Local 513, Operating Engineers

National Labor Relations Board - Board Decisions

Mar 15, 1967

163 N.L.R.B. 400 (N.L.R.B. 1967)

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify said Regional Director, in writing, within 20
days from receipt of this Decision and Recommended
Order, what steps have been taken to comply therewith.58
I FURTHER RECOMMEND that the complaint be and it is
hereby dismissed as to all alleged violations not herein
found.
'1" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read : "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
through representatives of their own choosing, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or
protection or to refrain from engaging in any or all
such activities, except to the extent that such rights
may be affected by a union-shop agreement as
authorized in the State of Illinois by virtue of Section
8(a)(3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
All employees are free to join or refrain from joining any
Union.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer reinstatement to Donald Stach to his
former position as analyzer (or substantially
equivalent position ), without prejudice to his seniority
or other rights and privileges, with compensation plus
interest for any overtime or other pay lost by him as a
result of our action in discriminatorily demotionally
transferring him to the position of tester on August 23,
1965, and since then maintaining him in that position.
We will also remove and expunge from Donald
Stach's personnel records the incident reports against
him dated October 20, 1965, and February 2 and
March 21, 1966.
WE WILL NOT interrogate any employee in violation
of the Act regarding his or any other employee's union
membership, activities , or other lawful actions or
attempted actions under the Act.
WE HEREBY RESCIND and will not again announce,
promulgate , place or continue in effect, or enforce,
any rule or requirement unlawfully or discriminatorily
forbidding employees to communicate with each
other regarding union or organizational activities at
proper time and in proper ways.
WE WILL NOT discourage membership in and lawful
activities on behalf of United Autombile, Aerospace
and Agricultural Implement Workers, AFL-CIO, or
other labor organizations of our employees, by
coercively or otherwise unlawfully interrogating
employees as to their or other employees' union
membership or activities ; or by announcing,
promulgating , placing or continuing in effect, or
enforcing any rule or requirement unlawfully or
discriminatorily forbidding employees to discuss
union or organizational matters with each other; or by
discriminatorily demoting, transferring, or maintain-
ing in demotional status, or by taking or threatening
to take other adverse personnel action against any
employee because of union membership or activity or
exercise or attempted exercise of any right under the
Act.
WE WILL NOT in any manner interfere with,
restrain , or coerce employees in the exercise of their
rights guaranteed to them by Congress, to self-
organization , to form labor organizations , to join or
assist any labor organization , to bargain collectively
MOTOROLA, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
353-7597.
Local 513, International Union of Operating
Engineers , AFL-CIO (Zeni-McKinney-
Williams Corporation) and Kiewit-
Centennial Cominco American,
Incorporated , Local 318 , United
Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry
of the United States and Canada , AFL-CIO
(Zeni-McKinney-Williams Corporation)
Local 562, United Association of
Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO (Zeni-
McKinney-Williams Corporation) and
Cominco American Incorporated. Cases
14-CC-371, 14-CC-375, 14-CC-380, and
14-CC-381.
March 15, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On September 7, 1966, Trial Examiner Horace A.
Ruckel issued his Decision in the above -entitled
case, finding that the Respondents had engaged in
certain unfair labor practices and recommending
that they cease and desist therefrom and take
163 NLRB No. 38
LOCAL 513, OPERATING ENGINEERS
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel, Charging Party Cominco
American Incorporated, and the Respondents each
filed exceptions to the Trial Examiner's Decision
and briefs in support thereof.
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 this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner with the following additions and
modifications.'
The facts are essentially as related by the Trial
Examiner and involve three separate though related
jobsites: the Cominco site, where a leadmine is
under construction pursuant to a general contract let
by Cominco American, Incorporated (Cominco)2 to
Zeni-McKinney-Williams Corporation (Zeni); the
Buick site, a few miles south of Cominco, where a
similar operation is underway and where Amax Lead
Company (Amax) and Homestake Lead Company
(Homestake) have let a general contract to Kiewit-
Centennial, a joint venture composed of Peter
Kiewit and Sons (Kiewit) and Centennial
Development, for the sinking of twin mine shafts;3
and the Smelter site, about one-half mile southwest
of Cominco, where the Missouri Lead Smelting
Company (Smelting Company), jointly owned by
Amax and Homestake, has let a general contract to
Arthur G. McKee and Company (McKee) for the
contruction of a smelter intended to be utilized in the
smelting of ores mined at Cominco and Buick.'
Cominco has also let primary contracts to McKee
for the construction of a concentrator and other
above ground wort and to Davidson and Scott
Construction Company (Davidson) for clearing and
grading work.
McKee also has a general contract for the
construction of a concentrator and other above
ground work with Amax and Homestake at the
Buick site. In addition , at the Buick site, Kiewit-
Centennial has subcontracted with ABC Erectors,
Sachs Electric Company (Sachs), and Kiewit for
certain steel , electrical, and grading work. Finally, at
' To the extent that the Board amends the Trial Examiner's
conclusions and alters the order recommended by him, the
General Counsel's exceptions are found to have merit The
Respondents ' exceptions , while technically meritorious insofar as
the Trial Examiner's Decision may have incompletely explicated
their responsibility for the strike and picketing which occurred,
are nevertheless without substantive merit for the reasons stated
below
2 Together with Magnet Cove Barium Corporation, Cominco is
401
the Smelter site, McKee has sublet a grading
contract to Davidson.
Thus, at the Cominco site, there are three prime
contractors, Zeni, McKee, and Davidson; at the
Buick site, two, Kiewit Centennial and McKee; and
at the Smelter site, only McKee. All of these prime
contractors are independent and unrelated.
It appears that each of these contractors has
contractual relationships with craft unions affiliated
with the AFL-CIO, except for Zeni, which employs
members of District 50, UMW. At no time material
has Zeni or employees who are members of
District 50 performed any work at sites other than
that at Cominco.
On February 11, 1966,5 Woods, McKee's manager
of labor relations, initiated a prejob conference with
a group of construction craft unions for the purpose
of explaining the general nature of the work to be
performed. At this meeting, Steska, a business agent
for Respondent Local 562, and other union
representatives, including representatives of the
other Respondent unions, expressed their concern
over what they alleged to be a subcontract to Zeni by
McKee. The union representatives apparently
concluded, erroneously we find, that McKee was the
only prime contractor at the three sites, and that
McKee had sublet contracts to Zeni and Kiewit-
Centennial.
Steska asserted the unlawfulness of the Zeni
"subcontract" based upon the national agreement
with the Plumbers Union to which McKee is
signatory, and the local agreement between the
Mechanical Contractors' Association (of which
McKee is a member) and Local 562. He also told
Woods that pipefitters would not be referred while
District 50 members were employed by Zeni. After
the meeting, White, business agent for IBEW,
Local 1, and secretary-treasurer of the Southeastern
Missouri Building and Construction Trades Council
(Council), presented Woods with a copy of the
Council's labor agreement and requested that he
sign it ; Woods said that he would take it with him
and examine the document. On March 2, Woods
advised White that he could not execute the contract
because of what appeared to him a conflict with the
national agreements to which McKee was a party.
The assertedly conflicting provision would have
required the Council's agreement to take
precedence over any other labor agreement
containing inconsistent provisions, an apparent
contradiction with the national agreements.
Although McKee's general superintendent of
construction had scheduled work to begin March 7,
joint owner in the development of this leadmine, and is also the
operating company
I At this site, Missouri Lead Operating Company ( Operating
Company), a subsidiary of American Metal Climax, Inc (also the
parent of Amax), functions as the operating agency for the
construction and subsequent operation of the mine
" As at the Buick site, Operating Company acts as the
operating agency and will continue in that capacity when the
smelter becomes operative
5 All dates hereinafter are 1966
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on March 4 pickets appeared at the jobsites, and
picket lines were thereafter maintained until
April 14. From March 4, all three jobsites were
picketed with signs protesting the fact that McKee
did not have an agreement with the Council. The
pickets were so posted at the three sites that access
to any of the sites required crossing a picket line.
On March 8 , Kiewit-Centennial and McKee
established separate entry gates for their employees
at the Buick site . However, throughout the period of
this picketing , the pickets were always posted closer
to the Kiewit-Centennial gate than to the McKee
gate , which is about 100 yards to the south. And at
all times , placement of the pickets resulted in a
confrontation with at least one picket line by a
person seeking access to any of the sites.
Following commencement of the picketing,
McKee sought a meeting with the Council, and on
March 10 such a meeting was held in St. Louis with
virtually the same people in attendance as were at
the prejob conference . Woods stated to White that
the alleged purpose of picketing-to get McKee to
sign the Council agreement-was simply a
subterfuge . At the same time , Steska reasserted his
position that pipefitters would not be supplied while
District 50 members were on the job. Because of the
impasse , it was agreed by all that a meeting would be
held in Washington with international officials of the
unions involved.
On the following day, McKee signed the Council
agreement and Woods wired White to that effect,
requesting that the pickets be removed . Unable to
reach White by telephone on March 12 , he finally
talked to him on March 13 at which time White said
he would look into the matter of halting the picketing
but that he had to talk to other people . Advised that
Woods would be home all night, White promised to
call back. That evening , however, a representative of
Local 318 called Woods to advise him that White
had left for Washington for the meeting which was
scheduled for March 18, and that he would be
unavailable until that time.
On March 16 , Frank Bonadio , secretary-treasurer
of the Building and Construction Trades
Department of the AFL-CIO sent telegrams to
McKee, Kiewit , and Dravo Corporation (Dravo)6
inviting them to the meeting scheduled for
March 18. The telegram acknowledged that the
reason for the meeting was the fact that members of
District 50 were employed at the sites . McKee,
Kiewit , and Dravo were represented at the meeting,
as were each of the Respondents.
When the meeting convened, Bonadio reiterated
that the meeting was called because District 50
members were employed at the sites , while Steska
pointed out that as far as he was concerned the three
sites were tied together into one common
construction site. McCarten , assistant general
president of the Plumbers' International , stated that
he was going to support the "local people in trying to
get this District 50 contractor off the job." At the
same time, Woods reiterated his request to White
that the picketing of McKee be halted. White replied
that he would be unable to give a final answer before
2 to 3 hours, but that Woods could contact him later
in the day at the Washington Hilton Hotel. Later in
the day, Woods tried to contact him, but discovered
that he was not registered at the hotel.
At the conclusion of the meeting, Bonadio asked
all but the union people to leave so that they could
vote on "whether they supported the action of the
Building Trades and their picketing and refusal to
furnish men to work in Missouri." Shortly after,
Bonadio came downstairs and told the employers
that the internationals had voted unanimously to
support the picketing, the strikes, and the refusal to
furnish men so long as District 50 members were on
the site.
On March 23, the picket signs were changed to
read that the protest was against Zeni's payment of
wages below those established by the Council. On
the same date, the pickets at the Buick site moved to
a point about a mile south of the site, thus effectively
posting the only southernly approach to the site.
This road also provided the easiest and most direct
access to the other two sites and the route most
widely used by personnel coming onto any one of the
three sites. The picketing continued in this manner
until April 13, when all picketing ceased.
Throughout the period of picketing, only members
of District 50 continued to work, the AFL-CIO
Construction Trades employees and the Teamsters
firmly honored the integrity of the picket line, except
on several occasions when a negligible amount of
work was performed.
On March 4, when picketing began, Zeni was
already engaged in sinking a shaft at the Cominco
site and Davidson was performing grading work
there. At the Buick site, Kiewit-Centennial had in its
employ operating engineers, laborers, carpenters,
and teamsters. Also at the site were electricians
employed by Sachs, and operating engineers
employed by Kiewit. Davidson was also grading at
the Smelter site.
However, on the day picketing began, Davidson's
operating engineers and laborers could not work at
Cominco because of muddy conditions. They did
report and began work on March 7; but when the
pickets appeared, they left the job, not to return until
April 14, although work was available for them.
Employees of Davidson had also been working at the
Smelter site, but when the picketing began, they too
stopped working.
At the Buick site, operating engineers, laborers,
and teamsters employed by Kiewit-Centennial, and
engineers employed by Kiewit, were all engaged in
work when the pickets appeared on March 4. Some
Kiewit-Centennial employees worked a few hours,
s Dravo, party to national agreements with AFL CIO unions, is
the parent of Zeni , a wholly owned subsidiary
LOCAL 513, OPERATING ENGINEERS
thereafter securing things and leaving while the
Kiewit engineers continued until 11 o'clock. On the
same day, Holley, the Kiewit-Centennial project
manager, wired union representatives that they were
engaged in a secondary boycott by picketing the
Kiewit-Centennial gate with signs advertising a
dispute with McKee.
On the following day, no pickets appeared at the
Buick site, and, in accordance with Holley's request,
engineers, laborers, and teamsters appeared ready
to go to work at the Buick site, but there were no
electricians. Because only the electricians could
supply the necessary electrical power, the work
could not proceed, and the other employees were
sent home. Thereupon, Holley called White to
inquire why he wasn't getting any electricians and
why the picket line was there. White advised him
that the dispute was not with Kiewit-Centennial and
that the picket would be moved away from Kiewit-
Centennial's gate. White also denied any
responsibility for what had occurred, telling Holley
that since he didn't order any electricians off the job,
he couldn't order them back on.
The picketing continued on March 7, and Holley
called White to find out why. White advised him
again that the picket would be moved and that the
dispute was not with Kiewit-Centennial. Also on
March 7, Kiewit-Centennial tried to perform some
work with engineers which did not require the
assistance of electricians. However, Local 513's
steward told Holley that his men would not break the
line and, after Davis, the steward, spoke with the
men, the work was not performed.
On March 8, when separate gates were
established for Kiewit-Centennial employees and
those of McKee, Holley wired the union
representatives of that fact and that he was
expecting his regular contingent of workmen on
March 9. Despite this, only the teamsters came to
work. On March 14, similar telegrams were sent, but
the result was the same.
On March 23, after the change in the location of
the pickets at the Buick site and of the legend on the
picket signs, Holley again wired the business
representatives of the craft unions requesting
certain numbers of employees, and, on March 24,
sent individual telegrams to the employees
themselves. However, of the laborers, engineers,
carpenters, and teamsters sought, only the last
group appeared.
McKee's first need for pipefitters arose about 1
week after the strike started, when a load of pipe
arrived at Cominco. McKee's project
superintendent, Williamson, attempted to recruit
pipefitters from then on, but without success. On
March 28, he wired the business representatives of
the carpenters, ironworkers, laborers, and engineer
unions for help, but only carpenters appeared at the
jobsite and they refused to cross the line.
Even after the picket line was removed, McKee's
first request for pipefitters from Local 562 for
403
employment on April 15 was refused. It was not until
after April 21, when Steska told Williamson that
Local 562 would send pipefitters as long as McKee
kept the job clean and had no other nonunion
contractors, that pipefitters were referred.
On only two occasions during the period from
March 4 to April 13 was any work performed by
employees other than members of District 50. These
occurred on March 7, when Kiewit's engineers got to
the jobsite before the picket arrived and continued
to work the remainder of the day, and again on
March 14, when several engineers came on the
Buick site in order to move equipment belonging to
Kiewit. Earlier, the Kiewit-Centennial project
manager had called Local 513 about the matter.
Shortly before the engineers appeared on the site,
the picket disappeared and did not return for an
hour while the engineers completed their work.
Other than these two instances, the picket line
remained inviolable.
It is clear, and we find, as did the Trial Examiner,
that the Respondents unlawfully struck and
picketed the three jobsites with an object of
compelling Cominco to cease doing business with
Zeni because of the latter's employment of
District 50 members. We find as well that the
Respondents also acted unlawfully when,
commencing on February 11, they threatened to
refuse to refer employees so long as District 50
members were employed on the sites.
Viewed against the described background facts,
Respondents' argument that the picketing was
initially intended to protest the refusal of McKee to
sign the Council agreement is not entitled to much
credence inasmuch as even after McKee's execution
of the agreement, almost 2 weeks elapsed before the
picket signs were changed to reflect that the
maintenance of area standards was the purpose of
the picketing. Thus, it is altogether clear that, from
the first prejob conference through the period of
picketing and the several conferences between the
principals, the expressed object of the Respondents
was to get Cominco to stop dealing with Zeni
because Zeni employed members of District 50.
Respondents argue, however, that they are free
from the reach of the statute because it was the
Council and not they who were responsible for the
picketing. Local 562, in particular, asserts that it
was not, like the other two Respondent Locals, even
a member of the Council since it had never paid
dues, and therefore may not be held to have
acquiesced in the actions of the Council or to have
ratified its acts. Assuming the truth of this
proposition, we nevertheless find that the Council
spoke for Local 562 as clearly as it did for the other
Respondents. The credited facts forbid a contrary
conclusion.
For example, only 6 months before the strike
herein, and at a time when presumably it was also
not a member of the Council, Local 562 became
295-269 0-69-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
embroiled in what appeared to be a disagreement
with Kiewit -Centennial over the installation of pipe,
for which Kiewit-Centennial had intended using
laborers and operating engineers . At a meeting
attended by representatives of most of the crafts, the
Local 562 representative said that "there would be
an umbrella at the job tomorrow morning." The
extent to which Local 562 delivered on its promise is
evidenced by the picketing which followed. Like the
first picketing herein, the legend on the picket signs
indicated simply that the employer "does not have
an agreement with Southeastern Missouri Building
and Construction Trades Council ," with no
indication that Local 562 was the moving force
behind the picketing . We are persuaded by this that
the failure to identify the prime disputant on the
picket signs was simply a device for shielding it from
responsibility , and that the same subterfuge was
invoked in March as had been resorted to in
September of the previous year.
Moreover , at each of the three meetings , Steska,
in particular , made it clear that the dispute revolved
around the employment of District 50 members and
that Local 562 would not refer its members on
account of that fact . Bonadio, in his telegram, and at
the meeting in Washington , expressed this identical
point of view . The International, he told the
contractors, was firm in supporting the Council, and
pipefitters , and other craft employees represented
by AFL-CIO unions would not be referred until
District 50 members were off the job. From the
foregoing , we conclude that the Council ' s acts were
the acts of the Respondents . We are satisfied too
that the legend on the picket signs that McKee did
not have an agreement with the Council was a
subterfuge and intended simply to mislead observers
into believing that the dispute was the Council's
only, a contention which is wholly incompatible with,
and refuted by, clear record facts. Here , the plain
acts of the Respondents reveal their alliance with
the Council , and we infer therefrom that their
mutual interest was advanced by their acting in
concert in pursuit of common objectives . Therefore,
what was unlawfully committed by the Council is
attributable to the Respondents.7
Other contentions of Respondent , as for example,
that the contractors were in violation of national
agreements by subcontracting in violation of
Section 8 (e) clauses, are simply after - the-fact
rationalizations , in no way consistent with the facts
as developed at the hearing. In fact, a defense of the
Respondents at the hearing seemed to be that its
erroneous belief that McKee had " subcontracted" in
violation of its national agreements was a good-faith
error and therefore indicative of a lawful object. Put
in this fashion, we find, as did the Trial Examiner,
that Respondents' defense fails because compliance
with a lawful hot cargo clause may not be compelled
by strike action.8
Thus we find that regardless of the stance
Respondents assume in seeking to avoid
responsibility, the substance of their actions,
whether or not based on erroneous beliefs, can in no
way be construed so as to mitigate the unlawful
conduct in which they engaged. Based on their
presence and participation at the several
conferences and in their acquiescence to the clearly
stated position that employees would not be referred
to McKee while District 50 members were
employed, we conclude that the picketing which was
carried on under the banner of the Council was
tantamount to picketing by all three Respondents.
We likewise find that these same acts constituted a
strike; and we find further that the strike and
picketing had as an object that Cominco cease doing
business with Zeni in violation of Section 8(b)(4)(i)
and (ii)(B).9
AMENDED CONCLUSIONS OF LAW
1. Local 513, International Union of Operating
Engineers, AFL-CIO, and Locals 318 and 562,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
2. Arthur G. McKee and Company, Kiewit-
Centennial, Peter Kiewit and Sons, Missouri Lead
Operating Company, Missouri Lead Smelting
Company, Cominco American, Incorporated,
Davidson and Scott Construction Company, and
Sachs Electric Company are employers engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
3. By (a) picketing, engaging in a strike, and
inducing and encouraging employees of McKee,
Kiewit, Kiewit Centennial, Davidson, and Sachs to
engage in a strike or a refusal in the course of their
employment to perform services for their respective
employers, and (b) by refusing to refer and
threatening to refuse to refer employees to McKee,
Kiewit, Kiewit-Centennial, Davidson, and Sachs, in
both cases with an object of forcing or requiring
Cominco to cease doing business with Zeni,
Respondents have engaged in unfair labor practices
violative of Section 8(b)(4)(i) and (ii)(B) of the Act.
4. Responsibility for the picketing was carried on
under the aegis of the Southeastern Missouri
' Hodcarrters ' and Construction Laborers ' Union Load .300, etc
(Fiesta Pools, Inc), 145 NLRB 911. 917-918, Building &
Construction Trades Council of Boston , AFL-CIO (Metropolitan
District), 119 NLRB 1816
' Northeastern Indiana Building and Construction Trades
Council (Centltvre Village Apartments), 148 NLRB 854, Orange
Belt District Council of Painters No 48, AFL -CIO, et al (Calhoun
Drywall Co) v N L R B, 328 F 2d 534,537 (C A D C )
" We also find to be violative of Section 8(b)(4)(n)(B) the threats
by all three Respondents not to refer craftsmen
LOCAL 513, OPERATING ENGINEERS
Building and Construction Trades Council is
imputable to each of the Respondents.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the
Respondents, Local 513, International Union of
Operating Engineers, AFL-CIO, and Locals 318 and
562, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO, their officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging
employees of Arthur G. McKee and Company, Peter
Kiewit and Sons, Kiewit-Centennial, Davidson and
Scott Construction Company, and Sachs Electric
Company, or any other person 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 any services where an
object thereof is to force or require Cominco
American, Incorporated, or any other employer or
person, to cease doing business with Zeni-
McKinney-Williams Corporation.
(b) Threatening, coercing, and restraining
Arthur G. McKee and Company, Peter Kiewit and
Sons, Kiewit-Centennial, Davidson and Scott
Construction Company, and Sachs Electric
Company, or any other person engaged in an
industry affecting commerce, that they will not refer
or otherwise furnish individuals for employment
according to the provisions of an applicable contract
or arrangement, or refusing to refer such individuals
for employment, in order to force or require
Cominco American, Incorporated, or any other
employer or person, to cease doing business with
Zeni-McKinney-Williams Corporation.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post in Respondents' business offices and
meeting halls copies of the attached notice marked
"Appendix."10 Copies of said notice, to be furnished
by the Regional Director for Region 14, after being
duly signed by the Respondents' authorized
representatives, shall be posted by the Respondents
immediately upon receipt thereof, and be
maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
405
(b) Furnish to the Regional Director for Region 14
signed copies of the attached notice marked
"Appendix," for posting by Arthur G. McKee and
Company, Peter Kiewit and Sons, Kiewit-
Centennial, Davidson and Scott Construction
Company, and Sachs Electric Company, they being
willing, at places where they customarily post
notices to their employees.
(c) Notify the Regional Director for Region 14, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
10 In the event that this Order is enforced by a decree of a
United States Court of Appeals, the words " a Decision and
Order" shall be substituted for the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE To ALL MEMBERS
Pursuant to a Decision and Ordei of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT engage in, or induce or
encourage employees of Arthur G. McKee and
Company, Peter Kiewit and Sons, Kiewit-
Centennial, Davidson and Scott Construction
Company, and Sachs Electric Company, or any
other person 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 any services where an object thereof is
to force or require Cominco American,
Incorporated, or any other employer or person,
to cease doing business with Zeni-McKinney-
Williams Corporation.
WE WILL NOT threaten, coerce, or restrain
Arthur G. McKee and Company, Peter Kiewit
and Sons. Kiewit-Centennial, Davidson and
Scott Construction Company, and Sachs
Electric Company, or any other person engaged
in an industry affecting commerce, by refusing
to refer or otherwise furnish individuals for
employment to them according to the provisions
of our contracts or arrangements, for an object
of forcing or requiring Cominco American,
Incorporated, or any other employer or person,
to cease doing business with Zeni-McKinney-
Williams Corporation.
LOCAL 513,
INTERNATIONAL UNION
OF OPERATING
ENGINEERS, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOCAL 318, UNITED
ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF
THE UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
LOCAL 562, UNITED
ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF
THE UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
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.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone
622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HORACE A. RUCKEL, Trial Examiner : This case is
before me upon an unfair labor practice complaint , issued
April 21, 1966, by the General Counsel of the National
Labor Relations Board, acting through the Regional
Director for Region 14 (St . Louis, Missouri), against
Local 513, International Union of Operating Engineers,
AFL-CIO (herein called Local 513), and Local 318 and
Local 562, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada (herein called Local 318 and
Local 562). The complaint is based upon charges filed on
March 28, 1966, by Kiewit-Centennial (herein called
Kiewit), against Local 513 , on April 5, by Cominco
American , Incorporated (herein called Cominco), against
Local 513, and on April 8 by Cominco against Locals 318
and 562. The complaint alleges, in substance, the
commission by Locals 513, 318, and 562 (herein called
collectively the Respondents or the Respondent Unions) of
unfair labor practices within the meaning of Sections
8(b)(4)(i ) and (ii )( B), and 2 (6) and (7) of the National Labor
Relations Act, as amended (herein called the Act).
Specifically , the complaint asserts that since February 11,
1966, Respondents have threatened Arthur G. McKee and
Company (herein called McKee ), Kiewit , Peter Kiewit and
Sons Company, Missouri Lead Operating Company,
Missouri Lead Smelting Company, Cominco, Davidson
and Scott, and Sachs Electric Company, with a strike and
a refusal to refer men to work or to perform services at
Missouri Lead Mine jobsite, Missouri Lead Smelting
jobsite, and Cominco jobsite if the employees of Zeni-
McKinney-Williams Corporation (herein called Zeni)
performed work at the Cominco jobsite, and that
Respondents have induced and encouraged individuals
employed by these companies not to perform such work so
long as Zeni's employees performed work at the aforesaid
jobsites. An object of the conduct by the Respondent
Unions is alleged to be the forcing of Cominco to cease
doing business with Zeni, whose employees are members
of District 50, United Mine Workers of America, rather
than members of one of the Respondent Unions.
Respondents filed a joint answer denying the
commission of any unfair labor practices.
Pursuant to notice, I conducted a hearing at St. Louis,
Missouri, on May 16, 17, 18, 1966. All parties were present
and participated in the hearing At its conclusion,
Respondents engaged in oral argument and all parties
were granted leave to file briefs. The General Counsel and
Cominco have done so.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following.
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS VIOLATED
The complaint alleges, Respondents' answer admits,
and I find:
(a) Zeni maintains its principal office in West Virginia,
has been a general contractor to develop mine shafts in
Missouri, and in the performance of such general contract
has supplied services and materials valued in excess of
$50,000, within the State of Missouri.
(b) Kiewit, a joint venture between Peter Kiewit and
Sons Company of Omaha, Nebraska, and Centennial
Construction Company of Salt Lake City, Utah, has been a
general contractor to develop mine shafts in the State of
Missouri, and in the performance of such contract, during
the 12-month period ending March 31, 1966, has supplied
services and materials valued in excess of $50,000, within
the State of Missouri.
(c) McKee maintains its principal place of business in
California, has been a general contractor to construct a
smelter in Missouri and will, during the calendar year of
1966, in the performance of such contract, purchase and
cause to be transported and delivered within Missouri
goods and materials valued in excess of $50,000, of which
goods and materials valued in excess of $50,000 will be
transported and delivered within Missouri directly from
points outside Missouri.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondents' answer admits,
and I find that Locals 513, 318, and 562 are labor
organizations admitting employees of the employers to
membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
This case involved three jobsites near Bixby, Missouri.
The first, herein called the Cominco site , is an area owned
jointly by Cominco and Magnet-Cove Barium Corporation,
LOCAL 513, OPERATING ENGINEERS 407
where Cominco has a contract with Zeni to sink a mine
shaft for the mining of lead. Zeni's employees are
represented by District 50, and Zeni has a contract with
District 50 covering them. Cominco also has a contract
with McKee to build a concentrator at this site and do
other above ground construction.
The second site, called the Buick site, is a few miles
away. There, Kiewit is engaged as general contractor for
Missouri Lead Operating Company in sinking a mine
shaft. At this site McKee also has a contract with Missouri
Lead to construct a concentrator and do other above-
ground work.
The third site is a short distance from the other two. At
this site McKee, as general contractor under contract with
Missouri Lead, is to build a smelter to be owned by
Missouri Lead but to smelt the ores from the two mines
and concentrators which are being constructed on the
other two sites.
There are thus three general contractors, Kiewit, Zeni,
and McKee, engaged on these three sites. In addition,
Davidson and Scott Construction Company has had a
contract with Cominco to perform certain grading work
and to construct certain roads, and has had a subcontract
with McKee to do certain grading work at the smelter site.
None of these three general contractors is in any way
related through ownership or contractual relations to any
other.
B. The Activities of the Respondents
1. The prejob conference
On February 11, 1966, a meeting was held in St. Louis,
between representatives of the Respondent Unions and
other construction unions involved in this case ,' at which
John Woods, manager of labor relations for McKee,
explained the scope of the work at the three construction
projects, and estimated the manpower requirements.
Several of the representatives of the craft unions,
including Edward Steska, business agent for Respondent
Local 562, expressed themselves as being "unhappy"
because Zeni and Kiewit had members of District 50 on
the job doing work on the mine shaft at the Magmont mine,
and Steska stated that he could not furnish pipefitters so
long as this condition existed. He also raised the question
of whether McKee's contract with the Pipefitters covgred
Zeni and Kiewit as subcontractors of McKee, and Woods
pointed out, and I find, that Zeni and Kiewit were general
contractors in their own right and not subcontractors to
McKee.2 As I have found, there is no corporate or
contractual relationship whatever between McKee on the
one hand and Zeni or Kiewit on the other.
2. The picketing; further meetings between the parties
Williamson, McKee's general superintendent of
construction, scheduled the beginning of work on the three
jobsites for March 7, and to that end made preliminary
contacts with some of the unions on the project. On
March 4, however, a picket line was established at the
three jobsites and maintained until April 14, after charges
had been filed with the Board's Regional Director and the
controversy settled with the unions other than the
Respondents. The picketing resulted in the stoppage of
work by Local1 of the International Brotherhood of
Electrical Workers, employed by Sachs Electric
Company, by the Operating Engineers employed by
Davidson and Scott Construction Company, as well as by
members of Respondent Unions. The employees of Zeni,
members of District 50, continued to work. The picket
signs originally stated that McKee did not have a contract
with the Southeastern Missouri Building and Construction
Trades Council On March 23, however, the sign was
changed so as to read that Zeni was paying substandard
wages.
During the strike additional meetings were held
between representatives of the parties, one on March 10 in
St. Louis, and another on March 18 in Washington, D.C.
The latter was attended by representatives of McKee,
Kiewit, and Dravo Corporation, Zeni's parent corporation,
and presided over by Frank Bonadio, secretary of the
Building and Construction Trades Department of the
AFL-CIO. Bonadio opened the meeting by declaring that
the controversy was caused by the sinking of the shaft at
the Cominco site by members of District 50, which he
characterized as a "fink outfit." Later he stated that the
St. Louis unions would not supply men to the project so
long as District 50 members were on the job. He was
supported in this by John McCarten, assistant president of
the Pipefitters. McKee's representative, on the other
hand, again pointed out that McKee was in no way related
to Zeni or Kiewit, and hence was not responsible for their
employment policies. After the meeting, Bonadio informed
the employer representatives present that the membership
of the Council had voted unanimously to support the stand
of the Missouri unions not to furnish men so long as
members of District 50 were working at Cominco.
Although picketing at the three jobsites stopped on
April 13, with most of the crafts on the project furnishing
employees, including Local 513, Local 562 did not send
men to the jobsite until about April 23, in spite of a
telegram from McKee on Apiil 14.
C. Conclusions
The foregoing findings of fact are essentially
undisputed. They show that when it came to the attention
of Respondent Unions that Zeni and Kiewit's employees,
members of a rival union, were to be used on a portion of
the work on the jobsite, Respondents' representatives
declared unequivocally that if this was done Respondents'
members would withdraw their services. Subsequently, on
March 4, 1966, they did so, maintaining that position until
April 13, when, after a petition for an injunction had been
filed, and charges filed, the controversy was settled as to
unions other than the three Respondents here.
Respondents' contention, as stated by their counsel
during oral argument, is that Respondents believed that
McKee was in violation of a provision of its national
contract which prohibits making agreements with
subcontractors employing members of unions other than
Respondents, in this instance by subcontracting with Zeni,
whose employees were members of District 50. This was
indeed mentioned by Steska at the several meetings with
representatives of McKee and the two other general
' Charges were also filed against Local 396, Budge, Structural
and Ornamental Iron Workers, Machinery Movers and Riggers,
Carpenters District Council of St Louis and Vicinity, Local 916
Laborers International Union of North America, Local 1,
International Brotherhood of Electrical Workers , and Southeast
Missouri Building and Construction Trades Council The case
was settled as to these unions and no complaint was issued
L This matter is hereafter adverted to in connection with
Respondents' contention that McKee was bound by his contract
with Respondent Unions not to contract with subcontractors
employing nonmembers of AFL-CIO craft unions
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors , but it was more in the form of a speculation
that McKee might be in violation of its contract , rather
than an accusation that it was . The fact , as has been
stated , is that McKee had no corporate or contractural
relationship with Zeni or Kiewit , and it was not contended
at the hearing that it did . Neither company was a
subcontractor of McKee. Both were general contractors in
their own right.
When this was pointed out at the several conferences
preceding and concurrent with the strike , no attempt was
made by Steska or any other representative of
Respondents to controvert it. The argument is now made
that Respondents ' representatives believed, albeit
erroneously , that McKee did subcontract to Zeni and
Kiewit, and hence their withdrawal of their labor did not
have the purpose of a secondary boycott, but of rectifying
a contract violation . It has the earmarks of pure
rationalization . The entire record demonstrates that
Respondents were determined not to work , and struck,
because members of District 50 working in the project
were not members of AFL-CIO, but rather were a "fink
outfit," as Steska described them Even the vote at the
meeting in Washington on March 18, as described by
Bonadio to representatives of the Charging Parties, was to
support the stand of the Missouri unions in " their refusal
to furnish men as long as District 50 was on the site," and
not because of any alleged violation of the national
contract 3
An object of the strike and of the picketing , I find, was
to compel Cominco to stop doing business with Zeni, in
violation of Section 8(b)(4)(i)(B) of the Act By threatening,
on February 11, March 10 and 18, 1966 , to refuse to
furnish men so long as District 50 members were on the
job, Respondents were in violation of Section 8(b)(4)(ii)(B)
of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
similar situations will arise in the future with the danger of
repeated violation of Section 8(b)(4)(i) and (ii)(B). I shall
therefore recommended a broad cease-and-desist order.
CONCLUSIONS OF LAW
1. Loca1513, International Union of Operating
Engineers, and Locals 318 and 562, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
2. McKee, Kiewit-Centennial, Peter Kiewit and Sons
Company, Missouri Lead Operating Company, Missouri
Lead Smelting Company, Cominco, Davidson and Scott,
and Sachs Electric Company are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. By (a) engaging in a strike, and inducing and
encouraging employees of McKee, Peter Kiewit and Sons
Company, Missouri Lead Operating Company, Missouri
Lead Smelting Company, Cominco, Davidson and Scott,
and Sachs Electric Company to engage in a strike or a
refusal in the course of their employment to perform
services for their respective employers, and
(b) threatening with a strike McKee, Peter Kiewit and
Sons Company, Missouri Lead Operating Company,
Missouri Lead Smelting Company, Cominco, Davidson
and Scott, and Sachs Electric Company in both cases with
an object of forcing or requiring Cominco to cease doing
business with Zeni, Respondents have engaged in unfair
labor practices comprehended by Section 8(b)(4)(i) and
(ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
The activities of Respondents set forth in section III,
above, occurring in connection with the activities of
McKee, Kiewit-Centennial, Peter Kiewit and Sons
Company, Missouri Lead Operating Company, Missouri
Lead Smelting Company, Cominco, Davidson and Scott,
and Sachs Electric Company, as described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States,
and tend to lead, and have led, to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease
and desist therefrom and they take certain affirmative
action as provided in the Recommended Order, which I
find necessary to remedy and remove the effects of the
unfair labor practices and to effectuate the policies of the
Act. It is evident that if the Order were limited to the
specific persons and employees who are involved herein, it
would not properly remedy the unfair labor practices
herein found, for it is reasonably to be expected that other
' It may be pointed out that if these facts were to the contrary,
and McKee did in fact subcontract work to Zeni in violation of this
contract, Respondents' conduct is nevertheless violative of the
Act See N L R B v Operating Engineers, Local 12 (Trt-County
Assn of Civil Engineers, etc), 293 F 2d 319, 322 (C A. 9),
Construction Productions, etc Local 383, v N L R B (Colson &
Stevens Construction Co ), 323 F 2d 422 (C A 9)
Galbreath Bakery, Inc., and United
Packinghouse , Food & Allied Workers,
AFL-CIO. Cases 10-CA-6514 and 10-RC-6559.
March 15,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On September 28, 1966, Trial Examiner Boyd
Leedom issued his Decision in the above-entitled
proceeding, finding that 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. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
163 NLRB No. 41