Intl. Un. of Operating Engineers, Loc. No. 18 & 18C

National Labor Relations Board - Board Decisions

Feb 10, 1969

174 N.L.R.B. 396 (N.L.R.B. 1969)

396 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
International Union of Operating Engineers, Local
No. 18 and 18C , AFL-CIO and The
Wagner-Smith Company. Case 9-CD-131
February 10, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 15, 1968, the Employer, The
Wagner-Smith Company, filed an amended charge,
pursuant to Section 10(k) of the Act, with the
Regional Director for Region 9, alleging, in
substance, that the Respondent, International "Union
of Operating Engineers, Local No. 18 and 18C,
AFL-CIO, and its agents, in violation of Section
8(b)(4)(D), threatened and coerced employees of the
Employer to engage in a work stoppage at the
Employer's electrical transmission tower
construction project, also known as Tower No. 1, at
the Dayton Power and Light Company's James M.
Stuart 'Generating Station, Route 52, Adams
County, Ohio, with the object of forcing or requiring
the Employer to assign the loading, removal,
transportation, and operation of a crane or cranes,
telecrane, backhoe, bulldozer, cherrypicker, and
endloader to members of the Respondent,
International Union of Operating Engineers, Local
No. 18 and 18C, AFL-CIO, rather than to members
of the Party to the Dispute, International
Brotherhood of Electrical Workers, Local 71,
AFL-CIO, with whom the Employer has a valid and
subsisting contract covering such work.'
Thereafter, pursuant to Section 10(k) of the Act
and Sections 102.79 and 102.80 of the Board's Rules
and Regulations, Series 7, the Regional Director
investigated the charges and provided for an
appropriate hearing upon due notice to the parties.'
A hearing was held before Hearing Officer John R.
McGill, between August 14 and September 30,
1968. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues. The rulings of the Hearing
Officer made at the hearing are free from prejudicial
error and are hereby affirmed. The Employer, the
Operating Engineers, and the Electricians filed
briefs, which have been duly considered by the
Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
'Section 10(k) of the Act provides that "Whenever it is charged that any
person has engaged in an unfair labor practice within the meaning of
paragraph 4(D) of Section 8(b), the Board is empowered and directed to
hear and determine the dispute out of which such unfair labor practice
shall have arisen.. "
The Notice of Hearing describes the work in dispute as covering only
the loading , removal, transportation , and operation of a single crane at the
project site . At the hearing, however, the parties stipulated that the work
in dispute covers the crane and any other equipment the Board deems to
be involved in the erection of Tower No 1 on the project site.
174 NLRB No. 65
National Labor Relations Board has delegated its
powers in connection with this , case to a
three-member panel.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The Employer, an Ohio corporation with principal
offices at Dayton, Ohio, is engaged in the
construction of high voltage transmission lines for
public utilities. The Employer annually performs
services valued in excess of $50,000 for such public
utilities as Cincinnati Gas & Electric Company,
Dayton Power & Light Company, and Columbus &
Southern Ohio Electric Company, each of whom
annually purchases electricity and other
commodities and services valued in excess of
$50,000 which are transported to locations within
the State of Ohio directly from points outside that
State. We find that the Employer is engaged in
commerce within the meaning of the Act, and that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
We find , in accord with the stipulation of the
parties, that the Respondent and the Party to the
Dispute are labor organizations as defined in
Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The Employer has a prime contract with Dayton
Power & Light Company for the construction of a
power line, including the erection of transmission
towers, from Dayton's James M. Stuart Generating
Station in Adams County, Ohio, near Aberdeen,
Ohio, to Trebein, in Greene County, Ohio. This
work, which covers some 80 miles and involves
approximately 432 towers is known as the
Greene-Stuart line. The instant work dispute
involves solely the erection of Tower No. I on this
line, situated approximately 200 feet from a
substation in the process of construction, which is
near the Stuart generating station.
B. The Basic Facts
In late November or early December 1967, the
Employer moved a Bucyrus Erie 30-B crane onto
the parking lot of the Stuart Power Plant, with the
intent of moving it to the Tower No. 1 site, for
construction thereof, if weather permitted. On or
about January 18, 1968, the Employer's and the
Respondent's representatives met to consider the
Respondent's demand for the assignment of the
operation of all equipment to be used by the
INTL. UN. OF OPERATING ENGINEERS. LOC. NO. 18 & 18C
Employer on and off the construction site of the
Stuart Power Plant. The Employer advised the
Respondent that this work had been assigned to its
employees who were members of the Party to the
Dispute, in accord with its traditional practice and
its current labor contract with the latter. The
Respondent's representative stated that they claimed
the work and intended to do it. The meeting,
described as amicable, broke up without a resolution
of Respondent's demand.
From the time of its arrival at the Stuart parking
lot in the fall of 1967 until May 1968, the Bucyrus
crane remained idle. On May 8, 1968, the Employer
sent its mechanic, Dick Bradford, to check it out,
preparatory to moving it While working on the
crane, Bradford was approached by two of the
Respondent's members, one of whom was Herbert
Otworth, a chief mechanic for another employer not
herein involved; the other individual was not
identified. Otworth approached Bradford and told
him not to start the Bucyrus crane without a
member of the Respondent. Bradford thereupon left
the site.
On May 10, 1968, 2 days later, the Employer sent
a full crew, including nine workmen and one
foreman, to prepare the crane for removal from the
Stuart Power Plant construction site to a location 8
miles distant on the Greene-Stuart Line. While they
were so engaged Otworth and another of the
Respondent's members approached the crew and
told them they could not operate the equipment
without the Respondent's members. Hueston
Turner, a business representative of Local 71 of the
Party to the Dispute, who was in the crane crew,
advised Otworth to call the Respondent's hall for
further instructions. Otworth thereupon left the site
and did so, but according to his testimony was
unable to contact any of the Respondent's
representatives at the hall. When he had finished
calling, he advised some 50 to 60 employees,
including members of the Respondent, the
Teamsters, and another local of the Party to the
Dispute, as to what he had done, and followed them
back to the crane site about a half-hour after he had
left it. After an exchange of words between the
crane crew and this latter group, which included
several individuals wearing the Respondent's decals
on their clothing, Otworth swung at Turner, and
another of the Respondent's members knocked him
unconscious. Following this incident, the crane crew
retired from the scene. The crane remained idle until
June 14, 1968, when it was moved several miles up
the Greene-Stuart line, pursuant to a State Court
injunction.
Clifford Lee Farwell, a business representative for
the Respondent, who was in Cincinnati, Ohio, at the
time of the above described incident, visited the
jobsite on the following Monday, May 13, to insure
the return to work of the men in Otworth's group,
who he had heard had walked off the job following
the incident. Farwell testified without contradiction
397
that he never advised any member of the
Respondent to engage in a work stoppage, mass
picketing, or violence.
C. Contentions of the Parties
The Respondent moves, first, that the instant
Notice of Hearing, pursuant to Section 10(k) of the
Act, should be quashed, absent evidence that it
engaged in unlawful threats and coercion in
violation of Section 8(b)(4)(D) of the Act, in support
of its demand for the work in dispute. Alternatively,
the Respondent contends that, should the Board
resolve the work dispute issue on its merits, it
should award the work to the Respondent. The
Employer and the Party to the Dispute contend that
the Board should find reasonable cause to believe
that the Respondent was in violation of Section
8(b)(4)(D) of the Act by reason of its allegedly
illegal conduct in support of its demand for the
disputed work, and that therefore, the Board should
determine the work dispute herein be assigning the
disputed work to the Party to the Dispute.
D. Applicability of the Statute
Before the Board may proceed under Section
10(k) of the Act, it must be satisfied that there is
reasonable cause to believe that Section 8(b)(4)(D)
has been violated. For Section 10(k) to be applicable
in this case, the record must establish reasonable
cause to find responsibility of the Respondent for
the conduct complained about. We find, for reasons
set forth below, that this requirement has not been
met.
It is clear that at the January 24 meeting, the
Respondent made a legal demand for the work in
dispute, without threats or coercion; that Otworth
was not a steward for the Respondent nor possessed
any other indicia of agency status in its behalf;'
that the Respondent's representatives were unaware
of the work stoppage incident until after its
occurrence; and that Farwell, the Respondent's
representative, when apprised of the incident, took
prompt steps to assure the return of the
Respondent's members involved in the dispute back
to their jobs.
In these circumstances, we do not believe that the
record as a whole warrants holding the Respondent
responsible therefor. There is no indication that the
conduct was instigated or directed by the
Respondent or engaged in by agents, officers, or
representatives of the Respondent, or that it can be
attributed to the Respondent on any theory of
'Turner testified that when Otworth approached him on the jobsite on
May 8 , he identified himself as the chief steward for the Respondent
Otworth and Farwell denied that Otworth was the Respondent's steward.
Assuming the truth of Turner 's testimony, Otworth ' s alleged identification
of himself as steward is without probative significance as to his
representative status, in view of the self-declaratory nature of his
statement . Highway Truck Drivers and Helpers , Local 107 (Food
Producers Council . Inc ), 126 NLRB 928, 931, fn 2
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ratification thereof. Inasmuch as an element
indispensable to our proceeding under Section 10(k)
is therefore lacking, we shall grant the Respondent's
motion to quash the Notice of Hearing issued in this
proceeding.4
'Highway Truck Drivers and Helpers , Local 107 (Food Producers
Council , Inc.). supra.
In view of our decision herein , it becomes unnecessary to consider the
work dispute on its merits
ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and on the entire record in this
case, the Board hereby orders that the Notice of
Hearing heretofore issued in this proceeding be, and
it hereby is, quashed.
J