Hoisting & Portable Engineers Union #701

National Labor Relations Board - Board Decisions

Jul 22, 1968

172 N.L.R.B. 1269 (N.L.R.B. 1968)

HOISTING & PORTABLE ENGINEERS UNION #701
Hoisting & Portable Engineers Union Local #701,
International Union of Operating Engineers,
AFL-CIO and Cascade Employers Association,
Inc. Cases 36-CC-209-1, 36-CC-209-2
JULY 22, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 25, 1968, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled
proceedings, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices in violation of the National Labor Relations
Act, as amended, and recommending that Respon-
dent cease and desist therefrom and take certain af-
firmative action, as set forth in the attached trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the Charging Party filed
a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent , Hoisting & Portable En-
gineers Union Local #701, International Union of
Operating Engineers , AFL-CIO, Portland , Oregon,
its officers, agents , and representatives, shall take
the action set forth in the Trial Examiner 's Recom-
mended Order.
Member Fanning , dissenting:
I would dismiss the complaint in this case for the
reasons stated in my dissenting opinions in Mark-
well & Hartz , Inc.,' and Local 252, Sheet Metal
Workers' International Association , AFL-CIO (Tu-
lare-Kings Employers Council).'
1269
' Respondent excepts to the Trial Examiner 's reliance on the testimony
of James Gonzales to show that Gonzales had been warned by Respondent
that sending his men to work would mean crossing a picket line However,
in agreeing with the Trial Examiner that Respondent violated Section
8(b)(4)(i) and ( u)(B) of the Act, we find it unnecessary to consider that
testimony The evidence , as summarized in the Trial Examiner 's Decision,
reveals that at Gresham, as well as at Woodburn , Respondent induced and
encouraged Gonzales' employees to cease work and that , in so doing, it
sought to enmesh Gonzales in Responde 's dispute with Marshall Such con-
duct violates Section 8 ( b)(4)(i)(B) of the Act Since Respondent effec-
tively induced the work stoppage against Gonzales , a neutral employer,
Respondent 's conduct necessarily had the effect of restraining and coerc-
ing Gonzales within the meaning of clause ( u) of Section 8(b)(4) of the
Act Baughan Plumbing and Heating Company, incorporated, 157 NLRB
20
155 NLRB 319, 330
166 NLRB 262
TRIAL EXAMINERS DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: The
question presented is whether the above-captioned
Union violated Section 8(b)(4)(i) and (ii)(B) of
the Act.'
Upon the entire record, including my observation
of the witnesses and consideration of the briefs filed
by the Charging Party and the General Counsel, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Marshall Associated Contractors, Inc. (herein
Marshall), is an Oregon corporation engaged in -
construction of sewer and water systems in the
State of Oregon. During the past fiscal year,
Marshall purchased in excess of $50,000 worth of
materials which originated outside the State of
Oregon and were received by Marshall either
directly from outside the State of Oregon or were
purchased from suppliers who, in turn, received
them directly from outside the State of Oregon.
Gonzales Road Boring Inc. (herein Gonzales) is
an Oregon corporation engaged in horizontal bor-
ing and tunneling pipe, principally under streets,
roads, and railroad tracks. Gonzales performs ser-
vices for contractors meeting the Board's jurisdic-
tional standards in an amount in excess of $50,000
annually.
Marshall and Gonzales are, and have been at all
times material herein, employers engaged in com-
merce or in a business affecting commerce within
the meaning of the Act.
Il. THE LABOR ORGANIZATION INVOLVED
Hoisting & Portable Engineers Union Local #
701, International Union of Operating Engineers,
AFL-CIO, herein called Respondent , is a labor or-
ganization within the meaning of the Act.
' The charge in Case 36-CC-209-1 was filed August 24, 1967, and in
Case 36-CC-209-2 on September 14, 1967 The consolidated complaint
was issued on November 28, 1967 Both charges were filed by Cascade
Employers Association, Inc , on behalf of Marshall Associated Contrac-
tors, Inc
172 NLRB No. 127
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Facts and Events
In determining whether there were violations of
Section 8(b)(4) (i) and ( ii)(B) of the Act,' a recital
of the background facts and events will largely
resolve the issues which in summary form are
whether Respondent picketed Marshall with the ac-
tual object of seeking to cause Gonzales to cease
doing business with Marshall and to cause the em-
ployees of Gonzales to cease work, while Gonzales
was working as subcontractor for Marshall to cause
Gonzales to cease doing business with Marshall.
Marshall commenced operations in 1965 and en-
tered a labor agreement with Respondent which ex-
pired on May 31, 1967, and was not renewed. The
alleged violations here involved occurred at two
construction sites called the Gresham and Wood-
burn jobs, where Respondent had labor disputes
with Marshall.
Marshall commenced a sewer construction job
near Gresham, Oregon, in the summer of 1966. At
four points where the sewer crossed beneath the
highway or railroad track, the sewerline was to be
bored and this boring work was subcontracted to
Gonzales Road Boring Inc. (herein Gonzales). Gon-
zales was the only subcontractor on the job and at
all times material had a labor agreement with
Respondent covering its employees. Gonzales
completed three of the bores in the summer and fall
of 1966 during which time Marshall had in effect a
labor agreement with Respondent. This agreement
ended about June 1967, when Marshall refused to
renew the agreement with Respondent. The project
closed down for the winter in 1966 with one
remaining bore to be completed.
On or about June 27, 1967, Respondent com-
menced picketing the Gresham job. Gonzales' em-
ployees were scheduled to commence the remain-
ing bore on August 16, 1967. On August 15, 1967,
Marshall erected a sign (sometimes referred to in
the record as a gate) at the place most convenient
for Gonzales' employees to complete the fourth
bore. This sign read: "Gonzales Road Boring, its
employees and suppliers must use this gate and
must not enter the job thru any other gate or in any
other manner."
At the same time Marshall erected another sign
approximately 2,000 feet away which bore the
legend: "Employees and suppliers of Marshall As-
sociated Contractors and all other persons except
Gonzales Road Boring employees and suppliers
must use this gate and must not enter job in any
other manner."
' In significant part, it is provided that it is an unfair labor practice for a
union to induce or encourage employees to cease work, or coerce any em-
ployer to cease work where an object of such action is to require any per-
On the morning of August 16, 1967, there was a
picket about 10 feet away from the Gonzales sign.
The sign displayed by the picket in large printed
letters bore the legend : "On Strike ." In smaller
printed letters it contained the words : "H and P
Engineers Local 701." In very small handwriting
not readily visible in comparison with the portion of
the sign that was printed , the sign had added to it:
"Marshall Associated Contractors Inc."
Respondent continued the picketing all day on
August 16 , 1967. The picket informed John
Marshall that he had been instructed to picket at
the Marshall sign . John Marshall informed his
brother , Dick Marshall , president of Respondent,
that there were pickets at the Gonzales gate and
they had told him they were acting under the in-
structions of their business agents . On this day Dick
Marshall sent a telegram to Respondent demanding
the illegal picketing be stopped.
On the morning of August 16, 1967, a crew of
Gonzales employees , under the supervision of
Foreman Lester Riggin, arrived at the Gonzales
sign . Riggin , who is a member of Respondent,
asked the picket who was being picketed. The
picket , who was on the side of the road where the
Gonzales sign was located and about 10 feet away
from the Gonzales sign , replied that Marshall As-
sociated Contractors , Inc., was being picketed.
Foreman Riggin instructed his crew to get back in
the truck and they left the Gresham project.
On August 17, 1967, Respondent 's picket was at
the Gonzales sign in the morning until about 10
a.m., and sometime later that day pickets from the
Laborers ' Union moved from the Marshall sign to
the Gonzales sign.3
Across the road from the Gonzales sign, Marshall
had stored some construction material. On the
morning of August 18, 1967, Marshall erected
three additional signs , one of them being across the
road from the Gonzales sign and in the area where
the construction material of Marshall was stored.
Respondent was picketing at the Gonzales sign at
8:30 a . m. At about noon on the same day , Respon
dent 's picket was in his pickup truck within a few
feet of the Gonzales sign and on the same side of
the road.
On Monday , August 21, 1967, prior to 8 a.m.,
Respondent 's picket was again within a few feet of
Gonzales ' sign, sitting in his pickup truck but
without displaying any picket sign. When the Gon-
zales crew arrived on the morning of August 21,
1967, the picket got out of his truck and with his
picket sign walked back and forth in front of the
Marshall sign . Respondent 's Field Representative
Fuller arrived at this time, and, in response to a
son to cease doing business with any other person
1 The General Counsel does not claim any violation by the Laborers'
Union
HOISTING & PORTABLE ENGINEERS UNION #701 1271
question by Foreman Riggin , in charge of Gonzales'
employees, Fuller stated the whole job was being
picketed. Riggin told Fuller he belonged to Respon-
dent Local 701 and he was not going to cross a
picket line," and then left the Gresham project with
his crew.
Later, on August 21, 1967, Marshall moved its
sign opposite from the Gonzales sign to another
street but Respondent's picket continued to picket
near the Gonzales sign.
James Gonzales, president of Gonzales„
telephoned "Red" Wages, the principal official of
Respondent, after his crew had returned from the
Gresham job either on August 15 or 21, to get his
opinion on the gates. Gonzales testified:
I asked him if it was all right to go through the
Gonzales entrance. He replied "You can go
through the entrance if you want to but you
will be crossing a picket line" because ... the
entire job was being picketed, not just one
area .... 5
The record is clear that no Marshall employees
worked behind the Gonzales sign during the period
August 16 to 21, 1967. Marshall employees did
work repairing the road and manhole covers near
the Gonzales sign and picked up material stored
across the road from the Gonzales sign during this
period. A fair reading of the record indicates that
Marshall employees only performed sporadic work
for brief periods from August 16 to 21 in the vicini-
ty of the Gonzales sign . Respondent's advancing
this sporadic work by Marshall's employees near
the Gonzales sign as a defense to the position taken
by the General Counsel is not an adequate justifica-
tion for picketing near the Gonzales sign at any
time , as the balance of the record shows a definite
pattern that the picketing was designed to prevent
Gonzales and his employees from performing the
work behind the Gonzales picket sign , and was not
aimed at merely advertising Respondent's labor
dispute with Marshall.
As indicated above, at approximately 2 p.m. on
August 21, 1967, Marshall removed the Marshall
sign which was across the road from the Gonzales
sign . Respondent's picket remained at this location
for the remainder of the day. On Tuesday, August
22, Respondent's picket remained in his pickup
truck from 7 a.m. through the day in the vicinity of
the Gonzales sign . There were no Marshall signs in
the area at this time.
On August 23, Marshall leased the boring equip-
ment of Gonzales and performed the work with his
own employees.
B. The Woodburn Job
Implications arising from the conduct of Respon-
dent on the Gresham job are relevant to the issues
presented in connection with the Woodburn job.
Marshall had a contract for the laying of a sewer
line for the city of Woodburn and commenced
work on this project on August 22, 1967. This work
included a horizontal bore. Marshall had a verbal
agreement with Gonzales whereby Gonzales was to
perform this work.
On August 28, 1967, Marshall placed signs on
the Woodburn job in the area where its employees
were working, stating "This gate is for the use of
Marshall Associated Contrs., Inc. its employees and
suppliers. This gate must not be used by Gonzales
Road Boring , its employees and suppliers." No
Gonzales sign was placed at that time and no Gon-
zales employees were yet on the job.
On Friday, September 8, 1967, Gonzales' crew
went to the Woodburn job to bring supplies and
equipment and do some preliminary work. Respon-
dent's business agent, Lewis, talked with Gonzales'
employees and told them he was going to call t'-
'Red" Wages and find out what was going on.
Wages was Respondent's principal officer.
On September 9, 1967, Marshall placed a sign
identical to the sign used on the Gresham job at the
site where Gonzales was to make the bore on the
Woodburn job.
On September 12, 1967, the Gonzales crew ar-
rived on the job bringing their equipment. For the
first time Respondent placed pickets-on the Wood-
burn job. These pickets were at the Marshall sign
about 1 /2 mile from the Gonzales sign . About 9:30
a.m. on September 12, 1967, Respondent 's business
representatives, Ira Watson and Charles Lewis,
stopped at the Gonzales bore site where Gonzales
employees, McCallen and McGinnis, were working.
Watson asked them if they knew Marshall would
not comply with the new contract. He also said: "I
can't tell you that you can't work here or that you
can work here. You will have to make up your own
mind . Use your own judgment. Let your conscience
be your guide."
McCallen asked if he would be jeopardizing him-
self if he started digging the pit. One of Respon-
dent's representatives replied: "Just let your con-
science be your guide, Roy you are a Union man. "e
° Fuller denies that he said the whole job was being picketed Riggin was
subpenaed and he appeared to be reluctant in testifying Riggin's testimony
that Fuller told him that the whole job was being picketed is credited and it
is also more consonant with the fact that Riggin again took the crew of
Gonzoles employees away from the Gresham job Respondent's witness,
Lutsey, the Respondent 's picket on August 21, 1967, also testified that he
told Dick Marshall on that morning that the whole job was being picketed.
Wages testified that he told Gonzales he could go to work and only
Marshall was being picketed This is not credited because Gonzales'
testimony of the conversation is more consonant with the attending events
and also because Gonzales, although a very reluctant witness subpenaed by
the General Counsel , gave the impression that he felt impelled to tell the
truth
6 Watson testified to the effect he said in his conversation with McGinnis
and McCallen that he was not going to give my advice McCallen and Mc-
Ginnis, both members of Respondent , testified reluctantly aided by their
statements given to the General Counsel and their version as set forth is
credited . Lewis denies that Watson said anything to the effect that he could
not tell McCallen or McGinnis anything about going to work or "to let your
conscience be your guide " For reasons indicated above, the version of Mc-
Callen and McGinnis is credited and also their version is more consistent
with their action in leaving the job after their talk with Watson and Lewis
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Gonzales crew then left the Woodburn job.
James Gonzales then made a telephone call to
Respondent, seeking to talk to "Red" Wages and
talked to either him or one of the other business
representatives, and he was informed that the
Woodburn job was regarded the same as the
Gresham job which was tantamount to saying that
as long as Gonzales was doing business with
Marshall, his men would be crossing a picket line if
they worked on the Marshall-Woodburn job.
Following this, Gonzales, with the consent of
Marshall, obtained a direct contract from the city
of Woodburn to perform the boring work. Gonzales
commenced this boring work on September 15,
1967, without any business relationship with
Marshall. Respondent's business agent, Lewis,
thereafter visited the jobsite where Marshall was
being picketed, but on no occasion did he go to the
boring site where Gonzales employees were work-
ing or talked with them.
Some days later, Calef Gonzales, a relative of
James Gonzales, showed Ira Watson a contract
between the city of Woodburn and Gonzales to per-
form the boring work.7
Concluding Findings
The above-recited events are self-evident in
establishing that the employees of Gonzales, a
neutral employer, were induced to cease work so
that Gonzales would cease doing business with
Marshall on the Gresham and Woodburn jobs. The
record is also clear that Gonzales received direct
communication from representatives of Respon-
dent, that it would amount to crossing a picket line
if Gonzales performed work at the Gresham or
Woodburn project. In view of the fact that Gon-
zales had a labor agreement in effect with Respon-
dent, and had to rely on Respondent for its em-
ployees by reason of an employee referral provision
in its agreement with Respondent, the coercive na-
ture of Respondent's action directed to accomplish
the cessation of a business relationship between
Gonzales and Marshall is clear and thus Respon-
dent violated Section 8(b)(4)(i) and (ii)(B) at both
the Gresham and Woodburn projects.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of the Act.
2. Marshall and Gonzales are employers engaged
in commerce or in an industry affecting commerce
within the meaning of the Act.
3. By the threats and coercive statements and
the picketing as hereinabove found, Respondent
Union has engaged in unfair labor practices affect-
'The credibility of Watson and Respondent 's position is adversely af-
fected by W atson's disclaimer of any interest in this agreement by his say-
ing it did not make any difference to him Watson's testimony , that he
sought a copy of the agreement from the district attorney unsuccessfully.
ing commerce within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
THE REMEDY
An order will be recommended requiring
Respondent to cease and desist from committing
any unfair labor practices of the type here found.
This cease-and-desist order is recommended
because of the extent of Respondent's unfair labor
practices and also because a remedial order con-
fined to Gonzales would be of dubious value, since
the record reflects the probability that Gonzales
would have no further business with Marshall at
least until such time as Marshall became signatory
to a labor agreement with Respondent.
It will also be recommended that Respondent
post a notice in appropriate locations.
RECOMMENDED ORDER
Respondent, Hoisting & Portable Engineers
Union Local #701, International Union of Operat-
ing Engineers, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from picketing or otherwise
inducing or encouraging any individual employed
by Gonzales or by any other person engaged in
commerce or in an industry affecting commerce to
engage in a strike or refusal in the course of his em-
ployment, to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any ser-
vice or in any manner or by any means threatening,
coercing, or restraining Gonzales or any other per-
son engaged in commerce or in an industry affect-
ing commerce with the object of forcing or requir-
ing Gonzales or any other person to cease using,
selling , handling, transporting, or otherwise dealing
in the products of, or to cease doing business with,
Marshall or any other person engaged in commerce
or in an industry affecting commerce.
2. Take the following affirmative action to effec-
tuate the policies of the National Labor Relations
Act:
(a) Post at conspicuous places in Respondent's
meeting halls copies of the attached notice marked
"Appendix." Copies of said notice, on forms pro-
vided by the Regional Director for Region 19, after
being duly signed by Respondent's authorized
representative, shall be posted by said Respondent
immediately upon receipt thereof , and be main-
tained by Respondent for 60 consecutive days
thereafter , in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by said
for the reason that he often picks up a set of prints or a copy of the con-
tract , is completely implausible It is apparent that Watson wanted to verify
that Marshall had no further interest in the boring work performed by Gon-
zales
HOISTING & PORTABLE ENGINEERS UNION #701
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 19
sufficient signed copies of said notices for posting
at the premises of Marshall and Gonzales, those
employers being willing. Copies of said notice on
forms to be furnished by the Regional Director for
Region 19, after having been signed by Respon-
dent, shall be forthwith returned to the Regional
Director.'
(c) Notify the Regional Director for Region 19,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.9
" In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 19 , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL MEMBERS OF HOISTING & PORTABLE
ENGINEERS UNION LOCAL #701, INTERNA-
TIONAL UNION OF OPERATING ENGINEERS,
AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify you that:
WE WILL NOT induce or encourage any in-
dividual employed by Gonzales or by any other
1273
person engaged in commerce or in an industry
affecting commerce to engage in a strike or a
refusal in the course of his employment to use,
manufacture, process, transport, or otherwise
handle or work on any goods, articles, materi-
als, or commodities or to perform any services
or in any other manner or by any means
threaten, coerce, or restrain Gonzales or any
other person engaged in commerce or in an in-
dustry affecting commerece with the object of
forcing or requiring Gonzales or any other per-
son to cease using, selling, handling, transport-
ing, or otherwise dealing in the products of or
to cease doing business with Marshall or any
other person engaged in commerce or in an in-
dustry affecting commerce.
HOISTING & PORTABLE
ENGINEERS UNION LOCAL
#701, INTERNATIONAL
UNION OF OPERATING
ENGINEERS , AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced , or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office , 327 Logan Building , 500 Union Street,
Seattle , Washington 98101, Telephone 583-7473.
354-126 O-LT - 73 - pt. 2 - 9