Local 294, Teamsters

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 358 (N.L.R.B. 1969)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Bethlehem Steel Corporation. Cases
3-CD-220, 3-CD-253
December 16, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 14, 1969, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to 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 connection with these cases 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 the entire
record in these cases , and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Local 294,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Albany, New York, its officers, agents,
and representatives, shall take the action set forth in
the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Trial Examiner: This proceeding was
heard in Albany, New York, on July 29 and 30, 1969, on
a consolidated complaint issued by the Regional Director
for Region 3 on June 5, 1969, based on charges filed June
20, 1968, and April 10, 1969, and subsequently amended
on May 28, 1969. The complaint alleges in substance that
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter called Respondent, violated Section 8(b)(4)(d)
of the National Labor Relations Act, as amended, by
various acts and conduct and failed to comply with the
National Labor Relations Board's 10(k) determination of
the underlying jurisdictional dispute. By its duly filed
answer, Respondent denies the commission of any unfair
labor practice and affirmatively pleads that its actions
were protected under various provisions of the Act.
All parties were represented at the hearing and had an
opportunity to call witnesses, examine and cross-examine
them, and to adduce other evidence. After the close of the
hearing each party filed briefs with me. Upon the entire
record in the case, from my observation of the witnesses,
and in contemplation of the briefs, I make the following-
FINDINGS OF FACT
L JURISDICTIONAL FINDINGS
Bethlehem Steel Corporation, hereinafter called
Bethlehem, is a Pennsylvania corporation, engaged in
Albany, New York, in the construction and erection of
structural steel . During the 12-month period preceding the
hearing , Bethlehem purchased and caused to be delivered
into the State of New York from other States, goods and
materials valued in excess of $50,000 and during the same
period sold and shipped from the State of New York to
points in other States, goods and materials valued in
excess of $50,000.
Bethlehem is and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
Respondent and Local 106, International Union of
Operating Engineers , AFL-CIO, herein called Operating
Engineers , are, and each of them have been at all times
material herein, labor organizations within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Introduction and Issues
Since early 1968, Bethlehem has been engaged in
Albany, New York , both as a contractor and as a
subcontractor in the fabrication and erection of structural
steel in a large civic project known as the South Mall
Project which consists, generally speaking , of the erection
of a platform extending through the center of downtown
Albany upon which is routed an arterial highway and two
high rise buildings one of which straddles the highway.
The work is portioned into numerous lots which were bid
separately by various construction enterprises , some of
which subcontracted portions of the job for which they
had successfully bid. Since the inception of the project it
appears that there has been a dispute between Respondent
and Operating Engineers with regard to the work of
handling the nozzle to the fuel hose during fueling
operations of equipment operated or manned by operating
engineers and of storage barrels and tanks located on the
project and in storage yards located in the area of the
project and serving the project.
As a result of the dispute, various charges have been
filed with the Board resulting in a Decision and
Determination of Dispute in Case 3 -CD-177, involving the
Fehlhaber Corporation and Horn Construction Company,
Inc., a joint venture (familiarly known as Fehlhaber and
Horn) and a Decision and Determination of Dispute in
Case 3-CD -220 with which we are here concerned. After
the issuance of the former 10(k) decision and prior to
180 NLRB No. 75
LOCAL 294, TEAMSTERS
hearing in the latter, a temporary injunction was issued by
the United States District Court, Northern District of
New York, on July 15, 1968, enjoining picketing that had
taken place as well as other activities which the court
found reason to believe violated Section 8(b)(4)(i) and
(ii)(D) of the Act Thereafter, on June 16 and 17, 1969, a
contempt proceeding was conducted by the same court as
a result of which the court found Respondent in civil
contempt by its continued unlawful conduct in violation of
the court's order. The charge in case 3-CD-220 deals with
the incidents upon which the initial injunction was issued
and in Case 3-CD-253 with the incidents upon which the
contempt citation arose.
In its Decision and Determination of Dispute in Case
3-CD-220, the Board found reasonable cause to believe
that Respondent violated Section 8(b)(4)(d), held that its
disclaimers filed prior thereto were ineffective to vitiate
the dispute and determined the dispute by an award to the
Operating Engineers. Although served with notice,
Respondent did not appear at the hearing held pursuant to
Section 10(k) of the Act. In his complaint, the General
Counsel contends that by a strike which commenced June
17, 1968, and continued until the issuance of the
injunction by the United States District Court, by
picketing, by instructions to members and by appeals to
employees, Respondent induced and encouraged
individuals employed by Bethlehem and various other
corporations to engage in strikes or refusals to perform
services and that commencing about March 31, 1969,
Respondent induced and encouraged employees and other
persons engaged in commerce to engage in strikes or
refusals to perform services and threatened, coerced, and
restrained Bethlehem and other persons engaged in
commerce with the object of requiring Bethlehem to
assign the disputed work to Respondent rather than to the
Operating Engineers. As stated above, Respondent did not
attend the 10(k) proceeding, relying on a disclaimer filed
with the Regional Director.
At the initial injunction hearing , Respondent through
its business agent , Carusone , contended that the picketing
in 1968 was in no way attributable to the demand for the
disputed work which demand he contended was never
made but was in support of Respondent's demand that
Bethlehem sign a contract with it covering the wages,
hours , and working conditions of a single employee who
operated a pickup truck on the project for Bethlehem.
Respondent at the contempt proceeding also contended
that Bethlehem needed more teamster employees on the
project; that one driver was incapable of doing all the
teamster work on the project.
In the hearing in the instant case Respondent appeared
to contend that the Board ' s 10(k) determination does not
apply to the instant situation because the contract under
which the Teamsters are operating is a different one from
that which the Board considered in the 10 (k) proceeding
and because the work being done was not part of the
South Mall Project. Additionally Respondent argued that
any activities in which Respondent engaged had the
legitimate object and purpose of obtaining compliance
with an agreement with the Walsh Construction Company
under whom Bethlehem was a subcontractor in one part
of the job . In its brief, Respondent contends that the
primary and only objective of Respondent in 1968 was to
obtain a collective - bargaining agreement and that the
strike ensued only as a result of Bethlehem 's refusal to
discuss a collective -bargaining agreement . With regard to
the 1969 activities Respondent contends that the General
Counsel failed to establish any improper activity or illegal
359
action and reiterated that Respondent's activities were
engaged in only to enforce compliance by Walsh
Construction Company with the Heavy and Highway
Agreement which it contends is binding on Bethlehem as a
subcontractor of Walsh.
The issues before me are twofold as I see them, first
whether the strike in 1968 had an objective unlawful under
Section 8(b)(4)(d) and second whether the activities of
Respondent in 1969, alleged and demonstrated by the
General Counsel, violated Section 8(b)(4)(d).
As to the merits of the dispute, I have no issue to
decide. I am bound by the Board's determination of the
dispute. Respondent has made no claim that there is new
or previously undiscovered evidence to rebut the Board's
determination, nor does it appear that such a claim would
have merit in view of the fact that Respondent declined to
attend the 10(k) hearing.
Discussion - 1968
Bethlehem began erection of steel in February 1967 on
the South Mall Construction site using cranes, derricks,
air compressors and motor generators manned by
employees represented by Operating Engineers. Fuel for
the equipment was provided either by direct fueling by
fuel trucks driven by contractors to the machines or by
delivery from fuel trucks to storage tanks and barrels
located either near the equipment or in storage yards, of
which there are three. In 1967 and 1968 Bethlehem had
only one driver, a member of Respondent, named Kakely.
His job was loosely defined as a chaser. He drove a
pickup truck belonging to Bethlehem and generally ran
errands, made small purchases and delivered parts and
equipment from place to place. Bethlehem had no contract
with the Teamsters covering Kakely's employment.
During the year 1967 Bethlehem purchased fuel from
Atlantic Richfield whose employees were represented by
an independent union not affiliated with the Teamsters.
Kakely informed Respondent's business agent Carusone
who told him that he should stay with the Atlantic driver
as long as he was fueling Bethlehem ' s equipment.
Thereafter Kakely followed the Atlantic driver around the
project and would assist him in handling the hose which
he would give to an employee represented by Local 106
who would place the nozzle into the tank or equipment to
be fueled.
In May 1967 Respondent entered into a contract with
the Eastern New York Construction Employers, Inc.,
which provided that when a Teamster does not handle a
nozzle during fueling operations the employer must pay
him 50 cents more an hour. Kakely received this
additional rate from Bethlehem although Bethlehem was
not a member of the association . In 1968 Bethlehem told
Atlantic Richfield to get a driver for his truck who is a
member of the Respondent in order to eliminate the need
to pay Kakely for riding around with him. About the
same time Carusone told Kakely to tell Bethlehem to get
another fuel company because the Atlantic driver would
not be admitted to join the Union. Carusone on this
occasion told Kakely to ride with the fuel driver even
though he was a member of Respondent and that he was
to handle the nozzle. Kakely objected because it would
cost him 50 cents an hour and pointed out that the Board
had awarded the work of handling the fuel nozzle to the
Operating Engineers in the Fehlhaber-Horn case.
Carusone told Kakely that nevertheless he was to handle
the nozzle . Kakely informed Bethlehem's superintendent,
Teague, who told him not to ride on the oil truck. Kakely
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
followed Teague's instructions. Bethlehem thereafter
purchased fuel from McEnaney Oil Supply Company
whose drivers are represented by Respondent.
On June 14, 1968, Carusone told Teague that he would
have to put more Teamsters on the job or Respondent
would strike. Carusone then talked to Kakely and told
him to come to the Labor Temple where Kakely
overheard Carusone in a telephone conversation state,
"They didn 't even have the nozzle on the job."
Commencing the following Monday Kakely picketed the
Bethlehem jobsite with signs reading, "Truckdrivers
employed by Bethlehem Steel Company do not enjoy the
benefits and protection of a Local 294 contract." The
picketing continued until the injunction issued on July 16,
1968.
In a conversation with Teague after the picketing
commenced Carusone stated that he wanted Bethlehem to
sign a contract, he wanted more teamsters on the job, and
he wanted the job of fueling in its entirety. He had two
telephone conversations with Bethlehem's attorney,
Connolly, the first on June 20, 1968. Carusone said that a
Teamster had to handle the nozzle to the tank and that
the Company has to employ a Teamster to receive the
hose and the nozzle and that the Teamster has to be a
construction Teamster. He pointed out that the McEnaney
fuel truck driver was paid to drive a fuel truck but when
the fuel truck is on a construction site there has to be a
Teamster getting construction wages to receive it. They
talked about other matters involving a possible contract.
Connolly said he would have to take it up with Bethlehem
and ended the conversation. Carusone called him back on
June 25. Connolly told him that they would not employ
another Teamster because they didn't need any more and
Carusone rejoined that one man can't handle fueling in all
the yards. Connolly pointed out that there was a Teamster
on the McEnaney truck and the operating engineer
handled the nozzle to which Carusone answered that the
Teamster has to handle the nozzle and the hose. When
Connolly mentioned the Fehlhaber-Horn corporation
decision which gave the nozzle to the Operating Engineers,
Carusone answered, "Is your name Fehlhaber-Horn?" He
stated that that decision only applied to Fehlhaber-Horn
and on this job the Teamster handles the nozzle.
Business Agent Carusone did not take the witness stand
before me. The parties stipulated that I might consider his
testimony in the contempt proceeding. In that proceeding
Carusone testified that Respondent at no time requested
the assignment of the work of handling the nozzle.
Carusone at no time' specifically denied any of the
statements attributed to him but left the impression that
Connolly, Teague, and other witnesses who testified that
he had demanded the nozzle were mistaken and that what
he in fact was demanding was the right to handle the hose
in the fueling of machinery. He testified there was no
dispute about pumping fuel into the storage tanks. This
was clearly Teamsters work and not claimed by the
engineers .' He further contended that the strike was
engaged in by Respondent only for the purpose of forcing
Bethlehem to sign a contract to cover employee Kakely.
I do not credit Carusone's denials that Respondent at
no time was demanding the work of handling the nozzle.
There is too much uncontradicted evidence in the record
that the Teamsters on the job were in fact demanding this
and were doing so pursuant to his instructions . I find that
the strike in 1968 was caused at least in part by
'The Operating Engineers in fact claim the handling of the nozzle on all
fueling operations, into the tanks , between tanks , and into the machines.
Respondent's demand for the disputed work. It is clear
that the strike caused employees of various suppliers to
refuse deliveries and caused employees to cease working. I
find that the strike and the conversations with
representatives of Bethlehem constitute violations of
8(b)(4)(i) and (ii)(D).
Discussion - 1969
When the 1969 season commenced Bethlehem was
erecting steel in the South Mall Arterial. Bethlehem at
this time had no Teamster employee. The chasing,
messenger , and delivery work formerly done by Kakely
was now performed by Gary Guido, an employee of
Walsh Construction Company, driving a pickup truck
rented from Walsh by Bethlehem. In this phase of the
construction Bethlehem was operating as a subcontractor
of Walsh. Early in April Robert Tessitore who was
Respondent's steward on the entire project, on being
informed by Guido that the Operating Engineers insisted
on handling the nozzle on Bethlehem fuel deliveries, went
to Walsh's project manager , Stephen Richards, and
pointed out that under a contract between Walsh and the
Teamsters he would insist on fueling Bethlehem Steel rigs.
The contract, known as the Heavy and Highway
Construction contract, provides that the contractor shall
assign fueling to the Teamsters and further provides that
any subcontractors of Walsh come under the same
contract. Tessitore stated that if the Teamsters were not
assigned the fueling, which he defined as including
handling the nozzle, that there would be trouble. The
following day Tessitore again came to Richards and told
him that a rig had been fueled by the Operating Engineers
and again claimed the work. On each occasion Richards
told Bethlehem about the conversation with Tessitore.
On April 4 a McEnaney fuel truck arrived to deliver
fuel to a piece of equipment. Guido stopped the truck and
climbed into the cab to talk to the driver. Bethlehem's
assistant superintendent, Leo Browder stepped on the
running board and asked what the problem was. Guido
said that he was checking the driver's union card and
stated that he was acting steward for Bethlehem.' Browder
apparently lost his temper and profanely pointed out to
Guido that Tessitore had told him the previous day that
he, Tessitore, was the only steward on the job and Guido
was not a steward. Teague, who had seen the incident
called on Browder to "back off" and Guido told DiScipo
that there might be trouble because the engineers insisted
on handling the nozzle. DiScipo called his office and was
told not to make a delivery, and departed. No delivery
was made.
On April 7 Tessitore told Browder that he should
assign the fueling to the Teamsters because he was
superintendent of the job. Browder stated that he didn't
have the authority to change the assignment which had
been made in the front office and Tessitore told him he
ought to have somebody on the job with authority to "get
this thing straightened out."
On April 9 another fuel company, Teal, attempted to
make a delivery. Teal's driver commenced unraveling the
hose . Guido attempted to take the nozzle and Operating
Engineer Sheehan said that he would handle the nozzle.
Guido asked Browder to order him to handle the nozzle
and Browder declined to do so saying that the operators
'Guido denied making this statement ; however Browder was
corroborated in this respect by the McEnaney driver, DiScipo, whom I
credit
LOCAL 294, TEAMSTERS 361
will handle the nozzle. Guido told the truckdriver to make
his other deliveries and return to the job later when Guido
had had a chance to discuss the situation with Tessitore.
The Teal driver departed and did not return.'
The next act took place on April 16 when McEnaney
driver Haberland arrived at the site. He had been told by
his dispatcher that if there was a labor dispute not to get
in the middle of it but to go on to his other deliveries.
When he arrived at the site he asked Browder if there was
a labor dispute and Browder said there was not. He
backed his truck up to a crane and handed the nozzle to
an oiler and filled the crane. There were two barrels to be
filled. The oiler handed the nozzle back to Haberland and
started climbing off the rig and Haberland filled the
barrels or at least one of them. At or about this time
Tessitore arrived and asked who had filled the machines.
Haberland explained what happened and Tessitore told
him that that was Teamster work and that if he was to
come to the job again he should stop and see Tessitore
before making any deliveries and Tessitore would advise
him if the labor dispute is settled.
On April 28 Haberland returned to the job. He asked
an Operating Engineer if the dispute had been settled. The
engineer answered, "yes" and that the engineers have the
nozzle whereupon Haberland permitted engineers to fill
two pieces of equipment. As the nozzle was handed back
from the second piece of equipment Tessitore arrived and
asked who filled the crane. Haberland told him that the
engineers had filled the cranes and had told him that the
dispute was over. Tessitore said the dispute was not settled
whereupon Haberland attempted to fill a drum, handling
the nozzle himself. The engineers refused to permit him to
do so and Haberland left without completing his delivery.
On this occasion Tessitore told Haberland in substance
that he could be fined by the Union for permitting the
Operating Engineer to handle the nozzle.
On May 8 Tessitore came to Browder and apparently
asked where Bethlehem was getting the fuel. Tessitore
testified that he and Guido had been watching for fuel
trucks and had not seen one and thought that Bethlehem
was getting the fuel at night. Browder told him that
Bethlehem was not using much fuel because the job was
about to shut down. Browder testified that Tessitore said
he was going to find out where Bethlehem was getting the
fuel and put a stop to it. This is denied by Tessitore.
The next act took place on May 8 on which occasion
Browder directed Guido to get a gallon of gasoline for an
operator for use on the starting motor of an air
compressor . Guido procured the gasoline but refused to
give it to the operator on the ground that it was his job to
pour it into the motor. The engineer refused to permit
Guido to fuel the motor and a standoff took place that
lasted several days, during the course of which the
compressor was shut down. The situation ended when
Richards directed Guido to give the can of gasoline to
Browder who in turn directed him to put it in a toolshed.
Apparently at a later time an engineer took the gasoline
from the toolshed and fueled his rig. On May 16 an
incident occurred in which a McEnaney driver declined to
deliver fuel but the record is incomplete and I can make
no findings with regard to the incident. On May 23
'According to Guido this incident ended when Browder stated that he
did not want any fuel, they would run until they run out of fuel and told
the Teal driver to leave until the thing is resolved. I discredit Guido, for
his demeanor in testifying left me in doubt as to his credibility. Browder's
testimony in this regard is corroborated by that of Sheehan whose colorful
testimony struck me as being candid.
McEnaney's driver, Haberland, attempted to deliver fuel
to Bethlehem. He asked the engineer about the labor
dispute and was told that the engineers still had the
nozzel. He went looking for the steward and found Guido
whom he asked about the dispute. Guido suggested that
he call the teamster hall and see what they had to say
about it. Guido gave him the telephone number.
Haberland called and asked to speak to Nicholas
Robilotto the Local president. A man came to the phone
without identifying himself and asked what the problem
was. Haberland explained the problem and the man
answered, "That comes under the Bridge and Highway,
that's Teamsters' work." Haberland left without making
any delivery, still relying on the instructions of his
dispatcher not to be involved in the dispute that remained
unsettled.
The record also reveals that Respondent filed a
grievance against Walsh because of the fueling by
engineers employed by Bethlehem. The grievance was
adjusted under the terms of the contract between A.G.C.
and Respondent, which contract Walsh apparently had
signed , and the award requires Walsh to pay a day's pay
to Respondent on each day that an engineer does any
fueling .' Various invoices were received in evidence
revealing that Walsh is back-charging Bethlehem for the
moneys paid Respondent.
The General Counsel contends that the incidents set
forth above constitute both inducement and
encouragement of employees and threats, coercion, and
restraint of "persons" in violation of Section 8(b)(4)(i) and
(ii)(D) of the Act. Respondent contends that no violation
has been made out, arguing that neither Guido nor
Tessitore have authority to commit unfair labor practices
on behalf of Respondent and that in any event they were
doing no more than enforcing their contract with Walsh
and doing the necessary "investigation" to establish the
grievances which gave rise to the penalty payments made
by Walsh to Respondent.
In the first place , it is clear that, Carusone's testimony
to the court notwithstanding, Respondent has at all times
demanded that its members be awarded the work of
handling the nozzle and delivering fuel both into storage
tanks and into equipment operated by the Operating
Engineers . Further, it is completely clear that Tessitore
was the representative for all purposes of Respondent on
the entire project. It is notable that not only Guido, the
only other teamster on the project concerning whom there
is any evidence in the record, looked to him for
instructions with regard to Respondent's position, but the
drivers of the various fuel trucks, themselves members of
Respondent, took their instructions from him. It is clear
that he was held out to be Respondent's representative on
the job and the Respondent is liable for his activities.
With respect to Guido, the situation is a little different.
Respondent contends that he was a free agent acting on
his own initiative rather than carrying out Respondent's
policy. Nevertheless, it is clear that he was carrying out
Respondent's policy, that he was doing so under the direct
guidance of Tessitore, and that on at least one occasion
Tessitore told him that he had acted correctly in so doing.
I find Respondent liable for Guido's conduct. See
Prestress Erectors, Inc., 172 NLRB No. 19.
There can be no question on the record before me that
Respondent has persisted in its demand for the disputed
work which the Board awarded to the Operating
The record does not reveal whether any employee ultimately receives
this money.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineers and that in its persistence it has caused the
employees of the fuel contractors to refuse to make
deliveries as well as causing potentially violent incidents
on the jobsite with the engineers who obviously were
jealously guarding their prerogative of handling the
nozzle.
It is no defense to Respondent that it had a contract
with Walsh that requires that Walsh' s subcontractors go
along with the jurisdictional award therein . The Board has
made this award to the Operating Engineers and Walsh
cannot set it aside by entering into a contrary agreement
with Respondent . Respondent may have a right to recover
any damages it may have suffered from Walsh, but that
does not give it a right to stop deliveries to Bethlehem, as
it has been shown to have done . I hold that Respondent is
responsible for the refusal of the drivers of fuel trucks to
make deliveries on various occasions and for the threats
and admonishments of Guido and Tessitore to the drivers
in their enforcing of Respondent ' s position . Accordingly, I
find that Respondent has thereby violated Section
8(b)(4)(i ) and (ii)(D ) of the Act (Local Union No. 272,
Iron Workers (Prestress Erectors , Inc.), 172 NLRB No.
19), by its failure or refusal to comply with the Board's
determination of dispute herein.'
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
handling the nozzle during fueling operations.
5. By the acts and conduct set forth above, for the
objects set forth above, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Sections 8(b)(4)(i) and (ii)(D) and 2(6) and (7) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act and
have a close, intimate , 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.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action which
I find necessary to remedy and remove the effects of the
unfair labor practices and to effectuate the policies of the
Act. Because of the character and scope of the unfair
labor practices found, I shall recommend a broad
cease-and-desist order.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I
hereby recommend the following:
CONCLUSIONS OF LAW
1. Bethlehem Steel Company is an employer engaged in
commerce, Respondent and Local 106, International
Union of Operating Engineers, AFL-CIO, are labor
organizations within the meaning of the Act.
2. By the acts and conduct set forth above, by the
picketing in 1968, and by instructions and appeals,
Respondent did engage in and induce and encourage
individuals employed by Bethlehem, McEnaney Oil
Corporation, D.E. Long, Inc., Teal Oil Company, and
other persons engaged in commerce or in industries
affecting commerce , to engage in strikes or refusals in the
course of their employment, to use, transport, or
otherwise handle or work on articles and materials or
commodities or perform services and have threatened,
coerced, and restrained Bethlehem and other persons
engaged in commerce or in industries affecting commerce.
3. An object of the acts and conduct of Respondent
described above is and has been to force and require
Bethlehem to assign to employees who are members of or
represented by Respondent rather than to employees who
are members of or represented by Operating Engineers,
the work of handling the nozzle during fueling operations
of equipment operated or manned by Operating Engineers
and storage barrels or tanks of Bethlehem on its South
Mall Project in Albany, New York, and storage yards in
the area.
4. Bethlehem has not failed to conform to an order or
certification of the Board determining the bargaining
representative for employees performing the work of
'I must reject Respondent 's apparent claim that the dispute herein is not
determined by the Board 's Decision and Determination of Dispute because
Respondent operated under a different contract , and because of its
contention that some of the work in which Bethlehem was engaged was on
the arterial highway rather than the South Mail. The Board's
determination applies "not only to the jobsite in which the dispute arose,
but to all similar work done or to be done by Bethlehem Steel on any
other project in the Albany area." On the evidence before me, furthermore,
I find that all the work was part of the South Mall Project as it is
generally known.
ORDER
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from engaging in, inducing and
encouraging individuals employed by persons engaged in
commerce or in an industry affecting commerce to engage
in, a strike or refusal in the course of their employment to
use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities
or to perform services or threatening, coercing, and
restraining persons engaged in commerce or in an industry
affecting commerce, with the object of forcing or requiring
Bethlehem Steel Corporation to assign to employees
represented by Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, the work of handling the nozzle during fueling
operations of equipment operated or manned by
Operating Engineers who were represented by Local 106,
International Union of Operating Engineers, AFL-CIO,
and storage barrels or tanks on any of Bethlehem Steel
Corporation's projects in the Albany area.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Post at its office in Albany, New York, copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
'In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
LOCAL 294, TEAMSTERS 363
(b) Mail to the Regional Director for Region 3 signed
copies of the aforementioned notice for posting by
Bethlehem Steel Corporation and for distribution by
Bethlehem Steel Corporation to persons engaged in
commerce or in industries affecting commerce with whom
it is doing business in the Albany area, copies of said
notice, to be furnished by the Regional Director for
Region 3, shall, after being signed by the Respondent as
indicated, be forthwith returned to the Regional Director
for disposition by him.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
strike or refusal in the course of their employment to
use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or
commodities or to perform services or threaten, coerce,
and restrain persons engaged in commerce or in an
industry affecting commerce, with the object of forcing
or requiring Bethlehem Steel Corporation to assign to
employees represented by Local 294, International
Brotherhood of Teamsters, Chauffeurs,) j Warehousemen
and Helpers of America, the work of handling the
nozzle during fueling operations of equipment operated
or manned by Operating Engineers who were
represented by Local 106, International Union of
Operating Engineers, AFL-CIO, and storage barrels or
tanks on any of Bethlehem Steel Corporation's projects
in the Albany area.adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . 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."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 3 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL Not engage in, induce and encourage
individuals employed by persons engaged in commerce
or in an industry affecting commerce to engage in, a
LOCAL 294,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
The 120 Building, 120 Delaware Avenue, Fourth Floor,
Buffalo, New York 14202, Telephone 716-842-3100.