Local 825, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Jan 26, 1962

135 N.L.R.B. 578 (N.L.R.B. 1962)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PROPOSED SUPPLEMENTAL ORDER
As the Remedy and Order of the original Decision and Order of the
panel, as corrected, are not inconsistent with our findings herein, we
hereby adopt them as part of this Proposed Supplemental Decision
and Order, except that in paragraphs A, 2 (f), and BB, 2 (f), the figure
"20" shall be substituted for the figure "10."
MEMBER RODGERS , concurring :
I concur in the result solely on the basis of the Board's original
decision herein.
"The parties are hereby given 20 days from the date of this Oider to file exceptions to
this Proposed Supplemental Decision and Order, together with supporting briefs
Local 825, International Union of Operating Engineers, AFL-
CIO [R . G. Maupai Co., Inc. ] and Mechanical Contractors
Association of New Jersey, Inc. Case No. 02-CC-90. Janu-
ary 26, 1962
DECISION AND ORDER
On January 23, 1961, Trial Examiner John F. Funke issued his
Intermediate Report herein, funding that Respondent had not engaged
in certain unfair labor practices alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the Intermediate Report attached hereto. Thereafter, the General
Counsel and the Charging Party filed exceptions to the Intermediate
Report together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the exceptions of the General Counsel
and the-Charging Party.
The complaint alleged that the Respondent Union violated Section
8 (b) (4) (i) and (ii) (B) of the Act by inducing and encouraging
employees of Henry Ernst, Jr., and John Ochs, subcontractors of
R. G. Maupai, Inc., to strike, and by refusing to refer men to work for
Ernst and Ochs, all for the purpose of forcing Ernst and Ochs to
cease doing business with Maupai, and to force Maupai to recognize
the Respondent Union.
The Trial Examiner recommended that the complaint be dismissed
in its entirety, because he found that Respondent was not responsible
135 NLRB No. 62.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 579
for the initiation of the work stoppage by the employees of Ernst and
Ochs, which began on July 8, 1960. Although we adopt the finding
that the Respondent did not initiate the strike because it is based on
credibility findings in which the Trial Examiner accepted as true the
testimony of some of the employees that they quit work of their own
volition, we do not agree that the complaint should be dismissed.
The evidence establishes that the Respondent had demanded, shortly
before the work stoppage occurred, that Maupai hire and assign one
of its members to the operation of a welding machine on the jobsite in
question. Maupai refused, on the ground that its contract with the
Plumbers and Pipefitters Union precluded its doing so. It also ap-
pears that during the continuance of the work stoppage, Respondent's
agent, Pierson, persisted in demanding that Maupai sign a contract
with the Respondent. On July 8, after the work stoppage occurred,
and after it became certain that the employees who had quit work
could not be persuaded to return to work, Ernst called the Respond-
ent's offices and requested that men be referred by Respondent to work
for Ernst and Ochs. The Respondent refused to refer any men to the
job until Maupai signed a contract.
Both Ernst and Ochs had contracts with the Respondent, under
which they were required to call upon the Respondent for needed
workmen, and Respondent was obliged to supply workmen. Ernst
and Ochs customarily secured all their employees through the Re-
spondent. The employee who quit on July 8 had been referred to work
for Ernst and Ochs, at the request of Ernst. On a number of occa-
sions after July 8, Ernst made additional requests of Respondent for
men to work on the jobsite in question, all of which were refused by
Respondent.
We therefore find that Respondent, although obligated by contract
to do so, refused to refer members of the Respondent for employment
by Ernst and Ochs; that objects of such refusal were to force Ernst
and Ochs to cease doing business with Maupai, in order to force
Maupai to recognize and bargain with the Respondent, and that by
such conduct, Respondent violated Section 8(b) (4) (ii) (B) of the
Act.'
THE REMEDY
Having found , contrary to the Trial Examiner, that Respondent
violated Section 8 (b) (4) (ii) (B) of the Act , we shall order it to cease
and desist from the practices herein described , and take certain affirma-
tive action which the Board finds will effectuate the policies of the
Act.
' See Local 756, International Brotherhood of Electrical Workers , AFL-CIO, et al.
(The Martin Company), 131 NLRB 1010. See also, Legislative History of the Labor-
Management Reporting and Disclosure Act of 1959, pp 1194 ( 1) and 1581(1-2).
580 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD`
. Upon the basis of the foregoing and the entire record, the Board
rejects the Trial Examiner's Conclusion of Law numbered 3 and makes
the following :
CONCLUSIONS OF LAW
1. Respondent, by refusing to refer workmen on request, with an
object of forcing Ernst and Ochs to cease doing business with Maupai
because Maupai did not have a contract with Respondent, has engaged
in unfair labor practices within the meaning of Section 8(b) (4) (ii)
(B) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Local 825, Interna-
tional Union of Operating Engineers, AFL-CIO, its officers, repre-
sentatives, agents, successors, and assigns, shall :
1. Cease and desist from refusing to refer individuals for employ-
ment to Henry Ernst, Jr., and John Ochs in order to force Henry
Ernst, Jr., or John Ochs to cease doing business with R. G. Maupai
Co., Inc., in order to force R. G. Maupai to recognize and bargain with
the Respondent Union, unless the Respondent has been certified as
the representative of the employees of R. G. Maupai Co., Inc.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent's business offices,
meeting halls, and in all other places where notices to members are
customarily posted, copies of the notice attached hereto marked "Ap-
pendix."' Copies of said notice, to be furnished by the Regional Di-
rector for the Twenty-second Region, shall, after they have been
signed by the Respondent's authorized representative, be posted by it
for 60 consecutive days. Reasonable steps shall be taken to insure that
such notices are not altered, defaced, or covered by any other material.
(b) Notify the aforesaid Regional Director, in writing, within 1d
days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges violations of the Act other than those
found herein.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
LOCAL 825, INT 'L UNION OF OPERATING ENGINEERS 581
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 825, INTERNATIONAL
UNION OF OPERATING ENGINEERS , AFL-CIO
Pursuant to a Decision and Order 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 refuse to refer individuals for employment to
Henry Ernst, Jr., and John Ochs in order to force Henry Ernst,
.Jr., or John Ochs to cease doing business with R. G. Maupai Co.,
Inc., in order to force R. G. Maupai to recognize and bargain with
Local 825, unless Local 825 has been certified as the representa-
tive of the employees of R. G. Maupai Co., Inc.
LOCAL 825 , INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated--------------- - By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional
Office , 614 National Newark Bldg., 744 Broad St., Newark, New
Jersey; Telephone Number Market 4-6151 , if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented , came on to be heard before me on
October 18, November 12, and December 21, 1960 , at Newark, New Jersey, on the
complaint of the General Counsel and the answer of Local 825, International Union
of Operating Engineers , herein called Local 825 or the Respondent.
The complaint alleges that the Respondent Union , through its agents, induced and
encouraged employees of Henry Ernst , Jr., and John Ochs to engage in a strike or re-
fusal to perform services , etc., for their employers and threatened , coerced , and re-
strained Ernst, Ochs, and the Elizabeth Housing Authority 1 and that the objects
of said inducement , encouragement , threats, coercion , and restraint were to force
Elizabeth Housing Authority , Ernst, Ochs, and other persons to cease doing business
with R . G. Maupai Co., and to force Maupai Co . to bargain with Respondent as
the representative of its employees notwithstanding Respondent has not been certified
as such representative . The complaint alleges that by these acts the Respondent
violated the provisions of Section 8(b) (4) (i ) and (ii) (B) of the Act.
The anwer denies the allegations.
At the opening of the hearing on October 18 the parties stipulated that the testi-
mony in John I. Cuneo v. Local 825, International Union of Operating Engineers
in the District Court of the United States for the District of New Jersey would be
the same as contained in the transcript of that proceeding if the witnesses were called
' At the end of the hearing the Trial Examiner granted Respondent 's motion to dismiss
the allegation that Elizabeth Housing Authority was threatened , restrained , or coerced
within the meaning of Section 8 ( b) (4) (ii ) (B) on the ground that no evidence of such
threats, restraint , or coercion against the Authority was introduced by the General Counsel.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the instant case. By its terms the stipulation excluded all remarks and argu-
ments of counsel and all remarks and findings of the District Judge. It was further
stipulated that the hearing would be adjourned until November 18 with the right
to any party to reopen the hearing and call witnesses. The General Counsel re-
opened the hearing on November 18 and called witnesses and Respondent called
witnesses on December 21. The parties were given until January 13 to file briefs.
No briefs were received.
Upon the aforesaid stipulation and my observation of the witnesses and upon the
entire record, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
R. G. Maupai Co., Inc., is a New Jersey corporation engaged in the manufacture,
sale, distribution, and installation of heating systems, air conditioning systems, pip-
ing, plumbing, and related products. During the year ending June 30, 1960, Maupai
Co. caused to be purchased and delivered to its place of business in New Jersey goods
and materials valued in excess of $400,000 of which more than $200,000 were trans-
ported from outside the State of New Jersey.
John Ochs, herein called Ochs, is an individual engaged as a building contractor
at Livingston, New Jersey. During the past year Ochs caused to be purchased and
delivered to his Livingston place of business goods and materials valued in excess
of $50,000 from places outside the State of New Jersey.
Henry Ernst, Jr., herein called Ernst, is an individual engaged in business as an
excavating contractor at Caldwell, New Jersey.
Maupai Co. and Ochs are engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The complaint does not allege and I do not find that Ernst is engaged in commerce
within the meaning of Section 2(6) and (7).
II. LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
In June 1959, Maupai Co. contracted with the Housing Authority of the city of
Elizabeth, New Jersey, to install the heating system at an apartment house develop-
ment grandiloquently known as the Captain Nicholas Migliore Manor Project, herein
called the Manor. It commenced work on the project in September 1959, and in the
course of its operations it used a gas-driven electric welding machine. Since Maupai
Co., as a member of the Mechanical Contractors Association, was a party to a
collective-bargaining contract with the United Association of Pipefitters and Ap-
prentices, Local 475, herein called the Pipefitters, this machine was operated by a
welder who was a member of the Pipefitters when it was put to work at the Manor
in April 1960
In connection with its Manor contract Maupai subcontracted the excavation work
to Henry Ernst and Ernst in turn rented a crane or rig for use in excavating for the
installation of a 15,000-gallon fuel oil tank from John Ochs. Ochs, as a member
of a truckers association, had a contract with Local 825 and Ernst signed a contract
with Local 825 shortly before he rented the rig.
The excavation work was scheduled to start on July 6. On that day the rig was
delivered to the jobsite together with an operator, Zahn, and an oiler. Ochs testified
that the rig did not operate that day because the oiler's book with Local 825 was not
current and a substitute oiler could not be obtained. The rig operated July 7 with
Zahn and an oiler named Williams. On July 8 Zahn did not appear for work giving
as his reason, according to Ochs, the fact that there was a "dispute" and that he
(Zahn) had received a telephone call from Corrigan to report sick. Corrigan, like
Zahn, was not called as a witness but was identified as master mechanic for Arthur
Venieri, a general contractor, and as a member of Local 825. Since Zahn did not
appear the crane could not operate but on the morning of the 8th both Esposito, who
operated a backhoe machine for Ernst, and Williams, who could not work, refused
to work and it is this stoppage which is the source of complaint.
According to the testimony of Eugene Maupai, he received a telephone call from
Lakin, his foreman at Manor, on the morning of July 8 telling him the Ochs' rig
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 583
was not working. Maupai then called Jack Pierson , business agent of Local 825, but
was unable to reach him . Maupai then went to the jobsite with Kenneth Smith, his
estimator, where he met a group consisting of Arthur Venieri, Ernst , Corrigan, Wil-
liams, and Esposito who, like Williams, was a member of Local 825. Maupai asked
why the Ernst and Ochs rigs were not working . Corrigan told him that Esposito and
Williams were not working because they had no agreement with Maupai. He also
told Maupai that "we want a man on the welding machine" and Maupai replied that
the job belonged to the steamlitters and that he was not going to put an engineer on
the machine. Maupai told Ernst to start digging but both Esposito and Williams re-
fused to work when ordered to by Ernst and they were paid off by Ernst. Maupai's
testimony is corroborated by Smith.
Ernst, who was at the jobsite before Maupai and Smith arrived , testified that both
Esposito and Williams told him that morning that they "did not care to work."
Ernst , whose testimony is not too clear, then went to see Corrigan who told him
that the men did not care to work because there was no agreement with Maupai.
When Ernst asked the men if this was true they said it was. Corrigan told Ernst
he had no authority to tell the men to go to work. Ernst told Esposito that he was
working for him and not for Maupai Co . and testified that Esposito told him he
would be blackballed by the Union if he worked. Ernst thought that Esposito said
that he was told this by Corrigan. Ernst also corroborated Maupai's version of
the conversations at the jobsite when Maupai arrived . Ernst later called the union
hall for men but was unable to get any and was told by one dispatcher that he did
not know the men were not working at the Manor.
The two witnesses who knew best why they did not work, Esposito and Williams,
were called by the Respondent in both the district court proceedings and at the
hearing herein . Williams, whose testimony likewise was not free from ambiguity,
stated that he was sent to the Manor by the dispatcher at Local 825 on July 7 and
told to report to Maupai. (It was Ernst, however, who asked for an oiler.) Once
on the job he asked Zahn for whom he was working . His testimony as to the answer
varies since at the district court he testified that Zahn told him he (Zahn) was
working for Ochs but that Williams was working for Ernst. At the hearing he
testified that Zahn told him he did not know for whom he (Williams) was working.
Williams did testify that he was concerned as to whether or not payments would be
made to the pension and welfare fund on his behalf because his wife was expectant
at the time. He learned on that day that Maupai did not have a contract with Local
825 so he knew Maupai would not make the payments . After quitting time that
night Williams called Local 825 and was told that neither Ernst nor Ochs had made
any payments to the fund? The next day, July 8, Williams, who could not work
without an operator in any event , told Esposito he was not going to work. He re-
fused to work when Ernst told him to work and also refused to work when Maupai
ordered him. (How either Ernst or Maupai expected him to work without an
operator is not explained .) Williams asked Maupai if he recognized Local 825 and
when Maupai told him he did not he said he would not recognize Maupai. Williams
denied that any union delegate or representative told him to stop work and also
testified that at the hearing in the Federal Courthouse Pierson asked him to go back
to work and he refused.
Esposito was employed by Ernst as operator of a backhoe machine. He worked
at the Manor site 1 week in June, was laid off , returned to work in July and had
been working about 10 days prior to July 8. Ernst testified that he did not work
on July 8 because "the rumor was they didn't sign no agreement with the union
which wasn't covered by the Welfare fund." Esposito stated Ernst told him that
he had signed a contract with Local 825 but that Corrigan told him that he (Corri-
gan) did not know anything about it 3 Corrigan also told him that Maupai Co.
did not have a contract with Local 825 and asked him to check the books of the
operator and the oiler of the Ochs rig when it arrived. (According to the testimony
Corrigan checked the books himself.) Esposito denied that he had talked to any
representative of Local 825 or anyone else (except Williams) about stopping work-
he stopped, he testified, of his own free will and because of his concern about pension
payments. He specifically denied that Corrigan told him to stop work or that he
told Ernst that he would be blackballed by the Union if he worked or that he had
been told this by Corrigan.
2 Ernst subsequently forwarded at least one check to the fund. This was on August 1
and was in the amount of $10.40. Pierson testified that Ochs was delinquent in his
payments
8 Other testimony indicates Ernst did sign a contract with Local 825 but that the
Union, for reasons not disclosed , did not sign it
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This summarizes the testimony relating to the jobsite conversations on July 8.
On the afternoon of July 8 Maupai talked to Pierson on the telephone. He
.asked Pierson why the men had been taken off and, according to Maupai, Pierson
told him the men quit because Maupai had no agreement with Local 825 and that
the men would not work until there was an agreement . As a result of a meeting
that same day between Pierson and Ernst, Pierson agreed to meet with Maupai. A
meeting was held at the Newark Airport on July 25 when Maupai and Smith met
with Pierson and a person identified only as Mr. Nabraga. The purpose of the
meeting was to get the men back to work. Pierson iterated that the men would go
back if a contract was signed between Maupai Co. and Local 825 but that otherwise
they were afraid their pension and welfare plan was jeopardized. Maupai refused
to sign an agreement but offered to guarantee the pension and welfare payments.
Pierson then asked that the charges be withdrawn and Maupai requested assurance
that the same dispute would not occur on the next job. Pierson testified that Maupai
said he could not withdraw the charges because they had been filed by the Mechani-
cal Contractors Association. The meeting ended with no agreement reached.
Following the meeting at the airport no further meetings were held except for
efforts to settle the case prior to the district court proceedings. The Trial Examiner
struck testimony which pertained to these negotiations on the ground that the
interests of the Board would best be served if all statements made and action taken
pursuant to a settlement agreement or efforts to reach such agreement were
privileged.4
B. Conclusions-
, Much of the testimony in this case'is obscure, confused, contradictory, and, on
some vital issues, meager to a point approaching absence. From such an olio
decision must nevertheless be reached.
Certain preliminary findings must be made before reaching the chief issues-the
inducements of employees and the threats to employers. On the basis of testimony
which could be more complete I find that both Esposito and Williams were em-
ployees of Ernst. While the General Counsel contended that Williams was employed
by Ochs that contention finds no support in the record. Both Ernst and Ochs testified
that the rig was rented by Ernst and although Ochs testified that Zahn, the operator,
was his employee he made no such statement with respect to the oiler. Williams,
the oiler, was sent directly to the jobsite by Local 825 and told to report to Maupai
Co., although Ernst testified that he called the hall and asked that an oiler be sent.
Williams himself appears to have been unsure for whom he was working since he
asked that question of Zahn. While Zahn's reply was not binding upon any employer
it is evident that Zahn knew Williams was not employed by Ochs and Zahn must
have been familiar with the practices with respect to oilers when the rig was rented
out. It is the testimony of Ernst, however, which I find controlling and he testified
that he hired Esposito and that later on he hired Williams. There is the further
evidence that Ernst ordered both Esposito and Williams to go to work on July 8
and, when they refused, Ernst paid both of them off.
This finding leaves Zahn as the sole employee of Ochs at the jobsite but there is
no competent evidence to support the charge that he was induced or encouraged
to quit work by the Respondent. The only evidence in this respect is the hearsay testi-
mony of Ochs as to what Zahn told him he was told by Corrigan, which I reject .5
Insofar as the complaint alleges that employees of Ochs were induced or encouraged
to engage in a strike or refusal to work in violation of Section 8(b) (4) (i) (B) I
shall recommend dismissal.
Again as to Ochs, there is not an iota of evidence that he was threatened by any
representative of Local 825 at any time. Ochs testified to only one conversation, his
conversation with Zahn who was and is his employee and who made no threat at
all. I shall recommend dismissal of the complaint insofar as it alleges that Ochs
was threatened, coerced, or restrained by Respondent within the meaning of Section
8(b) (4) (ii) (B).
Ernst, then, is the surviving employer with respect to whom a violation might be
found. At the hearing I pointed out that the complaint did not allege either that
Ernst was engaged in commerce within the meaning of the Act or that he was en-
gaged in an industry affecting commerce. It may be that this defect in pleading is
4 The transcript is in error in referring to the lines which were stricken. The Trial
Examiner struck all of the testimony of Maupat beginning on line 9, page 35 and ending
on line 24, page 37. The transcript stated line 9, page 35 through line 24, page 27
6 See Los Angeles Building and Construction Trades Council, A F.L, et at. (Weeting-
house Electric Corporation), 94 NLRB 415
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 585
fatal and that the complaint , as to inducement of employees of Ernst and as to
,threats to Ernst , may be dismissed on that ground .6 The case, however, may be
more simply disposed of on the merits, thus saving time, which is of the essence.
Again with respect to the 8(b ) ( 4) (i) (B) allegation I find a total deficiency of
evidence to support the charge . Ernst had only one conversation with Pierson after
the work stoppage and his testimony is that Pierson asked him not to run the rig
until the "matter" was straightened out with Maupai . I am unwilling to equate that
simple request with threat , coercion , or restraint within the meaning of the Act. As-
suming, arguendo, that the General Counsel is correct in his contention that Corrigan
had authority to act as agent for Local 825, there is no evidence that Corrigan
made any threat to Ernst or to anyone in this proceeding . When Esposito and
Williams refused to work on July 8 Ernst asked Corrigan why they were not work-
ing. Corrigan volunteered the information , corroborated by the men themselves,
that they did not care to work because there was no contract with Maupai. Cor-
rigan also told Ernst that he had no authority to tell the men to go to work. Again
there is neither a threat nor restraint and coercion . I shall recommend that the
complaint be dismissed insofar as it alleges violation of Section 8(b) (4) (ii) (B) by
Respondent.
The lone allegation remaining is that Respondent induced or encouraged the
employees of Ernst to strike or refuse to perform services on July 8 for an object
proscribed by the Act. The testimony of the employees , which I credit in substance,
is exactly to the contrary . Both testified that they were unwilling to work because
they were concerned about their pension and welfare funds since Maupai Co. had
no contract with Local 825. This concern is borne out by the conduct of Williams.
on July 7, his first day on the job. He had , according to his testimony , been told
at the hall to report to Maupai Co. He learned from Zahn when he reported that
he was not working for Ochs. He also learned that Maupai Co. had no contract
so that he was not protected if Maupai was his employer . He called the hall after
work and learned that Ernst had made no payments to the fund . Whether or not
he communicated this knowledge to Esposito the next day is speculative but since
they were the only two members employed by Ernst and since they both refused
to work and gave the same reason it is not unreasonable to assume that he did. In
any event both testified that they were not told to stop work by any representative
of Local 825 . I credit this testimony. While there is the testimony of Ernst that
Esposito told him that he would be blackballed by the Union if he worked I find it
unnecessary to resolve this issue of credibility . (Esposito denied making the state-
ment.) This testimony is, like Ochs ' testimony as to what Zahn told him Corrigan
had said , hearsay and inadmissible . ( In view of the ambiguity of the testimony I
do not credit the statement of Ernst that Esposito said he was told this by Corrigan.)
I likewise credit the testimony of Williams that he was asked by Pierson to return
to work after the stoppage and that he refused.
In further support of the evidence that the refusal to work was voluntary I accept
and credit the testimony of Pierson and Weber, the only representatives of Local
825 who were called in this proceeding , that they not only did not call the work
stoppage but that they did not know of it until after it occurred . I agree that there
is evidence that Local 825 had claimed the right to have an operating engineer on
the gas welding machine prior to July 8 but the assertions of this claim, which were
unaccompanied by any threats, were unrelated in either time or circumstance to
the work stoppage .? There is nothing in the testimony of either Esposito or Williams
to indicate that they were aware of this tentative dispute . While this dispute was
mentioned by Corrigan on July 8 after the stoppage it was not suggested as a reason
why the men refused to work. Again at the meeting at Newark Airport Pierson told
Maupai that the men were unwilling to work because they felt their pension and
6 See the analysis of this question in the Intermediate Report of Trial Examiner Royster
in United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting
Industry of the United States and Canada, Local 575, AFL-CIO (Boulder Master
Plumbers Association), 132 NLRB 1355. Cf. Trial Examiner Somers' Intermediate
Report in Local Union 825, International Union of Operating Engineers, AFL-CIO
(Carlton Brothers Company), 131 NLRB 452
7 Arthur Lakin, Maupai Co 's foreman at Manor, testified that in April 1960 he had a
conversation with Arthur Hayes, shop steward for Local 825, in which Hayes demanded
that an operating engineer run the welding machine. When Lakin told him they did not
need an engineer Hayes replied that they "wouldn't fight over it, they would leave it to
the delegates." Smith, Maupai Co.'s estimator, testified that on or about May 5, 1960,
he received a call from Pierson in which Pierson said he wanted an engineer on the
welding machine and would call later. (There is no record of such a call )
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-welfare funds were in jeopardy and when Maupai offered to guarantee the payments
agreement failed because Pierson 's request for a withdrawal of the charge was
countered by Maupai 's request for assurance against a work stoppage on the next job.
I therefore find that Local 825 neither caused the work stoppage at the Manor on
July 8 by inducing or encouraging Esposito and Williams to refuse to perform serv-
ices nor that it induced or encouraged them to continue to refuse to perform any
services . To make either finding I would have to reject in toto the testimony of
Esposito , Williams, and Pierson , not on the ground that it is contradicted by other
testimony or by inconsistent independent evidence but on the ground that, as mem-
bers and officers of a labor organization , their testimony is unworthy of belief. My
rejection of that proposition is utter.
I find no evidence to support the allegation that Respondent induced or en-
couraged any employee of Ernst to engage in a strike or a refusal to perform any
services in violation of Section 8(b) (4) (I ) (B) of the Act.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
2. R. G. Maupai Co., Inc., and John Ochs are employers engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
3. Respondent has not induced or encouraged any individual employed by any
person engaged in commerce or in any industry affecting commerce to engage in a
strike or a refusal to perform any services nor has Respondent threatened, coerced,
or restrained any person engaged in commerce or in an industry affecting commerce,
in either case, for an object proscribed by or in violation of Section 8(b) (4) (i) and
(ii) (B) of the Act.
[Recommendations omitted from publication.]
Edward H . McLaughlin , McLaughlin Industrial Distributors,
Inc., Contract Builders Hardware , Inc., and Union Hardware
& Metal Company, all formerly Union Hardware & Metal
Company and Warehouse , Processing & Distribution Work-
ers' Union , Local 26. Case No. 21-CA-4?54. January 26, 1962
DECISION AND ORDER
On October 16, 1961, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in unfair labor prac-
tices and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. Thereafter the Respondents, the General Counsel, and
the Union filed exceptions to the Intermediate Report and briefs in
support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions, the briefs, and the entire record 1
1 The Respondents ' request for oral argument Is hereby denied as the record, Including
the exceptions and briefs , adequately presents the issues and positions of the parties.
135 NLRB No. 60.