Local 139, International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Apr 21, 1970

182 N.L.R.B. 72 (N.L.R.B. 1970)

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 139, International Union of Operating Engineers,
AFL-CIO and Fox Valley Construction Material Supple
ers Association, Inc Cases 30-CC-116 and 30-CC-117
April21, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On December 30, 1969, Trial Examiner Joseph I
Nachman issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended, and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision Thereafter, the General Counsel and the Charg-
ing Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs and the Respondent filed
a brief ir} support of the Trial Examiner's Decision
Pursuant to the Provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner 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 this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner i
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, and orders that the complaint
be and it hereby is, dismissed in its entirety
' The General Counsel did not allege that the August 5-7 picketing
at the Northland Shopping Center violated the Act Rather he introduced
evidence regarding this picketing merely as background for the August
27 picketing which followed and which was alleged to be violative
of the Act Although the Charging Party urged that the August 5-7
picketing did in fact violate the Act the Trial Examiner citing Fnto
Co v N L R B 330 F 2d 458 (C A 9) found that this picketing
was not an issue in the case inasmuch as it had not been pleaded
and had not been the subject of an amendment to the complaint by
the General Counsel Without necessarily agreeing with the Trial Examin
er s interpretation of the Frito case we find the picketing involved
not to be violative of the Act because Landwehr and Calmn both
primary employers were working and had equipment on the site In
these circumstances we find that Respondent was engaged in lawful
prim try picketing during this period
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN, Trial Examiner These cases
tried before me at Appleton, Wisconsin on October
20,1 involve two complaints , 2 issued pursuant to Section
10(b) of the National Labor Relations Act as amended
(herein the Act), which I ordered consolidated for hearing
and decision , alleging that Local 139 , International Union
of Operating Engineers , AFL-CIO (herein Union or
Respondent), violated Section 8(b) (4) (i ) (it) (B) of
the Acton three separate construction projects, hereafter
more particularly detailed , in aid of a primary dispute
with the employer members of Fox Valley Construction
Material Suppliers Association , Inc (herein Association),
and particularly its members Courtney & Plummer, Inc ,
Landwehr , Inc , and Calnin & Goss, Inc (herein C
& P, Landwehr and Colvin , respectively ) For reasons
hereafter stated , I find and conclude that the General
Counsel failed to establish by a preponderance of the
evidence any violation of the Act, and recommend that
both complaints be dismissed
At the trial all parties appeared by counsel who were
afforded full opportunity to introduce relevant evidence,
to examine and cross -examine witnesses , and to argue
orally on the record Oral argument was waived Briefs
submitted by the respective parties have been duly con-
sidered
Upon the entire record in the case , including my
observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT3
As the facts with respect to the three projects involved
are different, such facts will be stated separately for
each job
A Ponderosa Job
In mid 1969, Henry R Marohl, Inc (herein Marohl),
a general contractor, was engaged in the construction
of a Ponderosa Steak House on a site in or near Oshkosh,
Wisconsin For the performance of this contract Marohl
employed some carpenters directly, but also subcontract-
ed other carpenter work to Herbert W Jaeger & Associ-
ates (herein Jaeger) In addition Marohl awarded a con-
tract to C & P for site preparation and asphalt work
On or about July 15, Shaw, an admitted agent of
Respondent, came to the jobsite and talked with three
carpenters employed by Jaeger Shaw told the three
carpenters that Respondent was having trouble with
C & P whom he would like to get off the job, and
All dates herein are 1969 unless otherwise indicated
' In Case 30-CC-116 complaint issued October 7 on a charge filed
August 7 In Case 30-CC-117 complaint issued September 11 on
a charge filed August 29
3 No issue of commerce or labor organization is presented The
facts with respect to Respondents status as a labor organization is
alleged in the complaints and admitted by the answers Likewise
Respondent stipulated that if the General Counsel called witnesses
they would testify in accordance with the facts pleaded in paragraph
2 of each complaint Accordingly I find such facts to be as pleaded
Moreover in a prior case to which Respondent was a party the
Board found that Association and its members are engaged in commerce
See Fox Valle) Material Suppliers Association Inc 176 NLRB No
51 where the Board gave consideration to whether other activity by
Respondent was violative of Section 8(b) (4) (B)
182 NLRB No 12
LOCAL 139 , INTERNATIONAL UNION OF OPERATING ENGINEERS
asked the three carpenters if they would leave the job
if he (Shaw ) so requested , in order to put pressure
on persons dealing with C & P One of the men who
was president of a Carpenters local in Oshkosh, told
Shaw that when his local had a problem of that nature
they put up a picket Shaw replied that he would prefer
not to picket , but would consider that as an alternative
There is no evidence that any picketing occurred at
this job, or that any carpenter employed by Jaeger
or Marohl engaged in a work stoppage Following the
aforementioned conversation between Shaw and the
three carpenters , Smith telephoned Henry R Marohl
advising him of what Shaw had told the carpenters
and that Shaw would be in communication with him 5
B The Northland Shopping Center Job
M S A Construction Co , Inc (herein MSA), a
general contractor in the building and construction indus-
try, has a contract for the construction of the Northland
Shopping Center at Appleton , Wisconsin MSA contract-
ed with Landwehr to remove top soil and to excavate
for footings and footing walls In addition , MSA awarded
Calvin a contract to supply sand and related construction
materials for this job In early August both Landwehr
and Calnin were engaged in the performance of their
respective contracts and maintained equipment for that
purpose at the jobsite
On August 5, counsel for the Charging Party sent
a telegram to Union Agent Shaw , which the latter admit-
tedly received , stating that neither Landwehr nor Calvin
was scheduled to work , nor would they work at this
job on August 6, and requested that the Union refrain
from picketing the job on that day Shaw, however,
went to the jobsite On or about August 6 , and according
to his uncontradicted testimony observing Landwehr
" Based on the credited testimony of Thomas F Smith Shaw admitted
that he visited the Ponderosa job on the occasion referred to and
that he spoke to the carpenters explained that he had a dispute with
C & P and asked if he could count on their support if the need
therefor arose Shaw also admitted that the carpenters told him if
he established a picket line they would honor it To the extent that
Shaw s testimony may be regarded as in conflict with that of Smith
I credit the latter
The General Counsel also contends that in a telephone conversation
later the same day with Henry R Marohl Shaw threatened Marohl
with picketing of the Ponderosa job unless Marohl got rid of C &
P claiming that the only way the Union could put pressure on C
& P was through the contractors who did business with it Shaw
though admitting that he had a conversation with Marohl denied that
he made such a statement claiming that all he told Marohl was that
in his conversation earlier that day with the carpenters on the job
the latter had suggested the placing of pickets but that he had refused
because it would not help Respondent and would only injure the carpen
ters who recently experienced long periods of unemployment In his
direct testimony under examination by the General Counsel Marohl
made no reference to any threat by Shaw to picket the job his testimony
in that regard developing on the examination by counsel for the Charging
Party It also appears that on July 31 about 2 weeks after his conversation
with Shaw Marohl gave an affidavit to counsel for the Charging Party
which he said correctly reflects the facts as he then recalled them
which affidavit makes no mention of any threat by Shaw to picket
the Ponderosa job Under the circumstances I find and conclude that
there is insufficient credible evidence to establish that Shaw threatened
Marohl with picketing of the Ponderosa job
73
equipment in operation ,' placed a,picket at the entrance
to the jobsite ,7 with a sign reading "Employees of
Members of Fox Valley Material Suppliers Association
are on Strike Local 139 International Union of Operat
mg Engineers ""
Later in the day MSA Construction Manager Badala
came to the job and inquired of his job superintendent,
Buzanowski the reason for the picketing Buzanowski,
unaware of the picketing , said he would go to the
project entrance and check Badala then told Buzanowski
to ask Shaw whom he had observed at the job entrance,
to come in and talk to him At the job entrance , Buzanow
ski asked $haw the reason for the picketing , and the
latter replied , "You've got a non-union contractor "
Buzanowski then asked Shaw to come into the project
and talk with Badala , which Shaw did 9 Although the
record does not disclose the discussion between Shaw
and Badala , it does appear that following their discussion,
Badala directed Buzanowski to tell Landwehr to remove
his equipment from the job Buzanowski carried out
Badala's instructions , and then left a message at Shaw's
office that he had directed Landwehr to remove his
equipment
In the meantime further telegrams were sent Shaw
by counsel for the Charging Party Thus, one telegram
sent August 6 protested that the job was being picketed
notwithstanding that neither Landwehr nor Calnin was
working or scheduled to work there , and requested
that the picketing terminate at once Another telegram
sent August 6 stated that neither Landwehr nor Calvin
would work at the project on August 7, nor thereafter
until the Union was first notified , and again requested
that the picketing cease A further telegram on August
7 stated that the equipment heretofore mentioned would
be removed from the job between 10 30 a in and noon
of that day and would not be returned to the project
without advance notice to the Union The equipment
was removed on August 7, about the hour indicated,
and thereupon the picketing ceased 10
I A photograph taken by Shaw on August 6 at this jobsite which
is in evidence shows a piece of equipment in operation and Shaw
identified the operator as John Landwehr This testimony is not contro
verted According to Shaw s uncontradicted testimony this was not
the first time that he had been advised that a member of Association
would not be working at a particular location at a specified time
and he subsequently found the information inaccurate
' There is some confusion in the record as to whether this picketing
began on August 5 or 6 but I deem this irrelevant to a decision
a My findings as to the language on the sign is based on the credited
and uncontradicted testimony of Shaw that this language w is on all
signs used by Local 139 in its picketing at this site
4 Before going into the project a little by play occurred which the
Charging Party and the General Counsel emphasize but which I regard
as of no significance When Buzanowski asked Shaw onto the project
to talk with Badala Shaw protested that he could not cross his own
picket line After some discussion Shaw asked the picket for permission
to cross the picket line which the picket granted and Shaw went
in
10 The complaint does not allege nor does the General Counsel
contend that the aforementioned picketing was violative of the Act
it being the General Counsels contention that the evidence is merely
background to establish that alleged subsequent picketing on August
27 was violative The Charging Party however contends the picketing
between August 5 and 7 was also violative urging that as the General
Counsel has issued a complaint and introduced the evidence he has
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel alleges, but Respondent denies
that this job was again picketed on August 27. To
support his contention, the General Counsel relies upon
the evidence given by MSA job superintendent Buzanow-
ski who testified that on the day in question truckers
were hauling fill from the Landwehr quarry to the jobsite
and that employees of O'Keefe Construction Company
(herein O'Keefe) were spreading the fill as required;
that Shaw came to the job and protested that, a "non-
union contractor was hauling in," and that he would
have to put up a picket; that he argued with Shaw
that the fill was being hauled by "independent truckers,"
and "union operators" were spreading it; that shortly
thereafter picketing began which he reported to Badala
who stated that he would'call Landwehr and stop the
fill from coming in; that in about an hour the truckers
ceased hauling the fill to the jobsite and'the picketing
ended. Although Buzanowski referred to the haulers
as "independent truckers," and the employees spreading
the fill as "union operators," no testimony was intro-
duced to establish that the truckers were in fact "inde-
pendent contractors," and if not, who their employer
was. For all the evidence shows the truckers might
have been employees of Landwehr, whom the latter
or Buzanowski regarded as "independent contractors."
Whether O'Keefe is a member of Association or not,
was not developed in the record, nor does the record
show whether O'Keefe was working at the project pur-
suant to a contractual arrangement with MSA, or with
Landwehr or some other member of Association. Shaw
denied that the Union picketed this site on August
27, claiming that the Union was engaged ' that day in
picketing at the Schultz quarry, as set forth with respect
to the "interchange job." Although I find Buzanowski's
testimony somewhat confusing, and have some doubt
that it is sufficient to establish by a preponderance
of the evidence that this job was picketed on August
27, I shall for the purposes of decision so assume."
C. The Interchange Job
Boulanger Construction Company (herein Boulanger),
which is engaged in highway construction, was awarded
a contract by the State of Wisconsin to build an overpass
on Highway U.S. 41 in Neenah, Wisconsin. Boulanger
contracted with C & P to supply a large quantity of
fill for this project. The fill was to come from Schultz'
quarry located about 2 miles from the highway project
The quarry is operated by C & P under a long term
lease , and C & P delivered fill from the quarry to
the construction site in its own trucks manned by its
own employees. Calnin also hauled fill from the quarry
to the highway project in its trucks manned by its
standing to urge a different theory of violation without infringing upon
the General Counsel's authority under Section 3(d) of the Act, with
respect to the issuance and prosecution of complaints The issue is
hereafter discussed
11 In the course of their testimony, both Shaw and Buzanowski
referred to picketing of this job on September 17, but as such is
not alleged in the complaint , and neither the General Counsel nor
the Charging Party argue in their briefs that this picketing violated
the Act, I do not consider that question
employees, but the arrangement pursuant to which this
was done was not developed in the record. Apparently
because C & P and Calnin did not have sufficient equip-
ment to haul all the fill Boulanger required, the latter,
using its own trucks operated by its employees, also
hauled fill from the quarry to the jobsite. All of these
trucks shuttled back and forth between the quarry and
the jobsite all through the workday. At the quarry',
power equipment owned by C & P, Calnin, and one
identified in the record only as Foster,t2 loaded the
fill onto the trucks. The trucks when going into the
quarry did not confine themselves to a particular loader,
but went to the loader that happened to be open' for
loading at the time.
Beginning on August 27, and continuing for 3 business
days, Respondent picketed the several entrances to
Schultz quarry. The picket signs read, on one side,
"Employees of Calnin and Goss, Incorporated, on
Strike. Local 139 Operating Engineers," and on the
other side, "Our only dispute with Calnin & Goss."13
The evidence is uncontradicted that as Boulanger 's driv-
ers approached an entrance to the quarry, the pickets
orally appealed to them not to enter, and in some
instances threatened said drivers with a fine if they
did so.14
Contentions and Conclusions
The Ponderosa Job
The sole issue with respect to this branch of the
case is whether Shaw's inquiry of the, three carpenters
employed by Jaeger if they would leave the job if
asked to do so, in order to pressure contractors doing
business with C & P, constituted the "inducement and
encouragement " proscribed by Section 8(b) (4) (i) of
the Act. Upon the entire record I find and conclude
that the evidence fails to establish that Shaw induced
or encouraged Jaeger's carpenters to refuse to perform
services. Shaw's inquiry of these carpenters if they
would leave the job if he asked them to do so was
purely exploratory, and may not be regarded as a request
or even as a suggestion that the carpenters, leave the
job, and the response of the carpenters that the
appropriate way to get them to leave the job was by
means of a picket line, is at least some indication that
the carpenters did not regard Shaw's inquiry as an
inducement to them to leave the job. That Shaw may
have pursued the matter further had he gotten a favorable
2 The record does not reflect Foster's status , nor the arrangement
pursuant to which it worked at the quarry Thus, the record does
not show whether Foster extracted fill for its own purposes, or solely
on behalf of C & P
13 Why the picketing was not directed at C & P, which operates
the quarry and had the contract to supply the fill, and with whom
the Union's dispute was then current, the record does not show
14 Boulanger drivers Kasten and Kratz both credibly testified that
after having been appealed to by the pickets not to enter the quarry,
they nonetheless picked up their loads of fill, delivered them to the
jobsite, and returned to the quarry for another load, and at the quarry
entrance were asked by the pickets if they were prepared to pay
a $50 fine for crossing the picket line
LOCAL 139, INTERNATIONAL UNION OF OPERATING ENGINEERS
response from the carpenters is, of course, beside the
point. On the entire record, I find and conclude that
the General Counsel has failed to prove by a preponder-
ance of the evidence that Respondent induced or encour-
aged Jaeger's employees to engage in a work stoppage
in violation of Section 8(b) (4) (i) (B), as alleged in
the complaint, and it will be recommended that such
allegation be dismissed.''
Northland Shopping Center Job
As pointed out supra, fn. 10, General Counsel not
only did not allege that Respondent's picketing at this
job between August 5 and 7 was violative of the Act,
but conceded on the record that no violation resulted
therefrom. His contention on this branch of the case
is that only the alleged picketing on August 27, was
violative. The Charging Party, however, contends that
both the August 5-7 and the August 27 picketing was
violative, and relies upon Frito Co. v. N.L.R.B., 330
F.2d 458 (C.A. 9), for the proposition that the Charging
Party has standing to make such contention notwithstand-
ing the General Counsel's failure-indeed here his refusal
to so frame the complaint. In my view the Frito case,
supra, does not support the Charging Party's position.
As I read Frito, its holding is that until a complaint
is amended on motion of the General Counsel, or by
the Board on its own motion, a charging party may
not urge as a violation facts or events not pleaded,
although he may urge that pleaded facts constitute a
violation on a theory different from that urged by the
General Counsel. Applicable Board decisions so hold.
See Tyson's Foods, Inc., 172 NLRB No. 244, fn. 7,
and the cases there cited. Accordingly, I find and coti-'
dude that the validity of the August 5-7 picketing is
not an issue before me, and I make no legal conclusions
with respect to the same.
Regarding the picketing on August 27, which I have
assumed arguendo did occur,. I find the evidence insuf-
ficient to establish-a burden which the General Counsel
bears-that the picketing on that day was anything other
than lawful common situs picketing. The evidence is
not controverted that at the time of this picketing,
fill was being hauled to the jobsite from the Landwehr
quarry. If it was in fact being hauled by an employer
neutral in the dispute, the General Counsel should have,
but did not adduce evidence to establish that fact."'
" Having found that in Shaw's telephone conversation with Marohl,
the former did not threaten Marohl with picketing of the Ponderosa
job, it follows that the General Counsel failed to prove that Respondent
violated Section 8(b)(4)(u)(B) of the Act, with respect to this project,
and I shall recommend that the allegations of the complaint in that
regard be dismissed for lack of proof
'" As heretofore stated the MSA job superintendent , Buzanowski,
referred to the truckers hauling the fill as "independent contractors,"
but no testimony was offered to establish that they were in fact "inde-
pendent contractors," or if they were "employees," the identity of
their employer Buzanowski's conclusionary statement with respect to
the status of the truckers, I do not regard as having any evidentiary
significance Moreover, the record fails to show the contractual arrange-
ment pursuant to which the fill was being hauled to the job If Landwehr
had that contract and arranged with "independent truckers" to haul
the fill, the latter would appear to be performing struck work," and
75
No contention is made that the picketing was not reason-
ably close to the location where the fill was being
delivered; or that there was any ambiguity or legal
defect in the language on the picket sign."
I further find and conclude that Shaw's statement
to Job Superintendent Buzanowski on August 27 that
he would have to put up a picket because fill was
being hauled to the job from the Landwehr quarry,
was not a threat proscribed by Section 8(b) (4) (ii)
of the Act, because it was not a threat to picket MSA,
but rather a statement of intention to exercise the Union's
right to engage in lawful common situs picketing. General
Drivers etc., Local 886 (The Stephens Company), 133
NLRB 1393, 1395-96
Accordingly, I find and conclude that Respondent's
picketing of this job on August 27, assuming that it
occurred, was lawful common situs picketing not pro-
scribed by Section 8(b) (4) (i) or (ii) (B) of the Act,
and that the allegations of the complaint in that regard
should be dismissed.
The Schultz Quarry Incident
The Schultz quarry being under a long term lease
to, and so far as this record shows operated solely
by C & P, the primary employer, that operation must
be regarded as a primary, not as a common situs,
and I so find and conclude Although there is reference
in the testimony to the fact that C & P as well as
Foster operated loaders at the quarry, I do not regard
ihis' testimony sufficient to establish that a neutral
employer was engaged in his business operations at
the quarry. Both C & P and C & G are members
of Association and as such primary disputants with
the Union. There is no evidence to establish the arrange-
ment- pursuant to which Foster worked at the quarry,
or indeed that its employees were engaged at that
location. For all that appears Foster may have simply
leased a loader to C & P or C & G, to be operated
by their employees, or may have performed this work
with its own employees under contract with C & P
or C & G, to assist them in the performance of their
contracts for delivery of the fill. In any event the burden
rested upon the General Counsel to establish Foster's
Respondent could picket the "independent truckers " in a lawful manner
N L R B v Business Machine and Office Appliance Mechanics Confer-
ence Board, 228 F 2d 553 (C A 2) In this regard it is relevant to
note that the MSA job superintendent, Buzanowski, testified that he
was told by MSA construction manager, Badala, that the latter would
call Landwehr and stop the fill from coming in, and that shortly thereafter
the hauling of the fill stopped and the picketing ceased
" The General Counsel argues in his brief that the August 27 picketing
was violative because it was an "effort by the Respondent to enmesh
neutrals in its primary dispute " This argument overlooks the
fact that all common situs picketing enmeshes neutrals to some extent,
but only that common situs picketing is unlawful which is conducted
in a manner which fails to meet the cnteria established in Moore
Dry Dock Co , 92 NLRB 547, 553, and the burden of proving that
such picketing did not meet the established cnteria rests with the
General Counsel The Charging Party argues in its brief that this picketing
was unlawful because only Landwehr's product, and "independent
truckers," as distinguished from Landwehr's employees, were on the
site As heretofore stated, if such was the fact, it has not been proven
in this record
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status as a neutral employer at these premises, and
that Boulanger ' s employees were entering the premises
only to do business with that neutral if the quarry
is to be regarded as a common situs This he failed
to do
Having found the Schultz quarry to be a primary
situs, it follows that Respondent's picketing of that
situs, and its oral appeals to and inducement of Boulan-
ger's drivers not to enter that situs, was lawful primary
activity not proscribed by Section 8(b) (4) (B) Interna
tional Rice Milling Co v N L R B 341 U S 665,
and cf Newspaper and Mail Deliveries Union (Interbor-
ough News), 90 NLRB 2135 I so find and conclude
Upon the foregoing findings of fact and the entire
record in the case, I make the following
CONCLUSIONS OF LAW
I C & P C & G, Landwehr , and Marohl are each
employers and persons within the meaning of Sections
2(1) and (2) and 8(b)(4), of the Act, and are engaged
in commerce and an industry affecting commerce, within
the meaning of Sections 2(6) and (7) and 8(b)(4) of
the Act
2 The Union is a labor organization within the mean-
ing of Sections 2(5) and 8(b) of the Act
3 The General Counsel has failed to establish that
Respondent engaged in any unfair labor practice alleged
in the complaints, and it will be recommended that
said complaints be dismissed in their entirety
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions
of law, and pursuant to Section 10(c) of the Act, it
is recommended that the National Labor Relations Board
order that the complaints herein be dismissed in their
entirety