provision, because they have more craft unions
than does the CIO or any other union organization to my
knowledge.4
In response to these opinions of Senators Murray and Pepper,
Senator Taft, a proponent of Section 8(b) (4) (D) as enacted, stated:
... It is contended that the addition of the condition "another
trade, craft, or class" has transformed this subsection into what
started to be a prohibition of jurisdictional strikes into a pro-
hibition preventing one union from striking even though no
other union was in the picture. I have no hesitation in saying
that this subsection applies not only to strikes over the assignment
of particular work to one union rather than another, but also to
the assignment of work to one union rather than another group
of employees.'
The IBEW's second contention-that its object was not to compel
Bendix to change the work assignment from the out-of-town em-
ployees to IBEW members or local electricians-presents a closer
question. Affirmatively, the Union says that its only object was to
protest Bendix's refusal to pay the wage rates dictated by the Davis-
893 Cong. Rec . 6503 ( June 6, 1947)
4 93 Cong Rec. 6513-6514 (June 6, 1947).
6 93 Cong Rec . 6860 ( June 12 , 1947).
694 DECISIONS OF NATIONAL LABOR RELAT16199 BOARD
Bacon Act for construction work on Federal Government contracts.
And there is no question but that much of the talking that went on
and of the appeals to employees to quit work and to the public at
large was in terms of a wage-scale dispute. The record shows that
Bendix and the IBEW disagreed at all times over the question
whether the precise work being done by these 11 men was encom-
-passed within the reach of the Davis-Bacon Act. For purposes of
,our decision, the arguments and counterarguments used in this dispute
and their relative merits are beside the point. The U.S. Army Sig-
nal Corps, which contracted with Bendix, was of the view that the
Davis-Bacon Act did not apply to this work and therefore advisedly
excluded it from the provisions of the contract with Bendix. The
record indicates support of the Signal Corps in an opinion from the
office of the Comptroller General. During the picketing, on the other
hand, the IBEW appealed to the Solicitor of the Department of Labor,
and that office, on investigation, agreed with the IBEW. Bendix
nevertheless continued in its view that it was paying proper rates.
Our attention is directed, however, to further evidence in the rec-
ord-in the form of things said and written by the IBEW's agents-
which are urged as indicating that the real object of the strike, or at
least an object equal in importance to the matter of proper wages, was
to remove the visiting engineers and technicians from the project.
Bendix and Ets-Hokin, the electrical subcontractor, insist that what
the IBEW was seeking ultimately to achieve was to have Bendix,
like Sylvania, the other prime contractor, subcontract the work in
question, in which event only local electricians or IBEW members
would be hired. If in fact such transfer in assignment of the work
was an object of the strike, the Respondent's conduct fell within the
clear proscription of Section 8 (b) (4) (D) of the Act, as alleged in
the charges.
As the Board has had occasion only recently to reiterate, we are not
required, in these proceedings under Section 10 (k), to find in fact
that the union charged with a violation has engaged in conduct viola-
tive of the Act. All that need appear before the Board makes a posi-
tive determination of the jurisdictional work dispute is that there is
reasonable cause to believe that a violation of Section 8 (b) (4) (D) has
occurred. Viewing the record before us in its entirety, we believe
that such a showing has been made in this case.
The main conference, 10 days before the strike, took place on No-
vember 3, 1961, and there were in attendance representatives of Ets-
Hokin, the electrical contractor with whom, ostensibly, the IBEW
should have had no concern if only Bendix's payment to its own em-
ployees was the subject of dispute. In urging that Bendix should
pay higher rates, the Union also suggested at this conference that the
demand could be satisfied by Bendix contracting the work out to an
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 695
electrical subcontractor. Beyond this, there is conflict in the testi-
mony as to what was said. Clearly there was much talk about whether
the work was or was not construction work, and therefore subject to
the Davis-Bacon Act. According to a Bendix witness, IBEW Inter-
national Representative Morrell also said : "I wonder why there
wouldn't be some way to compromise so some of the work could be
subcontracted to our people," and "I think if you would be willing to
sit down and hash this out, we could come to an understanding as to
how this could be done and some of our people get some of this work."
At one point during the conference Bendix offered to use IBEW elec-
tricians if extra help should be needed, but Morrell answered : "You
are saying if we are on standby, we might get a day's work. We don't
want standby. We want work."
The IBEW's witness denied these direct quotations; he explained
that phrase such as "our people" and "local people" were spoken in
the context of protecting the local existing wage scale from deteriora-
tion by the undercutting effect inherent in Bendix's lower payments
to the out-of-towners. He did recall that the International Rep-
resentative said : "We are not only union members, but taxpayers as
well, and the fact of bringing in people from all over the free world
at the government's expense on negotiated cost-plus contracts, when
there's capable people there, union or nonunion, after all, I think this
is of some concern, and that it has been all the way along. And this
was expressed." He also admitted that at an injunction hearing in
the Federal court the Union's International Representative testified :
"I said I hoped they would find some solution whereby this work could
be divided up for our people," and "we were concerned in the people
locally getting this work that were out of work."
When the picketing started, on November 13, the pickets carried
signs saying only that Bendix's electrical work was nonunion, and
that the Company "does not meet prevailing area wage, conditions
and benefits in union electrical contracts." On the same day, however,
the Respondent distributed handbills calling upon Bendix's employees
to quit work, and these handbills not only spoke of the Davis-Bacon
wage dispute, but also read : ". . . this employer brought in employees
from other parts of the country to perform electrical work, and has
refused to hire local electricians or to provide union wages, condi-
tions and benefits provided by decent union contractors in this area."
A second written statement circulated by the Respondent on Decem-
ber 11, after its members working for Ets-Hokin on the project had
honored the picket line and struck, spoke at length of the Davis-Bacon
wage dispute, but also said "there are trained and experienced
personnel locally who are willing and able to install this electrical
equipment."
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are satisfied, on the basis of the foregoing facts and the record
as a whole, that there is reasonable cause to believe that an object of
the Respondent's picketing and handbilling of the project which Ben-
dix was operating was to force assignment of work away from the
Bendix employees and to union members and local electricians. Ac-
cordingly, we find that the dispute is properly before the Board
for determination under Section 10(k) of the Act.'
5. Merits of the Dispute ,
As stated above, both the Company and the IBEW agreed that if
the Board found reasonable cause to believe an unfair labor practice
occurred, the work assignment should be made in favor of the em-
ployees doing the work at the time of the events. Therefore, in ac-
cordance with the stipulation of the parties, we shall determine the
dispute by assigning the work to the engineers and technicians who
were employed by the Company for this purpose. In consequence,
we shall also determine that the IBEW was not and is not entitled,
by means proscribed by Section 8(b) (4) (D) of the Act, to force
or require Bendix to assign the disputed work to its members or other
local electricians.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following determinaiton of dispute,
pursuant to Section 10 (k) of the Act :
1. Employees engaged as engineers and technicians by Bendix
Radio Division of The Bendix Corporation in the installation, cali-
bration, and testing of electrical and electronic equipment at Camp
Roberts, California, are entitled to the assignment of such work.
Accordingly, International Brotherhood of Electrical Workers, AFL-
CIO, and its Local 639, are not entitled, by means proscribed by Sec-
tion 8(b) (4) (D) of the Act, to force or require Bendix to assign the
above-mentioned disputed work to its members or other local
electricians.
2. Within 10 days from the date of this Decision and Determination,
the Union shall notify the Regional Director for the Twenty-first
Region, in writing, whether or not, it will refrain from forcing or
requiring Bendix, by means proscribed by Section 8(b) (4) (D), to
assign the work in dispute in a manner inconsistent with the above
determination.
G In reaching the opposite conclusion , we believe our dissenting colleague has failed to
give proper weight to all of the record evidence and has failed to apply the proper test
for determining whether a cognizable jurisdictional dispute exists.
LARRY FAUL OLDSMOBILE CO., INC. 697
MEMBER FANNING, dissenting :
I cannot find that an object of the Union's picketing in this case was
to force or require Bendix to assign work being performed by its
employees to members of the Union, or for that matter to local em-
ployees. In my opinion, the record establishes that the Union's object
was to force Bendix to acknowledge the applicability of the Davis-
Bacon Act to the work being performed by its employees and to pay
the wage rates required under that Act. I note that the Department
of Labor had ruled that the Davis-Bacon Act was applicable to the
work involved, which determination was ignored by the Army Signal
Corps, the Government contracting agency, and by Bendix. Whether
Bendix would have selected members of the Respondent Union rather
than its own employees to perform work under Davis-Bacon stand-
ards is, in my opinion, a matter of speculation. Certainly, any hope
the Union may have entertained that local employees, including mem-
bers of the Union, may have secured employment if Bendix complied
with the ruling of the Department of Labor does not fall into the
category of an unlawful object under Section 8(b) (4) (D).
For the foregoing reasons, I find that the dispute was not a juris-
dictional dispute within the meaning of Sections 8(b) (4) (D) and
10 (k) and I would quash the notice of hearing.
Larry Faul Oldsmobile Co., Inc. and International Vehicle
Salesmen 's Union of America (Ind.). Case No. 13-CA-4607.
September 19, 1962
DECISION AND ORDER
On May 31, 1962, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting brief, and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, briefs, and the entire record in this
138 NLRB No. 81.