Int'l Union of Operating Engineers, Local 106

National Labor Relations Board - Board Decisions

Feb 12, 1963

140 N.L.R.B. 1213 (N.L.R.B. 1963)

INT'L UNION OF OPERATING ENGINEERS, LOCAL 106 1213
International Union of Operating Engineers , Local 106, AFL-
CIO and Northeastern Line Constructors Chapter National
Electrical Contractors Association . Case No. 3-CC-165. Feb-
ruary 12, 1963
DECISION AND ORDER
On July 30, 1962, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations. Thereafter,
the Respondent filed exceptions to the Intermediate Report together
with a supporting brief.
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 Trial Examiner's rulings made at the
hearing and finds no prejudicial error. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, excep-
tions and brief, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with the following modifications, and for the reasons set forth below
has decided to dismiss the complaint in its entirety.
The Trial Examiner found that there were two instances when
threats were made in violation of Section 8(b) (4) (ii) (B). The first
allegedly occurred on February 19 or 20,1962, when Orslick, Respond-
ent's job steward, allegedly told Collins, general superintendent for
Darin and Armstrong, "In case you are thinking about renting any
equipment or doing any work for E. C. Ernst Company, or Darin and
Armstrong doing it, don't do it." No witnesses were present to cor-
roborate Collins' testimony as to the threat, and Orslick denied mak-
ing the statement.
The second incident allegedly occurred on February 21, 1962, in
Darin and Armstrong's field office, a wooden shack on the jobsite.
Bartolet and Hawkins, general superintendent and general manager,
respectively, of E. C. Ernst, Inc., and Collins all testified to hearing
Orslick say "Try it and see" in reply to Collins' query as to whether
or not Darin and Armstrong could furnish Ernest with men and
equipment. Orslick denied making the statement, and Bundy, a
master mechanic for Darin and Armstrong and a member of Respond-
ent, testified that it was he and not Orslick to whom Collins spoke.'
'Bundy allegedly replied, "Let's try it and see."
140 NLRB No. 118.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the course of cross-examination, witness Bartolet was asked,
"Did Collins say to you `Are you going to tell them the same old lies
like I did?' And that you answered, `I will probably make up some
new ones.' Did you say that?" Bartolet replied, "Yes, sir, I did." 2
We agree with the Trial Examiner that this testimony casts serious
doubt upon Bartolet's reliability as a witness. We agree also that
Bartolet's statement should not be used to discredit Collins completely
as a witness,' as Collins was not given an opportunity to testify as to
that matter. Nevertheless, we are not disposed to find a violation of
the Act, which rests so largely on Collins' testimony. While it is true
that Hawkins, Bartolet's associate, corroborated Collins' testimony as
to the second incident, it is also true that Orslick and Bundy denied
Collins' version of the two incidents. The Trial Examiner did not
rely on demeanor evidence in discrediting them, and indeed credited
their testimony as to all other aspects of this case. Their version of
these two incidents is not inherently inconsistent with other conduct
engaged in by Respondent, which the Trial Examiner and we find
did not violate the Act, and is, therefore, not inherently unbelievable.
In these circumstances, and in the absence of any compelling reason
set forth by the Trial Examiner in support of his credibility findings
on this aspect of the case, we do not accept such findings.
In view of the foregoing, we find that the evidence leaves us in sub-
stantial doubt whether the incidents of February 19 or 20, and that
of February 21, occurred in such a manner as to support the allega-
tions of the complaint.
Accordingly, we find, on the record before us, that there is not a
sufficient preponderance of evidence to establish a violation of Sec-
tion 8(b) (4) (ii) (B) of the Act. As we are adopting the Trial Exam-
iner's recommendation of the dismissal of all other allegations of the
complaint, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
2 This conversation took place after Collins ' testimony had been concluded but before
Bartolet took the stand on the following day
' wigmore, "Code of Evidence," 3d ed 1942, § 920
INTERMEDIATE REPORT
On March 5, 1962, Northeastern Line Constructors Chapter, Philadelphia, Penn-
sylvania, filed charges against International Union of Operating Engineers, Local
106, AFL-CIO, Albany, New York, herein called the Respondent . On April 9,
1962, the General Counsel 1 issued a complaint against the Respondent alleging that
since on or about February 21, 1962, the Respondent has induced and encouraged
individuals employed by Darin and Armstrong, Inc., herein called Darin, and
C. M. Gridley and Son, Inc., herein called Gridley, to engage in strikes, and has
threatened , coerced, and restrained Darin and Gridley; and that an object of this
conduct is to force and require Darin and Gridley to cease doing business with
'The term "General Counsel" includes the General Counsel of the National Labor
Relations Board and his representative at the hearing.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 106 1215
E. C. Ernst, Inc., herein called Ernst. It is alleged that such conduct violates Sec-
tion 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended (61
Stat. 136), herein called the Act. Thereafter, the Respondent filed an answer deny-
ing most of the material allegations of the complaint.
Pursuant to notice, a hearing was held before Tnal Examiner Sydney S. Asher, Jr.,
on May 14, 15, and 16, 1962, at Albany, New York. All parties were represented
and were afforded opportunity to participate fully in the hearing. At the close of
the General Counsel's case-in-chief, and again at the close of the hearing, the
Respondent moved to dismiss the complaint in its entirety. Ruling on this motion
was reserved. Recommendations with regard to the disposition of this motion are
made herein. On July 13, 1962, the Respondent filed a brief, which has been duly
considered.2
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BOARD 'S JURISDICTION
E. C. Ernst, Inc., is engaged in the business of electrical construction, with its
home office in Washington, D.C. During the 12 months preceding May 14, 1962,
Ernst's gross volume of business was approximately $20 million. During the same
period, Ernst shipped goods and materials valued at more than $50,000 from its
home office to destinations in other States of the United States. Ernst is a member
of the National Electrical Contractors Association? The complaint alleges that
Ernst is, and at all material times has been, engaged in commerce within the mean-
ing of the Act. I so find.
As Ernst is alleged to be the primary employer, and as the operations of Ernst
described above meet the Board's jurisdictional standards, I find that it will effectuate
the purposes of the Act for the Board to exercise jurisdiction in this case.
II. THE RESPONDENT AND ITS AGENTS
The complaint alleges, the answer admits , and it is found, that International Union
of Operating Engineers , Local 106, AFL-CIO, is, and at all material times has been,
a labor organization within the meaning of the Act.
Paul Moran 4 is, and at all material times has been, financial secretary and business
representative of the Respondent . Milton J. Orslick 5 is, and at all times since late
December 1961 has been, a member of the Respondent and the Respondent's job
steward for the employees of Darin on the project site involved herein. It is not
disputed , and I find, that Moran and Orslick are , and at all material times have
been, agents of the Respondent.
The complaint alleges that Joseph Bundy is, and at all material times has been, an
agent of the Respondent . This is denied in the answer and was vigorously contested
by the Respondent at the hearing. The facts show that Bundy is, and at all material
times has been, a member of the Respondent and Darin 's master mechanic on the
project involved herein. The parties seem to agree that Bundy was a supervisor
and therefore a representative of Darin. But the Respondent contends that Bundy
represented Darin alone, while the General Counsel maintains that he had a dual
capacity : agent for Darin and simultaneously agent for the Respondent. Robert
Gridley, a witness for the General Counsel , testified on direct examination that
Bundy was "the shop steward " for Darin but later repudiated this testimony.
Gridley's testimony in this respect must be viewed in the light of the facts that he
had not worked for Darin since December 1961, and had not attended membership
meetings of the Respondent for a long time. Bundy denied that he held any office
in the Respondent . Moran corroborated this testimony. I credit the testimony of
2 The Regional Director sought a temporary injunction against the Respondent in
United States district court . On June 9 , 1962 , after the close of the hearing herein,
Hon James T Foley, judge of the United States District Court for the Northern District
of New York, handed down a decision denying the petition for injunction , but retaining
the matter on the court 's docket Merle D Vincent , Jr. v Local Va. 106, International
Union o f Operating Engineers , AFI-CIO, 207 F. Supp 414 (D C N N Y.).
3 These findings of fact regarding Ernst are based upon the undenied testimony of
Richard Hawkins , vice president and general manager of Ernst's Harrisburg division, a
witness for the General Counsel.
4 Referred to in the pleadings as George Moran.
6 Referred to In the pleadings as Milton Orsu]ich
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bundy and Moran in this regard, and accordingly find that Bundy was not, at any
material time, a representative or agent of the Respondent.6
III. THE UNFAIR LABOR PRACTICES
A. The primary dispute
1. Facts
The Atlantic Cement Company was constructing a cement plant on a large site in
Ravena, New York, herein called the Atlantic project. Work had commenced at
least by late 1961. Ernst was assigned the electrical construction for lights and
power and began work at the site during the first week in February 1962. Ernst
had a collective-bargaining agreement with the International Brotherhood of Elec-
trical Workers, herein called the IBEW, governing its employees' working conditions.
Among Ernst's vehicular equipment in use on the Atlantic project was a line truck 7
containing a winch, which was operated by Ernst's linemen .8 At all material times,
the Respondent has claimed the operation of winches on line trucks as "our work."
Ernst's line truck first appeared at the Atlantic project on February 5,9 and was
used for about a week. It was operated by Ernst's employees, presumably members
of the IBEW.10 During the week of February 12 through 18, inclusive , the line
truck was not in use. On the morning of February 16, William D Bartolet, then
Ernst's general superintendent on the Atlantic project, contacted Orslick and put
in an order for the Respondent to supply an operating engineer to report for work
on February 19.11 Orslick left with Bartolet copies of the Respondent's contract,
to be signed by Ernst's representative. Later on February 16 Bartolet canceled
the order (which Orslick had meantime relayed to the Respondent's officials) and
the contract was returned to Orslick, unsigned.12 The line truck resumed work at
the Atlantic project on February 19 and remained working thereafter, approximately
throughout the remainder of February. As before, it was operated by Ernst's
employees.
In March, Richard Hawkins, vice president and general manager of Ernst's Har-
risburg division, called Daniel J. McGraw, the Respondent's business manager, on
the telephone. During this conversation McGraw asked Hawkins if Ernst would
sign a contract with the Respondent covering employees performing hoisting, includ-
ing the operation of winches. However, no such contract was ever executed by
Ernst In the same month the Respondent, through its International, submitted to
the National Joint Board for Settlement of Jurisdictional Disputes in the Building
and Construction Industry its claim to jurisdiction over operation of the winch on
Ernst's line truck. On March 12 the Joint Board ruled as follows:
The operation of the A-frame winch truck on construction project site when
used to unload and hoist materials and equipment shall be assigned to operating
engineers The operation of the A-frame winch truck when used to pull cables
or handle reels shall be assigned to electricians.
Meanwhile, on March 5, Northeastern Line Constructors Chapter filed with the
Board charges in Case No. 3-CD-70 alleging that the Respondent had violated
Section 8(b)(4)(i) and (ii)(D) of the Act at the Atlantic project. Ernest was
O There is testimony Indicating that in December 1961, when Gridley and his oiler first
came upon the jobsite, Bundy asked them to exhibit their union cards However, there
is no evidence that this came to the attention of officials of the Respondent. I consider
it insufficient to establish any principal-agent relationship between the Respondent and
Bundy.
7A line truck (sometimes referred to in the record as an A-frame truck) consists of
a 21/2-ton ch-issis on which Is mounted a body specially equipped for carrying tools, and
a cab for personnel. It also carries a winch and boom for setting poles, etc
s Also referred to in the record sometimes as high liners and sometimes as outside elec-
tricians (as contrasted with Inside electricians).
e All dates hereafter refer to the year 1962 unless otherwise noted
12Ernst did not then, and still does not, employ any members of the Respondent.
11 Orslick testified that Bartolet wanted the engineer to run the winch on the line truck
in connection with the outside electricians Bartolet testified that he intended the
engineer to operate a forklift in connection with the inside electricians, but also testified
that Ernst had no forklift. I deem It unnecessary to determine what work Bartolet in-
tended the engineer to do.
121 deem It unnecessary to determine Bartolet's motive in doing so.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 106 1217
named in the complaint as the employer involved. The case is currently pending
before the Board.
The Respondent never picketed Ernest.
2. Contentions and conclusions
The Respondent concedes that a dispute existed between the Respondent and the
IBEW concerning the operation of the winch on the line truck when used for hoist-
ing. The General Counsel contends that the dispute was between the Respondent
and Ernst . I agree. This disagreement revolved around Ernst 's assignment of the
work in question . It is accordingly concluded that, at all material times, a dispute
existed at the Atlantic project between Ernst on the one hand and the Respondent
on the other , bottomed upon either ( 1) Ernst 's assignment of the operation of the
winch on the line truck to its employees who were not members of the Respondent,
or (2) Ernst 's failure or refusal to sign a collective -bargaining contract with the
Respondent, or (3) both.
B. Relations between Darin and Ernst
1. Facts
Darin , a general contractor , was assigned the erection of all the mechanical equip-
ment for the production of cement on the Atlantic project For this task, Darin
utilized heavy hoisting equipment ( such as crawler cranes, truck cranes , and boom
cranes ) and employed members of the Respondent varying in number from a low
of 5 to a high of about 35 . Darin 's part of the work was underway at least by
December 1961.
Ernst did not have at the Atlantic project any equipment capable of heavy hoist-
ing. During the week of February 5, two heavy power transformers arrived at the
site consigned to Ernst . Ernst hired Darin to unload these transformers and place
them on the foundations . Darin performed this work with its own 45 -ton truck crane,
using its own employees , including operating engineers.
On February 19 or 20, George Collins, general superintendent for Darin on the
Atlantic project , was conferring with Orslick about some men working overtime.
Orslick told Collins: "In case you are thinking about renting any equipment or doing
any work for E. C. Ernst Company , or Darin and Armstrong doing it, don 't do it."
Collins did not reply.la
On or about February 21, Bartolet and Hawkins came to Darin's field office at
the Atlantic project and asked Collins if Darin would furnish Ernst with men and
a truck crane and trailer to unload some heavy oil circuit breakers then located on
railroad cars on a siding at the storage yard, consigned to Ernst. Collins replied
that he would check, and stepped to the office door. Orslick was outside . Collins
told Orslick that Ernst had requested Darin to supply men and equipment, and
asked what Orslick had meant by his remarks of 1 or 2 days before. Orslick
answered : "Try it and see." Collins then informed Bartolet and Hawkins that Darin
would not be able to do any work for them.14
13 The findings of fact regarding this conversation are based upon Collins ' credited
testimony Orslick denied that such a conversation took place 1 do not credit his denial
in this respect
Bartolet admitted that, the day before he testified , the following conversation took
place between himself and Collins:
COLLINS : Are you going to tell them the same old lies like I did?
BAITOLET : I will probably make up some new ones.
The Respondent urges that this undenied and unexplained testimony renders the testi-
mony of both Bartolet and Collins "valueless " I agree that it casts serious doubt upon
Bartolet 's reliability as a witness Collins , however , was not confronted by the Respond-
ent with this alleged conversation so as to afford him an opportunity , in advance, to
deny , admit, or explain it. In short , no proper foundation was laid as to hum Wigmore's
Code of Evidence 3d ed 1942, §§ 871 , 875, and 920 . It follows that Bartolet 's testimony
cannot be used to impeach Collins' credibility.
14 The findings of fact with regard to this incident are based upon the testimony of
Collins and Hawkins. I do not rely upon the testimony of Bartolet , except insofar as it
corroborates that of Collins and Hawkins Orslick denied that lie had such a conversa-
tion with Collins. Bundy testified that it was to him ( not to Orslick ) that Collins
addressed the inquiry , and that he replied : "Let's try it and see " I do not credit the
testimony of either Orslick or Bundy in this regard.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collins reported this matter to Darin's home office. On the same day he tele-
phoned to Moran and inquired about the dispute between the Respondent and Ernst.
Moran replied that Ernst's employees, nonmembers of the Respondent, were operat-
ing a winch on Ernst's line truck, and that this work was claimed by the Respondent
for its members 15 Since this incident Darin has not performed any work for Ernst,
nor has Darin been requested to do so.
2. Conclusions
It is my opinion, in agreement with the General Counsel, that Orslick's remark to
Collins on February 19 or 20 ("don't do it") constituted a threat uttered by an agent
of the Respondent acting within the scope of his authority, and accordingly is bind-
ing upon the Respondent. The threat was repeated in different words ("Try it
and see") a few days later. Moreover, both these threats were addressed to
Collins, a "person engaged in commerce," 16 and had as an object forcing or requiring
Darin to terminate its preexisting business relations with Ernst. Such conduct
violated Section 8(b) (4) (ii) (B) of the Act.
C. The strike of Darin's operating engineers
1. Facts
There was an accident at the Atlantic project in December 1961 in which a man
was killed. Thereafter, in January, a meeting was held concerning safety on the
Atlantic project; it was attended by representatives of the various unions concerned
and the contractors, including Darin.
A few months later an agent of the New York State Department of Labor made
a safety survey at the site. Orslick, on behalf of the operating engineers in Darin's
employ, made oral complaints to Mr. Jones, an agent of New York State, concerning
the safety of Darin's operations. Bundy likewise made similar complaints While
the record is not entirely clear on the subject, there is testimony indicating that
some official of New York State might have submitted to Darin a list of unsafe and
hazardous conditions to be corrected. At some unidentified time, snow from the kiln
crushed one of the cabs and, according to Bundy, "the man barely got out of it in
time."
About February 23, the kiln started to turn with several of Darin's employees
inside; Bundy described the situation as "very dangerous." On the next working
day, February 26, Orslick, as steward of the Respondent, orally presented to Bundy,
as Darin 's representative, a number of complaints of Darin's employees concerning
safety and sanitation.17 Together Orshck and Bundy went to see Thomson, Darin's
project manager, at his office about 10 a.m. that day. They presented the safety
and sanitation grievances to him. There ensued "quite a heated discussion" which
ended by Thomson refusing to discuss the grievances and ordering Orslick and
Bundy out of his office.18 Several of Darin's operating engineers approach Orslick
and Bundy and asked what had happened. They were told that Thomson had
ordered Orslick and Bundy out of his office. They then began leaving the worksite
is The finding of fact regarding Moran's answer is based upon Collins' credited testi-
mony Moran's version was that he answered that the Respondent's dispute was not
with Ernst, but with the outside electricians in Ernst's employ, and that he assured
Collins: "Don't worry about it. It won't involve you or anybody else . . [but] will
be properly processed [through] the Joint Board." I deem Collins' version more accurate
than that of Moran.
iU Darin is a general contractor , with its principal place of business in Detroit , Michi-
gan. During the 12 months prior to May 14, 1962, Darin's gross volume of business was
about $60,000,000. During the same period Darin shipped goods valued at more than
$50,000 to destinations outside the State of Michigan. I find that Darin is, and at all
material times has been, engaged in commerce within the meaning of the Act
While details concerning Collins' duties , responsibilities , and authority are lacking, it
is clear that he was Darin ' s general superintendent on the Atlantic project. In niy
opinion, this is sufficient to show that he was a "person" within the meaning of the
Act See Local Union No 505 , International Brotherhood of Teamsters , et at (Carolina
Lumber Company), 130 NLRB 1438
17 Such as: improper blocking under cranes making heavy lifts ; the kiln accident ; the
condition of the drinking water; and the allegedly unsanitary toilet facilities.
is The findings of fact regarding this conversation are based upon the undenied testi-
mony of Orslick and Bundy . Thomson did not testify
INT'L UNION OF OPERATING ENGINEERS , LOCAL 106 1219
and by noon all operating engineers employed by Darin, including Orslick and
Bundy,19 had departed. No picket line was set up.
The next morning, February 27, Collins made a telephone call to Moran and
asked Moran why the engineers had left the jobsite. Moran replied that "a group
of men had come on the job and they must have had the flu bug with them because
all the operating engineers were sick." 20 That evening, at a meeting of the Re-
spondent's members, Moran directed those employed by Darin on the Atlantic
project to return to work the next morning. Accordingly, about 8 a.m. on February
28, Darin's operating engineers reported at the project site for work, and the strike
ended.
2. Contentions and conclusions
The General Counsel contends that the strike of Darin's engineers on February 26
was instigated by Orslick. Conversely, the Respondent urges that Orslick took
no action to precipitate the walkout, and indeed that he had no authority to do so.
Other than truthfully informing the Respondent's members of the outcome of the
aborted conference with Thomson, the record reveals no conduct by Orshck which
induced or encouraged Darin's employees to strike. Nor do I deem Moran's flip-
pant reply to Collins on the telephone a confession of the Respondent's participation,
or a ratification. Viewed most favorably for the General Counsel, it was at most
noncommittal. Moreover, Moran promptly repudiated the action as unauthorized,
and ordered its cessation. In sum, it was a spontaneous reaction to unwelcome news.
I concluded that the General Counsel has failed to prove that the Respondent violated
Section 8(b) (4) (1) (B) of the Act with respect to individuals employed by Darin
But even if, contrary to the above, an agent of the Respondent had caused the
strike, it was not shown to have been for an object violative of the Act. The timing
convincingly demonstrates that the walkout was due, solely and directly, to Thom-
son's attitude toward the grievances presented to him The only evidence linking the
strike to any other cause was that, on that day, Ernst's line truck was being operated
by Ernst's employees who were not members of the Respondent. But this had been
true every workday since February 19. Moreover, it is difficult to understand why
the Respondent would strike Darin because of Ernst's actions, unless Darin had co-
operated with Ernst. However, the exact reverse was true. About 6 days before
the strike, Darin had refused to do work for Ernst.21 There is not an iota of
evidence that, in the interval, Darin changed its position regarding performing any
hoisting for Ernst. It is accordingly concluded that the General Counsel has failed
to establish that the strike was in any way connected with Ernst; in short, that an
abject thereof was proscribed by Section 8(b) (4) (i) (B) of the Act. It was simply
a primary strike for a primary object.
D. Relations between Gridley and Ernst
1. Facts
After Darin's refusal on about February 21 to do hoisting for Ernst, the oil cir-
cuit breakers remained on the railroad cars, consigned to Ernst About February 26
Bartolet telephoned to George Gridley, vice president of Gridley, a firm engaged
in general hauling and crane services. So far as the record shows, Ernst had not
previously done any business with Gridley. Bartolet ordered a truck crane and
low-bed trailer, manned by union men, to unload the oil circuit breakers at the
Atlantic project. On February 27 about 2 p.m. George Gridley dispatched to the
19 Bundy's conduct in orally presenting grievances to Smith and to Thomson and in
leaving work on February 26 may indicate that he was so emotionally involved that he
placed his own safety and the safety of the employees above loyalty to his employer
But such conduct does not stamp him as an agent of the Respondent A purported
agent's actions, unknown to the purported principal, are ineffective to create a principal-
agent relationship.
20The finding of fact regarding Moran's reply is based upon Collins' credited testi-
mony Moran testified that he answered that Collins "knew quite well the reason why
they walked off was because of the safety factors and job conditions but this was an
unauthorized walkout. They had no right to walk off. Don't worry, they will be back
to work in the morning." I deem Collins' version more accurate than that of Moran.
21 The General Counsel argues that Collins' refusal was due to Orslick's threat The
Respondent , conversely , maintains that it was caused by the unavailability of the proper
type of equipment. I consider it unnecessary to determine Collins' motivation In my
opinion it is enough for our purpose to find, as I do, that the refusal occurred.
681-492-63-vol. 140-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlantic project a crane operated by Robert Gridley, a member of the Respondent
and a former employee of Darin.22 The crane arrived at the project site about
4 p.m. that day, while the strike of Darin's operating engineers was still in progress.
Robert Gridley asked Bundy, who was there: "Joe, there's no booms moving around.
What is the matter?" Bundy replied: "The men have left the job. They have gone
home." 23 Robert Gridley telephoned to George Gridley and told him that there
was a dispute and that the Respondent's members were not working. On orders from
George Gridley, Robert Gridley returned home with the crane, without performing
any work for Ernst.
The crane, with Robert Gridley and James Berti, an oiler, returned to the Atlantic
project about 8 a.m. the next day, February 28. Although Robert Gridley had
orders to report to Bartolet at Ernst's field office, he did not do so. Instead he
warmed up the crane's motors, had Berti move it about 800 feet into the project,
and waited there for almost an hour.24 During this time Robert Gridley telephoned
to George Gridley and stated that there was still a dispute.25 George Gridley directed
Robert Gridley to leave. Next Robert Gridley telephoned to Bartolet, who said
that the parties involved had not "arrived at any arrangement." Robert Gridley
replied that he was moving his crane out, on orders from his office. Robert Gridley
then took the crane off the jobsite without performing any work for Ernst 26
The oil circuit breakers consigned to Ernst were eventually unloaded in April.
This work was done for Ernst by Gridley, using Gridley's equipment operated by
Gridley's employee who was a member of the Respondent.
2. Conclusions
The complaint alleges that the Respondent , since February 21, induced and en-
couraged individuals employed by Gridley to strike, and threatened , restrained,
and coerced Gridley, with an object of forcing or requiring Gridley to cease doing
business with Ernst . With regard to the alleged inducement and encouragement of
individuals employed by Gridley, the General Counsel maintains that this refers to
Robert Gridley and his oiler on or about February 28. It is true that, on that date,
Robert Gridley knew of the existence of the primary dispute between Ernst , for whom
he had been assigned to work, and the Respondent , of which he was a member. And
there can be little doubt that it was because of this knowledge that Gridley (and
perhaps his oiler ) failed or refused to carry out his work assignment . But it does
not necessarily follow that the Respondent caused him to make this decision. There
is no probative evidence to establish any act by a representative of the Respondent
which induced or encouraged Robert Gridley or his oiler not to perform services for
Ernst. While the matter is not entirely free from doubt , I find that the General
Counsel has failed to prove that the Respondent violated Section 8(b) (4) (i) (B) of
the Act with respect to individuals employed by Gridley.
There remains the question of the alleged threats , restraint , and coercion of
Gridley. The record is completely devoid of evidence that any such conduct was
za George Gridley testified that no other Gridley employee was dispatched Robert
Gridley, also a witness for the General Counsel, testified that he was dispatched with his
oiler, James Bert! I credit Robert Gridley on this point, and find that Berti was also
sent
2" The findings of fact regarding this conversation are based upon the uncontradieted
testimony of Robert Gridley, who flatly denied that Bundy told him not to go into the
j obsi to
u Bartolet testified that he saw Gridley's crane "pulling down to the site of the oil
circuit breaker railroad car" and that, a few minutes later, Ernst's linemen went "down
to the same area " At most under this version, Robert Gridley and his oiler may have
come in contact with Must's linemen, who were not -members of the Respondent But
this account conflicts with that of Robert Gridley, also a witness for the General Counsel.
Although Robert Gridley was an unwilling and sometimes hostile witness, I find him to
be more credible than Bartolet I therefore do not credit Bartolet' s version
25As Darin's operating engineers had by then ended their strike, it is probable that
Robert Gridley was referring to the primary dispute between Ernst and the Respondent.
=8 Bartolet testified that, the same day, lie telephoned to Orslick and asked him what
the trouble was and why the oil circuit breakers had not been unloaded, that Orslick re-
plied* "Well, that fellow just didn 't want to work for you" , and that when Bartolet In-
quired "What is it going to take to get the oil circuit breakers unloaded?" Orslick
answered: "Well, sign our contract and we'll furnish an engineer and that will be it"
Orsliek denied that any such conversation occurred. I credit Orslick's denial in this
regard.
SHARP'S MARKETS, INC. 1221
engaged in by the Respondent . Indeed, there is a total lack of evidence that any
agent of the Respondent even communicated in any way, shape , or form with any
person in Gridley's management . 27 It is accordingly concluded that the General
Counsel has failed to establish that the Respondent violated Section 8(b) (4) (ii) (B)
of the Act with regard to Gridley.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. E. C. Ernst, Inc., and Darin and Armstrong , Inc., are and at all material times
have been employers engaged in commerce within the meaning of Section 2(6) of
the Act.
2. International Union of Operating Engineers , Local 106, AFL-CIO, is, and
at all material times has been , a labor organization within the meaning of Section
2(5) of the Act. Paul Moran and Milton J. Orslick are , and at all times have been,
its agents within the meaning of Section 8 (b) of the Act.
3. The General Counsel has failed to prove that Joseph Bundy was , at any material
time, an agent of the above-named labor organization within the meaning of Sec-
tion 8 (b) of the Act.
4. By threatening , coercing, and restraining Darin and Armstrong , Inc., with an
object of forcing or requiring Darin and Armstrong, Inc., to cease doing business with
E. C. Ernst, Inc., the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (4) (ii ) ,(B) of the Act.
5. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce , and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
6. The General Counsel has failed to establish that the Respondent has engaged
in or is engaging in unfair labor practices within the meaning of Section 8(b)(4)
(i) (B) of the Act.
7. The General Counsel has failed to establish that the Respondent violated Sec-
tion 8 (b) (4) (ii) (B) of the Act with regard to C. M. Gridley and Son, Inc.
[ Recommendations omitted from publication. ]
ffi This is true even If Robert Gridley , because of his stock ownership in Gridley, Is con-
sidered as a "person engaged in commerce " within the meaning of Section 8(b) (4) (ii) (B)
of the Act See Local Union No 505 , International Brotherhood of Teamsters, et al.
(Carolina Lumber Company ), supra
Even if Bartolet ' s testimony as to what Orslick said in an alleged telephone conversa-
tion of February 28 is taken as true and even if Orslick's alleged remark therein ("sign
our contract . . . and that will be it" ) Is considered as a threat , this was addressed to
Bartolet, a representative of the primary employer, and could not in any sense be viewed
as a threat to Gridley, the neutral employer.
Sharp 's Markets , Inc. and Amalgamated Meat Cutter and
Butcher Workmen of North America, Local 109, AFL-CIO.
Case No. 28-CA-822. February 13, 1963
DECISION AND ORDER
On November 14, 1962, Trial Examiner James R. Hemingway
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. Thereafter, the General Counsel and
140 NLRB No. 114.