Int'l Union of Operating Engineers, Local 106

National Labor Relations Board - Board Decisions

Jul 31, 1962

137 N.L.R.B. 1746 (N.L.R.B. 1962)

1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department in a retail store.5 In fact, they have many similarities to
a traditional departmental group of bakery employees such as the
Board has severed! Thus I believe that my colleagues also err in
refusing to treat these bakers as a departmental unit.
Additionally, a residual unit seems appropriate here. My colleagues
apparently adopt the Regional Director's finding in his decision that
the record is "insufficient" to support a finding that these employees
constitute a residual unit. I note, however, that the Petitioner in its
request for review contends that these four bakers do constitute "all of
the unrepresented employees" and that Intervenor Local 899 in its
brief on review does not question this assertion but is content with
characterizing the unit requested as not a "true" residual unit. Inter-
venor Local 770 made no comment in this regard in its brief to the
Board. In the circumstances, including the fact that the Employer
has no definite plans for expanding the in-store baking setup to other
stores, it would also seem appropriate-viewing the problem without
blinders-to direct an election at this time in the unit of four bakers
as a residual unit of the unrepresented store employees.7
It seems clear that any or all of the above bases would amply justify
granting the petition and I would do so.
6 See F. 1V. Woolworth Company , 119 NLRB 480.
6 See The Bra88 Rail, Inc., 110 NLRB 1656.
7I would, of course , permit the Retail Clerks Intervenors to appear on the ballot if
they so desire.
International Union of Operating Engineers, Local 106, AFL-
CIO and Northeastern Line Constructors Chapter, National
Electrical Contractors Association [E. C. Ernst, Inc .]. Case
No. 3-CD-70. July 31, 1961
DECISION AND ORDER QUASHING NOTICE OF HEARING
This is a proceeding pursuant to Section 10(k) of the Act, follow-
ing a charge filed by Northeastern Line Constructors Chapter, Na-
tional Electrical Contractors Association, herein called the Associa-
tion, in behalf of its employer-member, E. C. Ernst, Inc., herein called
Ernst, alleging that International Union of Operating Engineers,
Local 106, AFL-CIO, herein called Operating Engineers, Local 106,
or the Respondent, had violated Section 8(b) (4) (D) of the Act.
A hearing was held before George J. McNamara:, hearing officer,
on April 24 and 25, 1962, at which all parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing upon the issues. The rulings of the hear-
ing officer made at the hearing are free from prejudicial error and are
137 NLRB No. 194.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 106 1747
hereby affirmed. Thereafter, briefs were filed by Local 106 and the
Association.
Upon the entire record in this proceeding, the Board makes the
following findings :
I. THE BUSINESS OF THE EMPLOYER
Ernst, with its home office in Washington, D.C., is an electrical
contractor operating in several States. At present, it has a contract
to perform all electrical work for Atlantic Cement Company at the
latter's new cement plant under construction at Ravena, New York.
The entire project will cost approximately $60,000,000 and Ernst's
contract is for work valued in excess of $1,000,000. For the year
1962, Ernst will receive goods valued in excess of $50,000 from points
outside the State of New York.
We find that Ernst is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 106, AFL-CIO,
and International Brotherhood of Electrical Workers, Local 1249,
AFL-CIO, herein called IBEW and Local 1249, are labor organiza-
tions within the meaning of the Act.
III. THE DISPUTE
A. The work in dispute
Ernst's contract on the Ravena project calls for two kinds of elec-
trical construction and installation, referred to in the record as "in-
side" and "outside" work. It employs electricians for each part of the
work, those on the inside job represented under contract with IBEW
Local 7241 and those assigned to outside duties covered by contract
with IBEW Local 1249. The outside electricians are engaged in the
construction of a substation and the installation of electrical trans-
mission lines on the project. In their work, they have occasion to use
a line truck, operated by a classification of employee called driver-
groundman, who is part of the outside crew. The truck carries
diversified electrical equipment and supplies. It also has a removable
A-frame or three-legged boom, which is used in conjunction with a,
winch that is permanently affixed to the truck. The truck is used
for lifting and positioning heavy equipment and materials used by
the electrical linemen; it works on power generated by the truck engine
and its lifting capacity is between 1 and 11/2 tons. The winch on the
1 There is no dispute with regard to the inside electricians.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck is also used to pull electrical cable , where no hoisting or lift-
ing is necessary.
On this cement plant construction project there are also at work
employees who are members of Operating Engineers Local 106, the
Respondent. They are in the direct employ of Darin and Armstrong,
herein called Darin, a contractor whose work calls for the installation
and erection of all heavy equipment , and who uses bulldozers , cranes,
and other heavy lifting equipment used by engineers . The work in
dispute in this case is that of operating the hoisting equipment on
the line truck of Ernst. In their discussions of the issues at the hear-
ing, as well as in their briefs, all parties, including the Respondent,
proceeded on the assumption that there exists a dispute at this project
between the two unions over this precise work. In terms of evidence
relating to this proceeding, however, the record contains no indication
of any demand by the Respondent or its agents upon Ernst, the elec-
trical contractor, or upon any employer, that operating engineers be
used to operate the truck's hoisting equipment or that Ernst cease
using electricians to perform this work.
Instead, existence of a running dispute between the two Interna-
tional Unions-International Brotherhood of Electrical Workers and
International Union of Operating Engineers-is evidenced on this
record by the fact that the question on a broader basis, as well as the
incident at this project, was, on request of the Operating Engineers,
considered by the National Joint Board for the Settlement of Juris-
dictional Disputes in the Building and Construction Industry and
decided by that Board in favor of the Operating Engineers. And
the IBEW Local 1249, while rejecting any suggested validity of the
Joint Board award, does not deny that its position vis-a-vis the Op-
erating Engineers is that the truck's equipment should be operated
by an electrician and not by an engineer.
B. Contentions of the parties
On the merits of the jurisdictional dispute-whether electricians
or operating engineers are entitled to do the work in question-the
IBEW and the Association, which filed the charge on behalf of Ernst,
one of its electrical contractor members, urge a number of grounds to
support their contention that we should award the work to electricians.
The Respondent, of course, relying upon other relevant considerations,
insists upon a contrary assignment in its favor. The parties also
argue extensively concerning the pertinence and validity of the Joint
Board award made on this very question. On behalf of Ernst, the
Association says it should be disregarded. The IBEW attacks that
determination as void because beyond the purview of the IBEW's
agreement to participate in Joint Board proceedings. And the Op-
erating Engineers sees it both as an arbitration award binding upon
INT'L UNION OF OPERATING ENGINEERS, LOCAL 106 1749
the other parties and as a well-considered, meritorious work assign-
ment that should be honored by this Board.
Entirely apart from the merits of any conflicting claims for work
or the effect to be accorded the Joint Board decision, the Respondent
argues principally that there is no evidence to show that it or any of
its agents engaged in conduct violative of Section 8(b) (4) (D), that
the charge filed is therefore without merit, and that in consequence
the notice of hearing must be quashed.
C. Applicability of the statute
Following the proscriptive language of Section 8(b) (4) (D) of the
Act, the charge alleges that Local 106 induced and encouraged em-
ployees to engage in a strike and restrained or coerced other persons,
all with an object of forcing a change in work assignment. More
precisely, the theory of the charge in this case is that the employees
who were induced to refuse to work were the operating engineers-
all members of the Respondent-who work for Darin, the hoisting
contractor on the project, and other operating engineers employed by
C. M. Gridley and Sons, Inc., herein called Gridley, another hoisting
contractor, who appeared at the site at the request of Ernst, the elec-
trical contractor. As to persons who, under the general allegation of
the charge, may have been coerced, no precise theory was articulated
at the hearing, but we assume this element of the case was intended
to involve both hoisting contractors, as well as Ernst.
In support of these essential allegations, the Charging Party offered
a single witness, William Bartolet, Ernst's general superintendent.
He spoke about two incidents and his testimony as to the first is as
follows :
On or about February 21, 1962, two oil circuit breakers, which had
been ordered by Ernst for use on the substation job it was doing,
arrived at the construction site on railroad cars. The line truck hoist-
ing equipment was inadequate to lift the very heavy circuit breakers,
and Bartolet asked George Collins, Darin's superintendent, to do the
work of moving the equipment from the railroad cars to its substation
destination. The two men were then in Collins' office, and Collins
replied : "Just a minute. I'll see." He then leaned his head out the
office doorway toward Milt Orsulich, the Local 106 job steward, who
chanced to be passing by, and said, "Ernst wants to unload those oil
circuit breakers, can I do it?" Orsulich answered: "Try it and see."
When Collins retorted, "What kind of an answer is that?" Orsulich
responded, "Well, try it and see." Collins then said to Bartolet : "Well,
under the circumstances I'm afraid I have no equipment available for
your use to unload those circuit breakers."
Collins did not testify. Orsulich denied having had any conversa-
tion at all with Collins that day; he said he believed Collins had
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spoken to Bundy. Joseph Bundy is Darin's master mechanic and
foreman, and it is not shown or claimed that he was in any way an
agent of Local 106. Bundy testified that Collins asked him about
moving the circuit breakers and that his answer was : "Let's try it and
see." In his testimony he explained this statement by saying that cer-
tain equipment was under repair and not available to move the circuit
breakers at that time.
Bartolet's cross-examination gave clear indication that he was not
sure whether Collins had spoken to Orsulich or to Bundy on the day
in question.2
The second incident, also alleged to prove illegal conduct by Local
106, occurred on February 28, after Bartolet had arranged with
Gridley, the second hoisting contractor, to come to the jobsite to move
the circuit breakers off the railroad cars. Again, Bartolet's testimony
is as follows :
As he had requested, Gridley's crane operating crew, members of
Local 106, arrived at the cement plant, but they did not do the work.
Later that day Bartolet received a phone call from Charles Gridley,
who had been on the site with his crane equipment, and Gridley told
Bartolet he was unable to unload the circuit breakers because "the
engineers [sic] stopped me." Some time later Bartolet called
Orsulich and asked him "what the trouble was and he [Orsulich] said
that fellow didn't want to work for me." On April 19 and 20 the
circuit breakers were moved and installed at the substation by Grid-
ley's operating engineers.
Charles Gridley did not testify. Orsulich recalled having seen
Gridley's equipment at the project on February 28. He testified that
Excerpts from Bartolet's testimony:
. the first three or four weeks I was on the job I met both Mr. Bundy and Mr Milt
Orsulich, but I was confused as to their names, . . So, now where are we 9 And
as I said, I had a confusion of names. I mean I talked to these fellows, I knew who
they were and one or the other when I talked to them, certain arrangements were
made as are normally done on the job ; And this seems to have created a lot of
confusion to me, but now it's no longer confused. . . . I understood at the time that
I was confused by names, that Joe Bundy was the steward for the operating engineers
! • 1 R # k
t
Q. What-did Bundy stick his head in the door?
A. Well, as I said, Mr. Collins stepped outside the door and asked him the question
in the doorway.
Q. Yes.
A. That Is, I say he and Mr Collins were both in the doorway and that's the
phrase I heard
Q No, I said how did he come to stick his head in the door rather than in the
window?
A. Well, as I said, Mr. Collins stepped to the door and called to him in passing,
and he came to the door and he was on the outside looking in, and Mr. Collins was
on the threshold looking out.
Q. (By Examiner McNAMARA.) Who was this that replied to-Bundy?
A. This was to Mr. Collins.
Q. But who was the one on the outside, Bundy or Orsulich?
A. Bundy or Orsulich, the way my head is going around. We had this confu-
sion-I say it was Mr. Milt Orsulich.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 106 1751
he spoke to none of Gridley's men that day and that from his personal
observation he knew the circuit breakers could not have been moved
at that time because one of the wheels of the railroad car which held
them was off the tracks, a condition which had to be corrected before
the equipment, weighing about 11 tons, could be hoisted. Darin's
foreman, Bundy, corroborated Orsulich respecting the displacement
of the railroad car wheel.
In order to make a positive determination of the dispute in 10(k)
proceedings, we are not required to find that in fact the unfair labor
practice alleged in the charge has been committed. We must, how-
ever, as a condition precedent to passing upon the merits of the juris-
dictional dispute, be satisfied that there is reasonable cause to believe
that unfair labor practices have occurred .3 To satisfy this require-
ment it is not enough to show that two competing groups of employees
make claim to the same work assignment, or that there has been a
concerted work stoppage by the employees themselves. Even the con-
comitant existence of these two subsidiary facts, whatever suspicion
they may create, necessarily falls short of any proof that a union or
its agents acted illegally. Under the language of Section 8 (b) (4) (D),
the evidence must relate to conduct or speech of the Respondent or its
representatives.' In this instance we are not persuaded that the rec-
ord in its entirety can support a finding that there is reasonable cause
to believe that Local 106 or its agents violated the statute.
Implicit in Bartolet's testimony on the February 21 incident is the
contention that when Orsulich, the Local 106 steward, in response to
Collins' inquiry whether he, Collins, could move the circuit breakers,
said, "Try it and see," Orsulich intended a veiled threat that he would
prevent his operating engineers from doing their work if Collins
should order them to move Ernst's equipment. The phrase is ambigu-
ous and could with equal logic be construed as indicating some concern
other than an intent to resort to illegal conduct. Collins was not
called to corroborate Bartolet's attempt to place these words in
Orsulich's mouth. Orsulich denied having uttered them at all.
Instead, Bundy testified it was he who was asked and his reply was,
"Let's try it and see." It would be much more difficult to infer a
threat from these words than from those allegedly spoken by Orsulich.
As Bundy is Darin's master mechanic and foreman, it is also more
likely that Collins spoke to him on this subject rather than to Orsulich.
Moreover, Bundy's further testimony that certain equipment was
3International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Con-
struction Company ), 135 NLRB 1402.
' Section 8(b) (4) provides that it shall be an unfair labor practice for a labor organiza-
tion or its agents "(1) . . . to induce or encourage any individual employed by any per-
son . . to engage in, a strike or a refusal in the course of his employment . . . to
perform any services ; or (ii) to threaten, coerce, or restrain any person engaged in com-
merce . . . where in either case an object thereof is :. . . (D) forcing or requiring any
employer to assign particular work " from one group of employees to another.
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undergoing repair-his asserted basis for uncertainty-stands uncon-
tradicted on the record. In any event, Bundy is not an agent of the
Respondent and nothing he may have said can be viewed as evidence
supporting the charge. Finally, Bartolet admitted he was not sure
who spoke-whether it was Orsulich or Bundy.
On February 28, Gridley appeared on the jobsite with his men and
a crane to move the circuit breakers but the work was not done. As
to this incident the contention by the Charging Party is that the reason
why the equipment was not moved was because Gridley's men, all
members of Local 106, were induced by their union agents to refuse to
work. Again all the evidence offered to prove such inducement by
the Respondent appears in the testimony of Bartolet. He said that
Charles Gridley called him later in the day to say he had been unable
to move the circuit breakers because "the engineers stopped me."
Gridley, the only person really in a position to testify as to the reason
why the work was not performed , was not called as a witness to sup-
port the charge . Bartolet's critical "evidence ," therefore, stands as
purely hearsay testimony. Moreover, apart from the fact that
Bartolet was not in a position to relate what, if anything, the
Respondent's agents may have said to Gridley, all that Gridley
reported was that "engineers" were to blame. But the word "engi-
neers" literally means "employees" and not their union or representa-
tive. Orsulich said he did not speak to Gridley's men and his testi-
mony, corroborated by Bundy, that the equipment could not be moved
that day because the railroad car wheels were not securely on the
tracks, stands uncontradicted, and could well explain why the employ-
ees did not touch them.
The record also shows that there was a work stoppage by Darin's
employees on February 26. Other than indicating that this stoppage
resulted from a refusal by Darin 's assistant superintendent to discuss
grievances over safety conditions on the job, the record in no way
establishes any connection between that incident and the charge upon
which this proceeding rests.
We deem the total evidence in this case too vague and insubstantial
to support the necessary finding that there is reasonable cause to
believe that an unfair labor practice has occurred . There is no col-
lateral evidence of any other conversations among the principal per-
sons involved that could serve to illumine the ambiguous words that
were exchanged . We shall therefore grant the Respondent 's motion
to quash the notice of hearing.
[The Board quashed the notice of hearing.]