Int'l Brotherhood of Teamsters, Etc., Local 222

National Labor Relations Board - Board Decisions

Aug 4, 1964

148 N.L.R.B. 118 (N.L.R.B. 1964)

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Local No. 222 , Interna-
tional Union of Operating Engineers , Local No. 3, AFL-CIO,
and United Brotherhood of Carpenters and Joiners of America,
Local No . 184, AFL-CIO [Utah Sand and Gravel Products
Corp.] and Weyher Construction Co., Inc., Okland Construc-
tion Co., Inc., and Mark B. Garff, , Ryberg & Garff Construction
Co., A Joint Venture. Case No. 27-CC-119. August 4, 1964
DECISION AND ORDER
On February 26, 1964, Trial Examiner James R. Hemingway issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents International Union of Operating Engineers, Local No. 3,
AFL-CIO, herein called Operating Engineers, and the United
Brotherhood of Carpenters and Joiners of America, Local No. 184,
AFL-CIO, herein called Carpenters, had engaged in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also found that the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 222, herein called the Teamsters,
had not engaged in certain alleged unfair labor practices alleged in
the complaint and dismissed the allegations in regard thereto. There-
after, the Charging Party and the Respondents Operating Engineers
and Carpenters filed exceptions to the Trial Examiner's Decision and
supporting briefs.
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 Fanning and Jenkins].
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 Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.'
I The record shows , contrary to the finding of the Trial Examiner , that the Charging
Party contends that the Teamsters and Operating Engineers had conspired or engaged in
a joint venture to effect a work stoppage and the Trial Examiner 's Decision is hereby
corrected in regard thereto However , the record does not support a finding that such a
conspiracy in fact existed
As to whether ' Carter, an alleged picket, was an agent of the Teamsters , we find it un-
necessary to resolve this issue since we find that by his conduct on July 22 , 1963, he
neither induced nor encouraged employees to cease working in violation of the Act.
While the Trial Examiner found that a business agent of the Operating Engineers in-
duced and encouraged Johnson and Garner not to work on July 22, 1963 , in violation of
Section 8 ( b) (4) (ii ) ( B), he did not, in his concluding findings , allude to conduct by an
Operating Engineers' business agent vis -a-vis Barnes , Zimmer, Cude , Foster , and Bennett
148 NLRB No. 17.
INT'L BROTHERHOOD OF TEAMSTERS, ETC., LOCAL 222 119
The Trial Examiner found that-the Carpenters had .induced and
encouraged- employees of the Joint Venture to engage in a refusal in
the course of their employment to perform services in violation of
Section 8(b) (4) (i) (B) on the basis of the conduct of its Assistant
Business Agent Gilman on July 19, 1963. The record shows that, on
that day, three Utah Sand and Gravel transit-mix trucks arrived at
the Joint Venture project, the first at 9:30 a.m., the second at 10:30
a.m., and the third at 10:40 a.m. Each truck was accompanied by
one or two automobiles containing Teamsters pickets. The picketing
was done on the street at a point nearest the truck, and the picket
signs bore the legend that the Teamsters was on strike against Utah
Sand and Gravel.
Within the compound adjoining the Joint Venture construction
office and within sight of the picketing, eight carpenters were working.
Upon the appearance of the pickets with the first trucks, all the car-
penters in the compound stopped working and formed a group, talk-
ing among themselves. Following a telephone call from an employee
who had left the premises to go home, Assistant Business Agent Gil-
man of the Carpenters arrived at the site. One of the carpenters
asked him if there was a strike and if they could work. Gilman
replied that there was definitely a picket line and it was up to the
men to decide whether or not to work. It appears that at this point
most of the carpenters picked up their tools and left, and it also
appears that two carpenters followed Gilman to question him fur-
ther a When Gilman reached a point outside the compound, in front
of the construction office, a carpenter who had followed him asked :
"Don, what will the union do if we work behind the picket line?"
The Trial Examiner found that Gilman credibly replied : "I don't
know what in the hell they will do. It is not for me to decide. As
far as I am concerned they will do nothing." The carpenters did
not return to work that day.
On the basis of Gilman's responses to the above two employees, the
Trial Examiner found that Gilman was indirectly suggesting the
action to be followed by the employees and thereby had induced and'
encouraged employees not to work with an object of forcing the Joint
Venture to cease doing business with Utah Sand and Gravel in viola-
tion of Section 8(b) (4) (i) (B) of the Act. We do not agree. We
are of the opinion that Gilman's remarks could not reasonably be
that same day. However, because no exceptions were found to the Trial Examiner's failure
to make findings here , .we do not pass upon the question of whether by this conduct, the
Operating Engineers further violated Section '8(b) (4) (ii) (B).
The request of the Operating Engineers for oral argument is hereby denied, as the
record and briefs adequately present the issues and the positions of the parties.
2 Carpenters who were not working in the compound continued to work without inter-
ruption until the whole job shut down a few hours later because of a decision of the
State inspector . It is not clear whether some of the carpenters returned to work in the
compound after this incident.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interpreted as inducing or encouraging the carpenters to leave the
worksite or to discontinue working. To read into Gilman's remarks
a hidden meaning such as found by the Trial Examiner, we feel, is
to be unduly introspective and is not warranted by the nature of the
remarks or the circumstances under which they were made.3 As we
do not find Gilman's conduct violative of Section 8(b) (4) (i) (B) of
the Act, we shall dismiss the complaint as to the Carpenters.
CONCLUSIONS OF LAW
In view of our findings ,above, paragraphs 4 and 7 of the Conclu-
sions of Law as found by the Trial Examiner are deleted and the
following paragraphs substituted :
4. By inducing and encouraging employees of the Joint Ven-
ture and Jarman to engage in a strike or a refusal in the course
of their employment to perform services , with an object of forc-
ing or requiring the Joint Venture to cease using concrete of, or
to cease doing business with, Utah Sand and Gravel Products
Corp ., the Operating Engineers has engaged in unfair labor
practices within the meaning of Section 8(b) (4) (i) (B) of the
Act.
7. Teamsters and Carpenters have not engaged in unfair labor
practices as alleged in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board orders that the International Union of Operat-
ing Engineers, Local No. 3, AFL-CIO, its officers, agents, representa-
tives, successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging any individual em-
ployed by the Joint Venture, by any member thereof, by Jarman, or
by any other person engaged in commerce or in an industry affecting
commerce within the meaning of the Act and within its territorial
jurisdiction, to engage in a strike or a 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 per-
form any services where an object thereof is forcing or requiring the
Joint Venture, any member thereof, Jarman, or any other person to
cease using, handling, transporting, or otherwise dealing in the prod-
ucts of any other producer, processor, or manufacturer, or to cease
doing business with any other person.
s See Local Union No. 741 , United Association of Journeymen, etc. (Keith Riggs
Plumbing and Heating Contractor ), 137 NLRB '1125, 1138-1139, 1142; International
Brotherhood of Electrical Workers, Local 313, AFL-CIO ( James Julian, Inc.), '147 NLRB
137.
INT'L BROTHERHOOD OF TEAMSTERS , ETC., LOCAL 222 121
(b) Threatening, coercing, or restraining the Joint Venture, any
member thereof, Jarman, or any other person engaged in commerce
or in an industry affecting commerce within its territorial jurisdic-
tion, where an object thereof is forcing or requiring the Joint Ven-
ture, any member thereof, Jarman, or any 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.
2. 'Take the following affirmative action which we find will effectu-
ate the purposes of the Act :
(a) Post at its business offices and meeting halls, copies of the at-
tached notice marked "Appendix A." 4 Copies of said notice, to be
furnished. by the Regional Director for Region 27, shall, after being
duly signed by an authorized representative, be posted by the Re-
spondent immediately upon receipt thereof, and be maintained for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its members are customarily posted.
Reasonable steps shall be taken to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of the said notice to the Re-
gional Director for Region 27 for posting by the Joint Venture, by
the respective members thereof, and by Jarman, they being willing,
at all locations where notices by said employers to their respective
employees are customarily posted.
(c) Notify the Regional Director for Region 27, in writing, within
10 days from the date of this Decision and Order, what steps it has
taken to comply herewith.
IT IS FURTHER. ORDERED that the complaint, insofar as it alleges un-
fair labor practices by the Teamsters and Carpenters be, and it hereby
is, dismissed.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
- APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL No. 3, 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 any individual
employed by Weyher Construction Co., Inc., by Okland Con-
struction Co., Inc., or by Mark B. Garff, Ryberg & Garff Construc-
tion Co., either jointly or severally, or by Charles P. Jarman, Steel
122 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
Erector, or by any other person within our jurisdictional territory
who is engaged in commerce or in an industry affecting commerce
within the meaning of the National Labor Relations Act, as
amended, 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, materials, articles, or commodities,
or to perform any services where an object thereof is to force or
require any such employer or person to cease doing business with
Utah Sand and Gravel Products Corp., or with any other person.
AVE WILL NOT threaten, coerce, or restrain Weyher Construc-
tion Co., Inc., Okland Construction Co., Inc., and Mark B. Garff,
Ryberg & Garff Construction Co. jointly or severally, or Charles
P. Jarman, Steel Erector, or any person engaged in commerce or
in an industry affecting commerce within our jurisdictional ter-
ritory where an object thereof is forcing or requiring any person
to cease using, selling, handling, transporting, or otherwise deal-
ing in the products of any other producer, or manufacturer, or to
cease doing business with any other person.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL No. 3, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 609 Railway Exchange Building, 17th and Champa Streets,
Denver, Colorado, Telephone No. Keystone 4-4151, Extension 513,
if they have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On July 23, 1963, a charge was filed by Weyher Construction Co., Inc., Okland
Construction Co., Inc., and Mark B. Garff, Ryberg & Garff Construction Co. (herein
collectively called the Joint Venture), and Charles P. Jarman, Steel Erector (herein
called Jarman ), against International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local No . 222, International Union of Operat-
ing Engineers , Local No . 3, AFL-CIO, and United Brotherhood of Carpenters and
Joiners of America, Local No. 184, AFL-CIO (herein jointly called Respondents but
severally called Teamsters, Operating Engineers , or Carpenters) alleging that the
Respondents had engaged in unfair labor practices within the meaning of Section
8 (b) (4) (i ) and (ii ) (B) of the National Labor Relations Act, as amended, 29 U.S.C.,
Section 151 , et seq ., herein called the Act. On July 26, 1963 , an amended charge
was filed by the members of the Joint Venture, without Jarman , but otherwise the
substance of the charge was the same. Upon such amended charge a complaint was
issued on August 28, 1963.
INT 'L BROTHERHOOD OF TEAMSTERS , ETC., LOCAL 222 123
In substance , the complaint alleged that each of the Respondents had, by certain
acts, induced and encouraged individuals employed by the Joint Venture to engage
in a strike and refusal to perform services during the periods when a supplier of
concrete was making deliveries to the Joint Venture at a certain highway viaduct
construction project; that Operating Engineers had, also induced and encouraged
individuals employed by Jarman to engage in a strike or refusal to perform services
for their employer during such periods; and that Operating Engineers and Carpenters
had, by certain acts, threatened the Joint Venture with work stoppages and/or
picketing for the purpose of forcing or requiring the Joint Venture to cease using,
handling, or otherwise dealing in the products of,, and to cease doing business with,
the said supplier of concrete . Each of the Respondents duly filed an answer in
which, in substance , they denied the unfair labor practices alleged in the complaint.
Pursuant to notice , a hearing was held in Salt Lake City , Utah, between October 1
and 10, 1963 , before Trial Examiner James R. Hemingway . At the opening of the
hearing, certain motions were made which resulted in minor amendments to the
answer of the Teamsters and to the complaint . Each of the parties was represented
by counsel and all participated in the hearing. At the conclusion of the hearing
each of the Respondents made a motion to dismiss the complaint . Ruling thereon
was reserved . I now grant the motion of Teamsters and deny the respective motions
of Carpenters and Operating Engineers for the reasons hereinafter set forth. At
the request of the parties a time was fixed for the filing of briefs with ' the Trial
Examiner and such time was later extended . Within the extended period, a brief
was filed by each of the five parties
From my observation of the witnesses and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
I. FACTS OF COMMERCE
In early 1963 , Weyher Construction Co., Inc., Okland Construction Co., Inc.,
and Mark B . Garff, Ryberg & Garff Construction Co. combined as a Joint Venture
(herein called the Joint Venture) for the construction of an overpass for an inter-
state highway in Salt Lake City, where that highway crosses the Denver and Rio
Grande Railroad tracks and a railroad yard . The total cost of the construction
project was $2,500,000. The Joint Venture is an employer, and its construction
work was in progress during all times material herein. In the course of its con-
struction work, the Joint Venture purchased lumber and steel piling of a total value
of $82 ,000, which lumber and steel piling were shipped to it from points outside
the State of Utah.
Charles P. Jarman, Steel Erector (herein called Jarman ),, is an employer engaged
as a contractor in the building and construction industry in the State of Utah. In
the work on the aforesaid highway overpass construction project , the Joint Venture
used Jarman's services in the installation of reinforcing steel . Jarman was actually
a subcontractor for Western Rolling Mill of Tempe, Arizona, on the installation of
reinforcing steel on the project . For use on the Joint Venture's construction job,
Jarman leased to the Joint Venture certain manned equipment . The employees
on such equipment were paid by Jarman. Jarman is, and at all times material
herein has been , an employer engaged in commerce or in an industry affecting com-
merce among the several States.'
II. THE LABOR ORGANIZATIONS INVOLVED
Teamsters is a labor organization representing certain employees of Utah Sand
and Gravel Products Corp . (herein called Utah Sand and Gravel , a supplier of
transit-mixed concrete to the Joint Venture for use on the aforesaid highway proj-
ect), with whom, at all times material herein , Teamsters had a labor dispute.
Teamsters did not represent employees of the Joint Venture and had no legitimate
labor dispute with the Joint Venture.
Operating Engineers is a labor organization representing certain employees in
the employ of Jarman and in the service of the Joint Venture during the times mate-
rial hereto . It had at such time no dispute with Jarman and, except as herein
found , it had no dispute with the Joint Venture.
Carpenters is a labor organization representing certain employees of the Joint
Venture. At no time material hereto did Carpenters have a labor dispute with the
Joint Venture or with Jarman.
' International Union of Operating Engineers, Local 571 (Layne-Western Company),
133 NLRB 208.
124 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD
III. THE UNFAIR LABOR PRACTICES
A. Chronological history of events
1. The labor dispute and the picketing by Teamsters
In late spring and summer of 1963, Teamsters and Operating Engineers were
negotiating contracts with various employers. Although, in the past, Utah Sand
and Gravel had engaged with said unions in joint negotiations along with other
employers in similar business, in 1963 it was negotiating separately with Operating
Engineers and Teamsters. Early in July 1963, Teamsters struck Utah Sand and
Gravel, and for a time, Utah Sand and Gravel was closed completely. When, dur-
ing the month of July 1963, Utah Sand and Gravel commenced operating again,
Teamsters assigned pickets to accompany transit-mix cement trucks of Utah Sand
and Gravel. The pickets, in automobiles, would accompany the truck to the place
of delivery, then get out of their cars, produce picket signs with a legend stating
that Teamsters was on strike at Utah Sand and Gravel, and picket near, or as near
as possible, to the truck during the time it was making its delivery. When the
truck had completed its delivery and departed, the pickets likewise would depart.
It was testified that when the pickets arrived, one of them would rush to a tele-
phone and that a short time later one or more Teamsters' or Operating Engineers'
business agents would appear. This testimony was in general terms. It does not
appear likely to me that the pickets arriving with each truck would do this, when
they were arriving in series. It is more likely that only a picket arriving with the
first truck of the day would do this. Furthermore, it does not seem likely that a
telephone call for a business agent would be made when one was already present,
as was the case on July 19.
Deliveries of cement to the Joint Venture highway construction job had been
interrupted by the strike and closing down of Utah Sand and Gravel, but when
Utah Sand and Gravel started to operate, during the Teamsters strike, without
union drivers, deliveries of concrete by Utah Sand and Gravel to the Joint Venture
project were resumed on July 19, 1963. Operating Engineers, at this time, although
expecting to reach a contract with Utah Sand and Gravel, had not yet signed one.
Because Teamsters and Operating Engineers were both interested in getting con-
tracts with Utah Sand and Gravel, Operating Engineers cooperated with Teamsters,
as hereinafter related, but was not, at this time, engaged in any actual picketing at
the Joint Venture project.
2. Events of July 19, 1963
Work was being performed on the highway overpass project of the Joint Venture
on the morning of July 19, 1963, and a delivery of transit-mix concrete from Utah
Sand and Gravel was expected during the day .2 The Joint Venture was headed by
Robert Weyher, whose company was the sponsoring contractor, by Mark Garff, of
the firm containing his name, and by Jack Okland of the firm bearing his name.
Early on the morning of July 19, the State inspector, having heard of an inter-
ruption in a concrete pour on another job where pickets had appeared with transit-
mix trucks of Utah Sand and Gravel, asked Superintendent Wallace McPhie to pour
only one column at a time .3 To learn whether or not the pour would be inter-
rupted by the appearance of pickets, McPhie (and perhaps also Weyher) spoke with
the crane operator, Raymond Barnes, a member of the Operating Engineers, and
an employee of Jarman, whose crane was leased to the Joint Venture, telling Barnes
that there had been trouble elsewhere with delivery of Utah Sand and Gravel con-
2 Although there were other companies that delivered concrete in transit-mix trucks,
Utah Sand and Gravel was the largest In the area. On July 16, 17, and 18, the Joint
Venture had ordered from Gibbons and Reed, another supplier of concrete, 125 yards of
cement to be delivered over a 5-hour period. However, the evidence indicated that
Gibbons and Reed, because of the heavy orders resulting from the strike at Utah Sand
and Gravel, were pressed to keep up deliveries to all customers and had delivered only
31 yards of concrete to the Joint Venture over a 61/2-hour period. This was inadequate
for requirements of the Joint Venture job and so the Joint Venture ordered concrete from
Utah Sand and Gravel when the latter decided to continue operations with nonunion help.
3 Because a fast pour in one column could cause a bulge, it had been the custom to pour
several columns at the same time ; however, the State inspector did not wish to take a
chance on cold joints in the event that deliveries of cement were interrupted by the
picketing, so he required that the columns be poured one at a time.
INT'L BROTHERHOOD OF TEAMSTERS, ETC., LOCAL 222 125
crete and asking him what he intended to do about operating the crane during the
delivery of the concrete if pickets should appear. Barnes told McPhie that he
would operate the crane unless advised by his business agent not to do S0.4
Three Utah Sand and Gravel transit-mix trucks arrived at the Joint Venture
project that morning, the first at 9:30, the second at 10:30, and the third at 10:40
a.m. • Each truck was accompanied by one or two automobiles containing Teamster
pickets. As soon as the truck turned into ' the Joint Venture area, the pickets
jumped, out of their cars with picket signs and commenced to picket. At first they
attempted to picket alongside the truck. However, after Weyher had asked them
not to come on railroad property but to picket the street, the pickets thereafter re-
mained on the street, at -a point nearest the truck when carrying their signs. The
signs bore a legend that the Teamsters were on strike at Utah Sand and Gravel.
In a compound adjoining the Joint Venture construction office, about eight car-
penters were working. These were employees of the Joint Venture and were mem-
bers of ^ the Carpenters or an affiliated local. Other carpenters worked at various
other locations about the project as much as a city block away from the compound.
These, too, were members of Carpenters or of an affiliated local.
Within the compound, upon the appearance of the pickets, Kendell Fisher, the
sawman for the Joint Venture, and an active and long-time member of the Car-
penters,, cut off the power that ran his saw. Foreman Joseph Bordelon, also a long-
time member of the Carpenters, then indicated that he was quitting. Bordelon
pulled the cord plug on an electric drill, disconnecting it and causing another car-
penter, Delbert Chadwick. who was using the drill, to cease working.5 No conten-
tion was made that Bordelon was acting as an agent for the Carpenters in this re-
spect, and a suspicion that Fisher was a steward was unsupported by evidence.
Chadwick testified credibly that Bordelon told him, "This is it. There's a strike
on." All the carpenters in the compound stopped working and commenced to mill
about, talking among themselves as to what to do. Some had doubt as to whether
or not they would be subject to discipline or penalty by the Carpenters if they
continued to work.6
When Superintendent McPhie noticed the carpenters gathered in the compound
and not working, he went there and spoke with them, telling them that the pickets
constituted a secondary boycott, that it was just a picket line against the truck and
not against the Joint Venture. He asked Bordelon not to stop his men but to
keep on working until the Carpenters' business agent came. He also suggested that
Bordelon telephone the business agent. Bordelon left to make a telephone call.
Some of the carpenters may have returned to work, but Fisher left the premises
completely and did not return that day. Others just stood about in the compound-
waiting for the business agent.
From a telephone in his home, Fisher telephoned the Carpenters' hall and told,
Assistant Business Agent Don Gilman of the trouble at Joint Venture project 7'
Following Fisher's telephone call, Gilman got in his car and drove to the site of
the work, arriving there about 10.30 a.m.
McPhie met Gilman as he arrived on the site and walked to the compound with
him but left him with the employees there before Gilman spoke to any of them.
4 This finding is based on McPhie's testimony. Barnes testified that he told McPhie he
would pour concrete from any trucks of Utah Sand and Gravel "as long as they were
union " ' However , I find that this testimony referred to a subsequent conversation held'-
between McPhie and Barnes after Barnes had been given instructions by a business agent
and not to the one herein related. -
5 Chadwick testified that the bit he was using in his drill belonged to Bordeion. Since-
Bordelon had already indicated that he was quitting, he apparently was demanding a re-
turn of his bit so that he could leave
6 Okland, one of the Joint Venture members, testified that Fisher told the men they
were subject to a $150 fine if they worked behind a picket line, but his testimony was
obviously hearsay since Okland was not at the project until later that day. Actually, the
Carpenters' constitution provided for disciplinary action against members only for cross-
ing a picket line of the Carpenters. Apparently, the carpenters in the compound did not
all know this.
7 Bordelon had already telephoned , but had merely left a message because no business
agent was there when he called . The secretary told Gilman when he came in, about
10 a.m. that a call had come from the "Weyher job." Weyher's name apparently was
used because he was the sponsoring contractor.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McPhie then went to Garff to let him know that the business agent of the Carpenters
was there. As Gilman entered-the compound, the carpenters gathered around him
and he spoke briefly with them before Garff came up. It is not entirely clear as to
what or how much Gilman said in the presence of the carpenters after McPhie
left and before Garff arrived and how much he said after he was in the presence of
Garff. The witnesses were in considerable conflict as to exactly what Gilman did say.
In attempting to reconstruct this incident, I have taken into account that there was a
great deal of confusion, with more than one man attempting to talk at the same
time, and I have taken into consideration the fact that the extensive discussions
both then and later, which included considerable hearsay in the retelling of incidents,
could have affected the memory of the witnesses and caused their memories to blend
hearsay with fact. It is also apparent that the entire group did not remain together
during the entire time that Gilman was present, especially after he left the compound
and talked with one or two outside. When Gilman first came, one of the car-
penters asked him if there was a strike and if they could work. Gilman said that there
was definitely a picket line (no one quoted him as saying that there was no strike).
I judge that the carpenters were seeking information as to the nature of the picketing
to determine whether or not it was the type which, traditionally, other unions re-
spected. With regard to whether or not they could work, Gilman said that it was
up to them to decide whether or not to work.
At this point, Garff entered the compound and asked the men what was going on
and what they were going to do One of them remarked that they were going to talk
to the business agent. Garff told the men that they would either have to work or go
home, as he was not going to pay them to stand around. Gilman and Garff walked
out of the compound. A couple of the carpenters followed Gilman to question him
further. The evidence is not clear as to how many remained to speak with Gilman,
but from the failure of the carpenters who testified to remember anything more,
I judge that most of them remained in the compound, picked up their tools and left.
Carpenters who were not working in the compound continued to work without
interruption until the whole job shut down that noon.
When Gilman had reached a point outside the compound, in front of the con-
struction office, Ivan Goodrich, a member of an affiliate of the Carpenters, and a
permit man on the job, who was one of those who had followed Gilman, asked
Gilman, according to the latter, "Don, what will the union do if we work behind
the picket line?" Gilman testified that he replied: "I don't know what in the hell
they will do. It is not for me to decide. As far as I am concerned they will do
nothing." The testimony of Goodrich and of Ted Sparks, another permit man who
had followed Gilman out of the compound, was that they had asked Gilman if they
should work, that his reply was they could if they wanted to, that they had then asked
if "the union" would fine them if they worked,8 and that Gilman had replied, "Try it"
or "Try us." 9 It appeared to me that Goodrich and Sparks were blending the con-
versation which took place inside the compound with that which took place outside
and I am of the impression that they might have been commingling what they heard
in the compound from other carpenters with what they heard Gilman say. Gilman
impressed me as a sincere and honest witness. I accept his version of the con-
versation. Gilman left the premises following his reply to Goodrich and Sparks.
The carpenters in the compound discontinued working. Those working elsewhere
on the project did not stop that day.io
8 Goodrich testified that he asked Gilman, "How much are you going to fine us if we are
wrong'?" that Gilman answered, "You are putting me on the spot," that Sparks asked
"Would [or could] you fine us?" and that Gilman then answered, "Try it" or "Try us
Sparks' testimony, parts of which were seemingly fragmentary, was similar in part
s Garff gave still another version of this colloquy, but since he was, at the time, some
8 feet away, and may not have heard clearly, I am inclined to believe that he was not in
a position to quote Gilman accurately. This is not intended to be a reflection upon the
)honesty of Garif as a witness.
io From this, the Charging Party reasons that, even without proof of Gilman's actual
words, it is inferable that Gilman influenced the carpenters in the compound to stop work-
ing There was no evidence that the carpenters at other locations on the project were
aware of the presence of pickets One, who was asked, testified that he was down in a
deep bole- working and did not see the, pickets. There is, therefore, no reason to inter
that carpenters elsewhere on the project would have continued to work if they had been
aware of the presence of the pickets.
INT'L BROTHERHOOD OF TEAMSTERS , ETC., LOCAL 222 127
About noon that Friday , because of a dispute over the way in which concrete
should be poured in the columns , brought about because of the uncertainties of
deliveries in-the face of picketing , the State inspector pulled his men off the job.
This required that the work stop . The Joint Venture therefore sent all of its em-
ployees home.
Sometime during the morning of July 19 , 1963 , 11 Lake Austin , a business agent
for the Operating Engineers , accompanied by an unidentified business agent of the
Teamsters , spoke with Weyher , whose firm was the sponsoring contractor and
who was chief executive officer of the Joint Venture . According to Weyher (Austin
and the i Teamsters representative did not 'testify ) , Austin, in the presence of Garff
and the ; Teamsters representative , asked Weyher's permission to go on the con-
struction site to speak with the crane operator, who, at the time, was assisting with
the concrete pour from the picketed truck . Weyher told Austin that the Joint
Venture had been requested by the railroad not to permit union activity on the rail-
road property and he could not, therefore, give the permission requested . Austin
then asked Weyher to step across the street with him to a point where they could
converse in private . Weyher did as requested . Austin then asked Weyher if he
(or the Joint Venture ) "would not cooperate with them" (Operating Engineers and
Teamsters ) and agree not to take any Utah Sand and Gravel concrete for a couple
of days because "if you will hold out for a couple of days . we can break the
back of Utah Sand and we will have all of this settled and we will all be able
to go back to work ." Weyher declined to cancel orders for concrete . Austin then
requested permission to use the telephone at the job office and Weyher granted
it 12 While Austin was using the telephone, Weyher testified , the man identified
by Weyher as a Teamsters business agent, whose name he testified he had forgotten,
asked Weyher to cooperate ,, using substantially the same words as those used by
Austin. ,
Later ] that morning, Austin , speaking again to Weyher , commented (as quoted
by Weyher ) with respect to the crane operator : "I can't understand that man work-
ing over there behind that Teamster picket . This is contrary to what they ought
to do." 13
3. The events of July 22, 1963
The Joint Venture resumed work on Monday morning, July 22, and early that
day, John Bonner , a business agent for the Carpenters , was at the job office to speak
with Superintendent McPhie. In the course of their conversation concerning the
routine to be followed in hiring men under the terms of a contract recently con-
cluded by the Carpenters with Associated General Contractors, Bonner and McPhie
entered the compound , where the carpenters were working . Following a discussion
concerning the propriety of the hiring of certain carpenters working there , Bonner
and McPhie left the compound and returned to the job office, at which point Okland
entered the conversation and remarked that the Teamsters ' picketing of concrete
trucks was a secondary boycott. Bonner commented that a legal decision had
approved ambulatory picketing . About this time Weyher approached . He testified
that he asked Bonner a question and received from Bonner a reply. The evidence
is conflicting as to precisely what was said . On direct examination Weyher testified
that he asked Bonner if be were instructing the men to leave and that Bonner had
replied that he was not instructing them to do anything but was advising them
that it was improper for a union man to work behind a picket line On cross-
examination Weyher testified that he asked Bonner "if he was instructing the men
to leave;" and that Bonner had said that the Wien were not supposed to work behind
a picket line. According to the last testimony , it does not appear that Bonner
said that he had given the men any instruction . Okland testified that Weyher
had asked Bonner what he had told his men about crossing a picket line when the
u From the testimony of Weyher and Garff , the only witnesses to testify to the incidents
about to ' be related , it is difficult to determine the exact time of day when the events took
place, but on all the evidence I conclude and find ` that one conversation took place soon
after the picketing commenced and that another one occurred somewhat later but before
11 40 am
2 According to Garff, he left the conversation at this point 'to go over to speak with
Carpenters Business Agent Gilman and the carpenters in the compound
13 This! conversation presumably took place before the State inspector took his men off
the job and the Joint Venture had to close down 'operations The crane operator, who
was an employee of Jarman , continued to work for Jarman that afternoon , but presum-
ably no pickets were present while he was doing so.
128 'DECISIONS OF, NATIONAL LABOR ' RELATIONS BOARD
ready-mix trucks were there and that Bonner had answered , "I just told them if
it was me I wouldn 't work behind a picket line ." McPhie, in his testimony , omitted
reference to Weyher's presence and testified that • Okland asked - Bonner some ques-
tions and "we got to referring about this - strike and Mr. Bonner made the state-
ment that he would not work behind those picket lines and he would not request
his men to do it." According to this testimony , likewise, Bonner did not say that
he -had instructed the men to do anything or even told them his own feeling in
the matter . Bonner himself testified at length concerning . his conversation with
McPhie and Okland. He acknowledged that Weyher came up to the group during
the conversation , but, he denied Weyher's testimony with respect to what he
allegedly had told the carpenters that it was improper for a union man to work
behind a picket line-and he denied that he had stated that he would not work
behind a picket line and would not expect his men to do so. On the evidence, it
is apparent that Bonner, accompanied by McPhie , had no opportunity to give the
carpenters any instructions or advice while he was- on the job that morning, and
I conclude that he did not do so. Under the circumstances , it seems improbable
that Bonner would have made a statement that he had instructed or advised his
men not to work while the pickets , were present , and I find that he did' not do so.
It is obvious that memories were not too sharp about this conversation.14 But
even if Bonner had said (not in the presence of any rank-and-file employee) that
he would not work behind a picket line and would not expect his men to do so,
I should find this no violation of the Act. It is, therefore , unnecessary to resolve
the credibility issue any further than I have.
Bonner quoted himself as saying , just after the aforementioned reference to the
picketing and the legality of it, that "if the dissension on this job wasn 't smoothed
over or some of the dissension cut out that there was going to be innocent parties
hurt." Bonner testified that he told Okland that he was not referring to him.
Bonner explained his reference to "dissension " as referring to an incident involving
McPhie and a carpenter discharged by McPhie . The carpenter had reported to
Bonner that McPhie had struck him. Bonner had not heard that McPhie had
discharged that carpenter for coming on the job drunk . Apparently, both the
General Counsel and the Charging Party accepted Bonner's explanation of his
allusion to dissension , for neither contended in his brief that Bonner was referring
to anything else, and I accept Bonner 's explanation.
At 11: 30 a.m . that Monday, the first of 10 deliveries of concrete was made by
Utah Sand and Gravel trucks. As each truck arrived , pickets would arrive simul-
taneously and would begin picketing and continue as long as the truck remained.
One truck was delivering its load of concrete at Jarman 's crane. After a few buckets
of concrete had been poured by use of this crane , Stan Garber , a business agent for
the Operating Engineers , went to the crane without having sought permission to
speak with the operator , climbed up on it , and had a conversation with Raymond
Barnes, the operator of the crane . According to Barnes , Garber said , "Ray, we
are having trouble with Utah Sand and Gravel. We have got to honor those picket
lines. The best thing we can do is shut the machine off." Garber handed his
business card to Barnes . Thereupon Barnes gave his oiler , Jerry Zimmerman, the
signal to shut down . Zimmerman shut off the motor on the truck portion of the
crane . Garff, standing nearby, asked Garber if he was there to shut the job down.
Garber answered that he had given instructions to the crane operator'to cease work
and get off the job . Before Barnes could shut off -the motor that operated the boom,
Garff climbed up on the crane and told Barnes not to shut the motor off, as the
crane was under lease to the Joint Venture . Then Garff asked Barnes if he was
going to finish his pour . Barnes replied that he was through . Garff asked on
whose orders. Barnes pointed to Garber and handed Garff the card which Garber
had given him. Barnes then picked up his lunch box , climbed down , and left with
his oiler , Zimmerman . Garff took the seat off the crane so that no one-else could
occupy it and remained there until a supervisor , familiar with the operation of
the crane, could be called off another construction job to operate the crane. By
"It appeared to me at the hearing that Weyher's memory was in a state of some con-
fusion. So much had transpired during the latter part of July , some of which Weyher
had seen or heard firsthand , some of which he had learned by reports or hearsay, that I
believe all the impressions on his mind tended to become confused , so that it was diffi-
cult or impossible for him , in attempting to recall , to isolate his firsthand experiences or
to recall them accurately . I have scrutinized his testimony carefully and have, therefore,
relied on his testimony only when, in the light of all the evidence , it appeared to be con-
sistent with all the facts
INT'L -BROTHERHOOD OF TEAMSTERS, ETC., LOCAL 222 129)
using this supervisor, the Joint Venture was able to finish the pour of concrete
delivered by the' 10 trucks, but not until the last transit-mix truck finished its
delivery at 4:35'p.m.15' - -
After' Barnes left the crane, he went to Jarman's office on the grounds and shortly
after 12 o'clock, while Barnes was eating his lunch, Business Agent Austin (who had,.
on July 19, requested Weyher to discontinue taking Utah Sand and Gravel con-
crete) approached Barnes and told him substantially the same thing that Garber
had just told him-that when the Utah Sand and Gravel trucks were on the job,
he should shut his machine down, and when they left he should return to work.
Austin similarly instructed Zimmerman and other Operating Engineers, including
Bernard Cude, a forklift operator for the Joint Venture, and Burl Foster, a "cat
operator." According to Cude, while he was on the job just before noon, Austin,
in the street, gave'Cude the "high sign." Cude thereupon shut his machine down
and went over to Austin. There Austin instructed Cude and Foster. Following
Austin's instruction to Cude and Foster, Weyher sought to get these employees to
work by telling them that the attorney for the Joint Venture had told him that the
picketing constituted a secondary boycott. However, Cude and Foster said that they
had been instructed by their business agent not to work as long as there were
pickets around, whether or not the pickets were those of the Operating Engineers,
and thereafter they did not do so. -
Royal Johnson, a piledriver operator and a member of Operating Engineers,
was on the afternoon shift: At the end of his lunch period, 4:30 p.m., on July 22,
Johnson and his oiler, Robert Garner, also a member of the Operating Engineers,
returned to start working. At this moment, Austin went to Joseph Shepherd, the
pile butt supervisor for the Joint Venture, and told Shepherd that he would have
to pull the operator and oiler off the crane while they were pouring concrete. John-
son and Garner thereupon went out into the street to speak with Austin, and Austin
told them not to work while pickets were present.16 Before Austin so instructed
them, Johnson and Garner had worked even when pickets were present, but there-
after they ceased working whenever such pickets were there. Because the last
truck left about 4:35 p.m. and because the pickets-usually left at the same time,
Johnson and Garner apparently were off the job at this time for about 5 minutes.
During the middle of the day on July 22, while pickets were picketing the trucks
of Utah Sand and Gravel, a number of carpenters were sitting under a tree, waiting
for the pickets to leave.17 Carpenters ' Business Agent Bonner approached theirk
and told them to "stick around" and be available for work when the pickets left.
He testified that he gave them such instructions to keep them from going home,
as Fisher had done the previous Friday.
With the arrival of one of the Utah Sand and Gravel trucks that day, an automo-
bile containing two men pulled into the street at the west end of the project. This,
street was closed to traffic, but it was passable. Two men jumped out of this auto-
mobile,, one with a picket sign. The other, a man later identified as one Carter,
crossed, the street toward the construction work and approached an A-frame
truck where a labor foreman, Douglas Phillips, and a laborer, Adolph Padilla, were
working. The A-frame truck was at a point about 30 to 50 feet from the street.
Carter exchanged words with Padilla. Neither Carter nor Padilla testified, and there
is no evidence of precisely what was said. Phillips, who testified, said that because
of the noise of the motor, all he could hear Carter say was, " . . . they have-
all pulled off." While Carter was still standing there, Weyher approached and
told Carter to leave and picket by the truck. According to Weyher, Carter replied
that he could do anything he wanted to "and he objected to scabs working behind
15 Although some of the carpenters testified that they returned to work after the last
truck left, those on the day shift would have had to work overtime to continue after
4'35 p.m., so I question the accuracy of the memory of certain of the witnesses about this.
"Johnson 's testimony made it appear that he was seeking counsel from Austin. Be-
cause the evidence as a whole makes - it clear that Austin was taking upon himself the.
responsibility of governing the conduct of members of his organization, I do not give-
weight to Johnson ' s testimony about seeking counsel , particularly since the words in-
dicating that Johnson was seeking counsel were virtually put in'Johnson's mouth by
counsel for the Operating Engineers.
17 Some of them testified that they were eating their lunch . From this I cannot assume
that the time was their normal lunch period of 12 to 12:30 p in. The men had left work
at 11 :30 am. when the trucks began arriving and did not return to work until the last
one hadi left. They testified that they returned to work when the trucks left at "about.
2:00 p.m." However , the last truck did not leave until 4:35 p.m.
760-577-65-vol. 148-10
130 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
the picket." When Carter refused to leave, Weyher seized him and sought to push
him back. A scuffle ensued , but workmen separated Weyher and Carter. Weyher
testified that Carter carried a picket sign but other witnesses testified that he did
not carry one. I find that he did not carry one.
4. Events of July 23 and 25 18
Six concrete deliveries were made by trucks of Utah Sand and Gravel between
12:30 and 3:55 p.m. on July 23. At a time when cement trucks and pickets were
present that afternoon, James Bennett , a laborer for the Joint Venture (but who
was a member of an affiliated local of Operating Engineers), was running a boom
truck. Business Agent Austin of the Operating Engineers went to Bennett and told
him that he would have to get off the truck-that he had enough trouble. Bennett
went to Superintendent McPhie and told him that "that man," indicating Austin,
had told him to get off the truck. McPhie thereupon went to Austin and asked if
he had told Bennett to get off the truck. Austin replied that he had. McPhie told
Austin that it was necessary to use the truck to lower steel cages into the shells
where concrete was going to be poured because it was too dangerous for the men
to do it by themselves, and he requested Austin to put-an operator on the truck.
Austin, as quoted by McPhie, replied that under no circumstances would he put an
operator on that piece of equipment as long as Utah Sand and Gravel trucks were
there. McPhie commented that the picketing was illegal. Austin told McPhie that
he had instructions from the San Francisco office of the Operating Engineers not
to have men operate any piece of equipment as long as Utah Sand and Gravel was
on the job [i.e., construction site] and to back the Teamsters all the way. As a
result of Austin's action, Superintendent McPhie himself had to operate the boom
truck while concrete was being delivered.
On July 25 production proceeded without interruption until about 5 o'clock, in the
middle of the afternoon shift, at which time the first transit-mix truck arrived.
The employees on the project quit working when the pickets appeared. Soon there-
after, the Joint Venture dismissed its employees for the rest of the day because it
was expected that trucks would be there during the rest of.the shift,19 so it was not
expected that the employees would work anyway. No evidence was offered con-
cerning the use of men who would assist with the pour that evening, but pre-
sumably if help was needed, the Joint Venture used supervisors or employees not
subject to union influence. According to Superintendent McPhie no columns were
poured between July 23 and 26; only pilings, on which no crane was needed, were
poured.
5. Events of July 26 and thereafter
Negotiations between Operating Engineers and A.G.C., deferred from late June
because contracts with other labor organizations had prior expiration dates, were
resumed on the afternoon of July 25 29 That evening, after adjournment of the
negotiation meeting, the Operating Engineers, according to Paul Edgecombe, its
international president, instructed its business agents to take its latest contract pro-
posal to certain contractor members of A.G.C. for signature and to picket them if
they did not sign. Since only Weyher was picketed the next day, I doubt that in-
structions were given at that time to treat others than the Joint Venture the same
way. There were enough business agents to carry out such instructions in full had
they been given, but admittedly no one else was picketed by Operating Engineers
until days later. Edgecombe testified that this picketing was,to be done only with
"contractors who had key jobs who would bring pressure upon the [A.G.C.] Nego-
tiating Committee... .. It is noteworthy that none of the members of the A.G.C.
negotiating committee (most of whom were contractors) was included in such in-
structions. While I do not question Edgecombe's testimony as to the instructions
18 July 24 was a legal holiday in Utah and no work was done that day at the project
11 Eighteen truckloads of concrete were delivered by Utah Sand and Gravel between
5 and 8.45 p.m on July 25
20 Operating Engineers contended that meanwhile there was an understanding with
A G C that the expired contract would be continued until a new one was negotiated.
This contention was not supported by the evidence. I find that there was no under-
standing that all terms of the expired contract would be given effect Customary prac-
tices, including rates of pay and contributions to the health and welfare funds of,various
unions, continued to be paid as before contract expiration, but the Operating Engineers,,
itself, did not regard all provisions to be in effect-particularly not the "no-strike clause"
of the expired contract
INT'L BROTHERHOOD OF TEAMSTERS, ETC, LOCAL 222 131
given insofar as they pertain to the Joint Venture, I do not credit his testimony
concerning the generality of these instructions The business agents receiving these
instructions included Merl Bowman (who "works out of Oregon"),21 Lake Austin,
Vance Abbott, Stan Garber, and Jay Neeley
On the morning of July 26, Weyher was on the highway project when he received
notice from his company's office that Bowman was there to see him Weyher
arranged to have Bowman meet him at the construction site, and he was in the
office of the Joint Venture talking with Okland when Bowman arrived Weyher
stepped outside to speak with Bowman, who had with him a man whose identity
Weyher did not recall Bowman handed Weyher a form of contract and asked him
to sign it for his company, saying that, if the terms of the contract with A G C
should, when negotiated, differ from the one Weyher was asked to sign, then the
terms would be changed to conform to the A G C contract Neither Garff nor
Okland, the other members of the Joint Venture, were presented with similar con-
tracts Weyher told Bowman that he could not sign , because his company had
given its bargaining rights to A G C, who were then in negotiations, and that he
could not sign a separate contract until they had given up bargaining on a joint
basis Bowman told Weyher that he was sorry that Weyher would not sign and that he
had been instructed to tell him that if he did not sign, there would be pickets on the
Joint Venture job by noon Weyher asked Okland to step out of the office and
Okland did so Weyher explained to Okland that the Operating Engineers was
asking him to sign a separate contract and that he had told Bowman that he could
not legally or morally sign it, but that the Operating Engineers " are going to strike
us" if it was not signed Okland said, "We can't sign it " Bowman said that he
had been asked only to get Weyher to sign-not Okland 22 During both the morn-
ing and afternoon of July 26, Operating Engineers was in bargaining sessions with
A G C At noon on July 26, Bowman reappeared at the Joint Venture project and
again asked Weyher to sign Weyher again refused to do so Bowman, according
to Weyher, said that pickets would be there by 2 p in
Weyher testified that, before the Operating Engineers' pickets arrived, he again
spoke with Bowman and then with Business Agent Neeley, who arrived about the
same time On direct examination, Weyher quoted Bowman as saying on this occa-
sion, "We wouldn't have interfered with you fellows if we had known that you were
using Gibbons and Reed's concrete " Later in his testimony, Weyher explained
"We had concrete scheduled from Gibbons and Reed Mr Bowman appeared and
threatened to have pickets on the [job] by noon, and we [management] discussed
whether or not it was advisable to pour concrete on that day if the job was in fact
going to be picketed, and inasmuch as we were afraid of [losing] some more struc-
ture because of getting it half finished and not having an operator we decided not
to take any concrete That's the way it turned out, so we canceled our order with
Gibbons and Reed, and later that afternoon when the-I believe it was that after-
noon-Operating Engineers said, `Well, if we had known it was Gibbons and Reed's
concrete we wouldn't have picketed ' " Weyher also testified that, between the time
of his conversation with Bowman and the time that the picketing by Operating
Engineers started, he had a conversation with Business Agent Neeley in which he
asked Neeley why Operating Engineers was putting on pickets He testified that
Neeley answered "Well, there are two reasons One reason is that we want you
to sign this separate agreement with the Operating Engineers, and the second reason
is that one way or the other we are going to break the back of Utah Sand and
Gravel and get this Utah Sand Gravel stopped from coming onto this job " Neither
Neeley nor Bowman was called as a witness and no reason for failure to call them
was given I could, therefore, credit Weyher's undenied testimony However, al-
though I infer from all the evidence that Operating Engineers' primary reason for
picketing the Joint Venture was not to get a separate contract from Weyher but
was to increase pressure on the Joint Venture (known to the Respondents, appar-
ently, as "The Weyher job") to discontinue taking concrete from Utah Sand and
Gravel, I find it difficult to believe that Weyher had the conversation with Bowman
on that day at all, and uncei tainty as to the occurrence of this conversation leads
me to doubt that the one with Neeley occurred at that time 23 Weyher's testimony
21 Bowman's name is sometimes spelled "Boman" in the record
Bowman did not testify The above findings are b-ised on the testimony of Weyher
Ind Okiind i
as It is possible that conversations such as these tool, place later in July or early August,
but, on the testinion3, there is no basis for finding that this Ras 2 Pict
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeared confused in respect to these conversations. Furthermore, his testimony
that he and his joint venturers had discussed whether or not it was advisable to pour
concrete on that day if the job was, in fact, going to be picketed and that they had
decided not to take "any concrete," because they would not have an operator and
they were afraid of losing more structures by getting them half poured does not
square with the facts, for despite the Operating Engineers' pickets on July 26, the
Joint Venture did receive delivery of six truckloads of concrete from Utah Sand
and Gravel between 1 and 5:25 p.m. So far as appears, no attempt was made to,
cancel the order from Utah Sand and Gravel. If the Joint Venture had ordered
concrete from Gibbons and Reed for delivery that day, there would be no reason
for canceling that order while still accepting Utah Sand and Gravel concrete in the
face of the picketing. It is more likely that the Joint Venture members discussed
the practicality of operating the following week by taking concrete from other sup-
pliers than Utah Sand and Gravel and decided against it because of the uncertainty
of getting an adequate supply of concrete from the smaller suppliers.
Although I do not find that Bowman or Neeley made the statements last quoted,
I find ample support for the inference that a desire for a separate contract from
Weyher was not the primary object of the picketing by Operating Engineers but
that the primary object was to compel the Joint Venture to discontinue taking its
supply of concrete from Utah Sand and Gravel. This object was evident from the
incident on July 19, when Austin asked Weyher to help by not taking Utah Sand
and Gravel concrete and from events during the following week when business.
agents of Operating Engineers departed from any appearance of neutrality and
openly required employees of the Joint Venture to discontinue operating their ma-
chines. The request for a separate contract from Weyher, without a request for
similar contracts from other members of A.G.C. at the same time (or at all, so far
as appears 24) and without putting any separate pressure on members of the A.G.C.
contract negotiating committee members, most of whom were building contractors,
has all the appearances of pretense. A separate contract from Weyher does not, of
itself, appear to have been important enough a reason for picketing him and put-
ting members of Operating Engineers out of a job with the Joint Venture when
negotiations with A.G.C. had only just begun. Although I find it unnecessary to•
decide primary motivation, I find that a more logical reason for the demand for a
separate contract from Weyher was to lay the foundation for primary, as dis-
tinguished from secondary, action and thus avoid possible legal consequences of
secondary boycotting. It is, of course, possible that Weyher was selected as the
object of picketing because of his physical contact with a man who came with a,
picket, if he- was not a picket himself.25
Operating Engineers, as threatened by Bowman, did post pickets on the Joint
Venture viaduct job on the afternoon of July 26.' The picket signs stated that
Operating Engineers were on strike against Weyher Construction Company. Pickets
with the same type of signs were also posted on another job (Kennecott Building),
on which the Garff and Okland firms were the general contractor and Weyher was
a subcontractor. After July 26 the Joint Venture closed down completely until
A.G.C. and Operating Engineers reached agreement early on August 2. Operating
Engineers, on that day, removed the pickets, and the Joint Venture resumed con-
struction, but the Joint Venture did not order any more concrete from Utah Sand
and Gravel until after that company had reached agreement with Teamsters and
Operating Engineers on August 7. I make no finding as to whether or not the
pickets would have been removed if the Joint Venture had used Utah Sand and
Gravel concrete between August 2 and 7, 1963.
24 Only two other contractors were identified as having been picketed later on but be-
fore August 2, when Operating Engineers reached agreement with A G C. on the terms of
a contract There was hearsay evidence that the firm of Talboe and Harlin was picketed
late in July, and it was stipulated that picketing of Tiago Construction Company by
Operating Engineers began on August 1 and ended on August 2 when the A.G C. con-
tract negotiations were completed. I make no finding as to the reason for such picketing.
There was no evidence that either Tiago or Talboe and Harlin was asked to sign a sepa-
rate contract.
25 Carpenters Business Agent Bonner quoted Operating Engineers Business Agent
Austin, in response to Bonner ' s question concerning the reason for the presence of a
policeman at the site of the project on July 22 , as saying that Weyher had just "workedt
over" a Teamsters picket.
INT'L BROTHERHOOD OF TEAMSTERS , ETC., LOCAL 222 133
B. Conclusions
{ 1. Regarding activities of Teamsters
The General Counsel does not contend that the ambulatory picketing by the
Teamsters of transit -mix trucks of Utah Sand and Gravel was in violation of the
Act. The Charging Party does argue that because employees driving concrete
trucks of Utah Sand and Gravel moved in and out of that company's permanent
location several times a day , there was no reason to engage in ambulatory picket-
ing. This argument is based on the doctrine of the Washington Coca Cola decision 26
Had that decision remained unmodified , the Charging Party's argument might have
prevailed .27 However, the rigid rule of that decision has been rejected by court
decisions and has been modified by the Board itself.28 As the Board stated in
the Brown Transport case: 29
We recognize that the Moore Dry Dock standards "are not to be applied on
an indiscriminate `per se' basis" [citing Plausche Electric], and that mere out-
ward compliance with such standards may not be used as a shield where inde-
pendent proof exists that the picketing was actually aimed at achieving unlawful
secondary objectives over and beyond such incidental effects as might normally
be a concomitant of legitimate primary picketing.
Independent proof of unlawful secondary objectives is not always easy to produce.
A mere suspicion that the primary object of the picketing is to affect the relations
between the primary employer and secondary or neutral employers is certainly
not enough . True, the Teamsters knew that the trucks of Utah Sand and Gravel
were carrying concrete to the Joint Venture and knew that the Joint Venture employed
members of various unions , albeit not Teamsters members. I do not doubt but
that the Teamsters was aware of the fact that it is a widely held tenet in union
circles that it is "not right" to work behind a picket line of another union , and I do
not doubt but that Teamsters might have counted on this in picketing the trucks
of Utah Sand and Gravel while they were unloading at the Joint Venture project.
But if so, this is an expectation that probably exists in any ambulatory picketing
case. Decisional law has not gone so far as to view the hope of a picketing union
that employees of secondary employers will cease working as establishing its primary
objective so as to convert what is otherwise lawful picketing into unlawful picket-
ing. The independent evidence of the object of the picketing must be more than this.
In the instant case, the independent proof relied on by the General Counsel and
the Charging Party to establish the Teamsters' object in picketing consists of two
minor incidents concerning which a credibility question exists. In each case, the in-
dependent evidence depends on the credibility of Weyher's testimony . The first
is Weyher's testimony that an unidentified business agent of the Teamsters, at the
beginning of the ambulatory picketing , accompanying the Operating Engineers busi-
ness agent , requested Weyher to cooperate by not taking Utah Sand and Gravel
concrete . The second was Weyher's testimony concerning the activities of Carter,
the alleged Teamsters picket. With regard to the first, the Charging Party argues
that this request , made as it was while picketing of the trucks was in progress,
constituted an implied threat to continue such activity unless the Joint Venture
agreed not to take Utah Sand and Gravel concrete . I find no threat in this request.
Naturally, if the Joint Venture discontinued taking concrete from Utah Sand and
Gravel, the picketing would cease because the picketing was done only while Utah
Sand and Gravel trucks were present . The fact that picketing of the trucks would
continue if the Joint Venture continued to buy Utah Sand and Gravel concrete
was not threatened in any event . The request alone , then , would not be a viola-
2 Brewery and Beverage Drivers and Workers, Local No. 67, etc ( Washington Coca
Cola Bottling Works , Inc.), 107 NLRB 299, enfd . 220 F 2d 380 (C.A D C.).
2 This argument was aimed at the Teamsters' ambulatory picketing away from Utah
Sand and Gravel 's place of business and not at the location of the picketing In the street
rather than around the truck. Since the pickets were requested by the Joint Venture
not to come on railroad property , the pickets were unable to picket any closer to the
trucks than they did. There is no contention that the picketing in the street took the
picketing outside the scope of permissible common situs picketing . See Saclors' Union of
the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547.
25International Brotherhood of Electrical Workers, Local Union 861, et al ( Plauche
Electric, Inc.), 135 NLRB 250; and see court decisions therein cited.
29Truck Drivers and Helpers Local Union No. 728, I.B.T. (Brown Transport Corp.),
144 NLRB 590.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the Act; 30 the picketing alone was not a violation of the Act ; 3 1 and no
reason is shown why they should be transmuted into a violation of the Act when
combined , certainly not in the absence of other independent evidence , such as that
the picketing was arranged by the Teamsters to operate as an automatic signal for
work stoppages by employees of neutral employers. Not only is there no evidence
that such a signal was arranged but most of the employees failed to react initially
as though a signal had been given.
The second incident relied on to show a violation of Section 8(b)(4)(i)(B) 32
of the Act, according to the General Counsel, is apparently to be found in the fact
that Carter, allegedly a Teamsters picket, had failed to picket near the concrete
truck but had gone out of his way to speak with a laborer, Padilla. More specifically,
the General Counsel, in his brief, contends that the "scuffle between Weyher and
Carter, taking place, as it did, in the presence of not only Padilla but other em-
ployees employed by the Joint Venture, induced and encouraged these employees
in violation of Section 8(b) (4) (i) (B) of the Act." I am unable to concur with
either contention. In the first place, if Carter were conceded to be an agent of
the Teamsters, the evidence is still insufficient to prove that Carter induced or en-
couraged Padilla to engage in a strike or to refuse to perform services. The only
statement Carter was proved to have made was, ". . . they have all pulled off."
Even if "they," in this phrase, were taken to mean "employees," the reference could
have been to employees of another employer. Neither Carter nor Padilla was called
as a witness. It not only was not established why Carter went to speak with Padilla
but, for all'that appears, Carter could have been personally acquainted with Padilla
and could have been merely discussing strike conditions at Utah Sand and Gravel
or any other topic. The only evidence suggesting that Carter was speaking about
the Teamsters picketing and was attempting to induce Padilla to cease working
was Weyher's testimony that Carter said he objected to scab labor working behind
the picket line. Because no one else heard this , apparently , and because I am
chary of relying on it, I find that Carter did not make this statement. Except for
hearsay evidence, unreliable at best, it was not proved that Carter was a Teamsters
agent The evidence is altogether too weak to warrant the finding that Carter sought
to influence Padilla.
The contention of the General Counsel that Carter induced or encouraged any
employees by his conduct in getting into a scuffle with Weyher is farfetched.
Carter was not, at the time, attempting to coerce Weyher. In fact, Weyher was the
first to use his hands. I am not passing on the propriety of Carter's conduct. I
find only that an unfair labor practice by the Teamsters cannot be based thereon.
On the evidence, I am not convinced that Carter was even proved to be an agent
of Teamsters. His agency is supposed , apparently, to be inferred from the fact
that Carter got out of the same automobile as a Teamsters picket (for I have found
that Carter did not, himself, carry a picket sign) and the fact that usually two
pickets arrived in each car which accompanied a Utah Sand and Gravel truck, but
I find this to be too insubstantial to prove agency.
No contention was made that the Teamsters and Operating Engineers had con-
spired or engaged in a joint venture to effect a work stoppage at the Joint Venture
project 33 As the case was presented, the conduct of each union is to be considered
separately. Hence, I find it unnecessary to consider whether or not business agents
for the 'Operating Engineers could be considered to have been acting as agents of
the Teamsters as well as of their own organization. On the entire record, I con-
clude and find that the General Counsel has not proved a violation of the Act on
the part of the Teamsters.
3o Local 3 , International Brotherhood of Electrical Workers , AFL-CIO (New Power
Wire and Electric Corp. et al ), 144 NLRB 1089; Local 282 , International Brotherhood
of Teamsters, etc (J. J. White Ready Her Concrete Corp ), 141 NLRB 424; Henry V.
Rabouin, d/b/a Conway's Express v. N.L.R.B, 195 F 2d 906 (CA. 2) Delivery of
transit-mix concrete is not on -site work by a subcontractor . International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of America , Local 294 ( Island
Dock Lumber, Inc ), 145 NLRB 484.
31 United Plant Guard Workers of America (Houston Armored Car Company, Inc ),
136 NLRB 110; Truck Drivers and Helpers Local Union No 728, I.S.T. (Brown Trans-
port Corp ), supra
32 A concluding allegation in the complaint that Teamsters, by the conduct alleged in
the complaint , had violated Section 8 ( b) (4) (ii) (B), was stricken on motion of General
Counsel.
33 Cf. Local Union ' No. 1, Bricklayers. Masons & Plasterers, etc. (J Hilbert Sapp, Inc ),
319 NLRB 1466.
. INT'L BROTHERHOOD OF TEAMSTERS, ETC., LOCAL 222 135
2. Regarding activities of Operating Engineers '
The complaint alleges violations of Section 8(b)(4)(i) and (ii)(B) by Operating
Engineers. Evidence of violation of Section 8(b) (4) (i) (B) is replete. By the acts
of its business agent, Garber, Operating Engineers caused crane operator Barnes to
cease rendering services for his employer and the Joint Venture. Barnes is a person
employed by Jarman, a neutral contractor engaged in an industry affecting com-
merce within the meaning of the Act, although he was serving the Joint Venture
while using the crane for the purpose of pouring concrete into forms for columns.
It is clear that Barnes would have continued rendering services but for Garber's
direction to Barnes to shut off the crane. The fact that Garber's instruction was
politely framed does not derogate from the fact that it was intended to, and did,
have the effect of a direction. It clearly constituted inducement and encourage-
ment of Barnes to withhold his services; and the object of Garber's conduct on be-
half of Operating Engineers was to force or require the Joint Venture to cease using
'concrete sold and delivered by Utah Sand and Gravel 34 The action of Garber also
caused Zimmerman, Barnes' oiler, to withhold services during the period when
pickets were present. Garber's instruction to Barnes was followed up by Business
Agent Austin's directions to Barnes and Zimmerman to shut down the machine
when the trucks came on the job.. Austin similarly instructed employees Cude,
Foster, Johnson, Garner; and Bennett not to work while trucks of Utah Sand and
Gravel were present, and thereafter they followed his instructions.
Operating Engineers seeks to justify the conduct of its agents on the ground that
the Joint Venture was an ally of Utah Sand and Gravel and that employees of the
primary employer (Utah Sand and Gravel) actually worked with employees of the
secondary employer (Joint Venture) as a team under the direction and control of
the secondary employer. Independently of the latter point, the evidence is not suffi-
cient to' show that the Joint Venture was-an ally of Utah Sand and Gravel35 The
fact that an employee of the Joint Venture assisted the driver of the transit-mix
truck by telling him where to place the chute and when to start or stop the flow of
concrete does not make Utah Sand and Gravel an on-site subcontractor on the
Joint Venture job. The Joint Venture employee in such instance, is merely desig-
nating the place and rate of delivery of concrete.36 Teamsters does not contend
that it was picketing the Joint Venture because of any joint work done by the truck-
driver and employees of the Joint Venture, and the Operating Engineers, -although
having a dispute with Utah Sand and Gravel, and although respecting the Teamsters'
strike and picket line there, does not allege that it was, itself, on strike there, so
Operating Engineers is hardly in a position to use an argument that the Teamsters
might have, but did not, advance and to say that the Joint Venture was helping to
defeat its primary strike by being an ally of Utah Sand and Gravel.' Before July 26,
at least, Operating Engineers had no legal justification for inducing employees of
the Joint Venture or of Jarman to withhold services where the object was, as I find,
forcing the Joint Venture to cease using concrete of Utah Sand and Gravel. Ac-
cordingly, I find that by the aforesaid conduct of its business agents, Austin and
Garber, Operating Engineers committed unfair labor practices within the meaning
of Section 8(b) (4) (i) (B) of the Act.
Both by Austin's telling Shepherd, a supervisor for the Joint Venture, that he
(Austin) would have to "pull" Johnson and Garner off the job while concrete was
being poured from Utah Sand and Gravel trucks and by the stoppage of work
actually occasioned by Austin's instructions to the aforesaid employees, Operat-
ing Engineers committed unfair labor practices within the meaning of Section
8(b) (4) (ii) (B) I also find a violation of Section 8(b) (4) (u) (B) by Operating
Engineers in Austin's reply to Superintendent McPhie's protestation and request to
permit the employees to use the boom truck to assist in putting steel cages in the
piling shells when Austin said that he would not put anyone on the A-frame (boom)
34 New York Mailers' Union No. 6, ITU (New York Herald Tribune, Inc., et al.), 136
NLRB 196; Cuyahoga, Lake, Geauga and Ashtabula Counties Carpenters District Council,
etc. (The Berti Company), 143 NLRB 872; International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local 294 (Island Dock Lumber,
Inc.), supra.
sc Ryberg, a partner and brother-in-law of Mark Garff, was a director of Utah Sand and
Gravel. , No other connection was shown.
sa International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 294 (Island Dock Lumber, Inc.), supra.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck while Utah Sand and Gravel was on the job and that he had instructions from
the San Francisco office of Operating Engineers not to have any man operate any
piece of equipment as long as Utah Sand and Gravel was on the job.
The General Counsel argues that "the prime" object of picketing by Operating
Engineers on and after July 26 was to force or require the Joint Venture to cease
,-doing business with Utah Sand and Gravel and that it was not in furtherance of
-contract negotiations with A.G.C., but that, even if one object of such picketing was
-in furtherance of contract negotiations, the Act would be violated if another object
-was to force or require the Joint Venture to cease doing business with Utah Sand
and Gravel. As I have found, there are substantial reasons for believing that
Operating Engineers' demand that Weyher sign a separate contract was used as a
specious attempt to clothe its picketing with the garb of primary action. However,
in view of the fact that I find the Operating Engineers had, as one object (if not the
,only object) of the picketing, the forcing of the Joint Venture to cease doing busi-
ness with Utah Sand and Gravel, it is unnecessary to make a finding of subterfuge.
'Operating Engineers had, ever since July 19, 1963, made it evident that it had
sought to stop the delivery of Utah Sand and Gravel concrete to the Joint Venture,
,and it had taken positive and illegal steps to implement its objective. No sufficient
evidence was offered to show that this objective had been abandoned. The pre-
sumption is that, an object, once shown to exist, continues to be an object in the
absence of evidence tending to show at least reason to infer that it has been
-abandoned. Evidence of a demand that Weyher sign a contract with Operating
Engineers under threat of picketing is not inconsistent with the continued objective
,of causing the Joint Venture to cease using concrete of, and to cease doing busi-
ness with, Utah Sand and Gravel. In fact, it fortifies the evidence of Operating
Engineers' efforts to stop the Joint Venture from using that concrete. I find that
even after Operating Engineers made its demand that Weyher sign a contract with
it and after it began picketing at the site of the Joint Venture, at least an object of
the picketing was to induce the Joint Venture to cease using concrete of Utah Sand
and Gravel. I find no inconsistency between this finding and the fact that Operating
Engineers made this demand only of Weyher and not of the other Joint Venturers.
Weyher was the sponsoring contractor. The project was commonly referred to
as the Weyher job. If Weyher had capitulated, the Joint Venture would have
capitulated.
Operating Engineers also adduced evidence aimed to show that striking employees
of Utah Sand and Gravel were working as employees of the Joint Venture. This
was done by showing that men who had been on the payroll of Utah Sand and
'Gravel up to the time of the strike had been dispatched by Operating Engineers to
the Joint Venture for jobs. However, even if Operating Engineers had struck Utah
'Sand and Gravel itself, I should consider this defense an ineffective desperation
measure. The evidence is wholly inadequate to show any allied relationship be-
tween the Joint Venture and Utah Sand and Gravel as a result of such hirings. The
Joint Venture was not shown to have asked for employees of Utah Sand and
Gravel nor even to have known that those employees had worked at *Utah Sand
and Gravel. Furthermore, there is no showing that such employees, even if sym-
pathetic strikers, had any intention of exercising reemployment rights at Utah Sand
and Gravel. In any event, I find that the Joint Venture was not, in hiring any of
the men referred by Operating Engineers, attempting to support Utah Sand and
Gravel's cause. The effect would appear to have been just the contrary. I reject
this contention of Operating Engineers.
In conclusion, I find that Operating Engineers, by the conduct hereinbefore found,
violated Section 8(b)(4)(i) and (ii) (B) of the Act.
3. Regarding activities of Carpenters
Carpenters is alleged in the complaint to have violated Section 8(b)(4)(i) and
•(ii) (B) of the Act. The alleged violation of Section 8(b)(4) (ii) (B) is based on
testimony that Business Agent Bonner told Joint Venture representatives that he
had instructed or advised his men not to work behind a picket line. Since I have
found that Bonner did not make this statement, I find no violation by the Carpenters
of Section 8(b) (4) (ii) (B) of the Act.
The question raised as to whether or not Carpenters violated Section 8(b) (4) (i) (B)
of the Act is less simply answered. I have found that Carpenters' Business Agent
-Gilman told employees of the Joint Venture, while Teamsters pickets were picketing,
that the carpenters could work if they wanted to, and that what they were inquiring
about was definitely a picket line, and I have found that Gilman gave a noncommittal
answer to questions as to what Carpenters would do if inquiring employee-members
INT'L BROTHERHOOD OF TEAMSTERS, ETC., LOCAL 222 137
continued to work or as to whether or not a fine would be imposed. Does either
the statement that it was "definitely a picket line" or the evasion of the question as to
what the carpenters might do if members of Carpenters or its sister locals continued
to work override Gilman's initial answer that they could work if they wanted to?
Before resolving this question, I find it necessary to project myself mentally as
completely as possible into the position of the carpenters working in the compound.
Fisher and Bordelon were members of the Carpenters for some years. They had
been exposed to and absorbed the philosophy that a good union member would not
work on struck work (or products thereof) and that he should not cross or work
behind a picket line. So conditioned, they would not be likely to consider whether or
not they, themselves, were actually working on struck work or products thereof. To
them it was enough that products of a struck employer were coming on the project.
Nor would they be likely to analyze the situation to determine whether or not they
were actually working "behind" a picket line. In reality, only if the picketing was
directed at the Joint Venture would they have been working behind a picket line,
whereas if the picket line was directed at employees of Utah Sand and Gravel, as
ostensibly it was, the carpenters would be working in front of, rather than behind,
the picket line. Even if the Joint Venture employees were not working behind a
picket line, they were, however, free as individuals, to risk their jobs and extend their
sympathy to the Teamsters' cause, giving up their employment with the Joint Venture
if they felt that would aid the cause of unionism 37 Fisher and Bordelon made their
election before the arrival of Gilman. Fisher had even left the premises . Gilman's
statement did not guide the conduct of those two. Although the rest of the carpenters
influenced in part by Fisher and Bordelon, had stopped working, they were apparently
open to advice or guidance from Gilman. Some of the carpenters appeared to take
the attitude that, if the Teamsters' picketing was an activity respecting which their
own union did not disapprove, union tradition would require them to honor the
picket line, while others apparently were not concerned with conforming to union
etiquette but were concerned only with avoiding a penalty for nonconformance if they
continued to work. It is possible to deduce from Gilman's statement, "It is definitely
a picket line," that Carpenters did not disapprove of the Teamsters' activities; other-
wise, Gilman would be more likely to have described the picketing as illegal or
unauthorized. Was Carpenters under a legal duty to answer inquiries by saying, "We
are not allowed to tell you what type of activity another union is engaged in," and
thus leave the employees in their state of confusion? So long as Carpenters is merely
giving information and is not suggesting the action to be followed by emplyoees,
my answer is negative. True, the information imparted might influence employees
in the sense that it would give them factual knowledge upon which they, themselves,
could decide what conduct to follow although they would be unable to decide with-
out that information, but it would not necessarily influence them in the sense of giving
them a feeling that their union was pressuring or even expecting them to act in a
particular fashion. I do not read the word "induce," as used in the Act, as proscrib-
ing the former type of influence. There is not even a suggestion of the kind of
conduct expected of them by the Carpenters in this statement as there was in cases
where indications of expected conduct was voiced 38 Accordingly, I find that, by
Gilman' s statement that the picketing of the Utah Sand and. Gravel trucks was
"definitely a picket line," the Carpenters did not, in violation of the Act, induce or
encourage any individual employed by the Joint Venture to engage in a refusal in
the course of his employment to perform services.
Gilman's answer to the inquiry of what " the union" (i.e. Carpenters) would do if
the employees continued to work presents more of a problem. His answer, even
by his own version, was not altogether reassuring. He professed ignorance as to
what the Carpenters would do. Knowing, as he must have, that under the con-
stitution of the Carpenters, discipline could be imposed only for crossing a Carpen-
ters ' picket line, he should, if he correctly understood the question, in fairness have
mentioned this. I do not believe it is an adequate defense to say that the members,
'7 See N.L.R B. v Rockaway News Supply Company, Inc , 345 U.S. 71. When a union
operates a hiring hall under contract , as the 'Carpenters did here, it is, of course, of little
solace to an employer to know that he has a no-strike clause in the contract and that he
has a legal right to discharge or replace his employees who engage in sympathetic strike
activities.
88 Local Union No. 741 , United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith
Riggs Plumbing and Heating _ Contractor ), 137 NLRB 1124 , at 1139-1140 ; Seafarer's
International Union of North America, etc. (Hammermill Paper Company), 100 NLRB
1176. See Trial Examiner's Decision in Northeastern Washington-Northern Idaho Build-
ing and Construction Trades Council, Cases Nos . 19-CC-206, 19-CC-207 , and 19-CC-209.
138 DECISIONS OF NATIONAL LABOR-RELATIONS, BOARD
themselves, should have known what was in the constitution of the Carpenters. Had
,the employees known what was in the constitution, they would not have asked the
question. Union members, I have found, rarely are familiar with constitutional pro-
-visions, but they expect their business agent to know all the answers. Although I
have considered' the possibility that Gilman understood the question to ask what
-unofficial action the members of the Carpenters might take (as by way of ostracism,
-derision, or physical abuse), rather than what official action would be taken, I do
not believe he could so have understood the question. Even the last part of Gilman's
answer, "As far as I'm concerned, they will do nothing," does not remove the doubt
-that something might be done. Under the circumstances, the inquiring carpenters
could have received the impression that Gilman's answer (that they could work if they
wanted to) carried with it the implication "but if you do . I don't know what
will happen." The conclusion is inescapable that this implication would inevitably
influence the employees not to work while the Teamsters pickets were present. The
men who asked the question of Gilman appeared anxious to work, but,,following
Gilman's answer, they did not do so. Upon full consideration of the matter, I find
that, by Gilman's equivocal answer, Carpenters induced employees of the Joint
Venture to engage in a refusal to perform services. Was the object of this inducement
to cause the Joint Venture to cease doing business with Utah Sand and Gravel?
Perhaps Carpenters was not thinking in terms of objectives but was thinking only in
terms of union etiquette. However, I do not subscribe to a line of 'reasoning which
would, on the assumption that Teamsters' activities were primary and were directed
only to employees of Utah Sand and Gravel, suggest that Carpenters were, by
withholding their services from the Joint Venture, only supporting the Teamsters in
their dispute with Utah Sand and Gravel without regard to the secondary effect on
the Joint Venture. The inevitable result of the withholding of services to the Joint
Venture by carpenters was, as Carpenters surely knew, to pressure the Joint Venture
to cease doing business with Utah Sand and Gravel. This could not have been
doubted. Regardless of what Carpenters' primary motivation may have been, I find
that an object of its inducing employees of the Joint Venture to withhold their services
was to cause the Joint Venture to cease using concrete of, and doing business with,
Utah Sand and Gravel.
There remains for consideration only the effect of Bonner's instructions to car-
penters on July 22, 1963, to "stick around and be available for work." Bonner
testified that he gave these instructions because of the fact that he had learned that
Fisher had, the previous Friday, gone home. I judge that he was concerned that
departure of the carpenters might take on the appearance of a complete strike rather
than just a refusal to work while pickets were present. Had Bonner given such
instructions before the men had ceased working that day, there would be more
force in the argument that he was inducing or encouraging them to refuse to per-
form services. On the evidence, it is difficult to fix the precise time when Bonner
gave these instructions. If the carpenters were on their lunch period, Bonner's
statement might have sounded more like an instruction not to return to work at the
,end of their lunch period until the pickets had left, whereas if they were not on
their lunch hour, Bonner might have assumed that they had already stopped work-
ing of their own accord because of the presence of pickets and was merely instructing
them not to withhold their services when no pickets were present.
On all the evidence, I infer that Bonner was aware of the fact that the men he
was speaking with had already ceased working because of the presence of the
Teamsters' pickets, and I do not interpret his instructions as intended to influence
them to withhold services they were about to render. I make no further finding,
therefore, that Carpenters violated the Act by these instructions of Bonner's.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the employers herein involved, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and, to the extent that they have been found to be unfair labor practices,
tend to lead to and have led to, labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
I have found that the Respondent Carpenters and the Respondent Operating
Engineers have engaged in unfair labor practices which require remedial action. I
have found that the Carpenters have violated Section 8(b) (4) (i) (B) of the Act
by the misleading answer given by Business Agent Gilman to Goodrich and Sparks.
MORRISON CAFETERIAS CONSOLIDATED, INC., ETC. 139
I shall therefore recommend that Carpenters cease and desist from giving members
misleading answers to the Tatters ' inquiries concerning possible penalties that might
be inflicted by Carpenters if its members or members of affiliates should decide to
work behind the picket line of another union, and I shall recommend that Carpenters
post the notice marked "Appendix A," [Board's Appendix substituted for Trial
Examiner's Appendix], explaining members' rights. On the evidence, I do not feel
that there is any danger that Carpenters, in the future, will commit unfair labor
practices generally or with regard to, other employers; so I shall limit my recom-
mended cease and desist order to the type of unfair labor practices herein found.
Since I have found that Operating Engineers have engaged in unfair labor prac-
tices within the meaning of Section 8(b) (4) (i ) and (ii ) (B), I shall recommend
that it cease and desist therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act. In my opinion, an order proscribing unlawful
conduct, not only with respect to the employers herein involved but with respect
to any other person within the jurisdiction of Operating Engineers , is warranted on
the evidence in the case.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Joint Venture is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Jarman is engaged in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Each Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
4. By inducing and encouraging employees of the Joint Venture and Jarman to
engage in a strike or a refusal in the course of their employment to perform services,
with an object of forcing or requiring the Joint Venture to cease using concrete of,
or to cease doing business with, Utah Sand and Gravel Products Corp., Carpenters
and Operating Engineers have engaged in unfair labor practices within the meaning
of Section 8(b) (4) (i) (B) of the Act.
5. By threatening, coercing, and restraining the Joint Venture and members thereof
with an object of forcing or requiring the Joint Venture and members thereof to
cease using concrete of, or to cease doing business with , Utah Sand and Gravel,
Operating Engineers has engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (ii) (B) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Teamsters has not engaged in unfair labor practices within the 'meaning of
Section 8(b)(4)(i)(B) of the Act.
[Recommended Order omitted from publication.]
Morrison Cafeterias Consolidated , Inc., and Morrison Cafeteria
Company of Little Rock , Inc. and Hotel-Motel , Restaurant
Employees Union, Local No. 200, Hotel and Restaurant Em-
ployees and Bartenders International Union , AFL-CIO. Cases
Nos. 06-CA-1514 and d6-CA-1520. August 4, 1964
DECISION AND ORDER
On April 22, 1964, Trial Examiner A. Bruce Hunt issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
148 NLRB No. 15.