Local 450, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Mar 3, 1959

123 N.L.R.B. 1 (N.L.R.B. 1959)

Local 450, International Union of Operating Engineers, AFL-
CIO, A. J. Flowers, Trustee for Local 450, International Union
of Operating Engineers , AFL-CIO and Painting and Decorat-
ing Contractors of America , Houston Chapter , on Behalf of
its Member, Sline Industrial Painters , and its Other Members.
Case No. 39-CD-f5. March 3, 1959
DECISION AND ORDER
On December 19, 1958, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a supporting brief.
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 Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
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 and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the additions noted below.'
'At the hearing the Respondent sought to prove that prior to the 10(k) proceeding
the dispute which had given rise to that proceeding had been voluntarily adjusted before
the National Joint Board for the Settlement of Jurisdictional Disputes. The Trial
Examiner refused to receive such testimony on the ground that the issue had been liti-
gated in the 10(k) proceeding and that the Respondent made no claim that the evidence
sought to be produced was newly discovered or unavailable at the time of that hearing.
He accordingly rejected the Respondent's offer of proof. For the same reasons, the
Trial Examiner also denied the Respondent's motion to adjourn the hearing for the
purpose of securing such proof by the depositions of certain witnesses. To all of these
rulings the Respondent excepts, and now asks the Board to reopen the hearing so as to
permit it to adduce the evidence which the Trial Examiner had declined to receive.
We find no error in the Trial Examiner's rulings. The Respondent's exceptions thereto
are, accordingly, overruled. (See Local 450, International Union of Operating Engi-
neers, API-C10 (C. A. Turner Construction Cornpanij an 1 IIinote Electric Conatia:ny).
121. NLRI: 1404). Moreover. we note that after the issuance of the Decision and
Determination of Dispute in the 10(k) proceeding, the Board denied a similar motion
on the part of the Respondent. In view of the foregoing, we hereby deny the Respond-
ent's present motion to reopen the hearing in the instant proceeding.
'We find no merit in the Respondent's contention that because the Board failed to
make an affirmative award of the work in dispute in this case, its Decision and Deter-
mination of Dispute herein is invalid and unenforceable. Local 173, Wood, Wire and
Metal Lathers' International Union, AFL-CIO et at. (Newark & Essex Plastering Co.).
121 NIA;G 1004. To the extent that our decision herein may conflict with the deci-
sion of the Third Circuit Court of Appeals in N.L.R.B. v. United Association of Journey-
123 NLRB No. 2.
508SS0-60-vol. 123 2 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found in agreement with the Trial Examiner that the
Respondent has engaged in certain unfair labor practices in violation
of Section 8(b) (4) (D) of the Act, we shall order the Respondent to
cease and desist therefrom and take affirmative action necessary to
effectuate the policies of the Act.
We also find that its present and similar past conduct 3 indicates
a likelihood that the Respondent will continue to commit such viola-
tions when situations comparable to that presented in the instant case
occur within its jurisdiction. We shall therefore order the Respond-
ent to cease and desist from the commission of similar unfair labor
practices not only with respect to Sline Industrial Painters, but also
with respect to other employers.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relatilons Board hereby orders that Respondent Local 450, Interna-
tional Union of Operating Engineers, AFL-CIO, its agents, officers,
representatives, successors, and assigns, shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of Tampco Piping, Inc., or the employees of any other
employer, to engage in, a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities,
or to perform any services, where an object thereof is to force or re-
quire Sline Industrial Painters, or any other employer, to assign
particular work to members of Respondent rather than to other em-
ployees, except insofar as any such action is permitted under Section
8(b) (4) (D) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at the Respondent's business office and meeting halls copies
of the notice attached hereto marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by an authorized representative
men and Apprentices of the Plumbing and Pipe Fitting Industry etc. (Frank W. Hake),
242 P. 2d 722, or the decision of the Seventh Circuit Court of Appeals in N.L.R.B. v.
United Brotherhood of Carpenters, etc. (Weadnagel & Company), 261 F. i2d 166, we respect-
fully disagree with the said courts.
3 See, for example, W. J. Hedrick, et at., d/b/a Industrial Painters and Sandblasters,
1.17 NLRB 1301; 115 NLRB 964; C. A. Turner Construction Company and Hinote Electric
Companif, supra. r
4In the event that this Order is enforced' by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 3
of the Respondent, be posted by the Respondent immediately upon re-
ceipt thereof and be maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 450, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in, or induce or encourage employees of
Tampco Piping, Inc., or the employees of any other employer, to
engage in a strike or concerted refusal in the course of their em-
ployment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities,
or to perform any services, where an object thereof is to force or
require Sline Industrial Painters, or any other employer, to assign
particular work to members of our Union rather than to other
employees, except insofar as any such action is permitted under
Section 8(b) (4) (D) of the Act.
LOCAL 450, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended, 61 Stat. 136, 29 U.S.C. Sec. 151 et seq., herein called the Act. This
proceeding follows a determination of dispute 1 by the National Labor Relations
Board on February 27, 1958 (119 NLRB 1725).
In the Decision and Determination of Dispute the Board made certain findings
of fact which are definitive so far as this Trial Examiner is concerned.
On April 4, 1957, Painting and Decorating Contractors of America, Houston
Chapter, on behalf of its member, Sline Industrial Painters, and its other members,
1 Rules and Regulations of the Board, Series 7, as amended, Sec. 102.79-102.83.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by an authorized representative, filed a charge asserting therein that Local 450,
International Union of Operating Engineers, AFL-CIO (hereinafter called Local
450), had contravened Section 8(b) (4) (D) of the Act:
On or about April 3, 1957, the above-named labor organization, by its
officers, agents, representatives and employees, engaged in, or induced or
encouraged the employees of Tampco Piping, Inc., A. A. Pruitt Co., P. A. New-
man & Son and Armstrong Cork Company to engage in a strike or a concerted
refusal in the course of their employment to use, process, transport or other-
wise handle or work on any goods, articles, materials or commodities, or
to perform any services where an object thereof is to force or require
Sline Industrial Painters at the project site where Sline Industrial Painters is
performing construction work for Monsanto Chemical Company at Texas City,
Galveston County, Texas, to assign the work of operating a compressor to
a member of said Local 450 instead of to a painter employee, a member
of Painter's Local Union 585.
On June 3, 1958, the General Counsel of the National Labor Relations Board
caused a complaint and notice of hearing to be signed and issued by the Regional
Director for the Sixteenth Region, the complaint being addressed against Inter-
national Union of Operating Engineers, AFL-CIO; also to an A. J. Flowers,
trustee for Local 450. In the complaint it is set forth that the Board, in its
Decision and Determination of Dispute pursuant to Section 10(k) of the Act,
determined the issue as follows:
1. Local 450, International Union of Operating Engineers, AFL-CIO, is
not and has not been lawfully entitled to force or require Sline Industrial
Painters to assign the work of operating the air compressor to employees who
are . members of Local 450, rather than to Sline Industrial Painters' own
employee's who are not members of that labor organization."
2. The Respondent [Local 450] shall, within ten (10) days from the date
of this Decision and Determination, notify the Regional Director for the
Sixteenth Region in writing whether or not it accepts the Board's determination
of this dispute, and whether or not it will refrain from forcing or requiring
Sline Industrial Painters of Houston, Texas, by means proscribed in Section 8
(b) (4) (D) of the Act, to assign the work of operating the air compressors
to members of Local 450 rather than to employees of Sline Industrial Painters
who are not members of Local 450.
The complaint alleges, in substance, so far as affirmative charges are made,
that Local 450 and its agents have been engaged in a labor dispute with Sline
Industrial Painters (hereinafter sometimes called Sline) concerning the assignment
of work involved in the operation of a motor driven air compressor. The complaint
goes on to say that on or about April 2, 1957, and at various times thereafter,
Local 450 repeatedly demanded of Sline that the operation of the motor driven
air compressors, located on a construction site owned by Monsanto at Texas City,
Texas, be assigned to its members. Further, it is alleged, on or about April 3, 1957,
and again on or about April 12, 1957, at the Monsanto plant, Local 450 engaged in
a strike which was maintained until on or about April 10, 1957, and April 15, 1957,
in order to support its demand that the work necessary to the operation of the
motor driven air compressor be given to a member or members of Local 450.
The Respondent, Local 450, by counsel carefully answered the allegations of the
complaint and effectively denied that it had been in violation of Section 8(b) (4) (D)
and Section 2(6) and (7) of the Act.2
Violations of the following substantive provisions of the Act are alleged
RIGHTS OF EMPLOYEES
SEC. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in section 8 (a) (3).
UNFAIR LABOR PRACTICES
s s s s • .
Sec. 8 (b). It shall be an unfair labor practice for a labor organization or its
agents-
. . ♦ • • • 0
LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 5
In its answer , the Respondent sets up a number of affirmative defenses . It is said
in the answer that the Board "failed to comply with Section 102.73 of its own Rules
and Regulations by certifying the labor organization of the particular trade, craft or
class of employees which shall perform the particular work tasks in issue. " Because
of the foregoing failure the Respondent would respectfully show that the alleged
Decision and Determination of Dispute on February 27, 1958, is invalid , void and
unenforceable . The Respondent in its answer recognizes ( admits ) the making by
the Board of the Decision and Determination of Dispute under Section 10(k); it
denies that the Decision and Determination is a legal, valid or enforceable Decision
and Determination of Dispute and asks the Board to recognize that it has not made a
"Decision and Determination of Dispute "; denies that such "alleged Decision and
Determination of Dispute" was made pursuant to Section 10(k) of the Act; and
says that the Board failed and refused "to certify the labor organization or the
particular trade, craft or class of employees . . . which shall perform the particular
work tasks in issue or to make other disposition of the matter."
This case came on to be heard before the duly designated Trial Examiner at
Houston, Texas , on October 21, 1958 , and was closed on the following day. At the
hearing the General Counsel and Local 450 each was represented by counsel.3 Full
opportunity to be heard , to produce witnesses , to examine and cross -examine wit-
nesses , to argue orally upon the record , and to file briefs , proposed findings of fact,
and conclusions of law was afforded each party.
Certain motions made at the hearing on behalf of the Respondent to dismiss, for
adjournment , heretofore denied by the Trial Examiner , are now again denied, for
reasons set forth below.
Upon the whole record of the case, and after careful consideration , the Trial
Examiner makes the following:
FINDINGS OF FACT4
1. COMMERCE
Sline Industrial Painters is a Texas corporation with its principal office and place
of business in Houston , Texas, where it is engaged in industrial painting and where,
during the calendar year of 1956 , the period representative of all the times material
hereto, performed services valued in excess of $100,000 for the Monsanto Chemical
(4) to engage in, or to induce or encourage the employees of any employer to engage
in, a strike or a concerted refusal in the course of their employment to use, manu-
facture, process, transport , or otherwise handle or work on any goods, articles,
materials , or commodities or to perform any services , where an object thereof is :
(A) forcing or requiring any employer or self-employed person to join any labor
or employer organization or any employer or other person to cease using , selling,
handling , transporting , or otherwise dealing in the products of any other producer,
processor , or manufacturer , or to cease doing business with any other person;
3 -Mr, Brock , appearing on behalf of the Union and Homer C. Pierce, expressly stated
that he did not appear for A. J. Flowers , named in the complaint as trustee for Local
450. No appearance was made by or on behalf of the trustee.
* The following stipulation was made between counsel for the General Counsel and
counsel for the Respondent:
Mr. Bnocx : The Respondent , in an effort to expedite this hearing and in order
to still fully cover all the issues, is willing to agree with the General Counsel that
the entire transcript in the 10 (k) hearing in case No . 39-CD-25, which transcript
consists of 441 pages , and is included in 3 volumes , may be incorporated into this
record and will be considered the evidence that would be given by the witnesses
if they were called today to appear and testify , with the understanding that if
either the General Counsel or I, as counsel for the Respondent , feel that the evi-
dence heretofore referred to does not cover any particular point at issue in this
case, then , of course , the parties may under this proposed stipulation offer any fur-
ther evidence touching any other issue . . . and we would like the further under-
standing that Respondent [ Local 450 ] in agreeing to this is doing it with the
understanding that the Government through the General Counsel will furnish us
for our inspection and use, if need he, copies of the statements given by witnesses
called by the Charging Party in the 10 ( k) hearing.
(General Counsel by counsel joined in the stipulation so quoted and during the course
of the hearing furnished the statements of witnesses covered both in the 10(k) proceed-
ing and those "who might hereinafter be called " which he had in his file.)
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation at its plant in Texas City , Texas, and during the same calendar year,
Sline performed services outside the State of Texas, which services were valued in
excess of $600,000. Monsanto Chemical Corporation is a Delaware corporation
having one of its principal plants located in Texas City , Texas , where it has been
and now is engaged in the manufacture of heavy chemicals , organic chemicals, and
related products , and where , during the calendar year 1956, it sold and shipped goods
valued in excess of $500,000 from its Texas City plant to plants located outside the
State of Texas , and during that same time purchased and shipped to its Texas City
plant directly from points outside the State of Texas materials valued in excess of
$500,000.
This Trial Examiner finds , as alleged in the complaint , that Tampco Piping, Inc., a
Texas corporation , is subsidiary to Monical and Powell, Inc., the parent company
being a Texas corporation ; and further , that Tampco Piping, Inc., is an industrial
contractor engaged in the installation of piping and other industrial construction;
that during the year 1956, and at times material hereto, Tampco Piping, Inc., per-
formed services for Monsanto Chemical Corporation valued in excess of $400,000,
and during the same period of time performed services for Dow Chemical Company
valued in excess of $1,000,000.
II. THE LABOR ORGANIZATION INVOLVED HEREIN
Local 450, International Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act , has its principal office
in Houston , Texas, and is engaged in this locality in representing the interests of its
employee members.
III. THE UNFAIR LABOR PRACTICES
The Board , in its Decision and Determination of Dispute herein, found facts on
which it based its Decision and Determination . The Trial Examiner , having reviewed
the record in.the proceeding upon which the Decision and Determinaton is based, has
no comment to make with respect to the findings of fact as set forth in that document,
except to say that he is bound by the definitive findings of fact therein , and is bound
by the decision of the Board in that 10 ( k) proceeding . It would serve no useful pur-
pose for this Trial Examiner to summarize the evidence to be found within the tran-
script of record in,the 10(k) proceeding . The findings there are therefore adopted as
a part of the findings here.
At the hearing herein, the General Counsel undertook to supplement the facts
previously adduced through testimony of witnesses called in the 10 ( k) proceeding:
Counsel for the General Counsel, referring to the question of credibility raised
in the Decision and Determination of Dispute , called George W. Donovan , construc-
tion manager of Monsanto Chemical Company, who gave evidence concerning the
demand of Searcy for the compressor work. As pointed out by counsel for the
General Counsel , this question of credibility involves the question of whether Local
450 was responsible for the strike at Tampco and whether such strike occurred for
the purpose of forcing Sline to assign the compressor work to a member of the
Operating Engineers . On the basis of the testimony of Searcy in the 10 ( k) proceed-
ing, relating to the demand said to have been made by him for the compressor work,
this Trial Examiner has no difficulty in finding , after hearing the testimony of Dono-
van and reviewing the testimony of Searcy ( who did not testify at this hearing) that
Searcy did make demands for that work as asserted by the General Counsel. John
A. Piangenti , a timekeeper for Tampco Piping, who testified at the 10(k) hearing,
was called on behalf of the General Counsel "so that the Trial Examiner might
appraise him as a witness ." The Trial Examiner has no reason to believe that
Piangenti is or was not a credible witness and therefore accepts his testimony. In
the 10 ( k) proceeding , Piangenti testified concerning what the General Counsel calls
"the development of the inducement and encouragement brought about by Local 450
through its steward, Bud Miller, whereby it made its desires known directly to the
employees of Tampco , Farnsworth & Chambers , and other companies employed on
the Monsanto premises ." Leslie A . May, in charge of the work being done by Sline
for Monsanto , who testified in the 10 ( k) proceeding , testified herein with respect to
his conversation with Searcy on April 3, 1957 , when the latter tried to get Sline to
hire an Operating Engineer for the compressor work. In the instant proceeding, May
said that after Searcy had asked him.(May ) if he had an Operating Engineer working
and was told "no," Searcy asked him if he was going to hire one and that May again
told Searcy "no." As further evidence of the inducement and encouragement
LOCAL 450 , INT'L UNION OF OPERATING ENGINEERS 7
brought about by Local 450 , Robert A. Foreman , job superintendent for Farnsworth
& Chambers , testified concerning the inducement of his employee , O'Callaghan, by
Miller. Over the objection of counsel for the Respondent , Foreman was permitted
to testify that on April 3, between 11 a. m. and noon , O'Callaghan , who had been
operating a crane, descended to the ground and engaged in a conversation with Miller;
that when he (Foreman ) saw the operator was off the rig, he went over to find out
the reason and asked Miller, whom he did not know at the time, what the problem
was, and Miller in effect told him that he had orders that operators were to leave the
job at noon ; that he told Miller that he had concrete coming in and had to pour it,
would need the rig to pour it , and that if necessary he, Foreman , would operate the
machine himself . With that , he said, Miller left after saying that "We won't take
your operator" and to go ahead and pour the concrete . O'Callaghan , who worked
for Farnsworth only that 1 day, completed his day's work on the job. E . J. Pollack,
superintendent for Tampco , who testified in the 10 ( k) proceeding , was called as a
witness on behalf of the General Counsel ; he testified that all of the five or six oper-
ating engineers employed by Tampco left their jobs or struck on April 3, returned
to their jobs at a later date , and struck again on April 12, each strike being in con-
nection with the dispute raised by the Operating Engineers concerning the operation
of the compressor . (The April 3 compressor work concerned the work on the
Sline machine.)
At the hearing herein , Homer C. Pierce, business manager of Local 450, who
testified in the 10(k) proceeding , was called as a witness on behalf of the Respondent.
After Pierce was called, and it appeared to the Trial Examiner that his examination
by counsel for the Respondent was leading into the matter of processing the dispute
before the National Joint Board, he refused to permit testimony along that line.
Counsel for the Respondent , at this time , stated his position as follows:
Mr. BROCK: . And it was my position then and now that after the 10 (k)
hearing, after the Board issues its Decision and Determination of Dispute, after
they issue a complaint , as we were in a complaint hearing in this case , 39-CD-23
[C. A. Turner Construction Company and Hinote Electric Company, 121 NLRB
1404] , like we are in this case, it was my position that I am entitled to intro-
duce and to offer into evidence proof showing that no matter what the Board
thought on the record when they issued their Decision and Determination of
Dispute that we are entitled to offer other evidence ; if we failed then in the 10 (k)
hearing , we are entitled in the complaint stage to offer evidence cinching, tying
down the point , that this case has been voluntarily adjusted within the meaning
of the Act , and that is what I was wanting to do by this witness.
Thereafter , counsel for the Respondent made the following offer of proof:
Mr. BROCK: . . . I would like to offer to prove , if I were permitted to do so,
by Chairman R. J. Mitchell of the National Joint Board for the Settlement of
Jurisdictional Disputes , if I were permitted to call him as a witness and ask him
questions , that he would answer that the Painting and Decorating Contractors
of America and its membership, which includes Sline Industrial Painters, is a
member of and is bound by the National Joint Board for the Settlement of
Jurisdictional Disputes. So I have asserted to you what Mr. Mitchell and/or
Mr. John P. Dunlop would testify from the records , that the records of the
National Joint Board for the Settlement of Jurisdictional Disputes would show
that not only is Painting and Decorating Contractors of America bound by the
National Joint Board, but also the Sline Industrial Painters is. Now , the net
effect of that is to-of such testimony , is to have evidence in the record that
would show the Board there may not have been enough evidence in the 10 (k)
hearing, and we had to rule the way we did but there is evidence now pinpointed,
direct evidence that there has been a voluntary adjustment.
Also made a part of this, or as a separate, offer of proof was a request that the
hearing herein be adjourned on October 22, to be resumed in Washington , D.C., to
give the Respondent an opportunity to call as witnesses certain officials of the
Respondent and of the National Joint Board, Brock explaining that they were not
then available to testify because of the great distance between Washington and
Houston and the costs of travel and other expenses which would have had to be met
had they been called for appearance at this hearing . It appeared to the Trial
Examiner that, on the basis of the offer of proof above set forth , even were such
witnesses called, their testimony would be immaterial and irrelevant in that it would
not constitute new matters or matters not previously considered by the Board when
it made its Decision and Determination of Dispute.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner having adopted the findings of fact of the Board as set
forth in its Decision and Determination of Dispute in this case , now makes the
following:
Concluding Findings
Counsel for the General Counsel correctly states that the proceeding under
Section 10(k) deals solely with the "dispute out of which such unfair labor practices
should have arisen" and that "dispute " does not relate to inducement and encourage-
ment as referred to in the first sentence of Section 8(b) (4) (D ). The Trial Exam-
iner is convinced and finds , regarding the inducement and encouragement required
to be proven under Section 8(b)-(4) (D ) of the Act with respect to establishing viola-
tions thereof, that the evidence herein as offered at the hearing , uncontradicted, is
sufficient to establish the fact of contravention of the Act in this respect . It remains
only for the Trial Examiner to decide whether the Decision and Determination of
Dispute of the Board has been complied with by the Respondent . In that part of
its answer setting up certain affirmative defenses , the Respondent in effect admits that
it has not complied with the Decision and Determination of Dispute . Among these
affirmative defenses , discussed above , the Respondent asserts that the complaint
should be dismissed "because of the failure of the Board to follow the law, its own
rules and regulations and statements of procedure , and the mandates of Congress in
certifying in its `Decision and Determination of Dispute , the labor organization or
the particular trades, crafts , or class of employees entitled to perform the work
tasks in issue.' " ( As a general denial, the Respondent pleads that it has not failed
and refused to comply with the Decision and Determination of Dispute because the
Board has not yet rendered a valid and lawful decision and determination of dis-
pute. As a matter of law based on the facts , the Trial Examiner would find that
the determination of the Board is a proper and valid one under the Act.)
Upon the entire record the Trial Examiner finds that on or about April 3, 1957,
Respondent demanded of Sline that it assign the work on Sline's compressor to
members of Respondent , and that the strike which Local 450 imposed thereafter had
as its objective the enforcement of that demand ; and that by that conduct the
Respondent violated Section 8(b),(4) (D ) of the Act . Local 450 , International
Union of Operating Engineers et al. (C. A. Turner Construction Company and
Hinote Electric Company ), supra.5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connec-
tion with the operation of the Company set forth in section II, above, have a close,
intimate, and substantial relation to trade , traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 450 , International Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. The above-named labor organization has engaged in a strike , and has induced
and encouraged the employees of Sline and other employees to engage in a strike,
or other concerted refusals in the course of their employment to perform services,
an object thereof being to force or require Sline to assign certain work to members
of the Respondent Union rather than to other employees of Sline, thereby engaging
in unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommendations omitted from publication.]
In addition to the cases mentioned in 119 NLRB 1725, the Trial Examiner has noted
.L.R.73. v. United Brotherhood of Carpenters etc. (11 'endnagel & Company ), 261 F. 2d 166NY
(C.A. 7), setting .aside the order of the Board in Case No. 3'5-C'C-35, 1.19 NLRB 1444.