Int'l Union of Operating Engineers (Passarelli & Son, Inc.)

National Labor Relations Board - Board Decisions

Sep 13, 1967

167 N.L.R.B. 401 (N.L.R.B. 1967)

INT'L. UNION OF OPERATING ENGINEERS (PASSARELLI & SON, INC.) 401
International Union of Operating Engineers, Local
478, AFL-CIO, Elwood L. Metz, Jr., and R. M.
Bertolini , its agents and Passarelli & Son, Inc.
International Union of Operating Engineers, Local
478, A, B, C, D, AFL-CIO and The L. Suzio
Concrete Co., Inc. Cases 1-CC-573 and
1-CC-575.
September 13, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 26, 1967, Trial Examiner William F.
Scharnikow issued his Decision in the above-enti-
tled proceeding, finding that Respondents had en-
gaged in certain unfair labor practices and recom-
mending that they cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondents filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the
General Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondents, International Union of
Operating Engineers, Local 478, A, B, C, D,
AFL-CIO, its officers, and their respective agents
and representatives, including Respondent Agents
Elwood L. Metz, Jr., and R. M. Bertolini, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
i The Respondents except to the credibility resolutions made by the
Trial Examiner it is the Board's established policy not to overrule a Trial
Examiner's resolutions as to credibility unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Such a con
clusion is not warranted here Standard_ Dry Wall Products, Inc , 91
NLRB 544, enfd 188 F 2d 362 (C.A 3) _ Although the record does not
support the Trial Examiner's finding that the driver of each truck stopped
briefly and talked with the pickets, this does not affect the validity of the
Trial Examiner's conclusions herein nor our adoption thereof
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F . SCHARNIKOW , Trial Examiner: The
pleadings in the above -entitled cases raise questions as to
whether the Respondent Union and, the Respondents
Metz and Bertolini , as its agents , committed unfair labor
practices affecting commerce within the meaning of Sec-
tions 8 (b)(4)(i) and (ii)(B) and 2(6) and (7) of the National
Labor Relations Act, as amended , 29 U.S.C., Sec. 151 et
seq. (herein called the Act ) by (1) inducing and encourag-
ing individuals employed by Passarelli & Son, Inc.
(herein called Passarelli ) and The L. Suzio Concrete Co.,
Inc. (herein called Suzio) to engage in strikes or refusals
in the course of their employment to perform services for
their respective employers and by (2) threatening ,. coerc-
ing, and restraining Passarelli and Suzio , with the objects
in each case of forcing Carabetta Enterprises , Inc. (herein
called Carabetta) to recognize and bargain with the Union
as the representative of its employees, and of forcing or
requiring Passarelli and Suzio to cease doing business
with Carabetta.
On January 10, 1967, the Regional Director ordered
consolidation of the two cases , issued a consolidated
complaint against the Respondent Union and Respond-
ents Metz and Bertolini as its agents , and caused service
to be made of the order and the consolidated complaint
upon all three Respondents . On January 31, 1967, the
Regional Director ordered the amendment of the con-
solidated complaint , and copies of the order and the
amendments were served upon the three Respondents the
same day. Thereafter , the Respondents , through their at-
torney, filed their answer denying in substance the allega-
tions of the complaint as amended with respect to the un-
fair labor practices.
The basic charge in Case 1-CC-573 had been filed by
Passarelli and copies were served upon all three Re-
spondents on December 13, 1966 . The basic charge in
Case 1 -CC-575 had been filed by Suzio on December
19, 1966 , and a copy was served upon the Respondent
Union on the same day. No copy of this last-mentioned
charge was served upon either the Respondent Metz or
the Respondent Bertolini.
Pursuant to notice , a hearing was held in Hartford,
Connecticut , on February 28 and March 1, 14, 15, and
16, 1967, before me, duly designated by the Chief Trial
Examiner . The General Counsel , the Respondents, and
Passarelli and Suzio appeared by their respective counsel
and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce
evidence bearing upon the issues . Since the close of the
hearing, I have received and considered a brief from the
General Counsel . No briefs have been filed by Counsel
for the Respondents, or Counsel for the Charging Parties,
Passarelli and Suzio.
Upon the entire record in the case and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
Carabetta Enterprises , Inc., is a Connecticut corpora-
tion in the general construction field. Since some time
167 NLRB No. 53
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to December 6, 1966, it has been continuously en-
gaged as the general contractor in the construction of the
Oakland Garden project, a garden apartment develop-
ment in Meriden, Connecticut. Its business is conducted
by two brothers (Salvatore "Sam" Carabetta as president
and Joe Carabetta as treasurer) and it employs two other
brothers (Ralph and Donald Carabetta) on salaries. For
convenience, the corporation is referred to simply as
"Carabetta," although there is also a separately main-
tained "Carabetta Brothers" partnership whose equip-
ment (a forklift with the marking "Carabetta Brothers,"
and a pay loader) was leased by the corporation and
operated at various times on the Oakland Garden project
from December 6 to 16, 1966, by one or another of the
four Carabetta brothers. The value of the construction of
the Oakland Garden project exceeds $900,000. At the
time of the hearing Carabetta had received shipments of
goods and materials from other States of a value of more
than $50,000 for use and installation at the Connecticut
jobsite.
Passarelli & Son, Inc., herein called Passarelli, to
whom Carabetta assigned the Oakland Garden site
preparation and grading, is a Connecticut corporation
with its principal office and place of business in Meriden,
Connecticut, and is, and has been, engaged in the general
earthmoving business, including site preparation, road
building, excavation and grading. During the last fiscal
year preceding the hearing, the gross volume of Passarel-
li's business was approximately $275,000. The value of
the work it was to perform on the Oakland Garden pro-
ject was between $25,000 and $35,000.
The L. Suzio Concrete Co., Inc., herein called Suzio,
to whom Carabetta assigned the supply of ready-mixed
concrete for the Oakland Garden project, is a Connec-
ticut corporation with its principal office and place of
business in Meriden, Connecticut, where it is, and has
been, engaged in the supply of ready-mixed concrete. In
the course and conduct of its business, Suzio annually
purchases materials and supplies valued at more than
$50,000 from points outside the State of Connecticut.
Upon the foregoing facts, I find that Carabetta and
Suzio are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act; that they
and Passarelli are employers engaged in an industry af-
fecting commerce within the meaning of Section 8(b)(4)
of the Act; and that it will effectuate the purposes and
policies of the Act to entertain jurisdiction in the present
case.
, 11. THE RESPONDENTS
International Union of Operating Engineers, Local
478, AFL-CIO (herein referred to as the Respondent
Union or simply as the Union), is a labor organization
within the meaning of the Act.
The Respondent Elwood L. Metz, Jr., is the Respond-
ent Union's business manager and, as its executive of-
ficer, conducts its day-to-day business. The Respondent
R. M. Bertolini is a business agent of the Respondent
Union under the supervision and control of Business
Manager Metz. It is Bertolini 's duty to check on con-
struction jobs, report to Metz any instances of noncom-
pliance by contractors with the terms of their contracts
with the Respondent Union, and to transmit and police
Metz' instructions to the Respondent Union's members.
He has no authority to call a strike or to post or remove
pickets unless he is instructed to do so by Metz. He does
not engage in the Respondent's contract negotiations.
Although he usually carries a form of the Respondent's
"standard" contract in his pocket, he has no authority
(absent instructions from Metz) either to ask an employer
to sign a contract, or to enter into a contract for the
Respondent Union. I find that the Respondents Metz and
Bertolim are agents of the Respondent Union within the
meaning of Section 8(b) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Preliminary General Findings and Comment upon
the Evidence
The material events in the present case occurred in
December 1966 while Carabetta was engaged as general
contractor in the construction of the Oakland Garden
development, which is an FHA project. Carabetta's of-
fice on the site was a trailer, on the side of which
Carabetta, in compliance with FHA requirements, had
posted its schedule of conforming wage rates in a glass-
covered frame measuring 2 feet by 3 feet. Carabetta had
no contract with any union and, with Sam and Joe
Carabetta in charge at the site , was using its own non-
union employees for some of the work on the project. As
already noted, the four Carabetta brothers at various
times operated a forklift and a pay loader, which it had
leased from Carabetta Brothers On December 6 and
again on and after December 8, Ralph and Donald
Carabetta operated these two pieces of equipment on the
Oakland Garden site.
There were other operating engineers on the site who
were employed by, and operated equipment owned by,
other contractors. One of these contractors was Passarel-
li to whom Carabetta had assigned the general work of
site preparation and grading. Passarelli's five men, who
were already working on the site on December 6 under
Joe Passarelli, were members of the Respondent Union
with whom Passarelli had a contract. In addition, on the
morning of December 8, three other contractors brought
in their equipment and began operating it on the site. One
of them, Allen Roden, brought in a small dozer and
{operated it himself. Another, Topstone, brought in a big
dozer, and the third, Barr Construction Company,
brought in a small back hoe. Both Topstone and Barr
Construction Company were nonunion, supplied and paid
their own operators, and were paid flat fees by Carabetta.
The remaining contractor involved in the material
events in December 1966 was The L. Suzio Concrete
Company, which supplied ready-mixed concrete for the
job. Suzio's drivers, who brought the concrete to the site
in its trucks and poured it, were members of the Team-
sters Local 677 with whom Suzio had a contract. Henry
Altobello, Suzio's president, and Leonard Suzio, its trea-
surer, were in charge of its operations
The bare factual skeleton of the case in this setting is
not in dispute. On December 6 and 8, Lawrence
Dickson, the Respondent Union's steward for Passarel-
li's operators, telephoned the Respondent Union's office
that nonunion men were operating equipment on the site.
Business Agent Bertolini went to the site on both occa-
sions. On December 6, he persuaded Joe Carabetta to
stop operating Carabetta's equipment and there was no
interruption of the work of Passarelli's operators on that
or the next day On the morning of December 8, how-
ever, Steward Dickson and the other four Passarelli
operators stopped work before Dickson called the union
INT'L. UNION OF OPERATING ENGINEERS (PASSARELLI & SON, INC.) 403
office. When Business Agent Bertolini arrived at the site
at 9 or 9:30 a.m., he not only told Joe Carabetta that Pas-
sarelli's men would not work with nonunion operators on
the site, but suggested as a possible solution of the dif-
ficulty that Carabetta sign a contract with the Respondent
covering its two nonunion operators. Carabetta rejected
the suggestion and at midday Bertolini, on instructions
from Business Manager Metz, brought to the site picket
signs of the Respondent Union addressed "to the public"
and protesting "substandard wages and conditions" but
stating "there is no strike here." In further accordance
with Metz' instructions, Bertolim gave these signs to the
five Passarelli operators, and posted them at the two en-
trances to the site.
Passarelli's operators have not worked on the site since
early in the morning of December 8 and, from about 2
p.m. of that day until December 15, they picketed the en-
trances to the site with the Respondent's signs, an activity
for which the Respondent paid them. And, although Su-
zio's drivers passed through the picket line and poured
concrete for a foundation on the site throughout the after-
noon of December 8, Suzio has made no deliveries to the
site since that time. In the meantime, on December 9,
Business Agent Bertolini was instructed by Business
Manager Metz to ask Carabetta to sign a contract with
Respondent. Bertolim did so that afternoon at a meeting
with Joe Carabetta at Suzio's office in the presence of
Leonard Suzio and Henry Altobello, Suzio's president.
But Carabetta refused to sign a contract and Bertolini
thereupon told him in the presence of the other two men,
that the picket line would continue at the site.
All this is clear from the testimony of Business Agent
Bertolini as well as that of Altobello and Joe Passarelli.
Their testimony, however, differed in approach and in
content as to other matters. Bertolini laid stress in his
testimony, as he also did in his conversations with Pas-
sarelli, upon what he described as the "informational" na-
ture of the picketing. He also laid stress upon what he
testified was the spontaneous, independent, and per-
sistent refusal of Passarelli's men to work on the site with
nonunion operators, a matter in which he told not only the
men themselves but also Carabetta, Passarelli, and Al-
tobello, neither he nor the Respondent Union would in-
terfere. Passarelli, however, testified (although Bertolim
denied it) that the men told Passarelli in Bertolini's
presence when Bertolini set up the picket line on
December 8, that they wanted to work on the site but
feared union fines and the loss of their "books," and that
Bertolini thereupon confirmed these fears by saying that,
although the men were free to go back to work, they
would have to take "the consequences." Furthermore,
Passarelli and Altobello testified that in conversations
with each of them, Bertolmi made other statements which
(according to the General Counsel) also showed it was
the Respondent's intent to interfere with Passarelli's and
Suzio's operations at the site and to bring pressure upon
and through them in the Respondent's attempt to get
Carabetta to sign a contract with the Respondent. In his
testimony, Bertolini denied having made some of these
statements and said that he did not recall having made
others
To resolve these conflicts in their pertinent setting, I
make the following full and detailed findings as to what I
believe the credible evidence shows happened and was
said and done by Bertolini from December 6 through 19,
1966, even though it requires repetition and some
elaboration of what I have already found to be the clear
and undisputed general course of events in that period.
Unless otherwise noted, however, my findings are based
upon uncontradicted evidence, given in great part by
Business Agent Bertolini.
B. The Material Events from December 6 through
December 19, 1966
1. December 6
On Tuesday, December 6, Lawrence Dickson, one of
Passarelli's five men on the job and the Respondent's job
steward, reported by telephone to the Respondent
Union's office at Hamden, Connecticut, about 35 miles
away, that nonunion men were working on the job. Busi-
ness Agent Bertolim went immediately to the jobsite and
when he arrived, Passarelli's men were working. But
Steward Dickson told Bertolini that there were two non-
union men operating two pieces of Carabetta's equipment
on the job, and pointed them out to Bertolim. Bertolini
told Dickson to continue working until he straightened
the matter out. Bertolmi then found Joe Carabetta, whom
he had not previously known. He told Carabetta that the
latter had two nonunion operators on the job, and that
Passarelli's men resented it and were refusing to work.
Carabetta said if the fact that nonunion men were work-
ing on the site would cause Bertolim trouble, Carabetta
would "close these pieces of equipment down." Bertolini
said, "Okay," and told Steward Dickson what Carabetta
had said. Carabetta spoke to the nonunion operators who
thereupon "parked" Carabetta's equipment. Passarelli's
men had continued to work and were still working when
Bertolini left the jobsite.
Joe Passarelli was on the jobsite that morning and
heard that Business Agent Bertolini had been there. He
did not speak with Bertolini, but after Bertolini left,
Steward Dickson told Passarelli that Bertolini had suc-
ceeded in getting Carabetta to shut down the equipment
which had been operated by nonunion men. Passarelli
told Dickson he was glad to see Carabetta's equipment
was no longer in operation "so that we can continue to
work"; that he was "sure that the Union would find a
solution to this problem with Carabetta"; and that he
hoped there would be no interruption of Passarelli's
work. Passarelli then asked Dickson if Dickson would
stop work should Carabetta's equipment resume opera-
tion. Dickson said, in that event, he would stop work and
would call the Respondent Union's office for instruc-
tions. Thereupon Passarelli, who was a member of the
Respondent Union, told Dickson, that if he had to do this,
he should "go ahead," because Passarelli did not want
them to "jeopardize their books" or be fined by the
Union.
2. The morning of December 8
Two days later, on Thursday morning, December 8,
Business Agent Bertolini was again sent to the Oakland
Garden project as the result of another telephone call
from Steward Dickson who had reported that Passarelli's
operating engineers would not work because Carabetta
had started to operate its equipment and had added two
machines. Bertolini went to the site with Kenneth Ford,
a representative of the New Britain Building Trades
Council of which the Respondent Union was a member.
When Bertolini arrived at 9:30 a.m., he found Passarelli's
five operators and its equipment standing idle at the foot
310-541 O - 70 - 27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a slope next to an excavation . He saw that four other
pieces of equipment (i.e., the forklift and the pay loader
leased from "Carabetta Brothers " and the Barr's back
hoe and Topstone 's dozer) were being operated in the
excavation and the rock cut.
Steward Dickson told Bertolini that the four pieces of
equipment just mentioned had been operating since 9
o'clock and that he had stopped the work of Passarelli's
men and called the Union 's office. Bertolini told Dickson
he would speak to Carabetta . He did not tell Dickson that
the Passarelli operators should continue their refusal to
work nor that they should go back to work.
Although Bertolim was told by Dickson , and he, him-
self, saw that the two Carabetta brothers ' machines,
Barr 's back hoe , and Topstone 's big dozer were in opera-
tion , he apparently did not see that there was also a small
dozer being operated by Allen Roden . Nor did he ap-
parently know (as Joe Passarelli testified at the hearing)
that , after Dickson and the four other Passarelli operators
had quit work and parked their equipment , Roden 's small
dozer and Topstone 's larger dozer had begun doing work
that Passarelli ' s men had been doing. For, as we shall see,
Bertolini never made any complaint that nonunion men
were even taking over at least some of the work which
Passarelli ' s union men had been performing.
Bertolini found Joe Carabetta in the office trailer.
Building Trades Representative Ford , who had come
there for a meeting on another matter , remained outside
the trailer , and Bertolini entered alone. He told Joe
Carabetta that the Union 's steward had said Passarelli's
men would not work because of the operation of equip-
ment by nonunion men and asked Carabetta whether he
would "go along" and sign a contract putting the two
nonunion operators in the Union, saying that this "would
simplify things a lot." Joe Carabetta said that "he was not
interested " and he did not care that Passarelli ' s men were
not working because he would get nonunion men to do
the work.
Bertolini then returned to Steward Dickson whom he
told that Carabetta was not interested in signing a con-
tract and therefore it was up to Passarelli ' s men whether
they wanted to work or not . Dickson said he would not
work , and two other operators who were there also said
that they would not work.
About this time, Joe Passarelli asked Bertolini what the
trouble was. Bertolini said that the men would not work
with nonunion men. Passarelli asked what could be done
and Bertolini said , "Nothing." Passarelli testified (and I
credit his testimony despite Bertolini 's inability to recall)
that Bertolini also said that the "situation" had not been
"resolved "; that Carabetta had refused to sign a contract;
that Bertolini was getting picket signs; that it was up to
Passarelli ' s men whether they wanted to go back to work;
and that Bertolini would not tell them to do so. In the
meantime , Passarelli ' s men had been standing nearby.
According to Joe Passarelli 's testimony , which I credit
despite Bertolini 's denial as to this particular matter, they
said in Bertolini 's presence that they wanted to go back to
work but were afraid of the "consequences" in possible
fines and loss of their "books," whereupon Bertolini said,
"that ' s not up to me. That's up to the [ Respondent
Union 's] Board."
Bertolini thereupon telephoned the Union 's office and
spoke with his superior , Business Manager Elwood Metz.
Metz told him to return to the union office and take picket
signs back to the site. Before Bertolini left the jobsite at
11:30 a.m., he told Steward Dickson and Joe Passarelli
that he would be back with " informational " picket signs.
He did not, however, tell this to Carabetta.
3. The afternoon of December 8: beginning of picketing
When Bertolini picked up the signs at the Union's of-
fice, Metz told him he was to give the signs to Passarelli's
men and put them on picket duty. The type of sign which
Bertolini took back to the site at midday on December 8
was one of a number of differently worded signs which
the Union had ready for its pickets . In this case, after
Bertolini inserted the words "ON THIS SITE " in a blank
provided for the name of a particular employer, the sign
read:
TO THE PUBLIC
ENGINEERS
ON THIS SITE
ARE WORKING UNDER
SUBSTANDARD WAGES
* CONDITIONS
PLEASE DO NOT PATRONIZE
THERE IS NO STRIKE HERE
Bertolini returned to the jobsite at 1:30 p . m. and gave
the signs to each of the five Passarelli employees , includ-
ing Dickson , who were still standing idly at the site. He
then posted them at the two entrances to the project after
telling them that they were to be orderly and to stay off
private property , and that "there was not a strike there."
The five Passarelli employees picketed with the same
signs from that time until December 15, and were paid by
the Union for their time on the picket line. After
December 15, other pickets bearing the same signs were
substituted but on December 19, the picketing was finally
terminated.
Joe Passarelli testified (and I credit his testimony
despite Bertolini 's denials) that when Bertolini posted the
pickets about 2 p.m. on December 8, Passarelli asked
Bertolini in the presence of Passarelli's men whether
Bertolini had any ideas as to what could be done; that
Bertolini said , "No. You are not going to be able to work
here until Carabetta signs a contract "; that Passarelli
said , "You are putting your men out of work . . ." and
that Bertolini replied , "There are times when good union
people have got to suffer because it is better for the whole
of the organization."
During the afternoon of December 8, after the pickets
had been posted , four or five Suzio trucks came up to the
site entrance . The driver of each truck stopped briefly
and talked with the pickets, and then drove into the site
and later drove out. Bertolini spoke to one of these
drivers who asked what it was "all about ." Bertolini said
there were nonunion men working on equipment at the
site , and the driver said he would see his own steward.
Henry Altobello , Suzio 's president , also came to the
site and spoke to Bertolini that afternoon after the pickets
had been posted and Suzio 's trucks had been stopping
briefly before going in. Altobello asked Bertolini what the
trouble was . Bertolini said he had "informational pickets"
INT'L. UNION OF OPERATING ENGINEERS (PASSARELLI & SON, INC.) 405
posted because nonunion men were operating equipment
on the site and Bertolini's men refused to work with them.
Altobello asked how long the picketing would last and
how it would affect Suzio, and Bertolini said he did not
know. Altobello said he was concerned about completing
the "pour" of a foundation which Suzio had started that
day. Bertolini suggested putting in a bulkhead, but Al-
tobello said that was impossible.
Bertolini and Altobello disagreed in their testimony as
to the rest of the conversation. Bertolini testified he told
Altobello that so far as he was concerned Suzio could
continue pouring - Bertolini was not stopping him; that
Altobello said he would "have to go along with what the
Teamsters do" and would probably lose the Carabetta ac-
count; and that Bertolini replied, "That's up to your men.
There's nothing I can do about it." But Altobello
testified, and I credit his version rather than Bertolini's
denials that Bertolini said to him, "I just told your driver
to dump this load but not to come back any more"; that,
when Altobello protested that the foundation would be
ruined if pouring were not completed, Bertolini said it
would be alright for Suzio to pour seven or eight more
loads that day, but no more.
One of Passarelli's men told Joe Passarelli that after-
noon that a Suzio truck had come to the site and Bertolini
had said to let it come in. Joe Passarelli testified, and I
credit his testimony rather than Bertolini's, that Passarelli
then went to Bertolini and asked how the picket line could
be effective and why his men could not work, if concrete
trucks and lumber trucks were permitted to come through
the picket line; that Bertolini said he would "call the ...
respective companies and instruct them there were to be
no further deliveries ... the following day"; that Pas-
sarelli asked, "Can my men go back to work?"; and that
Bertolini said "it was up to Sonny Metz."i
4. December 9
Business Agent Bertolini and Business Agent Horace
Gesualdi came to the jobsite together the next morning,
Friday, December 9, at 6:45 a.m. The pickets were again
walking back and forth with their signs at the two en-
trances to the project. Joe Passarelli asked Bertolini
whether Passarelli's men could go back to work and
Bertolini said he had never stopped them from working
and that they could go back whenever they pleased. Pas-
sarelli asked, "who he had to see to get this thing cleared
up," and Bertolini said he would have to speak to "Sonny
Metz" and he would try to reach him by telephone.2
Bertolini then drove his car to a public telephone a half
mile from the site and made several calls. Upon returning
to the site, he received a message from Business Manager
Metz over the loudspeaker of his car's radio telephone, to
the effect that Metz wanted Bertolini to approach
Carabetta and see if Carabetta would sign a contract.
According to Bertolini, this was the substance of a
message thus transmitted to him by the Respondent's
dispatcher. But Joe Passarelli testified, and I find, that he
had been in Bertolini's car on the trip to the outside
telephone and was still in the car when the message came
in on the car's loudspeaker; that what he, as well as
Bertolini, then heard was a conversation between the
Respondent's dispatcher and Metz in which Metz told the
dispatcher to tell Bertolini "to contact Joe Carabetta" and
tell Carabetta that if he signed a contract with the
Respondent and the Teamsters, they would "cross any
picket line that the other trades put up"; and that
Bertolini thereupon turned to Passarelli and said, "You
heard Sonny Metz. Now, we got to find Joe Carabetta."3
Before speaking again with Carabetta about signing a
contract-it will be recalled he had already done so on
December 8 - Bertolini had another conversation with
Altobello of Suzio on the Oakland Garden site during the
morning of December 9. In the conversation which then
took place in the presence of Leonard Suzio and Business
Agent Gesualdi, Altobello told Bertolini that, if Suzio's
trucks could not come to the jobsite, Suzio would lose
business to nonunion suppliers. Bertolini said he was sor-
ry, but that the Union was not stopping Suzio's trucks
and it was up to Suzio's drivers whether to cross the
picket line or not. Bertolini added that if Joe Carabetta
signed, everything would be all right.
Bertolini and Altobello agreed in their testimony that
it was Bertolini who first referred in this conversation to
the possibility of Carabetta 's signing a contract with the
Union. But they disagreed (and Gesualdi and Suzio also
gave variant versions) as to which of them suggested that
such a proposal be made to Carabetta and as to whether
Altobello agreed to arrange, and did arrange, a meeting
between Bertolini and Carabetta in Suzio's office that af-
ternoon. Bertolini testified that Altobello asked him
whether he would talk to Joe Carabetta if Altobello got
Carabetta to come to Suzio's office, and that Bertolini
said he would. Gesualdi testified merely that Altobello
suggested, "Why don't we talk with Joe Carabetta and try
to get this problem resolved?" and that, upon Bertolini's
counter suggestion, Altobello agreed "to set up" a meet-
ing with Carabetta -but Altobello and Suzio testified that
nothing was said in this conversation about their arrang-
ing a meeting with Carabetta. Supplementing this, Al-
tobello testified that Bertolini did say to him, "Why don't
we talk to Joe [Carabetta] and have him sign a contract
[or we] will stay here until there is a contract"; that Al-
tobello thereupon left Bertolini and spoke alone with
Carabetta on the site that morning; but that Carabetta
told Altobello that he would not sign a contract with the
Union. On this conflict in the testimony, I credit Altobel-
lo's and Suzio's testimony and find that Altobello did not
suggest speaking to Carabetta about signing a contract
with the Union nor arrange a meeting for that purpose
that afternoon, although, prompted by Bertolini's re-
marks, he did go alone to Carabetta that same morning
and unsuccessfully presented the contract possibility.
But, under the circumstances, it is not important
whether it was Bertolini or Altobello who suggested
speaking to Carabetta about a contract or whether Al-
tobello agreed to arrange, and did arrange, the meeting
between Carabetta and Bertolini which actually did take
' Bertolini , in his testimony , said he could not recall speaking with Pas-
sarelli concerning the deliveries being made by the concrete trucks He
denied , however, having said to Passarelli that these deliveries would be
stopped
2 Passarelh testified that in this particular conversation , he put this
question to Bertolini and that Bertolini said he would call Business
Manager Metz Bertolini, while not specific as to the time , did testify that
in one of his conversations with Passarelli, he told Passarelli he would call
Metz
8 According to Bertolini's testimony , Business Agent Gesualdi was
with him in the car but he "could not say" that Joe Passarelli was also
there, nor , therefore could he remember turning to Passarelh and saying
"Well you heard Sonny " Neither Gesualdi nor Metz gave any testimony
as to what their knowledge about this incident might be
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place in Suzio's office that afternoon. For it is clear, even
from Bertolini's testimony, that, in his conversation with
Altobello on the morning of December 9, Bertolini had
raised the contract possibility as the basis for ending the
picketing, that Bertolini himself had already spoken to
Carabetta about signing a contract, and that the Union's
picket line pressure upon Suzio explained anything Al-
tobello might have said or done to help Bertolini in getting
a contract for the Union with Carabetta.
In any event, Business Agents Bertolini and Gesualdi
went to Suzio's office on the afternoon of December 9.
Leonard Suzio made a telephone call to Altobello who
was discussing other business with Joe Carabetta in the
latter's office at the time, and Altobello and Carabetta im-
mediately came to Suzio's office. Bertolini thereupon
asked Carabetta if he would sign a contract with the
Respondent Union. Carabetta refused to sign a "regular"
contract but said he would sign a "special contract"
limited to buildings of more than two stones in height and
to commercial and industrial construction. Bertolini said
he knew nothing of such a "special contract," and made
a telephone call to Business Manager Metz, whom he told
(as did Altobello who also spoke with Metz) that
Carabetta was ready to sign a "special" contract. Metz
said that the Union had only one contract and Metz had
no knowledge of any such "special contract." After
finishing his telephone conversation with Metz, Bertolini
told Carabetta that the only possible contract acceptable
to the Union was its "regular" contract. Carabetta
refused to sign such a contract and the meeting ended
with Bertolini's statement, "that's it. [If] you don't want
to sign the contract, the pickets will have to stay there."4
5. December 10 through December 19
As already noted, the picketing of the jobsite continued
through Monday, December 19. Passarelli had done no
work on the site since the picketing began on December
8, and on Tuesday, December 14, Passarelli removed its
equipment from the site. Passarelli's men continued their
picketing through Wednesday, December 15, after which
they were relieved by other men who were assigned by
Bertolini and who served as pickets on Thursday and
Friday, December 16 and 17, and again on Monday,
December 19.
Except for Steward Dickson, none of the Passarelli
operators has worked for Passarelli since December 8.
And, although Bertolini suggested to them that they re-
port to the union office as "unemployed," they did not do
so, but got jobs with other employers.
Bertolini, however, did inform Joe Passarelli by
telephone on the evening of Wednesday, December 15,
that he was relieving the Passarelli men of picketing,
although others would continue to picket the site. In the
telephone call, and again on a visit to the site the next day,
Bertolini also asked Joe Passarelli to take his men back to
work or to give them "blue" unemployment slips. Ac-
cording to Passarelli's testimony, which I credit despite
Bertolini's denials, Bertolini, in making this request, said
" These findings concerning the conversation in Suzw's office are based
upon the consistent testimony of Bertolini and Altobello In addition to
the essential elements of the conversation which have been set forth
above, there were differences in the testimony of the two men as to what
Bertolini said in attempting to convince Carabetta he should sign the
that the men could, and should, be taken back to work by
Passarelli but not on the Carabetta project.
C. Bertolini's and Metz' Explanation of the
Respondents' Acts
In substance, both Bertolini and Metz claimed in their
testimony (as had Bertolini in his statements to Passarelli
and Altobello) that neither they nor the Respondent
Union was responsible for the initial and continued work
stoppage of Passarelli's men on the Oakland Garden pro-
ject, but that it was due solely to the spontaneous and per-
sistent, independent refusal of the men to work alongside
nonunion men, as Bertolini had reported to Metz on
December 8. As to the men's thereafter picketing with
the Union's signs, Bertolini and Metz testified in sub-
stance that the picketing was intended simply as permissi-
ble "informational" picketing, as Bertolini also told Pas-
sarelli and Altobello and as shown by the protestations on
the signs addressed "To the public" that "Engineers on
this site are working under substandard wages & condi-
tions."
But Bertolini admitted that he did not know what wage
rates were being paid to the nonunion engineers on the
project. Similarly, it was clear from Metz' testimony that
he, too, had no information as to the wages being paid to
the nonunion men there. Furthermore, although Metz
testified that the Respondent Union had had a dispute
with a "Carabetta" a year or so before this, he also
testified that Bertolini, in reporting the Oakland Garden
situation on December 8, had said that Passarelli's men
were refusing to work on the project because of a "non-
union condition," i.e., that some of the operating engi-
neers on the site were nonunion and did not have
"books," but that Bertolini did not know who the non-
union employer or employers were; and that Metz
learned only later, when Bertolini asked him to speak to
Carabetta at Suzio's office the next day, that it was Cara-
betta on this last point, it will be noted, Metz' testimony
squarely conflicted with Bertolini's testimony, as well
as with that of Passarelli, which was to the effect that
Metz had actually sent instructions to Bertolini over the
car radio earlier that day, that Bertolini was to approach
Carabetta with an offer of a union contract.
D. Summary
Upon summary of the principal findings already made,
it appears that during the morning of December 8, Busi-
ness Agent Bertolini reported the Oakland Garden situa-
tion to Business Manager Metz and in general accordance
with Metz' instructions, the course of action taken by
Bertolini was the following:
(1) Late in the morning of December 8, Bertolini told
Passarelli that Carabetta had refused to sign a contract
with the Union and that Bertolini was going to get picket
signs for Passarelli's men.
(2) Early in the afternoon of December 8, Bertolini
supplied Passarelli' s men with the Union's "informa-
Respondent's regular contract because it would cover only two men em-
ployed by Carabetta on the heavy equipment But these were mere details,
resolution of which would not affect an understanding of the positions
voiced by Bertolini and Carabetta as they are set forth in the text
INT'L. UNION OF OPERATING ENGINEERS (PASSARELLI & SON, INC.) 407
tional" picket signs, posted the men at the entrances to
the site, instructed them in the manner of picketing, and
paid them for picketing there from December 8 until after
Passarelli had removed its equipment from the site on
December 14.
(3) The Union' s "informational " picket signs which
Bertolini provided for Passarelli' s men stated that "En-
gineers on this site are working under substandard wages
and conditions," although neither Bertolim nor Metz had
any information as to what the wages and conditions of
the nonunion men on the site actually were.
(4) Before and during the picketing, Bertolim made
inconsistent statements as to whether Passarelli's men or
the Union was responsible for the men's continuance of
their work stoppage. To Passarelli on both December 8
and 9, and to Altobello on December 8, he said that the
men themselves refused, and were refusing, to work
alongside the nonunion men on the project, and thus im-
plied that the Union had no control over the situation and
was not to be regarded as exerting any pressure either on
the employees or on any employer on the site. Yet, in re-
marks made by him in the presence of Passarelli and Pas-
sarelli ' s men on December 8, he made it clear to the men
that the Union wanted them to continue their work stop-
page and might penalize them if they did not. On the first
occasion during the morning of December 8, before he
set up the picket line , he overheard the men tell Passarelli
they wanted to go back to work but feared the "con-
sequences" in possible fines and loss of their "books,"
and he told them and Passarelli, "that's not up to me.
That's up to the [Union's] Board." Then, in the after-
noon as he was setting up the picket line, he told Passarel-
li, in the presence of the men, "You are not going to be
able to work here until Carabetta signs a contract," and
when Passarelli charged him with "putting your men out
of work," he replied, "There are times when good union
people have got to suffer because it is better for the whole
of the organization."
(5) That it was Bertolini's and the Union's intention to
use the picket line to hinder employers from performing
work for, or making deliveries to, Carabetta on the site
and thus to bring pressure on Carabetta to sign a union
contract was made clear to Passarelli not only by
Bertolini ' s foregoing blunt statement that , "You are not
going to be able to work here until Carabetta signs a con-
tract," but also by the statement he made to Passarelli
later in the afternoon of December 8, that companies who
were still making deliveries would be informed that there
would be no more deliveries the following day.
(6) Bertolini was equally direct in exerting the pres-
sure of the picket line on Suzio and its employees. On
December 8, he told Altobello of Suzio that he had in-
formed Suzio's drivers as they went through the picket
line that afternoon, that they were not to bring any more
concrete to the site, although, upon Altobello's protest,
he then relented to the extent of telling Altobello that the
drivers might bring in seven or eight more loads, but no
more, in order to finish pouring a foundation which Suzio
started that afternoon.
(7) On December 9, Bertolini intensified his efforts to
get a union contract with Carabetta, a matter to which he
had twice referred in his conversations with Passarelli on
December 8. (See items I and 5, above.) Thus, on the
morning of December 9, he told Passarelli, who had just
overheard Metz' message to Bertolini on the car radio,
that, in accordance with Metz' instructions, he would go
to see Carabetta about signing a union contract.
(8) Pursuing this course and attempting to enlist Al-
tobello's help, Bertolini , on the same morning of
December 9, spoke to Altobello about the possibility of
speaking to Carabetta about a union contract and told Al-
tobello in substance that the picket line would remain at
the site until the Union did get a contract with Carabetta.
(9) Having made it clear to Passarelli and Altobello
that a union contract with Carabetta was the price of the
removal of the picket line from the site, Bertolini offered
such a contract to Carabetta on the afternoon of
December 9, in the office of Suzio and in the presence of
Leonard Suzio and Altobello and, when Carabetta re-
jected the offer after talking also with Metz on the
telephone during the meeting , Bertolini told Carabetta,
Suzio, and Altobello flatly, "That's it . . . the pickets will
have to stay there."
(10) A final indication that Bertolini's and the Union's
efforts had been directed against Passarelli to compel it to
stop doing business with Carabetta was provided by
Bertolini's request to Passarelli that his men should be
taken back to work, but not on the Carabetta project.
E. Conclusions
Upon consideration of the foregoing facts in the con-
text of all the findings already made, I have reached the
following conclusions:
(a) Regardless of whether the work stoppage of Pas-
sarelli's men was originally spontaneous, the Respondent
Union, through Metz and Bertolini, certainly encouraged
and supported its continuance by setting up the picket
line, by paying Passarelli's men to picket, and by
Bertolini's telling them at the outset, when they ap-
parently wanted to return to work, that if they did so they
might be fined by the Union or lose their "books." I cor.
dude, therefore, that the Respondent Union and the
Respondents Metz and Bertolini induced and encouraged
Passarelli's men to refuse to perform services for their
employer on the Oakland Garden project within the
meaning of Section 8(b)(4)(i) of the Act.
(b) From the Respondents' institution and main-
tenance of the picket line, it is clear that it was the
Union's picket line. Moreover, from Bertolini's statement
to Altobello that he had told Suzio's drivers as they were
passing through the line on December 8, that they were
not to deliver any more concrete to the site, I conclude
that it was the Respondents' intention thereby to induce
and encourage Suzio's employees to refuse to make
further deliveries to the site and thus also such induce-
ment and encouragement of Suzio's employees to refuse
to perform services for Suzio as fell within 8(b)(4)(i) of
the Act.
(c) By the continued involvement of its employees in
the Union's picket line, Passarelli was deprived of their
services at the Oakland Garden site and directly felt the
pressure of the work stoppage and the Union's picket
line. Moreover Joe Passarelli was told by Bertolini that
the men would not "be able to work here until Carabetta
signs a contract ." Suzio , too, was affected by the picket
line's normal appeal to its drivers and the coercive pres-
sure and effect of the picketing were directly brought to
bear upon it by Bertolini's statements to Altobello. I con-
clude that both Passarelli and Suzio, as employers en-
gaged in an industry affecting commerce, were threatened
and coerced within the meaning of Section 8(b)(4)(ii) of
the Act by the Union's picket line , and by Bertolini's
statements to them that the picket line could remain at the
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
project and that they could not perform work or make
deliveries there unless Carabetta signed a contract with
the Union.
(d) The Respondents did not actually picket the
Oakland Garden project to protest substandard wages
and conditions of employment. Their signs and Bertolini's
general statements to this effect were intended simply to
mask their actual objects. I conclude from the evidence
already detailed, that the Respondents' objects in induc-
ing and encouraging Passarelli's and Suzio's employees
to stop working for their employers at the Oakland
Garden project and in threatening Passarelli and Suzio
were to force and require Passarelli and Suzio to cease
doing business with Carabetta and thereby also to force
and require Carabetta to recognize and bargain with the
Respondent Union.
(e) In sum , I conclude that the Respondent Union and
the Respondents Elwood L. Metz, Jr., and R. M.
Bertolini, as its agents, committed unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
Act by inducing and encouraging employees of Passarelli
and Suzio to engage in a strike or refusal to perform work
for their respective employers, and threatened and
coerced Passarelli and Suzio, for the objects of (a) forcing
or requiring Passarelli and Suzio to cease doing business
with Carabetta Enterprises, Inc., and (b) forcing or
requiring Carabetta Enterprises, Inc., to recognize or bar-
gain with the Respondent Union as the representative of
its employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section
III, above, occurring in connection with Employers'
operations described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case,
it is recommended that International Union of Operating
Engineers , Local 478, AFL-CIO, and its Agents Elwood
L. Metz, Jr., and R. M. Bertolini , and their respective of-
ficers, agents, successors , and assigns , shall:
1. Cease and desist from engaging in, or inducing or en-
couraging any individual employed by Passarelli & Son,
Inc., The L . Suzio Concrete Co., Inc ., or by any other
person engaged in commerce or in any industry affecting
commerce to engage in, strikes or refusals in the course
of their employment to use , manufacture , process, trans-
port, or otherwise handle or work on any goods , articles,
materials, or commodities , or to perform any services, or
from threatening, coercing , or restraining Passarelli &
Son, Inc ., The L . Suzio Concrete Co., Inc., or any other
person , where an object is either to force or require Pas-
sarelli & Son , Inc., The L. Suzio Concrete Co., Inc., or
any other person to cease doing business with Carabetta
Enterprises , Inc., or to force Carabetta Enterprises, Inc.,
to recognize or bargain with International Union of
Operating Engineers , Local 478, AFL-CIO, as the
representative of any of its employees.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at their business offices, meeting halls, and all
other places where notices to members are customarily
posted , copies of the attached notice marked "Appen-
dix."5 Copies of said notice , to be furnished by the Re-
gional Director for Region 1, after being duly signed by
Respondents ' representative , shall be posted by the
Respondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to members and employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
insure that said notices are not altered , defaced , or cov-
ered by any other material.
(b) Furnish the Regional Director for Region 1 signed
copies of said notice for posting by Passarelli & Son, Inc.,
The L. Suzio Concrete Co., Inc., and Carabetta Enter-
prises, Inc., if willing , in places where notices to em-
ployees are customarily posted . Copies of said notice, to
be furnished by the Regional Director after being signed
by the Respondents , shall be forthwith returned to the
Regional Director for disposition by him.
(c) Notify the Regional Director for Region 1 , in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.6
5 In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 day `rom the date of this Order, what steps Re-
spondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS AND EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify all em-
ployees that. -
WE WILL NOT induce or encourage individuals em-
ployed by Passarelli & Son, Inc., The L. Suzio
Concrete Co., Inc., or by any other person engaged
in commerce or in an industry affecting commerce,
to engage in a strike, or a refusal to perform any ser-
vices, where an object thereof is either to force or
require any of the aforesaid or other employers to
cease doing business with Carabetta Enterprises,
Inc., or to force or require Carabetta Enterprises,
Inc., to recognize or bargain with our Union as the
representative of its employees.
WE WILL NOT threaten, coerce, or restrain Pas-
sarelli & Son, Inc., The L. Suzio Concrete Co., Inc.,
or any other person engaged in commerce or an in-
INT'L. UNION OF OPERATING ENGINEERS (PASSARELLI & SON, INC.) 409
dustry affecting commerce, for any of the objectives Dated By R. M. Bertolini
set forth in the preceding paragraph. (Business Agent)
This notice must remain posted for 60 consecutive
INTERNATIONAL UNION OF days from the date of posting and must not be altered,
OPERATING ENGINEERS, defaced, or covered by any other material.
LOCAL 478, AFL-CIO If you have any question concerning this notice or
(Labor Organization) compliance with its provisions, you may communicate
directly with the Board 's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge and New
Dated By Elwood L. Metz, Jr. Sudbury Streets, Boston , Massachusetts 02203,
(Business Manager) Telephone 223-3300.