Local 542, Operating Engineers

National Labor Relations Board - Board Decisions

Mar 6, 1974

209 N.L.R.B. 377 (N.L.R.B. 1974)

LOCAL 542, OPERATING ENGINEERS
Local 542, International Union of Operating Engi-
neers (AFL-CIO) and its agents Robert Cahill and
Ralph Schwartz and Paddock Pool Builders Inc.
Case 4-CC-750
March 6, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 31, 1973, Administrative Law Judge
Eugene G. Goslee issued the attached Decision in
this proceeding. Thereafter, the Charging Party and
the Respondent filed exceptions. The General Coun-
sel filed cross-exceptions and a brief in support of the
cross-exceptions, in answer to the Respondent's
exceptions and in partial support of the 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order only to the extent
consistent with the following.'
The General Counsel alleged that on 3 days (June
12, July 5, and July 6, 1973) Local 542 violated
Section 8(b)(4) of the Act by picketing the common
situs when the primary employer, subcontractor
Paddock Pool Builders Inc., its employees, and its
equipment were not on the site. The General Counsel
also alleged that on July 5 while Local 542 engaged
in picketing its business agent, Ralph Schwartz.
unlawfully induced operating engineers employed by
Murray Walter, Inc., the prime contractor, who were
then working at the Valley View school job, to leave
the jobsite.
The construction of the indoor swimming pool at
the Valley View project was to be completed in three
stages, with a hiatus of several weeks between stages.
During the first stage of construction, completed
near the end of April 1973, no picketing took place,
but, as found by the Administrative Law Judge, both
Walter and Paddock were put on notice of the
primary dispute between Respondent Local 542 and
Paddock and warned that the job might be picketed
if that was not settled before Paddock started work at
the project site. The second stage of construction
1 Member Fannir_g would affirm the Administrative Law Judge's
Decision in its entirety
2 The "gate" was a post in the middle of the 40-foot-wide entrance road
to the project, with signs indicating the Paddock area and the neutral area
No unfair labor practice was alleged as to the location of the June 12
377
began May 23, when picketing occurred with
placards indicating the existence of the dispute
between Paddock and Local 542. Paddock left on
May 24, removing all employees and equipment
except some construction materials.
On June 7, Walter advised Respondent Union of a
separate gate. effective June 12, and pickets appeared
early the morning of June 12 with the same signs
used in May.2 Employees of Walter and some
subcontractors refused to cross the line. Paddock was
not working June 12, but on July 5 it was. The
pickets returned about 11 a.m. on the latter date,
after which Business Agent Schwartz drove into the
site and told Farr, an employee of Walter and a
member of the Operating Engineers, to get off the
job, also telling Farr that he, Schwartz, had already
directed a backhoe operator to do the same . Fan left.
About noon on July 5, Walter advised Paddock
that its removal from the project was desired until
such time as the dispute with Respondent Union was
resolved. Following this, Walter advised the Union
of this step by telephone, promising to confirm by
telegram. In late afternoon, Paddock removed its
employees and equipment from the site, not to return
during July.
The pickets reappeared the morning of July 6;
employees of neutrals refused to cross the line, and
Walter reminded the Union of its message of the day
before. The response of Business Agent Cahill was
that the promised telegram had not been received.
After this conversation, the pickets were removed.
We agree with the Administrative Law Judge's
finding of violation based on the July 5 inducement
of the employee of a neutral employer to cease work,
and the July 6 picketing at a time when Respondent
had no reasonable expectation that Paddock would
be working. We do not agree with his recommended
dismissal as to the picketing which occurred June 12
and July 5. As to these, we find merit in the General
Counsel's exceptions. We view the Union as obligat-
ed on June 12 to ascertain whether Paddock was
actually on the premises. The mere fact that a
separate gate was to be available as of that date did
not entitle the Union to assume that Paddock would
work that day inasmuch as the work pattern for
constructing swimming pools contemplated substan-
tial lapses between phases. Also, we agree with the
General Counsel that the happenings of July 5 and 6
should be considered together; that the objective of
enmeshing neutrals was shown on July 5 by the
inducement of Farr to leave the job and the
picketing, but General Counsel contended that the neutral portion of the
roadway was used , which showed intent to enmesh neutrals As the
Administrative Law Judge found no violation concerning June 12, he did
not resolve the issue as to where the picketing occurred , though he
questioned the adequacy of the area set aside
209 NLRB No. 59
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continuance of the picketing the next day when
Respondent had no reason to expect Paddock to be
at the site. In the circumstances, we do not agree that
Paddock's presence at the job on July 5 was
sufficient to immunize the picketing on that day from
the overall objective to enmesh neutrals, an objective
which we view as evident beginning June 12.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below,3 and hereby orders that the Respon-
dent Local 542, International Union of Operating
Engineers (AFL-CIO) and its agents Robert Cahill
and Ralph Schwartz, Archibald, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
herein modified:
1. Delete from paragraphs 1(a) and (b) of the
recommended Order the words "with whom it has no
primary labor dispute."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
3 We agree with the General Counsel and the Charging Party that the
words "with whom it has no primary labor dispute" are an unnecessary
restriction upon the thrust of the Order and notice and not in consonance
with previously issued Orders and notices judicially approved
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that:
WE WILL NOT engage in, or induce or encour-
age any individual employed by Murray Walter,
Inc., or any other person engaged in commerce or
in an industry affecting commerce, to engage in a
refusal in the course of his employment to use,
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 Murray Walter, Inc., or any other
person engaged in commerce or in an industry
affecting commerce, to cease doing business with
Paddock Pool Builders Inc.
WE WILL NOT threaten, coerce, or restrain
Murray Walter, Inc., or any other person engaged
in commerce or in an industry affecting com-
merce for the object described in the preceding
paragraph, under the circumstances prohibited by
Section 8(b)(4)(B) of the Act.
LOCAL 542,
INTERNATIONAL UNION
OF OPERATING -
ENGINEERS (AFL-CIO)
AND ITS AGENTS ROBERT
CAHILL AND RALPH
SCHWARTZ
(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 compli-
ance with its provisions may be directed to the
Board's Office, Suite 4400, William J. Green, Jr.,
Federal Building, 600 Arch Street, Philadelphia,
Pennsylvania 19106, Telephone 215-597-7601.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me at Scranton,
Pennsylvania, on September 20, 1973, upon a complaint'
issued by the General Counsel of the National Labor
Relations Board and an answer filed by Local 542,
International Union of Operating Engineers (AFL-CIO)
and its agents Robert Cahill and Ralph Schwartz,2
hereinafter referred to collectively as the Respondents. The
issues raised by the pleadings in this proceeding relate to
whether, or not the Respondents have violated Section
8(b)(4)(i) and ii(B) of the National Labor Relations Act, as
amended, by acts and conduct hereinafter specified. At the
conclusion of the hearing all parties waived oral argument,
but a brief has been received from the General Counsel
and a memorandum of points and authorities from the
Respondents, and both have been duly considered.
Upon the entire record in this proceeding, and from my
observation of the testimony and demeanor of the
witnesses , I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
Pursuant to a stipulation of the parties arrived at during
the course of the hearing, I find that Paddock Pool
Builders, Inc., hereinafter called Paddock, is a New York
corporation, maintains its principal office at Albany, New
I The complaint in this case was issued on August 6, 1973, upon a charge
filed on July 16, 1973 , and served on the Respondent on the same date
Y The complaint and other formal documents pertaining to this
proceeding were amended at the outset of the hearing to reflect the proper
spelling of Ralph Schwartz' name
LOCAL 542, OPERATING ENGINEERS
York, and is engaged in the construction industry for the
design and construction of swimming pools. At all times
material to this proceeding Paddock was engaged as a
subcontractor, under a contract held from Murray Walter,
Inc., hereinafter called Walter, in the construction of a
swimming pool at the Valley View School, located at
Archibald, Pennsylvania. As the parties have also stipulat-
ed, I further find that during the year preceding issuance of
the complaint in this case , Paddock derived revenues m
excess of $50,000 from its operations conducted outside the
State of New York, and Paddock is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
In accordance with the complaint, and the Respondent's
amendments to their answer, I find that Walter is a New
York corporation, engaged m the building and construc-
tion industry, and at all times material to this proceeding
has been engaged as a prime contractor on the Valley View
project at Archibald, Pennsylvania. In addition to Pad-
dock, Walter engaged A. G. Smith Construction Services
(structural steel); Anthracite Plate Glass Co. (aluminum
and glass); Culp Bros., Inc., (dry wall and plastering); and
Boly's Iron Works (iron work) as subcontractors on the
Valley View project. I find, therefore that Walter, A. G.
Smith Construction Services, Anthracite Plate Glass Co.,
Culp Bros., Inc., and Boly's Iron Works are persons
engaged in commerce, or in an industry affecting com-
merce , within the meaning of Section 8(b)(4) of the Act.
II. THE STATUS OF THE RESPONDENT
The complaint alleges, the answer admits , and I find that
Local 542, International Union of Operating Engineers
(AFL-CIO) is a labor organization within the meaning of
Section 2(5) of the Act, and Robert Cahill and Ralph
Schwartz are its agents within the meaning of Section 8(b)
of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The record is clear that at all tunes material to this case a
primary labor dispute existed between Local 542 and
Paddock, and as a part of this dispute Local 542
intermittently picketed Paddock at the Valley View site.
The General Counsel alleges that on three separate
occasions , June 12, July 5, and July 6, 1973,3 the
Respondents violated Section 8(b)(4) of the Act by
picketing the Valley View project at a time when Paddock,
its employees and equipment, were not at the common
situs, thereby coercing and restraining Walter and other
neutral employers, and inducing their employees to engage
in a work stoppage. The General Counsel also alleges that
on July 5, coincidental with picketing, Local 442, through
its agent Ralph Schwartz, orally induced operating
engineers employed by Walter to leave the jobsite. In
addition, although not alleged in the complaint or
advanced as a separate violation of the Act, the General
Counsel contends that by picketing at an entrance to the
project set aside and posted for Walter and other neutral
contractors, the Respondents have further evinced the
379
secondary objective of their picketing of the Valley View
project.
By their answer the Respondents deny that they have
engaged in any violation of the Act, and affirmatively
contend that all picketing and other conduct at the Valley
View site was lawful primary activity directed at Paddock
as the legitimate object of a lawful primary dispute.
A. The Events of June 12 and July 5 and 6
The subcontract from Walter to Paddock for construc-
tion of the swimming pool at the Valley View project was
let in January or February, and the pool was scheduled to
be completed in three separate stages. The first stage
involved the excavation for the pool, and forming and
placing the reinforcing steel. Working in conjunction with
employees and equipment provided by Walter for the
excavation work, Paddock's employees began this stage of
the construction process m late March, but underground
water conditions delayed the work and phase one was not
completed until near the end of April. Insofar as the record
reflects the Respondents did not picket the Valley View
project during the first phase of the pool construction, but
both Walter and Paddock were put on notice of the
primary dispute between Respondent Local 542 and
Paddock, and were warned that the job might be picketed.
On some undisclosed date in the spring of 1973, Robert W.
Becket, construction superintendent for Paddock, received
a call from Respondent Schwartz, who reminded Becket of
a dispute which should be settled before Paddock began
work on the Valley View site. Walter has a bargaining
agreement with Respondent Local 542, and in February or
March Walter's job superintendent , Robert Nemconsky
received a similar telephone call from the Respondents.
Schwartz told Nemconsky that the Operating Engineers
had a problem with Paddock, and if the dispute was not
settled by the time Paddock came to work on the Valley
View site, the job would be picketed.
The second stage of the pool construction was the
gunnite phase, which involved the application of pneumati-
cally applied concrete. Paddock began this phase of the
work about May 23 with a crew of seven or eight laborers
and masons and the necessary equipment. Pickets ap-
peared on the jobsite during this second phase of the pool
construction with placards advertising the existence of a
dispute between Respondent Local 542 and Paddock.
Paddock left the job on May 24, but the record is not clear
as to whether the departure was caused by the picketing, or
by completion of the gunnite phase of the work. When
Paddock left the jobsite on May 24, all of its employees
and equipment were removed, but some materials such as
reinforcing rods and sand were left at the pool site, and the
project was in an obvious state of incompletion.
According to Becket's testimony, Paddock was not
scheduled to return to the site during the month of June,
and in fact did not return until July 5. On June 7,
nevertheless, Walter sent a mailgram to Respondent Local
542, informing the Union that effective June 12 a separate
gate would be reserved for the Paddock and its delivery-
9 All dates recited hereinafter are in 1973, unless specified to the
contrary
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men and suppliers, and another gate reserved for the
exclusive use of all others on the project site. Before 7 a.m.
on June 12, the so-called separate gates had been
established and posted. The general description of the
entrance to the site and the location of the separate gates
will be discussed hereinafter in connection with the
General Counsel's contention that the Respondents exhib-
ited a secondary objective by picketing at the gate reserved
for Walter and other neutrals.
About 7:30 a.m. on June 12 pickets appeared at the site
and resumed picketing at the entrance with picket placards
identical to those used in the May 23-24 picketing.
Approximately 50 of Walter's employees, and employees
of some of the subcontractors on the site, refused to cross
the picket line and did not work on June 12.
Paddock returned to the jobsite on July 5, apparently
prepared to complete the gunnite phase of the construc-
tion. Paddock's employees and equipment arrived at the
site between 7:30 and 8 a.m. and about l l a.m. Respon-
dent Schwartz and two pickets appeared at the project
entrance. On July 5, Walter had about 50 employees on the
site, including one member of the Operating Engineers,
Richard Farr.
Shortly after noon on July 5, Job Superintendent
Nemconsky contacted Walter's main office and received
instructions to remove Paddock from the project. Nemcon-
sky wrote down the instructions, dated and signed them,
and then presented the instructions to Becket for his
signature on behalf of Paddock. According to Nemcon-
sky's further testimony, about 3:30 or 4 p.m. he called the
Respondents' office and read to Respondent Cahill the
instructions pertaining to Paddock's removal from the
project until the labor dispute between Paddock and the
Union had been resolved. Nemconsky also told Cahill that
the information he had imparted during the conversation
would be confirmed in a telegram. In later testimony
Nemconsky related that the promised telegram was sent
out of Walter's office, but there is no other evidence in the
record to substantiate either the dispatch or receipt of any
telegram.
Between 4:30 and 5 p.m. on July 5, Paddock removed all
of its employees and equipment from the project site, and
did not return to the site until the latter part of August?
Judson K. Shaffer is employed by Walter as a general
labor foreman, and was employed at the Valley View
project on July 5. Richard Farr, a member of the Operating
Engineers, was working under Shaffer's supervision operat-
ing a forklift. During the morning Farr requested Shaffer's
assistance to clean the filter on the forklift. While Shaffer
was lending his assistance, Respondent Schwartz and
another unidentified individual drove up. Schwartz asked
Shaffer, "Who the hell are you?" Farr replied, "He's the
general labor foreman from Murray Walter who' s giving
me some assistance with the lift here." Schwartz respond-
ed, "Mr. Farr, I've just dropped pickets off at the main
gate. I told the backhoe operator to leave the job; 5 there
are pickets here. I want you to leave also." Fan then told
Schwartz that he had the lift down, and asked what he
should do with the parts. Schwartz answered, "Leave it
back there, get off the job." Farr left the job, and was later
seen talking to the pickets at the project entrance.
Respondent Schwartz testified to the conversation with
Farr on July 5. Schwartz admitted asking Shaffer who the
hell he was, and in explanation for the inquiry testified that
Shaffer is not a member of the Operating Engineers and
not entitled to perform repair work on equipment within
the Respondent Union's jurisdiction . According to
Schwartz' further testimony, Shaffer muttered some reply
that the machine was down, and Schwartz countered,
"Well, I'm getting the hell out of here, there's pickets
outside."
The pickets reappeared at the project site on the morning
of July 6, again with a placard advertising the dispute with
Paddock. Approximately 50 of Walter's employees were
scheduled to work at the project on that day, but refused to
cross the picket line. Nemconsky observed the picket line
about 7:30 a.m. and shortly thereafter called Respondent
Cahill. Nemconsky repeated the statement he had read to
Cahill the day before concerning Paddock's removal from
the project, and asked Cahill why the pickets were out.
Cahill replied that the Union had not received the telegram
Walter promised to send. The pickets were removed after
Nemconsky's conversation with Cahill.
B. Contentions of the Parties
In support of the allegations of 8(b)(4)(B) violations, the
General Counsel contends that the facts of this case fall
within the ambit of the evidentiary standards established
by the Board for common situs picketing in the Moore Dry
Dock case.6 More particularly, the General Counsel asserts
that the Respondents failed to comply with Moore Dry
Dock by refusing to limit their picketing to those times
when Paddock was engaged in its normal business
activities at the Valley View situs, thus displaying that an
objective of the picketing was to enmesh Walter and other
neutrals in a dispute in which they were not involved. To
support this contention the General Counsel relies on the
evidence that the Valley View swimming pool, and
apparently all pools constructed by Paddock, are erected in
three separate stages, with a definite hiatus between
phases. From this posture the argument is advanced that
the Respondents were aware of the hiatus between the
several phases of the construction, that the Respondents
had access to the Valley View site and opportunity to
observe when Paddock was on or off the job, and,
accordingly are charged with the burden of ascertaining, as
a condition to the lawful resumption of picketing, whether
Paddock was engaged in its normal activities on the site.
Insofar as the General Counsel's argument pertains'to the
picketing of June 12 and July 5, I find reason to disagree
with his proposition.
There is no evidence in the record that Respondents were
put on notice at any time between May 24 and July 5 that
Paddock was not working at the site, or any notice as to
On August 29, pursuant to a 10(j) petition, the United States District 5 The record reveals that an employee of subcontractor Ezra Stipp was
Court granted a temporary injunction , and insofar as the record reflects the operating a backhoe on the site on July 5
Respondents' picketing of the Valley View project after that date has been 6 Moore Dry Dock Co, 92 NLRB 547
limited to times when Paddock was on the site
LOCAL 542, OPERATING ENGINEERS 381
when, if at all Paddock would resume work on the pool. To
attribute sufficient knowledge to the Respondents to
support a finding of a violation for resumption of the
picketing, I would be required to infer from all the
circumstances that the Respondents received notice by
some indirect means, not only of the times Paddock was
actually absent from the site, but knowledge of the
intended dates of return. On the record before me, the facts
will not support the inference.
The swimming pool where Paddock's employees were
engaged is located below ground level, and inside the shell
of a building. Although Paddock's trucks and equipment
were parked outside the shell of the building, the site could
not be seen from the pickets' station at the single entrance
to the project, and was not readily observable from any
other vantage point to which the pickets had access. In
short, the construction site where Paddock was engaged
was not easily surveilled except at close range.
The General Counsel argues, nevertheless, that because
of the bargaining agreement with Walter, the Respondents
had ready access to the whole project, and Schwartz in
particular had frequent opportunities to observe Paddock's
operation. Assunung these to be the facts, it is necessary to
consider what Schwartz, or any other interested observer
would have been witnesses, and what presumptions the
observer would be entitled to draw.
When Paddock departed from the site after the picketing
on May 23-24, he removed all men and equipment, but left
behind sand and reinforcing steel to be used in the
subsequent stages of the construction. The mere presence
of these materials would probably not, under Board and
court precedent, establish Paddock's presence on the job to
the extent common situs picketing would be lawful, but the
presence of the materials, coupled with the unfinished
nature of the construction, would certainly alert any
interested observer to the probable return of Paddock to
the jobsite. In the circumstance of this case a finding that
the Respondents knew, on any given day, that Paddock's
employees were absent from the common situs is insuffi-
cient to support a finding that a resumption of the
picketing was a violation of Section 8(b)(4)(B). The finding
is only supportable upon additional proof that the
Respondents had no reasonable grounds for the belief that
Paddock's return was imminent. Officials of both Walter
and Paddock testified to the necessary hiatus between the
three phases of the pool construction, and both companies
knew the approximate date when Paddock would resume
work. It would have been a simple matter to notify the
Respondents that Paddock was off the common situs and
not expected to return until a stated date, but the
companies chose instead to shift the burden to the
Respondents, with the obvious anticipations that Local 542
would choose to picket on some occasion when Paddock
was off the common situs. There must, of course, be
reasonable grounds for the Respondents' belief of Pad-
dock's presence on the common situs,7 but a union's right
to engage in lawful primary activity cannot be played like a
yo-yo, and the evidentiary standards of Moore Dry Dock
cannot be construed to place an unconscionable burden on
the Respondents.
There was, in fact, no picketing of the site between May
24, and June 12, but the events of June 7 can only be
construed as additional proof of the reasonableness of the
Respondents' belief of Paddock's presence on the common
situs where the picketing was resumed on the latter date.
On June 7, Walter put the Respondents on notice that
separate gates would be posted, and the target date for this
action was June 12. The notice could only serve to confirm
what was already obvious to the Respondents-Paddock's
work on the site was incomplete and his employees would
return. The action date set for the implementation of the
separate gates was given as June 12, and the Respondents
could readily presume this was the date when Paddock
would return to the common situs. Picketing was resumed
on June 12, but was discontinued after I day. The
picketing did not resume again until July 5, when
Paddock's employees and equipment were on the common
situs.
During the course of the hearing in this proceeding, but
not in his brief, the General Counsel contended that the
Respondents' conduct with respect to the separate gates
established by Walter on June 12, even though not alleged
as a violation of the Act, should be considered in assessing
the object of the picketing. The facts are that there is a
single entrance to the Valley View project, which consists
of a right-of-way approximately 40 feet wide leading off a
public street. The entrance is in the shape of a T, with the
public street serving as the crossbar. The main construction
site at the Valley View project, and particularly the
swimming pool, cannot be observed from the entrance, and
observation from other vantage points would require
access to private property.
To create separate gates for the primary and the neutrals,
Walter fixed a 4 by 4 post, wrapped with ribbon, in the
center of the entrance way, approximately 20 feet back
from the public street. Large signs were placed on either
side at the extreme edge of the entrance, one marked for
Paddock's use , and the other for Walter and other neutrals.
The only testimony elicited concerning the picketing at
the so-called separate entrance to the site was from Job
Superintendent Nemconsky. He testified that on rune 12
he saw the pickets walking on both the blacktop surface of
the public street and across the access way where the signs
were posted. He was unable to testify, for lack of
opportunity to observe, how frequently or for what length
of time the pickets remained at the entrance reserved for
neutrals.
In view of the physical circumstances, I have serious
reservations that the separate entrances erected by Walter
on June 12 would legally restrict the Respondents to
picketing in a limited 20-foot space set aside for Paddock,
its suppliers and deliverymen. Assuming to the contrary,
however, there is insufficient evidence that the Respon-
dents picketed the gate reserved for neutrals to the extent
necessary to warrant a finding of an unlawful objective.
The General Counsel, moreover, does not rely on the
alleged conduct involving the reserved gate as a separate
' Local 3, International Brotherhood of Electrical Workers, AFL-CIO
(Atlas Reid, Inc,) 170 NLRB 584.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation, but only as background evidence confirming the
Respondents' secondary motive. The evidence relating to
the picketing at the reserved entrance is limited to June 12,
and in view of the finding that there was no unlawful
conduct on the part of Respondents on that date, the
evidence and the General Counsel's contention are
rejected.
Accordingly, I find that the Respondents' picketing of
the common situs at the Valley View project on June 12
was lawful primary activity, unattended by any secondary
objective.8 As to July 5, my finding is the same with respect
to the picketing itself, modified only to the extent of my
finding on the oral inducement set forth below.
As to the oral inducement alleged to have occurred on
July 5, I find reason to credit the testimony of Shaffer and
to reject Schwartz' version of the conversation. Schwartz
testified that he entered the site after the pickets had been
posted, but was unable to recall whether he posted the
pickets, or whether they were posted by Cahill. I accept his
inability to recall this aspect of the events, but I also find
that it colors the reliability of his testimony relating to the
rest of the incident. More crucial, Schwartz entered the site
through the picket, line, but his reason for doing so was
never explained. He admitted that he stopped to talk to no
persons on the site other than Fan and Shaffer and left the
site immediately after the conversation. Upon this, and all
of the relevant evidence, I find that Schwartz directed Farr
to leave work because of the picket line, thus inducing and
encouraging Fan to engage in a work stoppage. I also find
that by telling Farr that he had directed the backhoe
operator to leave the job, Schwartz compounded the
inducement and encouragement.
There remains for consideration the Respondents'
continuation of the picketing on July 6. As related above,
on the afternoon of July 5, Nemconsky called the
Respondents to inform them that Paddock's work had
been suspended and Paddock would not return to the
project until its dispute with Respondent Local 542 had
been resolved.
The Respondent contends that the evidence pertaining to
Walter's notice to the Union about Paddock's removal
from the job should be rejected on grounds of lack of proof
that the Union received the notice. To this extent
Nemconsky testified on direct that he called the union hall
and talked to Respondent Cahill. On cross-examination
Nemconsky stated that he did call the union hall, but could
not testify positively that he talked to Cahill. Cahill did not
testify in this proceeding, and I accept Nemconsky's
testimony that he called the union hall and read the
message . The finding is the more appropriate in the face of
Nemconsky's uncontradicted testimony that on July 6,
when he questioned Cahill about the continuation of the
picketing, Cahill complained that the telegram promised by
Nemconsky had not been received. If Cahill did not
receive the notice directly from Nemconsky, he received it
indirectly from some other source. It is true that evidence is
8 In arriving at this finding, I reject the General Counsel's reliance on
Cascade Employers Association, 180 NLRB 241, Farmers and Merchants
Bank of Menomonee Falls, 196 NLRB 487, Atlas Ret4 Inc., supra, and other
cited cases In those cases the union picketing at a common situs was under
specific notice of the absence of the primary from the site , or, unlike here,
the factual circumstances were such that the Union could not entertam a
lacking that the Respondents received the telegram
promised by Nemconsky. Even so, the notice received
from Nemconsky on July 5 was sufficient to place the
Respondents on notice that Paddock had been removed
from the jobsite, would not return until the dispute was
resolved, and to require the Respondents to make some
reasonable inquiry about Paddock's continuing presence
on the common situs before resuming the picketing on July
6. By failing to make a reasonable inquiry after notice of
Paddock's removal, the Respondents failed to limit their
picketing to times Paddock was engaged in its normal
business at the situs,9 and thereby violated Section
8(b)(4)(i) and (ii)(B) of the Act.
I have found above that the Respondents violated
Section 8(b)(4)(i)(B) of the Act by Schwartz' conduct
inducing and encouraging an employee of a neutral
employer, Murray Walter, Inc., to cease work on the
Valley View project. I have also found that the Respon-
dents violated Section 8(b)(4)(i) and (ii)(B) by picketing the
Valley View project on July 6, when the primary employer,
Paddock Pool Builders, Inc., was absent from the common
situs and the Respondents had no reasonable expectation
that Paddock would return. The conduct is sufficient to
warrant the finding that an object of the Respondents'
picketing of the common situs at the Valley View project
was that prohibited by Section 8(b)(4) (B) of the Act, and a
cease and desist order is required.io
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The conduct of the Respondents set forth in section III,
above, occurring in connection with the operations of
Paddock, Walter and other persons engaged on the Valley
View project 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 to,
and have led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
as amended, I shall recommend that the Respondents be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the foregoing findings of fact and conclusions, and
the entire record in this case, I hereby make the following:
CONCLUSIONS OF LAW
1. Paddock Pool Builders , Inc., is, and has been at all
times material to this proceeding an employer engaged in
reasonable belief that the primary was present on the common situs.
9 Cascade Employers Association, Inc., supra, and Moore Dry Dock Co,
supra.
10 See Btsantz Electric Co, Inc, 192 NLRB 283, 287, but compare
IBEW, Local 441 (Suburban Development Co), 158 NLRB 549
LOCAL 542, OPERATING ENGINEERS
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Murray Walter, Inc., A. G. Smith Construction
Services, Culp Bros., Inc., Boly's Iron Works, and
Anthracite Plate Glass Co., are employers engaged in
commerce, or in an industry affecting commerce within the
meaning of Section 8(b)(4)(B) of the Act.
3. The Respondent, Local 542, International Union of
Operating Engineers (AFL-CIO), is a labor organization
within the meaning of Sections 2(5) and 8(b) of the Act.
4. Robert Cahill and Ralph Schwartz are agents of
Respondent Local 542 within the meaning of Section 2(13)
and 8(b) of the Act.
5. By the acts and conduct set forth in section III,
above, the Respondents have engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER"
The Respondent, Local 542, International Union of
Operating Engineers (AFL-CIO), its agents Robert Cahill
and Ralph Schwartz, and its officers, agents, and repre-
sentatives , shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any
individual employed by Murray Walter, Inc., or any other
person engaged in commerce or an industry affecting
commerce with whom it has no primary labor dispute, to
engage in a strike or a refusal in the course of their
11 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
383
employment to use, 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 Murray Walter, Inc., or any other person engaged
in commerce or in an industry affecting commerce, to
cease doing business with Paddock Pool Builders, Inc.,
under circumstances prohibited by Section 8(b)(4)(B) of
the Act.
(b) Threatening, coercing, or restraining Murray Walter,
Inc., or any other person engaged in commerce or in an
industry affecting commerce with whom it has no primary
labor dispute, for the object described in the preceding
paragraph under circumstances prohibited by Section
8(b)(4)(B) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at the business office and meeting hall of
Respondent Local 542 copies of the attached notice
marked "Appendix." 12 Copies of said notice, on forms
provided by the Regional Director for Region 4, after
being duly signed by the Respondent Local 542's repre-
sentative, shall be posted by Respondents immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its members are customarily
posted. Reasonable steps shall be taken by the Respon-
dents to ensure that said notices are not altered , defaced,
or covered by any other material.
(b) Sign and furnish to the Regional Director for Region
4, sufficient signed copies of said notice for posting by
Paddock Pool Builders, Inc., and Murray Walter, Inc., if
willing, at places where notices to their employees are
customarily posted.
(c) Notify the Regional Director for Region 4, in writing,
within 20 days of the receipt of this Order, what steps have
been taken by the Respondents to comply herewith.
12 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 "