Local 825, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Sep 13, 1962

138 N.L.R.B. 540 (N.L.R.B. 1962)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tity through which the Employer conducts its business operations, and
therefore is inherently appropriate for purposes of collective bargain-
ing.5 Therefore, as the Petitioner in these cases is requesting single
district office units at the Employer's offices located in McKeesport and
Wilkinsburg, Pennsylvania, we find that separate units of employees
at these two offices constitute units appropriate for collective-bargain-
ing purposes. -
Accordingly, we shall direct separate elections at the Employer's
McKeesport and Wilkinsburg, Pennsylvania, offices among the follow-
ing employees of the Employer :
All debit insurance district agents, excluding plant clerical and
office clerical employees, inspectors, managers, assistant managers,
guards, professional employees and all supervisors as defined in the
Act.
[Text of Direction of Elections omitted from publication.]
MEMBERs RODoERs and LEEDOM, dissenting :
For the reasons stated` in our dissenting opinion in Quaker City
Life Insurance Company, 134 NLRB 960, we would find the units
sought inappropriate and dismiss the petition.
s Metropolitan Life Insurance Company, 138 NLRB 512
Local Union 825, International Union of Operating Engineers,
AFL-CIO and Nichols Electric Company. Case No. 22-CC-127.
September 13, 1962
DECISION AND ORDER
On January 12, 1962, Trial Examiner John F. Funke issued his In-
termediate Report in the above-entitled proceeding, finding that Re-
spondent had not violated Section 8(b) (4) (B) as alleged in the com-
plaint, and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel filed exceptions with a supporting brief. The
Board' has reviewed the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in this case
and finds merit in the General Counsel's exceptions. Accordingly, the
Board adopts the findings of the Trial Examiner only to the extent
consistent with this Decision and Order.
'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 [ Chairman McCulloch and
Members Rodgers and Leedom].
138 NLRB No. 65.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 541
The facts are not in dispute. At all times material herein the State
of New Jersey maintained a contract with Elmhurst Contracting
Company, herein called Elmhurst, for the construction of a reservoir-
in Clinton, New Jersey. Elmhurst subcontracted excavation work to-
Selby Drilling Company, herein called Selby, which in turn subcon-
tracted the construction of certain electrical transmission lines to the,
Charging Party, herein called Nichols. Selby and Elmhurst each had
a collective-bargaining agreement with the Respondent, which con-
tained the following clauses :
This agreement shall bind all subcontractors while working
for an Employer who is a party to this Agreement. Any Em-
ployer who sublets any of his work must sublet the same subject,
to all terms and conditions of this Agreement.
... Shop Steward shall have access to the superintendent on
the job at all times for the purpose of enforcing this Agreement.
On the morning of May 3, 1961, Albert O'Brien, a Nichols foreman,
went to the jobsite with a crew of six men to dig post holes for the
setting of transmission poles. Nichols had a collective-bargaining
agreement with Local 262, IBEW, and its crew included members of
that union. As soon as the crew began to dig a hole with a power-
driven auger mounted at the rear of the Nichols' line truck, Joseph
Le Pore, an employee of Selby and a member of the Operating Engi-
neers, approached the truck and requested to see the union card of the
auger operator. Upon ascertaining that the latter did not possess an
"Operating Engineers" card, Le Pore immediately reported that fact
to Gatti, the Engineers' shop steward? Gatti then informed O'Brien
it was the Operating Engineers' job to run the auger. O'Brien and
Gatti then spoke to Yanuzzi, known also as Bates, the head mechanic
on the job, who showed O'Brien the contract between Selby and Re-
spondent and stated that the operation of the auger was work which
belonged to Respondent under this agreement. A number of em-
ployees of Selby and Elmhurst, members of Respondent, meanwhile
gathered in the vicinity of the Nichols truck. Bates then telephoned
Respondent's business agent to have two operating engineers sent out
to the site. O'Brien telephoned his business agent, Schaeffer, and
Schaeffer informed O'Brien that the work in dispute properly be-
longed to the IBEW men. Hence, when the two engineers summoned
by Bates arrived, O'Brien refused their services.
O'Brien then went to see Kangas, Selby's superintendent at the site,
and advised him of the dispute over the operation of the machine.
Kangas testified that at this time he could see from a distance a number
2 As shop steward for the Respondent , Gatti had met frequently with officials of Selby
and Elmhurst to discuss alleged violations of Respondent 's collective-bargaining agree-
ment , job safety factors, and the welfare of Respondent ' s members in the project.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of men gathered around the Nichols truck. Since he and O'Brien
agreed that no progress was being made with the auger they discussed
the possibility of digging the holes manually. O'Brien took no fur-
ther action, however, but returned to his truck and removed both
truck and crew for the remainder of the day.
About 8:30 a.m. on May 9, O'Brien and his crew returned to the
site with the line truck and again commenced drilling operations with
the auger. Either Gatti or Bates then asked O'Brien if he intended
to use the power-driven auger. When O'Brien replied in the affirma-
tive, members of Respondent who were employees of Selby or Elm-
hurst were called from their own work stations, some 100 to 500 feet
away from the Nichols crew, and gathered around the auger truck.
Gatti told these individuals that the Nichols crew was taking the bread
out of their mouths and ordered them to stand around the machine so
that it could not operate. Gatti and Bates again told O'Brien that
he must have members of Operating Engineers to work the power-
driven auger. Bates and Gatti also made reference to the contract
between Local 825 and Respondent, which required, they said, that
the work be performed by Respondent's members in the event of snb-
-contracting. O'Brien contacted Kangas, who attempted to talk the
matter over with Gatti. Gatti, however, avoided Kangas. Kangas,
therefore, repeated his previous suggestion to O'Brien that the holes
.ie -dug manually. The employees of Selby and Elmhurst remained
standing around the machine until 3 p.m. that day when O'Brien told
his crew to go home. Either the next day or shortly thereafter
0'Brieii returned with his crew and completed the job manually with-
out further interference from Respondent or its members.
On these facts the Trial Examiner concluded that there was no
evidence that Bates or Gatti had the authority to act for the Respond-
ent, or that Respondent induced any employee of Selby or Elmhurst
to stop work with an object of forcing Selby or Elmhurst to cease
doing business with Nichols. The Trial Examiner further found
that there was no evidence that Respondent threatened, coerced, or
restrained Selby or Elmhurst for such an objective.
In his exceptions and brief, the General Counsel urges that Gatti
is the agent of Respondent, and that Respondent through Gatti caused
a strike of the employees of Elmhurst and Selby and threatened and
coerced these two employers with an object of forcing them to cease
doing business with Nichols.
We agree with the General Counsel. Under Respondent's con-
tracts, Gatti, as shop steward, was authorized to have access to the
superintendent of each of these employers for the purpose of enforc-
ing the collective-bargaining agreement. In fact, Gatti frequently
did contact officials of these employers for this purpose. As soon as
the dispute arose at the site on May 3, Gatti was summoned to handle
LOCAL 82.5, INT'L UNION OIF OPERATING ENGINEERS 543
the matter by Le Pore, an employee of Selby and one of Respondent's
members. On May 9, Respondent's members obeyed, without ques-
tion, Gatti's instructions to stand around the Nichols truck. Thus,
it is clear that Gatti was looked upon by both employers and employ-
ees at the site as the agent of the Respondent and that he did, in fact,
act in Respondent's behalf in accordance with Respondent's contract.
Accordingly, we conclude that he was an agent of Respondent and
that Respondent is responsible for his actions.'
Gatti's instructions to Respondent's members to stand around the
Nichols truck away from their .assigned work stations with Selby
and Elmhurst was clearly inducement or encouragement to engage in
a work stoppage or strike. The resultant work stoppage by its very
nature threatened, restrained, and coerced Selby and Elmhurst within
the meaning of Section 8 (b) (4) (ii) of the Act .4
Although there was no explicit demand by Respondent upon Selby
or Elmhurst that either employer cease doing business with Nichols,,
we believe that all the surrounding circumstances establish that this
was an object of Respondent in causing the work stoppages. The
initial efforts of Gatti and Bates on May 3 were directed toward
persuading O'Brien to hire- Respondent's members to operate the
auger. However, when O'Brien refused to hire the engineers referred
by Respondent at the request of Bates, it was made clear to Respond-
ent that Nichols would only continue to operate the auger with its
own employees, who were members of the IBEW. Respondent's
members, on May 3, therefore continued to stand around in the,
vicinity of the Nichols truck until it left the project. Respondent's,
members,. at the behest of Gatti, also engaged in a work stoppage on
May 9 at the appearance of the Nichols truck and crew and did not
return to their work stations on that date until the truck and crew
departed. Thus, Selby and Elmhurst, in order to keep their employ-
ees at work, were faced with the choice of ceasing to do business with
Nichols or having the work done in some other manner. Although the
Nrork was finally accomplished manually by Nichols at the request of
Selby's superintendent, Kangas, there is no indication that Respond-
ent suggested this or any other alternative. We conclude, then, that
an object of the strike was to force Selby and Elmhurst to cease doing
business with Nichols. Even assuming, arguendo, that Respondent
merely intended by its strike to force Selby and Elmhurst to require-
Nichols to change its method of operation, this in itself would have
disrupted or seriously curtailed the existing business relationship
between Nichols and these two other contractors, which would have-
'Local Union 522, Lumber Drivers, Warehousemen ,& Handlers, International Bother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers of America (Mach Lumber Com-
pany ), 120 NLRB 297, 304
*Local Union 825, International Brotherhood of Operating Enginee,s , AFL--CIO, (Carle-
ton Brothers Company ), 131 NLRB 452, 453.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been tantamount to causing the latter employers to cease doing busi-
ness with Nichols.'
Our conclusion as to the existence of an unlawful objective is also
buttressed by other actions of Respondent. In urging Respondent's
entitlement to the work, Gatti and Bates on May 3 and 9 made refer-
ence to Respondent's contracts with Selby and Elmhurst. In its brief
to the U.S. district court in the related 10(l) injunction proceeding,6
Respondent frankly admitted that the strikes were in protest of the
failure of Selby and Elmhurst to honor their agreements with
Respondent. As noted above, both agreements required that where
the employer sublet any of its work it had to sublet it subject to all
the terms and conditions of the agreement. These included recog-
nition of Respondent for work falling within its claimed jurisdiction
and the payment of prescribed wage rates for each engineer classifi-
cation. Hence, these agreements required, in effect, that Selby and
Elmhurst cease doing business with any employer performing work
falling in that jurisdiction which did not recognize the Respondent
or did not pay wages at the rate specified. Although an agreement
,of this type may be lawful under Section 8(e) of the Act in the
Construction industry, a strike to enforce such an agreement-a strike
to require Selby and Elmhurst to cease doing business with Nichols-
is an unfair labor practice within the meaning of Section 8 (b) (4) (B)
of the Act'
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The conduct of the Respondent set forth above, occurring in con-
nection with the operations of Selby, Elmhurst, and Nichols as set
forth in section I of the Intermediate Report, has a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and tends to lead to labor disputes burdening and
obstructing the free flow of commerce.
THE REMEDY
As we have found that the Respondent has engaged in unfair labor
practices in violation of Section 8(b) (4) (i) and (ii) (B) of the Act,
we shall order that it cease and desist therefrom and take certain
affirmative action to remedy the unfair labor practices and otherwise
effectuate the policies of the Act.
s Local 1066 , International Longshoremen's Association, AFL-CIO, at al. (Wiggin Ter-
minals, Inc ), 137 NLRB 45 (Members Fanning and Brown dissenting ). New York Mailers'
Union No. 6, International Typographical Union , AFL-CIO ( The Publishers Association
,of New York City ), 136 NLRB 196.
"John J. Cuneo v. Local No. 855, International Union of Operating Engineers, Civil
No. 435-61 , U.S. District Court , N.J., affd . 300 F. 2d 832 (CA. 3).
7 Construction , Production & Maintenance Laborers Union Local 383, AFL-CIO, at al.
,( Colson and Stevens Construction Co., Inc ), 137 NLRB 1,650.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 545
In its brief, the General Counsel contended that, because of the
nature of the violation involved, and because of the Respondent
Union's demonstrated disregard of the Act by engaging in secondary
boycott activities against persons with whom it develops disputes,'
a- broad order against it was necessary in order to prevent it from
continuing, with impunity, to violate the secondary boycott provi-
sions of the Act. We agree that an order against Respondent to
cease and desist from secondary activity against any person' in order
to force such person to cease doing business with Nichols Electric
Company or with other primary employers, not limited to those named
in the Order, is necessary because of the extent to which Respondent
has deliberately engaged in unlawful secondary activity in further-
ance of its dispute with these and other primary employers.lo
CONCLUSIONS OF LAW
1. Nichols, Selby, and Elmhurst are engaged in commerce within
the meaning of the Act.
2. Respondent and Local 262, IBEW, are labor organizations within
the meaning of the Act.
3. Respondent, by causing work stoppages with an object of forc-
ing Selby and Elmhurst to cease doing business with Nichols, has
engaged in unfair labor practices within the meaning of 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. '
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Union, Local
Union 825, International Union of Operating Engineers, AFL-CIO,
its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in or inducing or encouraging any individual em-
ployed by Selby Drilling Company or Elmhurst Contracting Com-
pany or by any other employer to engage in a strike or a refusal in
8 Local 825, International Union of Operating Engineers, AFL-CIO (R G. Maupai Co,
Inc.), 135 NLRB 578; Local 825, International Union of Operating Engineers (Warren
George Inc) (Case No. 22-CC-99, not published) ; Local 825, International Union of
Operating Engineers, AFL-CIO, et of (United Engineers & Constructors Inc ), 138 NLRB
279 Local tin iv 82i. fnteinational Brotherhood of Opeiatinq Engineers. M.-CIO
(Carleton Brothers Company), supra.
8 W D Don Thomas Construction Co , 130 NLRB 1280
1elnternational Brotherhood of Teamsters, etc (Oveinite Transportation Company),
130 NLRB 1007; Local Union 522, Lumber Drivers, Warehousemen & Handlers, Inter-
national Brotherhood of Teamsters, etc (Republic Wire Corporation), 129 NLRB 376,
enfd 294 F. 2d 811 (C.A. 3) ; Brewery and Beer Distributor Drivers, etc. (Delaware
Valley Beer Distributor Association ), 125 NLRB 12, enfd . 281 F. 2d 319 (C.A. 3).
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services, where an object thereof is to
force or require Selby Drilling Company or Elmhurst Contracting
Company or any other employer or person to cease doing business with
Nichols Electric Company or any other employer or person.
(b) Threatening, coercing, and restraining Selby Drilling Company
or Elmhurst Contracting Company or any other employer where an
object thereof is to force or require Selby Drilling Company or Elm-
hurst Contracting Company or any other employer or person to cease
doing business with Nichols Electric Company or with any other em-
ployer or person.
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 all places where notices to members are customarily
posted, copies of the notice attached hereto marked "Appendix." "
Copies of said notice, to be furnished by the Regional Director for the
Twenty-second Region, shall, after being duly signed by the Respond-
ent's authorized representative, be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days
thereafter. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Twenty-second Region for posting, Selby Drilling
Company, Elmhurst Contracting Company, and Nichols Electric Com-
pany willing, at all locations where notices to their respective em-
ployees are customarily posted.
(c) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
n in 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."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 825, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO AND TO ALL EMPLOYEES OF ELM-
HURST CONTRACTING COMPANY, SELBY DRILLING COMPANY, AND
NICHOLS ELECTRIC COMPANY
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 :
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 547
WVE WILL NOT engage in, or Induce or encourage any individual
employed by Elmhurst Contracting Company or Selby Drilling
Company or any other employer to engage in, a strike or a refusal
in the course of his employment to use, manufacture, transport,
process, or otherwise handle or work on any goods, articles, mate-
rials , or commodities or to perform any services, nor will we
threaten, coerce, or restrain Elmhurst Contracting Company or
Selby Drilling Company or any other person where in either case
an object thereof is to force or require Elmhurst Contracting
Company or Selby Drilling Company or any other employer or
person to cease doing business with Nichols Electric Company or
any other employer or person.
LOCAL 825, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain-posted for 60 consecutive days from the
date, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 744 Broad Street, Newark 2, New Jersey, Telephone Number
Market 4-6151, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed May 15 , 1961 , by Nichols Electric Company , herein called
Nichols, the General Counsel issued a compalint on June 14, 1961, against Local
825, International Union of Operating Engineers , AFL-CIO, herein called Local 825
or the Respondent . The proceeding, with all parties represented , was heard before
Trial Examiner John F . Funke at Newark, New Jersey , on December 18, 1961,
upon said complaint and the answer of Respondent.
The complaint alleged that Local 825 induced and encouraged individuals
employed by Selby Drilling Company, herein called Selby, and Elmhurst Contract-
ing Company , herein called Elmhurst, to engage in a strike or refusal to perform
services for Selby and Elmhurst with an object of forcing and requiring Selby and
Elmhurst to cease doing business with Nichols . It further alleged that Local 825
threatened , coerced, and restrained Selby and Elmhurst by said inducement and
encouragement of their employees with the same object of forcing and requiring
Selby and Elmhurst to cease doing business with Nichols . Such conduct was alleged
to be in violation of Section 8(b)(4)(i ) and (ii )(B) of the Act.
Respondent 's answer denied such inducement , encouragement , threats , coercion,
and restraint and denied the commission of any unfair labor practices.
Decision was reserved on Respondent 's motion made at the conclusion of the
General Counsel 's case and renewed at the close of the hearing to dismiss the com-
plaint . The motion is disposed of in accordance with the recommendation herein
At the conclusion of the case the parties were given 20 days in which to file
briefs and counsel for Respondent submitted oral argument . No briefs were received
at the expiration of the filing date.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
662353-63-vo1 138--36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES
Nichols is a New Jersey corporation maintaining its office and principal place of
business in Chester, New Jersey. It is engaged in providing and performing electri-
cal line construction services as an electrical contractor in the building and con-
struction industry. During the fiscal year ending November 30, 1960, it purchased
and caused to be transferred and delivered to its places of business within the State
of New Jersey goods and materials from States other than the State of New Jersey
in a value in excess of $50,000.
Selby is a Nevada corporation having its office and principal place of business in
Boise, Idaho. It is engaged in drilling and excavating in the building and con-
struction industry and during the past year it has performed services in a value
exceeding $3,000,000 in States other than the State of Idaho.
. Elmhurst is a division of Hagan Industries, Inc., and is a New York corporation
having its office and principal place of business in New York City, New York. It
is engaged in the building and construction industry and during the past year
has performed services exceeding $50,000 in value in States other than the State
of New York.
The complaint alleges, the answer admits, and I find that Nichols, Selby, and
Elmhurst are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
During a period identified in the complaint as "at all times material herein," the
State of New Jersey maintained a contract with Elmhurst for the construction of a
reservoir known as the Spruce Run Reservoir in Clinton. Elmhurst subcontracted
certain excavation work to Selby which in turn subcontracted the construction of the
electrical lines to Nichols.
The facts are few and simple and in stating and evaluating them I shall rely
on the meager testimony of the General Counsel's witnesses.
Albert O'Brien, supervisor for Nichols, testified that on May 3, 1961, he went
to the jobsite with a crew of six men to start the digging of post holes and the setting
of the poles. Nichols had a collective-bargaining contract with Local 262, IBEW,
and the crew were members of Local 262. For the digging O'Brien brought a line
truck with an auger. When the boom was raised to start digging, an employee of
Selby and a member of Local 825, identified at Joseph LePore, came over to the ma-
chine and asked the driver, Kenneth Budd, for his "card." When LePore discovered
that the men operating the auger were not members of Local 825 he called Guido
Gatti, the shop steward for 825. According to O'Brien, Gatti told him it was the
"Operating Engineer's job to run the machine." O'Brien disagreed and was told to see
John Yanuzzi, referred to by the witnesses and herein as Bates, lead mechanic at
the job. O'Brien talked to Bates and, after Bates made a telephone call, he was told
by Bates that the job of operating the auger required an operator and an oiler.'
O'Brien went back to the field and told his men what had happened and was told by
them to talk to Schaeffer, business manager for Local 262. He called Schaeffer
and, not unexpectedly, was told that the work belonged to Local 262. By this time
it was noon and O'Brien, concluding the day was wasted, sent the men home.
On May 9, O'Brien returned with his crew, set up the auger, and started digging
again. Either Bates or Gatti asked him if he intended to dig with the auger and
when O'Brien said he did the members of Local 825 on the job (employees of either
Selby or Elmhurst) were called and gathered around the machine. O'Brien testified
that these employees were told by Gatti that they (the Nichols crew) were "Taking
the bread out of your mouths" and were ordered to stand around so the machine
could not operate. The employees of Selby and Elmhurst did stand around the
x Bates testified that he talked to O'Brien after the work had been stopped and showed
him the contract between Local 825 and Selby which Indicated the job belonged to 825
and that O'Brien agreed to use 825 men. Bates stated the purpose of the call was to have
825 send the two men required.
LOCAL 825, INTL UNION OF OPERATING ENGINEERS 549
machine until about 3 p .m. when O 'Brien told his crew to go home .2 Either the
next day or the day after, O'Brien returned with his crew and completed the post hole
digging by hand . The machine was not used again and no further incidents
occurred.3
On cross-examination O'Brien testified that on May 3 he also had a conversation
with Richard Kangas , superintendent for Selby, and that as a result of this conver-
sation he agreed to take the line truck and auger off the jobsite. O'Brien also had
a conversation with Kangas on May 9, when O'Brien agreed to dig the post holes
by hand . On the same day he was told again by Gatti and Bates that if the machine
were used two members of Local 825 would have to operate it, and reference was
made to the contract between Selby and Local 825 which required that the work
be performed by members in the event of subcontracting .4
Richard Kangas , whose direct testimony ran to only four and one-half pages of
the transcript , testified that the Selby employees were represented by Local 825
and that on May 3, O 'Brien came to him and told him Local 825 was protesting the
use of the auger by the Nichols employees . Kangas stated that he and O'Brien
discussed the situation and the possibility of digging the holes by hand . He also
testified that his employees stopped work on May 9 and gathered around the auger.
On this occasion Kangas tried to talk to Gatti but Gatti avoided him. While Kangas'
testimony is not clear on this point he did again discuss the digging with O'Brien and
Kangas understood that if the holes were dug by hand ( Kangas was indifferent as
to the manner of digging) there would be no further disturbance. In any event it
was following this discussion that Nichols did resume digging by hand and the job
was completed without disturbance.
The testimony of Joseph Gibison , project manager for Elmhurst ,5 was confined to
the fact that Elmhurst employed about a dozen members of Local 825 at the jobsite
and that on May 9 there was a work stoppage in the field and his men did not work
a full day .6
This concluded the evidence presented by the General Counsel.
On the basis of the foregoing I find that there is no evidence , testimonial or docu-
mentary, direct or inferential, credible or otherwise, to support a finding that Local
825 induced or encouraged any individual employed by Selby or Elmhurst to stop
work with an object of forcing or requiring Selby or Elmhurst to cease doing business
with Nichols. Neither is there any evidence that Local 825 threatened, coerced, or
restrained Selby or Elmhurst for such an objective. The dispute between Local 825
and Nichols was clearly focused on the assignment of the operation of the auger.
Local 825 claimed it by virtue of its contract with Selby; Nichols reserved the right
to assign it to its own employees. At no time during the dispute did Local 825 seek
the removal of Nichols and the substitution of another subcontractor and when the
source of dispute, the auger, was removed from the jobsite, the work proceeded with-
out interruption. Whether or not such a dispute falls within the purview of another
subparagraph of Section 8(b)(4) is not a question before me. Clearly it is not
within the purview of Section 8(b) (4) (B).7
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its entirety.
2 O'Brien testified that on this day one hole was dug with the auger until it struck rock
and the hole was then finished by hand.
8 The testimony of O'Brien was corroborated in substance by that of Kenneth Budd
and Vernon Tayburn, employees of Nichols.
* The second paragraph of this agreement reads:
This Agreement shall bind all subcontractors while working for an Employer who
is a party to this Agreement. Any Employer who sublets any of his work must sublet
the same subject to all terms and conditions of this Agreement.
Boring and drilling machines were included in the types of machines covered by the
contract
5 Elmhurst also had a contract with Local 825.
6 Gibison's entire testimony covered three pages
' In reaching this conclusion I have not relied upon the fact that there is no evidence
that either Bites n Gatti lend the authority to act for Local 825 in causing or effecting
any work stoppage