Laborers' International Union, Local 245

National Labor Relations Board - Board Decisions

Jul 16, 1975

219 N.L.R.B. 142 (N.L.R.B. 1975)

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
AFL-CIO; Laborers' International Union of North
America, Local 245, AFL-CIO; and International
Union of Operating Engineers, Local 18, 18(A), and
18(B), AFL-CIO (Apex Contracting , Inc.) and As-
sociated Builders and Contractors, Inc. Case
8-CB-2112
July 16, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On March 27, 1975, Administrative Law Judge Al-
mira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, the General Counsel,
the Charging Party, and the Respondent Locals filed
exceptions and supporting briefs, the Charging Party
filed briefs in answer to the Respondent Locals' ex-
ceptions and briefs, and the Respondent Internation-
al filed a brief in reply to the exceptions and briefs of
the General Counsel and the Charging Party.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondents , Laborers' International
Union of North America , Local 245, AFL-CIO, and
International Union of Operating Engineers, Local
18, 18(A), and 18(B), AFL-CIO, their officers,
agents, and representatives , shall take the action set
forth in the said recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair la-
bor practices not herein found.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON , Administrative Law Judge:
This case was heard in Cleveland, Ohio, December 16 and
17, 1974, and January 14, 1975. The charge was filed May
18, and served on the Respondents May 22, 1973. The
amended complaint with which we are concerned in this
proceeding was issued August 23, 1974.
The issues are whether or not the Respondents violated
Section 8(b)(1)(A) of the National Labor Relations Act, as
amended, on various dates in March, April, and May 1973,
through their officers, agents , and authorized pickets, and
in pursuance of a plan, program, and campaign to compel
or to attempt to compel the employees of Apex Contract-
ing, Inc ., to cease work, by mass picketing, violence, and
threats of violence.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel, the Charging Par-
ty, and the Respondents, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
Associated Builders and Contractors, Inc., is a Maryland
corporation with its main office in Glen Burnie, Maryland,
which exists for the purpose of, inter alia, providing labor-
relations services for its members , including Apex Con-
tracting, Inc.
Apex is a Kentucky corporation, with its principal office
in Paris , Kentucky, which is engaged in the reconstruction
of guard rails and other improvements on Interstate high-
way 90 in Ashtabula County, Ohio, referred to herein as
the jobsite, for the State of Ohio department of highways.
In connection with this project, Apex maintains a trailer
office and storage yard at a Mobil gasoline station at the
intersection of 1-90 and SR-45, referred to herein as the
Mobil site . During the calendar year 1973, Apex received
more than $500,000 from the State of Ohio for work per-
formed on this project, and received at the jobsite and the
Mobil site direct from outside Ohio goods and materials
valued at more than $50,000. I conclude that Apex is an
employer engaged in commerce or an industry affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
1 The Respondent Locals have excepted to certain credibility findings
made by the Administrative Law Judge . It is the Board's established policy
not to overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 As the record adequately presents the position of the parties, the Charg-
ing Party 's request for oral argument is hereby denied.
II. LABOR ORGANIZATIONS
I find that the Respondents, Laborers' International
Union of North America, AFL-CIO, Laborers' Interna-
tional Union of North America, Local 245, AFL-CIO, and
International Union of Operating Engineers, Local 18, the
parent and chief administrative local, and its branches or
subdivisions 18(A) and 18(B), AFL-CIO (herein referred
219 NLRB No. 23
LABORERS ' INTERNATIONAL UNION, LOCAL 245 143
to as Engineers Local 18), are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts'
1. Background
The following persons occupy the positions, and I find,
by reason thereof, are agents of the Respondents, designat-
ed: Thomas Arconti, international representative and re-
gional manager of Laborers' International; Clayton H.
Marks, business manager of Laborers' Local 245; John
Possehl, business manager of Engineers Local 18; Steve
Mayor, business representative of Engineers Local 18;
Frank Roviscane, district representative of Engineers Lo-
cal 18; Jack Kenney, business representative of Engineers
Local 18; and James Gardner, business representative of
Engineers Local 18.
Sometime before the fall of 1972 Apex was awarded the
work of improving 1-90 by the State of Ohio department of
highways. Apex is not a party to or bound by the current
Ohio heavy-highway collective-bargaining agreement be-
tween the Ohio Contractors Association, Associated Gen-
eral Contractors of America, Inc., and the Respondent En-
gineers Local 18. Nor is Apex a party to or bound by the
AGC agreement with Laborers' District Council of Ohio of
Laborers' International. Clayton Marks, the business man-
ager and top official of the Respondent Laborers' Local
245, testified that he is responsible for administering the
AGC-Laborers' agreement in Ashtabula County, Ohio,
and that employers bound by it have always used members
of his Local for jobs in the Ashtabula area.
After being advised that Apex had been awarded the
1-90 job, Frank Roviscane and James Gardner addressed
letters to Apex requesting a prejob conference with Engi-
neers Local 18; Clayton Marks and Drexel J. Thrash, sec-
retary-treasurer and business manager of Laborers' District
Council of Ohio, addressed letters to Apex requesting a
prejob conference with Laborers' Local 245. Apex did not
reply to these letters.
On March 12, 1973, at a membership meeting of Engi-
neers Local 18 in Cleveland, Business Representative May-
or announced that Apex, a nonunion contractor, had been
awarded a job in Ashtabula County, and that he would try
to meet with the Company. The next day, March 13, La-
borers' Local 245 Business Manager Marks visited the Mo-
bil site where Apex had a trailer and storage facilities for
the project. Marks introduced himself to Edward Nance,
the Apex superintendent, and asked how he was working
the job. Nance advised Marks that Apex was nonunion,
but that some of its subcontractors were union. The two
men then compared the wage rates in Apex's job contract
i Except as specifically indicated, where their testimony is in conflict with
the facts as set forth herein, I do not credit Steve Mayor, Thomas Arconti.
or Clayton Marks By their demeanor and their entire testimony considered
as a whole and in comparison with that of each other and with that of more
credible evidence given by other witnesses and documents, these three per-
sons revealed themselves as determined to some extent not to tell the truth
when it was not to their advantage to do so
with wages in the Ohio heavy-highway agreement, and
they were the same. The meeting ended with Nance's tell-
ing Marks to contact Samuel Hebdo of ABC, who was
Apex's representative, as Nance had no authority to talk
with Marks about such matters. Marks left, saying he
would check with his International and get back to Nance.
Marks then contacted Thomas Arconti, International
representative and regional manager of Laborers' Interna-
tional, told him Apex had not replied to his requests for a
prejob conference, and asked Arconti to attempt to ar-
range a meeting. Arconti said he would see what he could
do. Arconti's appointment to the positions he holds with
the Respondent Laborers' International authorizes him to
"assist all affiliated Local Unions, District Councils and
the Officers, Business Managers and Members thereof, by
consulting with them in matters dealing with their affairs
and serving as a Representative to facilitate the adjustment
of differences or disputes."
The following evening, March 14, James Gardner, busi-
ness representative, talked to members of Engineers Local
18 at an informational meeting at Ashtabula about Apex's
job on 1-90 and there was a general discussion of that and
other matters the substance of which is not in the record.
On March 19, Marks told members of Laborers' Local 245
at its membership meeting that Apex had the job and he
was trying to set up a prejob conference. Gardner of Engi-
neers Local 18 contacted Superintendent Nance near the
jobsite March 20 about working the job union, and Nance
gave him the same information he had given Marks. The
next day, March 21, Engineers Local 18 Business Repre-
sentative Mayor sought Nance out near the jobsite. Nance
told him also to contact ABC as Nance was not authorized
to talk to him about Apex's working union. In response to
Mayor's question about Apex's equipment, Nance said he
had a post driver with one operator on it. Mayor informed
him "that this took an operator and an oilman and . .
both of these were represented by his union ." Nance's
credited testimony continued:
Then Steven told me that he had had a contractor in
his area trying to work non-union about a year before
and that he had changed his mind and he said he
didn't know about the other unions, but he was damn-
ed if the Engineers were going to work non-union.
Shortly after this, Arcontl and John Possehl, business
manager and top official of the Respondent Engineers Lo-
cal 18. agreed to a joint effort in organizing Apex and that
Arconti would lead an ad hoc committee for that purpose.
Possehl appointed Mayor special representative of Engi-
neers Local 18 in all negotiations with Apex, and a meeting
was arranged by the Unions with Apex for April 2 in Co-
lumbu s.2
Three such meetings were held in Columbus-on April
2, 9, and 16 No officer of Laborers' Local 245 attended,
Arconti averring that he "represented the Laborers' in the
capacity of advisor to Local 245 and at their behest and at
their direction," and that he reported back to Marks on all
2 Based in part on an affidavit subscribed to by Possehl which was intro-
duced is evidence by the Respondent Engineers Local 18 Possehl refused
to comply with a subpena ad testifscandum served on him by the General
Counsel, and did not testify
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
developments . Both Arconti and Marks testified, and there
is no evidence to the contrary , that Arconti was never in-
formed of the activities of Marks or the members of Labor-
ers' Local 245 at the jobsites.
In accord with an arrangement entered into with Engi-
neers Local 18 before the meetings began , Arconti acted as
spokesman for the Unions at all three meetings.
According to the minutes prepared by the Unions and
signed by Arconti and William Fade] , labor relations con-
sultant to Engineers Local 18, the April 2 meeting was at-
tended by Frank Whitney, Apex president, Samuel Hebdo
and another representative of ABC, and Attorney Joseph
Millious for the Employer. For the Unions were Mayor,
Kenney, and Fadel of Engineers Local 18 ; Arconti, of "La-
borers," and also representatives of the Ohio Building
Trades and the Ohio AFL-CIO.
Shortly before the April 2 meeting opened , Arconti
made the following remark, as creditably testified to by
Hebdo:
He said , "Sam, every highway project has always gone
100 per cent Union , and this one is going that way,
too, one way or another."
When the meeting began, Arconti said that unemploy-
ment in the Ashtabula area is high , and since "Ohio tax
dollars" were paying for the 1-90 highway project, area
people had a right to work on it, that little time is lost in
Ohio due to strikes, and that the Building Trades had men
ready, willing, and able to work on the Apex project. Ar-
conti also said that several Kentucky residents who paid no
taxes in Ohio were employed there ; and that the Unions
would seek to organize those nonunion Apex employees.
Copies of the Unions' AGC Ohio contracts were then giv-
en the Apex representatives for their consideration . Attor-
ney Millious responded that the project work was divided
almost equally among Apex and its subcontractors, the
majority of which were union ; but that the one operating
engineer and four laborers employed by Apex were non-
union and nonresidents . After the meeting ended, Hebdo
credibly testified that Arconti told him:
"Sam," he said , "if you want to see this thing really get
completed without any problems at all , talk them into
signing that agreement."
The April 9 meeting was attended by the same represen-
tatives of Apex.'Arconti, Fadel, Mayor, and Engineers Lo-
cal 18 Business Manager John Possehl represented the
Unions. As apparently agreed to by Laborers' and Engi-
neers beforehand , the Unions indicated their willingness to
consider a project contract in lieu of their AGC Ohio
agreements , and requested Apex to submit such a proposal.
Hebdo credibly testified that Mayor "made the remark
that he was afraid he couldn 't control his members in the
Ashtabula area unless we would come to some sort of an
agreement immediately"; and that either Mayor or Possehl
said "that he would be willing to talk to us about a project
contract, but that he also feared that we would have trou-
ble the following day if we didn 't sign an agreement for a
project, at least a project agreement."
At the last meeting, April 16, Attorney Millious present-
ed a written proposal specifically restricted to the 1-90
project which included a maintenance-of-membership pro-
vision and a requirement that employees rejecting member-
ship pay dues equivalent. The proposal also stated that no
increases in wages or fringe benefits would be made for the
duration of the project. Arconti rejected the proposal be-
cause it failed to include the increases effective May 1,
1973, in the ABC Ohio contracts. The meeting ended with
Fadel agreeing to put together a counterproposal for the
Unions.
That same evening at a Laborers' Local 245 membership
meeting , the minutes showed that Business Manager
Marks "commented . . . on the Apex non-union project on
Interstate 90" and that "A lengthy discussion followed,"
the substance of which is not in evidence.
The Unions' counterproposal was drafted by Fade] and
Arconti and was forwarded to Millious April 19. This
counterproposal, as Apex's April 16 proposal, was in the
form of an agreement, covering the 1-90 work , between the
Employer and Engineers Local 18 , 18(A), and 18(B) and
Laborers' District Council of Ohio of Laborers' Interna-
tional . Arconti testified , however , that if Apex had agreed
to the counterproposal, he intended that Marks , and not
himself , would sign it for the Laborers '. It differed from
Apex's offer chiefly in providing for the May I AGC in-
creases . Millious rejected the proposal in a letter to Fadel
dated April 26 on the ground that Apex had been awarded
the work on the basis of prevailing wage rates at the time
its bid was submitted , and that payment of the increased
labor costs demanded would be ornerous and unfair.
No further meetings among the parties were held. On
May 4, 1973, Fadel drafted and sent to the Governor of
Ohio a letter over the signature of Mayor, as special repre-
sentative, International Union of Operating Engineers;
and Arconti , as regional director of Laborers ' Internation-
al, who gave his permission after being told the contents.
The letter reviewed the bargaining sessions , and asserted
that although the 1-90 project was financed by Ohio State
taxes and unemployment was high in the Ashtabula area,
Apex's employees were from Kentucky. The letter also
stated that Apex would hire local residents to complete the
project if the State of Ohio would absorb the needed wage
and fringe increases , and requested the Governor to "give
this letter your utmost consideration since both parties are
involved in what could develop into a major labor dis-
pute."
Meanwhile there began to occur at the Apex jobsites the
incidents which are alleged in the complaint to be viola-
tions of the Act.
2. The March 27, 1973, incident
Marks conceded that he began this day, 2 weeks after
turning the Apex prejob problem over to Arconti, by vis-
iting Laborers ' Local 245 hall early in the morning and
from there telephoning 15 or 20 members of the Union and
telling them to meet him at Kenny King's restaurant park-
ing lot across highway SR-45 from the Apex Mobil site.
Marks arrived about 7 a.m. and a group congregated on
the parking lot, consisting entirely of members of Engi-
neers Local 18 and of Laborers' Local 245, including Local
245 member Edward "Big Red " Tackett . Marks testified
LABORERS ' INTERNATIONAL UNION, LOCAL 245 145
his object was to get his men out there in a body to show
"that we were interested in our work here in Ashtabula,"
and that he told his men not to carry picket signs or stop
the Apex job, but "just to go out there and inquire for work
and hang around and maybe you could get-in other
words, harass them."
When the Apex employees emerged from the Mobil gas-
oline station and approached their equipment preparatory
to leaving for the jobsite, 10 or 15 of the Engineers Local
18 and Laborers' Local 245 members approached them
from their assembly point across the highway. Marks did
not accompany this group because he said he figured they
were protecting their jobs, and he just let them alone? One
of the group, referred to by others as "Red," asked Gerald
Skaggs, an Apex employee from Kentucky, whether he had
a union card to operate the post driver. When Skaggs re-
plied he did not need one, he was told to get one or head
back for Kentucky. Job Superintendent Nance asked an-
other of the group, who was dressed in a checked sports
coat and was hollering, "Go back to Kentucky," what his
name was. The man replied, "It doesn't make any differ-
ence what my name is, I'm one of these poor son of a
bitches who you have out of work." Nance asked the man
if he was trying to threaten him, and he replied, "If I was
trying to threaten, I'll just knock your ass over this gas
pump."
Nance and the Apex employees then left the Mobil site
and proceeded to the jobsite on 1-90. They were followed
by six men from the group of 10 or 15 at the Mobil site,
who pulled up in two cars. According to the credited testi-
mony of Melvin French, an Apex crew leader from Ken-
tucky,
Red was the one, one of the guys that approached me.
He made a few accusations about sending us back to
Kentucky one way or another, either peaceful or in a
coffin. Whichever way we wanted to go, he would
agree on.
One of this group asked Nance whether he was hiring
and Nance replied he was not. Some argument ensued over
whether Apex was paying the prevailing wage, and one of
the men then suggested that the group return to "the hall,"
to which another responded, "Why go back there, all
they're doing is taking out our dues . . . I want to work."
The nonemployees left the jobsite when the Ohio highway
patrol arrived and ordered them to do so.
Marks testified that when his members asked him after
this whether they should come back to the Mobil site, he
told them, "Yes, if you want to come back, come back. The
more the merrier." He said he cautioned them on this and
other occasions, however, against violence.
There is no evidence that any officer of Engineers Local
18 was in the vicinity March 27, but Mayor was told some-
thing about the 1-90 jobsite incident at a meeting with
Apex.
3 After considerable pondering of the matter, I have concluded that
Marks did not accompany the group to the Mobil site . Nance's memory that
he did doubtless was a mistake caused by the tension and apprehension of
the moment.
3. The conduct of April 10, 1973
Six men crossed the highway to the Mobil gasoline sta-
tion on April 10 and jotted down license numbers of Apex-
employees' cars and told them to go back to Kentucky.
Nance instructed the Apex employees to leave, and told
the six that they were not gaining anything as the parties
were meeting to resolve the problem. As the Apex trucks
pulled out, one of the six said, referring to employees driv-
ing the trucks, "They must either be awful brave or crazy
as hell." When his men had departed for the jobsite, Super-
intendent Nance went across to the restaurant where he
encountered Marks, Mayor, and others who had been in
the group there on March 27. Marks testified that he fre-
quented the restaurant on four or five occasions during this
period, that he had coffee with Mayor on more than one
occasion , one of which could have been April 10. Nance
credibly testified that Mayor remarked that the negotiating
meetings looked good, but "they had had, maybe, two or
three hundred people that wanted to come up here and
they were trying to restrain them."
April 10 was the day after Possehl and Mayor warned
Hebdo of trouble and that they could not control their
members if agreement was not reached, as found above.
Mayor testified that some of his members had informed
him that they were going to the site on April 10 "looking
for problems," and although he had advised them to stay
away, they had not followed instructions. He went there,
he testified, to tell his men it was all right to look for work
but he was negotiating and he wanted no problems. Mayor
testified that he told his members to leave, and went into
the restaurant where he remained about half an hour, and
that he never checked to see whether they left the area. He
never heard they caused any problems that day, he said.
4. April 11, 1973
Superintendent Nance testified that his employees start-
ed work at 6:30 a.m. this morning, half an hour early, in
accord with his instructions and in order to avoid any
problems from the group across the highway. Although
Nance saw Marks and a few of the same group in the
restaurant that day, the Apex employees went about their
work without incident.
Mayor testified that at an Engineers Local 18 member-
ship meeting at Ashtabula on the evening of April 11 he
told the members it was O.K. to look for work at Apex but
he was negotiating and wanted no problems. Some of them
said they were going there to look for work, and Mayor
told them that was fine.
5. April 12, 1973
The Apex employees went to work half an hour early
again. Nance, who was the last to leave the Mobil site,
observed a group of the same people starting to gather
across the highway at that time.
Mayor testified that he visited the Kenny King's parking
lot April 17, the day after the last Union meeting with
Apex. He told the Engineers Local 18 members he saw
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there to leave, but never checked to see whether they did
so.
6. April 30, 1973
These incidents occurred 4 days after Apex rejected
Fadel's final proposal on behalf of the Unions . Marks was
not sure whether he was in the areas of the jobsites April
30. Marks testified , however, that he saw his members at
Kenny King 's and in front of the Mobil site where Apex's
equipment was parked more than once after he told them,
"they were on their own . If they wanted to go there, good
enough ." He also testified that he saw sheriffs deputies at
the scene on two occasions , but contended that no one was
arrested while he was in the area . There is no evidence that
any officers of the Respondent Engineers Local 18 were
there on this date . However , a larger-than-usual group of
the Respondent Locals' members, some of whom had been
there previously , gathered at the Kenny King's parking lot.
About 30 of them crossed to the Mobil site where they
surrounded and blocked the Apex equipment. Following
Nance's instructions to try to move his truck, Gerald
Skaggs went to get in it when one of the group hit him in
the head with his fist and said he was tired of Skaggs' crazy
hillbilly ways. Nance summoned members of the sheriff's
department and requested, unsuccessfully , help in getting
the Apex equipment out. Finally one of the group, who was
present for the first time , stepped forward and announced,
"Well, we are from the union and I would like to call my
hall." Nance, Melvin French, and others followed him to
the public phone in the gasoline station and heard the man
place a collect call to Frank Roviscane. After asking for
Roviscane , the caller said , "The Sheriff's Department is out
here and what should we do?" After a pause, the caller
said, "Well, we have 10 men from the Laborers' and 10
men from the Engineers and we need about 85 more men
tomorrow." 4 Shortly after this telephone call, Nance and
President Whitney left the Mobil site for the sheriff's of-
fice . The demonstrators remained in front of the Apex
equipment, and no work was done that day.
7. May 1, 1973
This was the date the AGC Ohio contracts called for
increased wages and fringe benefits, and 3 days before Ar-
conti, Mayor and Fadel appealed to the Governor on this
issue as outlined above. When Whitney and Nance arrived
at the Mobil site just before 7 a.m., there was a large group
in front of their equipment, blocking it, and sheriff's cruis-
ers parked on the other side of the highway. Nance ordered
the Apex employees to try to get the trucks out, but they
were jostled and shoved as they made their way through
the crowd. When Otis Sandidge, a member of the Respon-
dent Laborers' Local 245 who had recently been hired by
Apex, got in his flatbed truck, a man named Earl Bowman,
4In view of this corroborated undemed testimony , Mayor's testimony,
consistent therewith, of his own report of the subsequent May I incidents at
the Mobil site to Roviscane , and of Roviscane 's failure to testify at any of
the December 16 or 17, 1974, or January 14, 1975, hearing sessions in this
case, I find that it was, in fact, Roviscane to whom a member of the Re-
spondent Engineers Local 18 spoke on this occasion
a member of the Respondent Engineers Local 18, who was
leaning against Sandidge's truck, told Sandidge not to
move it. As Sandidge started to move, Bowman hit the
window on the driver's side with a shovel, shattering the
window and cutting Sandidge's face and hands with flying
glass . A sheriff's cruiser drove across to the site and the
deputies apprehended Bowman . As Bowman rode back
across the highway with the deputies, someone called out
from the group, "Don't worry,'the union will have a lawyer
here to get you out."
The Apex employees reentered the gasoline station,
where they were told to try again to move the trucks out.
Ray French, of Henderson, Kentucky, forced his way past
8 or 10 men around his truck who "told me if they was me
they wouldn't get in that truck." French opened the truck
door on his second try and started forward, when Donald
Killian , a member of Engineers Local 18, hit the passenger-
side window with a shovel and told French that if he did
not get out of the truck, Killian would knock his head off
with the shovel. Once again the sheriff's cruiser sped across
the highway and this time Killian was taken into custody.
As employee Skaggs was getting into his truck, one of
the demonstrators advised him if he got in, a shovel would
be put through his window also and he would go through
life without eyes.
The Apex employees abandoned their equipment, and
Nance and Whitney sent them home and went again to the
sheriff's office to try to get help in working. The demon-
strators remained in front of Apex's trucks all day, and no
work was done.
Mayor testified he received a phone call sometime be-
fore May I that there had been harassment at the Mobil
site, and he stopped by the site and told his men to cool it
and get out . He received another call the evening of May 1,
Mayor said, to the effect that there had been property
damage at the site and two operators had been picked up.
He told his caller to try to cool it, and advised District
Representative Roviscane by phone of the arrest of the two
members . Although - Roviscane told him "to go up there
and see what I could do, and see what the problem was,"
Mayor did not do so, "Because I felt it wasn't in my posi-
tion." Instead, Mayor contacted Attorney Fadel and told
him to check into it . Mayor avowed he did not know what
Fadel did. Fadel was instrumental in having Bowman and
Killian released on their recognizance. They subsequently
pled guilty to malicious destruction of property and paid
Apex $35 or $37. Sandidge was taken to the hospital.
B. Conclusions
It is obvious, and I find, that the conduct of the pickets 5
was intended to and had the tendency to restrain and
coerce the employees of Apex in the exercise of their Sec-
tion 7 rights. Thus, on March 27, pickets visited the Mobil
site in considerable numbers and in the presence of Apex's
employees and in a context of shouting for them to go back
5 That the gathering of men described herein is appropriately described as
pickets is clear . Oil, Chemical and Atomic Workers International Union, Local
1-591, AFL-CIO (Snelson, Incorporated), 208 NLRB 296 (1974); Lumber
and Sawmill Workers Local Union No. 2797 (Stoltze Land & Lumber Compa-
ny), 156 NLRB 388, 394 (1965).
LABORERS' INTERNATIONAL UNION, LOCAL 245 147
to Kentucky and to get a union card or go back to Ken-
tucky, threatened their superintendent with physical vio-
lence ; and at the jobsite threatened Apex employees with
violence if they did not go back to Kentucky. On April 10,
in a similar context , pickets copied down license numbers
of Apex employees' cars 6 and impliedly threatened them
with violence. On April 30, the men mass picketed and
threatened to mass picket , blocked vehicles , engaged in
physical violence against an Apex employee, and effective-
ly prevented Apex employees from working. Finally, on
May 1, pickets threatened to engage in and engaged in
violence against Apex employees, blocked and damaged
vehicles, and effectively prevented the Apex employees
from performing their work?
The remaining issues are whether the Respondents are
responsible for this conduct.
The evidence establishes that practically all, if not all, of
the pickets who engaged in the coercive conduct were
members of the Respondent Locals. Moreover, that con-
duct had its genesis in, and was in complete harmony and
accord with, the policies of the officials and agents of the
Respondent Locals of which they were members.
After separately approaching Superintendent Nance in
unsuccessful efforts to get him to work the job union,
Marks, the top official of the Respondent Local 245, enlist-
ed Thomas Arconti to act as the Local's representative in
dealing with Apex, an assignment well within the scope of
Arconti's authority as International representative and re-
gional manager of Local 245's International Union. Arcon-
ti then entered into a plan of action with John Possehl, the
top official of the Respondent Engineers Local 18, which
was termed a joint effort to organize Apex and negotiate a
collective-bargaining contract . That the effort was envi-
sioned and carried out as a joint venture by the two Re-
spondent Locals is solidly established by their agreement
that Arconti would lead the ad hoc committee and be the
spokesman for both Local Unions in the negotiations; by
the coordination of complementary demands presented to
Apex at the bargaining sessions and thereafter , as well as
the subsequent mutual appeal to the Governor of Ohio; by
the meetings of Marks , at Kenny King's restaurant in the
vicinity of the Mobil site, with Steve Mayor, the officially
appointed special representative of the Respondent Engi-
neers Local 18 who also attended the bargaining sessions;
and by the commingling of the members of the two Local
6 Dover Corporation, Norris Division, 211 NLRB 616 (1974); Local No.
235, Lithographers and Photoengravers International Union (Henry Wurst,
Inc.), 187 NLRB 490, 495 (1970). Cf. Joint Board, Cloak, Suit, Skirt and
Reefer Makers Union, ILGWA (Free-Play Togs, Inc.), 140 NLRB 1428, 1431
(1963), relied on by the Respondent Local 245, is distinguishable in that
there employees ' license numbers were copied in a context otherwise free
from coercion and restraint.
7 Local 275, Laborers' International Union of North America, AFL-CIO,
(S.B. Apartments, Inc.), 209 NLRB 279 (1974); General Drivers, Warehouse-
men and Helpers Local Union No. 89, affiliated with IBT, (The Vertner Smith
Company), 178 NLRB 485, ( 1969); United Mine Workers of America (Solar
Fuel Company), 170 NLRB 1581 (1970); United Rubber, Cork, Linoleum &
Plastics Workers of America, AFL-CIO (Tennessee Wheel and Rubber Com-
pany), 166 NLRB 165 (1967).
I find that allegations of the complaint regarding coercive conduct on
March 12, April I I and 12, and May 2 and 3 , 1973, are not supported by
substantial credible evidence , and conclude that these allegations should be
dismissed.
Unions in and near the Apex jobsites.
The common, joint objectives of the Respondent Locals
and their pickets is demonstrated by the Respondent Lo-
cals' protests at the bargaining sessions and in their appeal
to the Governor of Apex's employment of nonresidents of
Ohio while unemployment was high among Ohio union
members, and the pickets' demands for work and that the
Apex employees get union cards or go back to Kentucky.
In my opinion, the fact that the Respondent Locals eventu-
ally compromised on all bargaining issues except wages
does not in the least undermine the significance of the evi-
dence of common, joint objectives.8
Nor do I believe that the pickets materialized at the job-
site areas through mere happenstance. The presence of the
nonunion employer Apex was announced and discussed at
membership meetings of the Respondent Locals; Engi-
neers Local 18 Special Representative Mayor approved his
members' going to the jobsite and knew they went there
"looking for problems." Marks, of course, actually directed
the first contingent of Local 245 members to come to the
site, and expressed to them his approval of their returning
on subsequent occasions to engage in harassing tactics.
That the goings-on at the Mobil site were within plain view
of Kenny King's restaurant and parking lot which Marks
and Mayor frequented during this period is demonstrated
by the dispatch with which the sheriff's deputies sped
across the highway when violence erupted. In any event,
Marks admittedly observed his members' blocking Apex
vehicles, and Roviscane and Mayor were informed by tele-
phone of their members' unlawful conduct. Moreover, the
Respondent Locals failed to discipline their members or
disavow their conduct. Indeed, the Respondent Engineers
Local 18 took steps to champion and defend those of its
members who engaged in the worst violence .9
In all the circumstances, therefore, I find that the Re-
spondent Locals were responsible as joint venturers for the
violent and coercive conduct of the pickets at the Apex
jobsites on March 27, April 10 and 30, and May 1, and
conclude that they thereby violated Section 8(b)(1)(A) of
the Act.10
I do not believe, however, that the Respondent Laborers'
International can be held responsible for the pickets' con-
duct. It is true, as found above, that its representative and
'See Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local Union 327,
affiliated with IBT (Coca-Cola Bottling Works of Nashville), 184 NLRB 84
(1970). -
9 Teamsters Local 695 (Wisconsin Supply Corporation), supra, Teamsters
Local 536, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (The Connecticut Foundry Company), 165 NLRB
916 (1967), Teamsters Local 783, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Coca-Cola Bottling Com-
pany of Louisville), 160 NLRB 1776 ( 1966); Great Lakes District, Seafarers
International Union of North America, AFL-CIO (Upper Lakes Shipping,
Ltd.), 139 NLRB 216 (1962) In such circumstances , Mayor's purported
subdued oral admonishments to cool it and leave the area, which he failed
to take the slighest steps to enforce, and Marks' purported oral admonish-
ments against violence, if made, which I doubt, would have been insuffi-
cient to absolve the labor organizations of which they were responsible
officials of liability for the pickets' coercive behavior. Local No. 235, Lithog-
raphers and Photoengravers International Union (Henry Wurst, Inc), supra.
10 Dover Corporation, Norris Division, et al., supra, Lithographers and Pho-
toengravers International Union, AFL-CIO-CLC (Holiday Press, a division of
Holiday Inns, inc), 193 NLRB 11 (1971); United Mine Workers of America
(Solar Fuel Company), supra
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regional manager , Arconti, acted as the representative and
agent of the Respondent Local 245 in the joint effort with
the Respondent Engineers Local 18 to obtain a collective-
bargaining agreement with Apex. It also seems clear that
by offering the counterproposal as that of the
International's District Council of Ohio and appealing to
the Governor in the name of the International, Arconti
threw the weight of the Respondent International behind,
and made common cause with, that effort of the Respon-
dent Locals. Moreover, as found above, he even went so
far as to impliedly threaten Apex with the use of force in
support of that cause.
On the other hand, the record fails to show that Arconti
or any other official of the Respondent International sug-
gested, instigated, or was made aware of the presence of
pickets at the jobsites. I do not understand that such
knowledge can be imputed from that of Marks or of Engi-
neers Local 18 officials, even though they knew all about it
and were in touch with Arconti throughout by telephone or
in person. Arconti was in Columbus, a considerable dis-
tance from the jobsites, during this period. He and Marks
testified without dispute that Marks never told him about
the picketing, and there is no indication that either Engi-
neers Local 18 or Apex officials did so.
Accordingly, I conclude that the allegations against the
Respondent Laborers' International are not supported by a
preponderance of the evidence, and must be dismissed. '
REMEDY
Having found that the Respondents Laborers' Local 245
and Engineers Local 18, 18(A), and 18 (B) engaged in un-
fair labor practices within the meaning of Section
8(bxl)(A) of the Act, I recommend that they cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.12
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER13
Laborers International Union of North America, Local
245, AFL-CIO, and International Union of Operating En-
gineers, Local 18, 18(A), and 18(B), AFL-CIO, their offi-
cers, representatives, and agents, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Apex Con-
tracting, Inc. in the exercise of rights guaranteed them in
Section 7 of the National Labor Relations Act, as amend-
ed, by engaging in or threatening to engage in physical
violence against them, mass picketing , blocking or damag-
ing vehicles, or preventing them from performing their
work, or in any other manner restraining or coercing em-
ployees in the exercise of their Section 7 rights.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at the Respondent Locals' offices and meeting
halls copies of attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by the Re-
spondent Locals' authorized representatives, shall be post-
ed immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to their members
are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for posting by Apex Contracting, Inc., it
being willing, at all places where notices to its employees
are customarily posted.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent Locals have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges unfair labor practices
not found herein.
" United Brotherhood of Carpenters and Joiners of America, AFL-CIO [En-
dicott Furniture Co.] v. N.L.R.B, 286 F.2d 533 (C.A.D.C., 1960); N L R.B. v.
Local 1016, United Brotherhood of Carpenters & Joiners of America, AFL-
CIO (Booher Lumber Co.), 273 F.2d 686 (C.A. 2, 1960); United Mine Work-
ers of America, (Blue Diamond Coal Company), 143 NLRB 795 (1963); Na-
tional Union of Marine Cooks and Stewards (Irwin-Lyons Lumber Company),
87 NLRB 54 (1949)
12 As no proclivity on the part of the Respondent Locals to violate the Act
has been shown , there is no justification for the broad remedial order re-
quested by the Charging Party Teamsters Local 695 (Wisconsin Supply Cor-
poration), supra, In 2.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102
48 of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
i4 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees of Apex
Contracting, Inc., in the exercise of rights guaranteed
them in Section 7 of the National Labor Relations
Act, as amended, by engaging in or threatening to en-
gage in physical violence against them, mass picketing,
blocking or damaging vehicles, or preventing them
from performing their work, or in any other manner
restraining or coercing employees in the exercise of
their Section 7 rights.
LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 245, AFL-CIO