Los Angeles Building and Construction Trades Council

National Labor Relations Board - Board Decisions

May 11, 1949

83 N.L.R.B. 477 (N.L.R.B. 1949)

In the Matter of Los ANGELES BUILDING AND CONSTRUCTION TRADES
COUNCIL, A. F. L., AND LLOYD A. MASHBURN, ITS AGENT; MILL-
WRIGHT AND MACHINERY ERECTORS LOCAL 1607, OF THE . UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., AND
HERMAN F . BARBAGLIA , ITS AGENT and INTERNATIONAL AssocIATION
OF MACHINISTS, FOR ITS LOCAL LODGE 1235
Case No. 21-CD-19.-Decided May 11,1949•
DECISION :
AND
DETERMINATION OF DISPUTE {
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, as amended
by Labor Management Relations Act, 1947, 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 February 2, 1949, International Association of Machinists, on
behalf of its Local Lodge 1235, herein called the Machinists, filed with
the Regional Director for the Twenty-first Region a charge alleging
-that Los Angeles Building and Construction Trades Council, A. F. L.,
herein called the Trades Council, and Lloyd A. Mashburn, its agent,
had engaged in and were engaging in certain activities proscribed by
Section 8 (b) •(4) (D) of the amended Act. It was alleged, in sub-
stance, that they engaged in a strike, with an object of forcing and
requiring Westinghouse Electric Corporation, herein called Westing-
house, and/or Stone and Webster Engineering Corporation, herein
called Stone, to assign particular work to members of "affiliates" of
United Brotherhood of Carpenters and Joiners of America, A. F. L.-
1 The'relevant portions of Section 8 of the Act are as follows :
(b) It shall be an unfair labor practice for a labor organization or its agents-
( • n $ * „ a
(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, manufacture,
process, transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services, where an object thereof is: ...
(D) forcing or requiring any employer to assign particular work to employees in a
particular labor organization or in a particular trade, craft, or class rather than to em-
ployees in another labor organization or in another trade, craft, or class, unless such
employer is failing to conform to any order or certification of the Board determining the
bargaining representative for employees performing such work: . . .
83 N. L. R. B., No. 76.
477
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to Sections 203.74 and 203.75 of the Board's Rules and
Regulations, Series 5, as amended, the Regional Director investigated
the charges and provided for an appropriate; hearing upon due notice
to all the parties? Thereafter,,a hearing was held before James V.
'Altieri, hearing officer, on March 10, 11; 14, 16, 17; 18, 21, 22, 23, and
24, 1949. 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. The rulings-of the-hearing
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; the Machinists, the Millwrights, and the
Trades Council did so. The requests- , for oral argument of the Trades-
Council and the Millwrights are denied because the record and briefs,
in our opinion, adequately present the issues and positions of the
parties.
Upon the entire record in the case, the Board makes the following :
FINDINGS of FACT
1. THE BUSINESS OF THE COMPANIES
Westinghouse Electric Corporation ' maintains, - inter alia, two
plants in the Commonwealth of Pennsylvania, where it is engaged
in the manufacture of turbines and generators. The record reveals
.that a substantial amount of the raw material used in the production
of these turbines and generators comes from outside the Common-
wealth of Pennsylvania. The' turbine generator with which the in-
stant dispute is concerned was shipped to California by Westing-
house from its Pennsylvania plants, and is being installed by Westing-
house in California. We have heretofore found that Westinghouse.is
engaged in commerce."
Southern California Edison Company, herein called Edison, is a
utility company, and delivers electric power to consumers in southern
Millwright and Machinery Erectors Local 1607, of.the United Brotherhood of Car-
',penters and Joiners of America, A. F. L., herein called the Millwrights , and Herman F.
Barbaglia , its agent , appeared at the opening of the hearing on March 10 , 1949 , and moved
for a 10-day continuance , on the ground that they had not been made parties respondent
until the service of an amended charge a day earlier. The hearing officer denied this
motion , without prejudice to its renewal at any time the Millwrights "claimed surprise."
Counsel for the Millwrights thereupon withdrew from the hearing , and now alleges a
denial of due process . We find that the Millwrights, which the record shows was the
only "affiliate" of the Carpenters involved herein, was duly apprised of this proceeding,by
service of the original notice of hearing: . Moreover , the Millwrights refused the hearing
officer 's express reservation to it of the right to renew the motion if "surprise". were
claimed.
The Trades Council and the Millwrights also moved the Board to strike the "Second
Amended Charge" or, alternatively , to remand the proceeding for further hearing on new
matter raised by the Second Amended Charge. We do not consider the Second Amended
Charge, which was not filed until after the close of the hearing, as part , of the record
before us, and we do not, therefore, find it necessary to pass , upon - the motion at this
time.
8 Matter of Westinghouse Electric Corporation, 72 N. L. R. B. 60.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES- COUNCIL 479
-California. During 1948, approximately 39 percent of its total sales
was to industrial consumers, a substantial number of which are en-
gaged in commerce. It purchases -much of its equipment, including
the turbine generator here involved, from outside the State of Cali-
fornia. We' have heretofore found that Edison is engaged in
commerce.4
We find, contrary to the contention of the Trades Council, that the
companies are engaged in commerce within the meaning of the Act.
2. The dispute
a. The facts
Early in 1946, Edison entered into contracts with various contrac-
tors for the construction of a new power plant at Redondo Beach,
California. Chief among these contractors was Stone, which also
acts in an advisory capacity to Edison for the entire project. Before
construction of the power plant began, Edison had made arrangements
for the purchase and installation of five steam turbine generator units.
Two of these generators have already been installed, one each by
Westinghouse apd General Electric Company; the third was being
installed by Westinghouse when the dispute with which we are now
concerned began; the fourth is to be supplied and installed by Gen-
eral Electric, and operations on it are scheduled to begin about June
1, 1949; and the fifth is to be supplied and installed at some future
date by Westinghouse.
Stone and the other contractors working on the Redondo Beach
project, with the exception of Westinghouse and General Electric,
have employed only Trades Council members since the construction
began. Westinghouse and General Electric had installed the first two
generators using two Machinists' members, as well as some Trades
.Council members. A short time before the installation of the third
generator was scheduled to begin, representatives of the Trades Coun-
cil and the Millwrights approached Stone and attempted to persuade
Stone to have Westinghouse replace the Machinists with Millwrights.
Stone disclaimed responsibility for the employment of these Machin-
ists, saying that they were Westinghouse employees. On January 31,
1949, installation work on this third generator started. Shortly there-
after, a Trades Council representative, Mashburn, asked William
Budge, supervisor of the installation for Westinghouse, to replace the
Machinists with Millwrights. Budge refused, whereupon Mashburn
said that he had no other recourse "except to take action."
On February 2, 1949, the Trades Council called a general strike of
all the building trades employees on the project to enforce its demand
on Westinghouse. All of the approximately 650 employees walked
' Matter of Southern California Edison Company, 70 N. L. R. B. 81.
f480 •' ' DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
out, Except the 2 Machin ists^employed ;by Westinghouse. The latter
worked until February 11, 1949, when Edison requested Westinghouse
to cease its installation work until the dispute was resolved. At the
-tune of the hearing, • no further installation work had been done on
-the' generator, although 'work on the rest of the project had been
resumed.
'b. Contentions of the parties
Neither Edison nor Stone has advanced any contentions respecting
the merits of the dispute, nor has the-Millwrights. Westinghouse,
although it likewise advanced no contentions, is clearly not a disinter-
ested,party; its refusal to accede to the Trades Council's request pre-
cipitated the, dispute.
The Machinists contends that the work tasks involved in the in-
stallation of generators is properly the craft and trade work of its
members, and that it has satisfactorily supplied employees for all the
generator installation work on the project, including the two com-
pleted installations. - ' •
The Trades Council contends'that the'Board is without jurisdiction
to determine the dispute for., three reasons : (1) this case does not
involve a "jurisdictional dispute," but presents a question of represen-
tation; (2) the dispute is not one "affecting commerce"; and (3) See-
tion 8 (b) (4) (D) is unconstitutional. ' 'The Trades Council also
asserts that, in any event, the Millwrights is entitled to the work in
question for various, reasons: (1) the work falls within the jurisdic-
tiori'and the trade and craft skills of its members; (2) the Trades
Council has a right, under the provisions of its contract with Stone,
to demand conformance from Westinghouse with the terms of that
contract; (3) A. F. of L. decisions, made while the Machinists was
affiliated with the A. F. of L., awarded work of the type in question to
_ the. Millwrights,; (4) as the Building Trades Department of the A. F.
of L. (with which the Machinists was never affiliated) is the only body
that- can effectively, determine a "jurisdictional dispute" between sub-
ordinate locals in the construction field, no nonaffiliated union should
be permitted to supply workers in this field; (5) the existing assign-
ment of work by Westinghouse to the Machinists is immaterial; other-
wise the employer could "oust the Board itself of jurisdiction"; (6)
as there are approximately 650 Trades Council members on the project,
and the dispute involves only 2 employees not members of the Trades
Council, the purposes of the Act will "be better effectuated" by a de-
termination by the Board that will compel Westinghouse to conform
its employment practices to those of the other contractors on the job;
and (7) this Section 10 (k) proceeding should be dismissed as "de
miinimis" because the dispute involves only 2 out of 650 employees. '
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 481
c. Applicability of the statute
The'Board has held in several cases 5 that where a labor organization
is charged with forcing or requiring an employer to assign particular
work to members of a particular labor organization rather than to
employees of his own who are members of another labor organization,
such conduct comes within the purview of Section 8 (b) (4) (D) and
the Board is "empowered and directed to hear and determine the
dispute."
On the record before us, it is clear that the "dispute" in this pro-
ceeding involves efforts by the Respondents to compel Westinghouse
to assign certain installation work to members of the Millwrights,
although the work was being performed by Westinghouse employees
who were members of the Machinists. We find, therefore, that under
the language of the Act as presently written, the dispute in question
is properly before us for determination e
d. The merits of the dispute
At the time the dispute began, Westinghouse was employil}g. two
machinists and two riggers on the project; the former were members
of the Machinists, and the latter were members of an affiliate of the
Trades Council other than the Millwrights. Westinghouse had ' as-
signed the work in dispute to the Machinists. The Respondents in-
sisted that Westinghouse assign the work to the Millwrights. The
Board said in Matter of Juneau Spruce Corporation , supra:
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
employer's freedom to hire, subject only to the requirement against
discrimination as contained in Section 8 (a) (3)..
And in the Irwin-Lyoha case, supra, we held that the question of tradi-
tion or custom in the industry is not a governing factor'r .. rwhere a
union with no bargaining or representative status makes demands
on an employer for, the assignment of work to the exclusion, of, the
employer's 'own employees who are` performing the work : • :.' ,." . None,
"Matter of Moore Drydock • Company, 81 N. L. R. B. 1108 ; Matter of Juneau Spruce
Corporation, 82 N. L. It. B. 650 ; Matter ' of Irwin-Lyons Lumber Con pang, 82'N. ' L.
R. B. 916. - - -
Members Houston and Murdock , who dissented in each of these cases , deem themselves
bound to concur in the present decision . Moreover, they agree entirely with the observa-
tion , infra, that "the employer in most cases will have resolved- by his own employment
policy , the question as to . which organization shall be awarded the work." It is for this
reason , as these dissenting Members have, consistently pointed out, that they believe the
Board should eschew the pretense of deciding such matters , under Section, 10 ( k) of the
Act, in cases like this when the issue is predetermined by the employer.
The Trades Council's contention that Section 8 (b) (4) (D ) is unconstitutional is also
rejected . Matter of Rite-Form Corset Company , Inc., 75 N. L. It. B. 174.
482 DECISIONS ,OF ,NATIONAL. LABOR RELATIONS BOARD
of the contentions here -advanced impels 'us to reach a different con-
clusion in this case. Westinghouse had no collective bargaining agree-
ment with any labor organization concerning the employees involved.
The, fact that Stone, another contractor on the project, was operating
under an agreement with the Trades Council, does not subject Westing-
house to any of the, obligations of that agreement. It is clear that
Westinghouse was not under contract with Stone, and was free to
make use of its own employees for the installation, despite the fact
that the other employers on, the project used Trades Council em-
ployees.'
We find, accordingly, that neither the Trades Council nor the Mill-
wrights is lawfully entitled,to require Westinghouse to assign the
work tin dispute to members of the Millwrights rather than to em-
ployees of Westinghouse who are members of the Machinists.
We are not by this action to be regarded as "assigning" the work
in question to the Machinists. Because an affirmative award to either
-labor organization would be tantamount to allowing that organization
to require Westinghouse to employ only its members and therefore
to violate Section 8 (a) .(3) of the Act, we believe we can make no
such award. In reaching this conclusion we are aware that the em-
ployer in most cases will have resolved, by his own employment policy,
the question as to which organization shall be awarded-the work. Un-
der the statute as now drawn, however, we see no way in which we
cnn, by Board reliance upon such factors as tradition or custom in
the industry, overrule his determination in a situation of this particu-
lar'character.
DETERMINATION OF DISPUTE
On: the basis of the foregoing' findings of fact and the entire record
in this case, the Board makes the following determination of the dis-
pute, pursuant to Section 10 (k) of the amended Act : 8 - %
1. Los Angeles Building and Construction Trades Council, A. F. L.,
and Lloyd A. Mashburn, its agent, and Millwright and Machinery
Erectors Local 1607, of the, United Brotherhood of Carpenters and
Joiners of America, A. F. L., and Herman F. Barbaglia, its agent, are,
not,. and have not been, lawfully entitled to force or require Westing-
house;Electric Corporation to assign work on the installation'of steam
7'As Westinghouse was, not a party to any A . F. of L. awards of jurisdiction , we find no
merit to the Trades Council's contention that such awards in its favor are determinative'
in this case.
8 The Machinists contends that any determination by the Board should also include
future installation work at the Redondo Beach project of Edison . We find no merit to that
,contention , and'shal restrict our determination here to the dispute before us.'
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 483
turbine generators at Southern California Edison Company's plant
at Redondo Beach, California, to members of Millwright and Ma-
chinery Erectors Local 1607, of the United Brotherhood of Carpenters
and Joiners of America, A. F. L., rather than to employees of West-
inghouse Electric Corporation who are members of International, As-
sociation of Machinists, Local Lodge 1235.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, each of the Respondents, may notify the Regional
Director for the Twenty-first Region, in writing, what steps the Re-
spondents have taken to comply with the terms of this Decision and
Determination of Dispute.