Int'l Union of Operating Engineers, Local 571Download PDFNational Labor Relations Board - Board DecisionsSep 20, 1961133 N.L.R.B. 208 (N.L.R.B. 1961) Copy Citation 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 571 and Layne-Western Company. Case No. 17-CC-127. September 20, 1961 DECISION AND ORDER On February 23,1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, dismissing the complaint in its entirety, as set forth in the Intermediate Report at- tached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report together with sup- porting 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 Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner gat the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and finds merit in the exceptions filed by the General Counsel and Charging Party to the conclusions and recommendations of the Trial Examiner.' The relevant findings of fact made by the Trial Examiner are adopted only insofar as consistent with our Decision herein. 1. The Trial Examiner construed the commerce phraseology added to Section 8 (b) (4) by the 1959 amendments to the Act to require that specific commerce facts be alleged and proved with respect to the secondary persons involved. He stated that such proof was necessary in order to spell out a substantive violation of Section 8(b) (4), even where, as here, the primary employer admittedly is engaged in com- merce within the meaning of the Act. As he found that the General Counsel had failed to prove commerce facts with respect to the second- ary persons, the Trial Examiner recommended that the complaint be dismissed. For the reasons stated in the decision in Skeet Metal Workers International Association, Local Union No. 299, AFL-CIO et al. (S. M. Kisner, et al., d/b/a S. M. Kisner and Sons),' we disagree with the Trial Examiner's construction of the commerce phrase- ology appearing in Section 8(b) (4), and we find that Paulson, Hani- ghen, and Rocco-Ferrera, the secondary persons herein, were "engaged in commerce or in an industry affecting commerce" within the mean- ing of Section 8 (b) (4). Therefore, we shall consider the case on the merits. i In view of the Board ' s disposition of the jurisdictional issue in this case, the Charging Party's motion to reopen the record for the purpose of showing that the secondary em- ployers are engaged in commerce is hereby denied. 3 131 NLRB 1196. - 133 NLRB No. 27. INT'L UNION OF OPERATING ENGINEERS, LOCAL 571 209 2. In the Intermediate Report, the Trial Examiner has set forth the pertinent facts with regard to the incidents 'at the sewer project and the warehouse project. On these facts, we find that agents of the Respondent Union threatened, coerced, and restrained secondary Em- ployers Paulson and Rocco-Ferrera within the meaning of Section 8 (b) (4) (ii) of the Act.' The complaint also alleges that Local 571 further threatened, re- strained, and coerced persons engaged in commerce or in an industry affecting commerce by the letter Local 571 sent to all contractors in the Omaha area on October 26,1960, purporting to inform them of the facts of Local 571's dispute with Layne-Western. The letter stated that Layne-Western had no signed collective-bargaining agreement with Local 571, and had refused to pay the union scale and conditions to employees within the jurisdiction of Local 571. The letter went on to say that these facts were presented for "the purpose of information only . . .", and concluded with the statement : "The presence of Layne- Western Company on any job will create legal and economic problems for the members of our Union." As we do not find that this letter threatened, restrained or coerced any person within the meaning of Section 8(b) (4) (ii) of the Act, we shall dismiss this allegation of the complaint. 3. The complaint alleges that the conduct of Local 571 was for the purpose not only of requiring secondary persons to cease doing busi- ness with Layne-Western, but was also for the purpose of requiring Layne-Western to recognize Local 571 as the bargaining agent of Layne-Western's employees despite the fact that Local 571 was not certified as such bargaining agent. The Trial Examiner made no find- ing with respect to the latter alleged objective. However, it is clear from the record that Local 571 was not and is not the certified bargain- ing agent of Layne-Western's employees, and that although Local 571 and Layne-Western may have had past oral agreements concerning working conditions on certain jobs, Layne-Western never signed a written agreement recognizing Local 571 as the bargaining agent of Layne-Western's employees. Furthermore, the statements of the union agents to Layne-Western representatives at the sewer and ware- house projects clearly reveal that one of the main purposes of the Union's conduct was to compel Layne-Western to bargain with Local 571 as representative of Layne-Western's employees, despite the fact that Local 571 was not certified as such bargaining agent. Accord- ingly, we find that the conduct of Local 571 was also for the purpose of requiring Layne-Western to recognize Local 571 as bargaining agent for its employees. 8 Enterprise Association , Local 658, United Association of Journeymen and Apprentices of the Plumbing and Pipe!itting Industry of the United States and Canada, AFL-CIO, 129 NLRB 555. 624067-62-vol . 133-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Local 571 set forth above and in the Intermediate Report, occurring in connection with the operations of Layne-Western Company as set forth in section I of the Intermediate. Report, have a close, intimate, and substantial relation to trade, traffic, and commei ce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Local 571 has engaged in certain unfair labor practices by threatening, coercing, and restraining secondary persons for proscribed objects, we shall order it to cease and desist therefrom and to take certain affirmative action which the Board finds is neces- sary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Layne-Western Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Paulson Construction Company and Rocco-Ferrera & Co., Inc., are engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b) (4) of the Act. 3. International Union of Operating Engineers, Local 571, is a labor organization within the meaning of Section 2(5) of the Act. 4. By threatening, coercing, and restraining Paulson and Rocco- Ferrera, with the objects of forcing or requiring Paulson and Rocco- Ferrera to cease doing business with Layne-Western, and forcing or requiring Layne-Western to recognize or bargain with Local 571 in the absence of a certification of Local 571 as the bargaining repre- sentative of Layne-Western's employees, Local 571 has engaged in un- fair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon, the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , International Union of Operating Engineers , Local 571, its agents, officers, succes- sors, and assigns , shall : 1. Cease and desist from threatening, coercing, or restraining Paul- son Construction Company and Rocco-Ferrera' & Co., Inc., or any other person engaged in commerce or in an industry affecting coin- INT'L UNION OF OPERATING ENGINEERS, LOCAL 571 211 merce except Layne-Western Company, where an object thereof is to force or require Paulson, Rocco-Ferrera, or any other persons, to cease doing business with Layne-Western Colnpany, or to force Layne- Western Company to recognize or bargain with Local 571 in the ab- sence of a certification of Local 571 as a bargaining representative of the employees of Layne-Western Company. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the Respondent Union's business offices and meeting halls, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the authorized representative of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director, Seventeenth Region, for posting, Paulson, Rocco-Ferrera, and Layne-Western willing, at all locations where notices to their respective employees are customarily posted. (c) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Decision and Order, what steps the Respondents have taken to comply herewith. 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 "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 571, AND TO ALL EMPLOYEES OF PAULSON CONSTRUCTION Co.; Rocco-FERRERA AND CO., INC.; AND LAYNE- WESTERN COMPANY 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 give notice that : WE WILL NOT threaten, coerce, or restrain Paulson Construction Co., Rocco-Ferrera and Co., Inc., or any other person engaged in commerce or in an industry affecting commerce except Layne- Western Company, where an object thereof is forcing or requiring Paulson Construction Co., Rocco-Ferrera and Co., Inc., or any other person, to cease doing business with Layne-Western Com- 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany or forcing or requiring Layne-Western Company to recog- nize or bargain with us in the absence of a certification as the bargaining representative of employees of Layne-Western Company. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 5571, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed and duly served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by International Union of Operating Engineers , Local 571, herein called the Respondent Union, a hearing in- volving allegations of unfair labor practices in violation of Section 8(b) (4) (ii) (B) of the National Labor Relations Act, as amended , was held in Omaha , Nebraska, on January 9, 1961, before the duly designated Trial Examiner. At the hearing all parties were represented by counsel and were afforded full op- portunity to present evidence pertinent to the issues , to argue orally, and to file briefs. Briefs have been received from all parties. Disposition of the Respondent 's motion to dismiss, upon which ruling was re- served at the hearing, is made by the following findings, conclusions , and recom- mendations. Upon the record thus made, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS CONCERNED Layne-Western Company , the Charging Party herein , is conceded by both General Counsel and the Respondent to be 'the "primary employer" involved in this proceeding. That is to say, the basic dispute concerns only Local 571 and Layne -Western. Layne-Western is a Delaware corporation , with principal place of business in Kansas City, Missouri . It is engaged in the manufacture and servicing of well pump equipment and allied products , and in such services as drilling deep water wells, making exploration borings, and boring holes for foundations of structures. It also maintains an office and place of business in Omaha, Nebraska , and performs services in various States. It annually receives supplies and materials across State lines valued at more than $50,000; annually ships products across State lines valued at more than $50,000 ; and in various States of the United States performs services valued at more than $50,000. It is conceded and found that Layne -Western in engaged in commerce within the meaning of the Act . It follows, from Board policy and commerce standards, that the Board has jurisdiction. In addition to Layne-Western the complaint names three other employers as being involved . These three , actually secondary employers although not so termed in the complaint , are Paulson Construction Company, a general contractor; Hani- ghen Construction Company , a subcontractor ; and Rocco-Ferrera & Co ., Inc., a general contractor. Although the complaint alleges that the Respondent violated certain provisions of the Act by "threatening" these three employers , and asserts the conclusion that all three are "persons engaged in commerce or in an industry affecting commerce," it contains no allegation of commerce facts from which , even if proven , the asserted conclusion might follow . The record itself provides no facts, upon which , although not alleged , the conclusion might reasonably rest. There is evidence that Layne -Western , admittedly engaged in commerce and the employer with whom the Union is in dispute , was hired by at least two of the con- tractors above named to dig certain holes for them in Omaha. At the material time INT'L UNION OF OPERATING ENGINEERS, LOCAL 571 213 it was actually drilling a hole in a construction site, under contract with subcontractor Hanighen who in turn was under contract with contractor Paulson who in turn was under contract with someone else to build a warehouse. There is no evidence that anyone at this construction job except Layne-Western is engaged in commerce. There is no evidence as to the amount of money involved in any one of the various contracts and subcontracts, or as to the probable value or use of the warehouse if and when completed. The Trial Examiner is not aware that a mere hole in the ground, or the digging of it, is sufficient to hold that anyone in its vicinity is a "person engaged in commerce or in an industry affecting commerce." Also at the same time Layne-Western was awarded a contract, which it never performed, by Rocco-Ferrera (which in turn was apparently under contract to con- struct a sewer for the city of Omaha) to drill some twenty-five 20-foot holes at an approximate cost of $1.25 per foot. There is no evidence that Rocco-Ferrera is en- gaged in commerce. The Trial Examiner hesitates to infer that a sewer, even that of Omaha, is an instrumentality of "trade, traffic, commerce, transportation, or com- munication among the several States."' Even if Layne-Western had performed under and completed the contract, it appears that Rocco-Ferrera's investment in an interstate enterprise would have been less than $1,000, an amount hardly enough to place it in commerce even by tenuous association. The Trial Examiner is not aware that the Board is prepared to hold that anyone who temporarily employs the services of a concern engaged in commerce (say an individual purchasing a ticket from the Pennsylvania Railroad to be transported from Washington to New York) is thereby and automatically "engaged in commerce or in an industry affecting commerce." In short, there is no evidence in the record enabling the Trial Examiner to deter- mine whether any or all ,of these three employers: Paulson, Hanighen, or Rocco- Ferrera, are in engaged in commerce. The ultimate effect of this state of the record, as the Trial Examiner views it, is set out in a later section of this report. To avoid remand, however, in the event the Board takes a different view of the commerce issue, the findings as to material events will be made. H. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 571, is a labor organization within the meaning of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The events in issue In substance, General Counsel contends that the Respondent, by certain conduct of its agents, in October 1960, unlawfully threatened and coerced contractors Paul- son, Hanighen , and Rocco-Ferrera, objects of such conduct being: (1) to force these contractors to cease doing business with Layne-Western, and (2) to force Layne-Western to recognize and bargain with it, although it had not been within the material period certified by the Board as the representative of Layne-Western's employees. Two Omaha construction projects are involved: a warehouse and a sewer. Credible evidence establishes the following as to each of these projects: The sewer project: On October 22 Rocco-Ferrera engaged Layne-Western to drill about 25 holes. To comply with such contract Layne-Western brought to Omaha an auger machine, the one piece of equipment which was to be used by that Company. Before it was delivered to the job, however, on October 24 Union Agent Goebel visited the sewer project and after learning from Project Manager Smith of Rocco- Ferrera that a contract had been awarded Layne-Western, asked if he knew that the latter firm was nonunion . Smith replied that he did not know that. Goebel then told him that Layne-Western had no contract with the Union, was paying wages below union scale, and that for these reasons the Union did not want that Company on the job. Smith offered to have his own men (Rocco-Ferrera having a contract with the Union) operate the Layne-Western equipment, but Goebel said that the Union would not furnish men for this purpose. Smith declared that, having entered into the contract, Layne-Western would perform the service. Upon this declaration Goebel stated that if this occurred, the Union would strike the sewer project itself. Later the same day Smith cancelled the contract with Layne-Western, and this employer did not work on the project. The warehouse project: As noted above, at this project General Contractor Paul- son was building a warehouse. Hanighen was a subcontractor. Hanighen engaged Layne-Western to drill a well on the site, and on October 21 employees of the latter IThe quotations are from Section 2(6) of the Act. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concern were performing work. On that date Orville Metzler , an agent of the Respondent Union, came to the site . When he was unsuccessful in persuading Layne's two employees to cease work, Metzler told Paulson's general superintendent, Mike Paulson , that unless Layne-Western were removed from the job the Union would shut him (Paulson ) down . Later in the day Union Agent Goebel told Paulson that while the Union would not "strike him" then , he must not hire Layne- Western again or there would be trouble . Goebel also told Layne-Western's Field Superintendent , Ralph Dyas , that the Union would shut his employer down if it did not get a contract signed. Thereafter the Union sent a letter to contractors in the Omaha area , no one of whom is established by the record to be engaged in commerce within the meaning of the Act, advising them that "the presence of Layne-Western Company on any job will create legal and economic problems for the members of our Union." B. Conclusions In pertinent summary the foregoing findings of fact are established by the record and are urged by General Counsel as supporting the allegations of the complaint that by such conduct the Respondent Union "threatened, coerced , or restrained" Paulson , Hanighen, Rocco-Ferrera, "and other persons . . . engaged in commerce or in an industry affecting commerce ," to cease doing business with Layne-Western, and for an unlawful object-forcing Layne-Western to "recognize or bargain" with it. The Trial Examiner believes it unnecessary here to draw hypothetical conclusions in view of his recommendation of dismissal on commerce grounds. ,In section 1, above, it has been noted that there is no evidence of a factual nature or in monetary terms regarding the extent , if any, that Paulson , Hanighen , or Rocco- Ferrera are engaged in commerce . There being no facts, the Trial Examiner believes there is no foundation for commerce conclusions . And such conclusions must be made, in the opinion of the Trial Examiner , if violation of the section in- voked is to be found . Section 8 (b) (4) (ii ) states in no ambiguous language: to threaten , coerce, or restrain any person engaged in commerce or in an industry affecting commerce. . . . [Emphasis supplied.] Some 2 ,000 years ago a reputable Greek 2 noted that there is no authority except facts, that facts are to be obtained from accurate observation , and conclusions are to be drawn only from facts . It is a bit out of order, it seems to the Trial Examiner, for him to overrule this ancient logic. There being no facts visible in the record , the Trial Examiner declines to draw the conclusion that any of the named employers-except the primary employer- are engaged in commerce or in an industry affecting commerce. For this reason it will be recommended that the complaint in its entirety be dismissed. [Recommendations omitted from publication.] 2 Hippocrates. Mary Feifer , d/b/a American Feed Company and Merchandis- ing and Distribution Employees Union Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. and Arthur Faison . Case No. 2-CE-4. September 20, 1961 DECISION AND ORDER On May 16, 1961, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above -entitled proceedings , finding that the Respondents had not engaged in unfair labor practices, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 133 NLRB No. 23. Copy with citationCopy as parenthetical citation