Local 825, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Aug 27, 1962

138 N.L.R.B. 279 (N.L.R.B. 1962)

LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 279
cals in the meter reading department), guards, professional employ-
ees, and supervisors (including the assistant night foreman and the
assistant forewoman-office cleaners in the building service and real
estate department) as defined in the Act.
[Text of Direction of Election omitted from publication.]
Local 825, International Union of Operating Engineers, AFL-
CIO, and its agents and representatives , Peter Weber , business
manager, William Duffy, business agent and John Pierson,
business agent and United Engineers & Constructors, Inc.
Local 825, International Union of Operating Engineers, AFL-
CIO, and its agents and representatives, Peter Weber , business
manager and William Duffy, business agent and Utility Serv-
ice Corp.
Local 825, International Union of Operating Engineers, AFL-
CIO, and its agent and representative , Peter Weber , business
manager and W. A. Chester, Inc.
Local 825, International Union of Operating Engineers, AFL-
CIO, and its agents and representatives, Peter Weber, business
manager, William Duffy , business agent and John Pierson,
business agent and Public Service Electric & Gas Company.
Cases Nos. P,2-CC-139, 22-CC-140, 92-CC-141, and 22-CC-14°2.
August 27, 1962
DECISION AND ORDER
On May 11, 1962, Trial Examiner John F. Funke issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents, Local 825, International Union of Operating Engineers,
AFL-CIO, its business manager, Peter Weber, and its business agents,
William Duffy and John Pierson, had engaged in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. He also found that the Respondents had not engaged in other
unfair labor practices alleged in the complaint. Thereafter, only the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief, limited to matters affecting the recommended remedy
and order. Respondents thereupon filed an answering brief contend-
ing that the Trial Examiner's recommended order should be adopted
without material change.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
138 NLRB No. 26.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Leedom].
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 entire
record in this case, including the Intermediate Report and the ex-
ceptions and briefs, and hereby adopts the Trial Examiner's findings,'
conclusions, and recommendations, with the modifications in the
.remedy and order indicated below.
THE REMEDY
The General Counsel excepted to the order and notice as drawn by
the Trial Examiner, contending that because of the nature and extent
of the violations involved and because of the Respondent Union's
demonstrated disregard of the Act by its record of like violations
against persons with whom it had disputes,2 a broad order against it
is necessary in order to prevent it from continuing, with impunity, to
violate the secondary boycott sections of the Act. We agree that an
order against Respondents to cease and desist from secondary activity
against any person I in order to force such person to cease doing busi-
ness with Chester, Gates, Utility, Public Service, or with other pri-
mary employers, not limited to those named in the Order, is necessary
because of the extent to which Respondents have demonstrated a
proclivity to engage in unlawful secondary activities in furtherance of
their disputes with these and other primary employers.4
' In finding that employees of Gates were induced by Respondents to strike In order to
cause Gates to cease doing business with Utility, the Trial Examiner inadvertently
named "Chester" when It is clear that he meant "Utility."
The Trial Examiner also set forth an Incident in which Local 825's business manager,
Weber, told Baker, chief engineer for Public Service, that be wanted Public Service to
cancel its contract with Chester , and threatened that he would shut down the Marion
job and all Public Service jobs where Local 825 engineers were employed if Baker made
other contracts with contractors who had agreements with Local 164, IBEW. However,
the Trial Examiner failed to Include among his other findings, that Respondents had
thereby threatened, coerced, or restrained Public Service with an object of forcing or re-
quiring it to cease doing business with Chester , in violation of Section 8(b) (4) (ii) (B) of
the Act Accordingly , we hereby find that the conduct described above constituted a vio-
lation of this section of the Act
2 The following Board proceedings disclose such violations of the Act by this Respond-
ent: Local 825. International Union of Operating Engineers , AFL-CIO ( Carleton Brothers
'Company ), 131 NLRB 452 ; Local 825, IUOE (R. G. Maupai ), 135 NLRB 578; Local 825,
IUOE ( Warren George, Inc.), Case No 22-CC-99 (not published In NLRB volumes), in
which no exceptions were filed to the Trial Examiner 's finding of violation.
9 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local No 469, AFL-CIO (W. D . Don Thomas
,Construction Company ), 130 NLRB 1289.
4 International Brotherhood of Teamsters , etc (Overnite Transportation Company),
130 NLRB 1007; Local Union 522, Lumber Drivers , Warehousemen and Handlers , Inter-
natio'nal Brotherhood of Teamsters , etc. (Republic Wire Corporation ), 129 NLRB 387,
enfd. 294 F . 2d 811 ( C.A. 3) ; Brewery and Beer Distributor Drivers , Helpers and Plat-
form Men, Local 830, International Brotherhood of Teamsters etc. (Delaware Valley Beer
Distributor Association ), 125 NLRB 12 , enfd . 281 F. 2d 319 (C.A 3)
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 281
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 Respondents, Local 825, In-
ternational Union of Operating Engineers, AFL-CIO, its officers,
agents, representatives, successors, and assigns, and Respondents Peter
Weber, William Duffy, and John Pierson, shall:
1. Cease and desist from engaging in, or inducing or encouraging
any individual employed by Lettieri and Bellezza Company, Gates
Construction Company, United Engineers & Constructors, Inc., or any
other employer, to engage in, a strike or refusal in the course of his
employment, to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities or
to perform any services; or threatening, restraining, or coercing
Lettieri and Bellezza Company, Gates Construction Company, United
Engineers & Constructors, Inc., Public Service Electric & Gas Com-
pany, or any other employer, where, in either case , an object thereof
is to force or require: (1) Lettieri and Bellezza Company or any
other employer or person to cease doing business with W. A. Chester,
Inc., or with any other employer or person; (2) Gates Construction
Company or any other employer or person to cease doing business
with Utility Service Corp. or with any other employer or person;
(3) United Engineers & Constructors, Inc., or any other employer or
person, to cease doing business with Public Service Electric & Gas
Company or any other persons in order to force or require Public
Service Electric & Gas Company or any other person to cease doing
business with W. A. Chester, Inc., Gates Construction Company, or
with any other employer or person; or (4) United Engineers & Con-
structors, Inc., or any other person to cease doing business with Public
Service Electric & Gas Company or any other person in order to
,force Public Service Electric & Gas Company or any other person
to -force Gates Construction Company or any other person to cease
doing business with Utility Service Corp. or with any other employer
or person.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Post at its offices and meeting halls, copies of the notice
attached hereto marked "Appendix." I Copies of the notice, to be
furnished by the Regional Director for the Twenty-second Region,
shall, after being duly signed by the authorized representative of the
Respondent Union and by Peter Weber, William Duffy, and John
Pierson, be posted by the Respondent Union immediately upon re-
' 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."
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceipt thereof, and be maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
to insure that the 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 by United Engi-
neers & Constructors, Inc., Utility Service Corporation, W. A. Chester,
Inc., and Public Service Electric & Gas Company and all other em-
ployers involved in this proceeding, who are willing, at all locations
upon their or other premises where notices to their employees are
customarily posted.
(c) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken
to comply herewith.
APPENDIX
No11CE TO ALL MEMBERS Or 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 engage in, or induce or encourage any individual
employed by Lettieri and Bellezza Company, Gates Construction
Company, United Engineers & Constructors, Inc., or any other
employer, to engage in, a strike or refusal in the course of their
employment to use, handle, or work on any goods, articles, ma-
terials, or commodities or to perform any services ; or threaten,
restrain, or coerce Lettieri and Bellezza Company, Gates Con-
struction Company, United Engineers & Contructors, Inc., Public
Service Electric & Gas Company, or any other employer, where,
in either case, an object thereof is to force or require (1) Lettieri
and Bellezza Company or any other employer or person to cease
doing business with W. A. Chester, Inc., or any other employer or
person; (2) Gates Construction Company or any other employer
or person to cease doing business with Utility Service Corp., or
any other employer or person; (3) United Engineers & Construc-
tors, Inc., or any other employer or person to cease doing business
with Public Service Electric & Gas Company or any other persons
in order to force or require Public Service Electric & Gas Coin-
pany or any other person to cease doing business with W. A.
Chester, Inc., Gates Construction Company or any other em-
ployer or person; or (4) United Engineers & Constructors, Inc.,
or any other person to cease doing business with Public Service
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 283
Electric & Gas Company or any other person in order to force
Public Service Electric & Gas Company or any other person to
force Gates Construction Company or any other person to cease
doing business with Utility Service Corp. or any other employer
or person.
LOCAL 825, INTERNATIONAL UNION
OF OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------ ---------- By--------------------------------------
(Representative ) ( Title)
-------------------------------------------
PETER WEBER ( Business Manager)
---- --------------------------------------
WILLIAm DUFFY (Assistant Business Manager)
--- ---------------------------------------
JOHN PIERSON (Assistant Business Manager)
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, 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
The charge in Case No. 22-CC-139 was filed on October 9, 1961, by United
Engineers & Constructors, Inc., against Local 825, International Union of Operating
Engineers, AFL-CIO, and its agents and representatives, Peter Weber, business
manager, William Duffy, business agent, and John Pierson, business agent, herein re-
ferred to as Local 825 or collectively as the Respondents.
The charge in Case No. 22-CC-140 was filed on October 9, 1961, by Utility
Service Corp., against the Same Respondents, excepting Pierson.
The charge in Case No. 22-CC-141 was filed on October 9, 1961, by W. A.
Chester, Inc., against the same Respondents, excepting Pierson and Duffy.
The charge in Case No. 22-CC-142 was filed on October 12, 1961, by Public
Service Electric & Gas Company against the same Respondents.
On October 23, 1961, the Regional Director for the Twenty-second Region, herein
called the General Counsel, issued an order consolidating the above cases and issued
a complaint alleging the Respondents had, in each of the cases, engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i) and (ii) (B) and Section
2(6) and (7) of the Act.
The answer of Respondents denied the commission of any unfair labor practices.
Thereafter, on January 10, 1962, the parties entered into a stipulation of facts.'
This proceeding, with all parties represented by counsel, was heard before Trial
Examiner John F. Funke at Newark, New Jersey, on January 30 and March 2, 5,
8, and 14, 1962.
At the conclusion of the case counsel for Respondents submitted oral argument
and a brief was received from the General Counsel on April 18.
Upon the entire record in this case, including oral argument and the brief of the
General Counsel, and from my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE CHARGING PARTIES
The parties have stipulated and I find that United Engineers & Constructors, Inc.
(herein called United), is, and has been at all times material herein, a Delaware
I General Counsel's Exhibit No. 2.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporation which has its principal offices and place of business at 1401 Arch Street,
Philadelphia, Pennsylvania, and is engaged in the building and construction industry
in a number of States of the United States, including the State of New Jersey
During the past year, United had gross annual revenue, in excess of $2,000,000, of
which gross annual revenue in excess of $1,000,000 was derived from services per-
formed outside the States of Pennsylvania and Delaware.
The parties have stipulated and I find that Utility Service Corp. (herein called
Utility) is, and has been at all times material herein, a New York corporation with
its principal office and place of business at 715 Elizabeth Avenue, Elizabeth, New
Jersey, and is engaged in the building and construction industry in the construction
of underground transmission facilities and power substations During the past
year Utility had gross annual revenue in excess of $500,000, of which gross annual
revenue in excess of $100,000 was derived from services performed outside the
State of New York.
The parties have stipulated and I find that W. A. Chester, Inc. (herein called
Chester), is, and has been at all times material herein, a New York' corporation
having its principal office and place of business at 51 Ranick Drive East, Amityville,
New York, and is engaged in the business of installing high voltage cable systems
in various States of the United States. During the past year Chester had annual
gross revenue in excess of $1,000,000, of which gross annual revenue in excess of
$750,000 was derived from services performed outside the State of New York .
The parties have stipulated and I find that Public Service Electric & Gas Com-
pany (herein called Public Service) is, and has been at all times material herein, a
New Jersey corporation having its principal offices and place of business at 90
Park Place, Newark, New Jersey, and is engaged in the operation of generating
stations, gas plants, and distribution centers throughout the major portion of the
State of New Jersey. During the past year, in the course and conduct of its business
operations, Public Service had gross annual revenue in excess of $10,000,000 of
which gross annual revenue in excess of $1,000,000 was derived from the sale and
transmission of gas and electric energy directly to customers outside the State of
New Jersey.
The parties have stipulated and I find that Gates Construction Company (herein
called Gates) is, and has been at all times material herein, a New Jersey corporation
which has its principal office and place of business at the foot of Industrial Avenue,
Little Ferry, New Jersey, and is engaged in the building and construction industry.
During the past year Gates had gross annual revenue of in excess of $1,000,000, of
which gross annual revenue in excess of $500,000 was derived from services rendered
outside the State of New Jersey.
The parties have stipulated and I find that Lettieri and Bellezza Company (herein
called Bellezza) is a New Jersey corporation which has its principal office and place
of business at the foot of Jersey Avenue, Jersey City, New Jersey, and is engaged
in the building and construction industry. During the past year Bellezza had gross
annual revenue in excess of $500,000 and made gross annual purchases valued at
in excess of $200,000
I find that all of the above companies are engaged in commerce within the mean•
ing of the Act.
H. LABOR ORGANIZATIONS INVOLVED
The parties have stipulated and I find that Local 825 , International Union of
Operating Engineers , AFL-CIO; Local 1049 , International Brotherhood of Electri-
cal Workers , AFL-CIO, and Local 565, International Brotherhood of Electrical -
Workers, AFL-CIO, are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At all times material herein Public Service has been engaged in a large scale
maintenance and expansion program, the estimated cost of which is approximately
$150,000 ,000. This program involves not only the construction of new facilities,
but also the modernization and repair of existing facilities and equipment relating
to the production and distribution of both electric and gas energy.
In conjunction with the aforesaid expansion program , Public Service , on or about
July 26, 1961, awarded a contract to Chester for the construction and installation
of an Oilostatic high voltage underground cable to connect Public Service 's Marion
generating station, Jersey City, New Jersey , and its Bayonne, New Jersey , switching
station. Work at the construction site began on or about August 25, 1961. Chester
subcontracted to Bellezza the work of excavation . manhole construction , and re-
paving. At all times material herein , Bellezza has had a collective -bargaining
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 285
agreement with Respondent Local 825 pursuant to which Bellezza is required to
obtain employees through Local 825 and Local 825 is required to furnish employees
to Bellezza as requested. Respondent Local 825 does not have a contract with
Chester, nor has Respondent Local 825 been certified by the National Labor Rela-
tions Board as the collective-bargaining representative of any of Chester's employees.
In conjunction with the aforesaid expansion program, Public Service, on or about
August 14, 1961, awarded to Gates a contract for the construction and installation
of 12 pipe type electric cables beneath the Hackensack River connecting Public
Service's Hackensack, New Jersey, substation and its Bergen switching station,
Ridgefield, New Jersey. Work at the construction site began in September 1961.
Gates reserved to itself the work of preparing the riverbed, including the building
of a cofferdam. The electrical work for this project was subcontracted by Gates to
Utility. At all times material herein, Gates has had a collective-bargaining agree-
ment with Respondent Local 825 pursuant to which Gates is required to obtain
employees through Local 825 and Local 825 is required to furnish employees to
Gates as requested. Respondent Local 825 does not have a contract with Utility
nor has Respondent Local 825 been certified by the National Labor Relations Board
as the collective-bargaining representative of any of Utility's employees.
At all times material herein Gates has been engaged in the excavation of ai
drainage ditch in connection with the construction of a new generating station toy
be known as the Hudson generating station located at Jersey City, New Jersey.
Such work is being performed pursuant to a contract awarded Gates by Public
Service. In connection with these operations Gates has used individuals who are
members of, or represented by, Respondent Local 825, in conformity with the
aforesaid collective-bargaining agreement.
At all times material herein, pursuant to contracts awarded it by Public Service,
United has been engaged in the construction and repair of electrical generating and
distribution systems at a number of the electrical generating stations of Public
Service including the Bergen generating station, Ridgefield, New Jersey, the Sewaren
generating station, Sewaren, New Jersey, the Mercer generating station, Hamilton
Township, New Jersey, and the Burlington generating station, Burlington, New
Jersey.
Pursuant to a contract awarded it by Public Service, since approximately March
1961, United has been engaged in the conversion of carburetted water gas sets to high
B.t.u.'s at Public Service's Paterson station gas works, Paterson, New Jersey.
At all times material herein, United had collective-bargaining agreements with a
number of craft unions, pursuant to which it has formed its employee complements
for these respective projects. Among these unions are International Union of Op-
erating Engineers and its affiliate, Respondent Local 825. By the terms of its
contract with Respondent Local 825 United is required to obtain employees through
Local 825 and Local 825 is required to furnish employees to United as requested.
At all times material herein Local 825 has had a dispute with Chester, Utility,
and other electrical contractors and subcontractors over the assignment of work.
The contracts between Local 825 and its contracting employers in the construction
industry assigned to Local 825 the operation of certain equipment specified in the
contracts? The disputes which are the subject of this proceeding arose when elec-
trical contractors or subcontractors working on projects where members of Local 825
were likewise employed, operated machinery over which Local 825 claimed con-
tractual jurisdiction,s using electricians to perform the tasks. Not entirely irrelevant
to this proceeding is the indication in the record that a personal feud exists between
Peter Weber, business manager of Local 825, and George Renz, business manager of
Local 164, IBEW
B. The disputes
1. With Bellezza
Bellezza was a subcontractor under Chester on the Marion-Bayonne job.
Anthony Bellezza, president, testified that his company started to do trenching
work under its subcontract toward the end of August 1961,4 employing eight operat-
ing engineers, members of Local 825. Chester, the general contractor, was an elec-
trical contractor with a bargaining agreement with Local 1049, IBEW, a Long Island
2 None of the Local 825 contracts was introduced into evidence in this case This
finding is made on the basis of oral testimony
3 Jurisdiction by contract is claimed under a standard subcontracting clause, a clause
protected by the construction industry proviso to Section 8(e) The General Counsel has
not attacked the clause
4 All dates herein are 1961 unless otherwise noted
- 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vocal 5 At a time which must be fixed as shortly after the operations started, Anthony
Bellezza had a conversation with Jack Pierson, business agent of Local 825, in which
-Pierson complained that the electricians employed by Chester were operating equip-
ment, particularly a sideboom, which, under the existing contract between Bellezza
and Local 825, was properly the work of Local 825. To settle this dispute a meeting
Was arranged and held at the Roost Restaurant in Newark. This meeting was at-
tended by Peter Weber, Pierson, Bellezza, W. A. Chester, vice president of Chester,
and Anthony Araneo, representing Mohawk, another subcontractor. The time was
fixed as early September. According to both Bellezza and Chester, Chester was
asked by either Weber or Pierson to sign 'a collective-bargaining agreement with
Local 825 The request was refused by Chester on the ground that such an agree-
ment would be in conflict with his agreement with Local 1049 Prior to this luncheon
and in anticipation that agreement might be reached, Local 825 had dispatched a
.sideboom operator to Chester. The man had worked only a few hours when the
-cable snapped and Chester discharged the operator. Chester, at the luncheon, re-
,quested a replacement for the sideboom operator, a request which was refused when
Chester refused to sign the contract. Thus the luncheon was concluded with no
agreement reached
On September 7, Pierson called John J. Leary, construction engineer for Public
Service, and told him that electricians were operating engineers' equipment 6 at the
Marion job and that the work would be stopped the next day unless a contract was
signed.?
Despite this threat of an immediate stoppage nothing happened until October 4
when Pierson again met Anthony Bellezza at the jobsite, following a telephone call
from Pierson to Bellezza. According to Bellezza, Pierson told him he would have
to call the men off the job and Bellezza then asked that they be allowed to finish
the day in order to -make the job safe.8 Pierson agreed to this and the men finished
the day but did not work October 5 or 6. Bellezza then requested that the men re-
turn since he did not consider the job yet safe, and the men worked October 9, 10,
and 11. They stopped again and did not resume until October 17, after service of
the injunction upon Respondents 9 During this period Chester was unable to operate
since the excavation work was preliminary to its work
Pierson's testimony varies from the above since he states that he told Bellezza
and also Leary that the men were going to quit and that he had to request them
to work on October 9, 10, and 11. Thus the issue posed is whether the men quit
voluntarily because they resented the use of their equipment by electricians or be-
cause they were directed to stop by Pierson.
I think the evidence, while not conclusive, establishes that the stoppage was the
responsibility of Local 825. While some weeks had elapsed since Pierson's threat
to Leary, the dispute at Marion had never been settled to the satisfaction of Local
825. More important, however, I find that Bellezza's version of his conversation
with Pierson at the jobsite was the correct one, that Pierson did tell Bellezza he
would have to call the men off and that Pierson agreed to let the men finish the
day and later had the union hall call the men to work Oct 9, 10, and 11. As will
be found later, it was the dispute at the Marion job, together with the dispute at
the Hackensack job, which triggered a series of work stoppages involving United
projects which were in no way directly involved in any dispute with Local 825.
The disputes at Marion and Hackensack led to stoppages at eight locations and I
cannot accept the theory, particularly when I credit testimony which directly negates
the theory, that all of these stoppages were the result of voluntary and spontaneous
action on the part of the individual members. I find that Local 825, acting through
Pierson, at all times controlled the action of the members employed at Marion.10
5 The employees at the Marion-Bayonne project were members of Local 164, IBEW,
Jersey City, working under an area agreement.
6 Leary stated that Pierson's complaint was not to the operation of the sideboom but
to a machine more imaginatively described as a cherrvpicker.
v Pierson did not recall threatening to stop the job but did state that he told Leary he
did not think he could keep the men from quitting. I credit Leary's version of the
conversation as the more accurate
s Bellezza explained that the open excavation, close to a public highway, presented a
hazard to the public
9 This date was fixed by William Chester and I accept it
'5 In making this finding I do not find it necessary to accept the statement in the General
Counsel's brief that Pierson telephoned Bellezza for the appointment at the jobsite before
talking to the men. Pierson's testimony was inconclusive on this point as it was on
others, but the inconclusiveness of his testimony has been a factor in my evaluation of
the evidence.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 287
I also find that the object of the work stoppage there was to force Bellezza to cease
doing business with Chester in order to compel Chester to sign a contract with
Local 825.11
I accordingly find that Respondents Local 825, Peter Weber, and John Pierson
induced and encouraged individuals employed by Bellezza to refuse to perform
services for Bellezza and coerced and restrained Bellezza in violation of Section
8(b) (4) (i) and (ii) (B) of the Act.
2. With Gates
The Hackensack job was a project on which Gates was the prime contractor and
Utility the electrical subcontractor. William Duffy testified that on September 28,
as a result of a complaint from a master mechanic that Gates was violating its con-
tract with Local 825, he went to the Hackensack jobsite. There he found electricians
employed by Utility operating the hydrocrane, the welding machines, and a small
tractor. The task of operating these machines was assigned to Local 825 under its
contract with Gates, and the conract required that subcontractors make similar assign-
ments. Duffy spoke to a man identified as Mr. Barton of Utility, asked him what he
was doing with electricians operating this equipment and was told by Barton that
he had "put them there." Duffy then asked who the general contractor was and was
told it was Gates. Duffy then walked off the job with his two men and called Gates.
He testified, "I told Mr. Gates that his job was on strike until he straightened out
the job."
The next day a meeting took place at the Howard Johnson Restaurant at the end
of the Jersey Turnpike attended by Gerald Brown, vice president of United, Mandrup,
Skeie, construction manager of United, Robert Gates, president of Gates, Weber,
and Duffy.12 The Hackensack job was discussed and Gates was told by Weber
that he was not to start dredging until the matter of the nonunion subcontractor 13
was settled. On cross-examination Gates testified that Weber did not threaten him,
that the admonition concerning dredging was in the form of a request, and that his
agreement to go along was voluntary. Later, on October 4, Gates asked Weber if
he could go ahead and weld the gasline since the gasline had nothing to do with
the electricians [employed by Utility]. Gates received this permission and the work
of welding the gasline proceeded until it was concluded on October 10. Local 825
members then again ceased work and did not return to Gates until the district court
injunction was served upon Respondents on October 17.
On the basis of the foregoing testimony it is not only clear that Duffy threatened
Gates with a strike but that he called a strike and made it effective until enjoined.
It is equally beyond dispute that the purpose of the strike was to cause Gates to cease
doing business with Utility.
The defense, ably argued by counsel, is a subtle one. Counsel stated at the hearing:
We must submit that in the case of the Gates Construction Company there was
no picketing. The employees working for Gates terminated their employment.
They left the jobsite because of a dispute with their employer on a breach of
his primary obligation as they saw it to fulfill the terms of his labor agreement
Gates was the primary contractor. They found a violation as they saw it,
of Gates' agreement They stopped work. Now we submit that under those
circumstances they are not relegated to suing for damages and staying involun-
tarily in their employment while damages mount because of the breach of con-
-tract on the part of the employer.
Unfortunately the argument finds little support in the facts. Not only did Duffy
testify that he called a strike at Hackensack, thereby negating any concept of a
voluntary quitting of employment, but Weber agreed to have the men go back for a
short period of time at Gates' request based on the fact that the work to be performed
had nothing to do with Utility's operations. When this welding was finished the
men again quit and did not return until the Union was enjoined.
Since I find that conduct of Local 825 at Marion falls clearly within the scope
of the Sand Door decision (Local 1976, United Brotherhood of Carpenters and
Joiners of America, AFL et al. v. N.L.R.B., 357 U.S. 93), I must reject the legal
argument as well. In Sand Door the general contractors, Havstad and Jensen, had
a contract with Local 1976 which provided that "workmen shall not be required
11 The complaint does not allege that an object of the strike was to force Public Service
to cease doing business with Chester.
"A R Hamilton, a contractor, also attended
^$ In WVeber's view any contractor who employed operators other than Local 825• mem-
bers to run equipment over which Local 825 claimed jurisdiction was nonunion,
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to handle non-union material ." It was to enforce this provision that the strike took
place and, as here, no picketing took place. The facts, in essence are indistinguish-
able, and the three factors which the court found established a violation in Sand
Door are present here, i.e. (1) inducement of employees by the Union, (2) to engage
in a strike or concerted refusal to work, (3) with an object of forcing or requiring
their employer to cease doing business with a third person. Granted that the sub-
contracting clause is legal under the construction industry proviso to Section 8(e),
the legislative history of the Act is unequivocal respecting enforcement of such a
clause, i.e., the inducement or encouragement of employees to engage in a strike to
enforce a protected construction industry subcontracting clause is unlawful and the
Sand Door decision applies.14
I therefore find that Respondents Local 825, William Duffy, and Peter Weber
induced and encouraged individuals employed by Gates to refuse to perform services
for Gates with an object of forcing Gates to cease doing business with Chester in
violation of Section 8(b) (4) (i ) and (ii) (B).
A work stoppage also occurred at the Hudson generating station, Jersey City,
among the Gates engineers on October 10, 1961.
Edward McManus, construction superintendent for Gates on the job (it was Mc-
Manus' first day on the job), testified that about 2:30 or 3 p.m. the cranes stopped
working. When he made inquiry the crew referred him to Pierson. Pierson told
McManus that a contractor (not named by Pierson) at the jobsite was using gasoline-
driven pumps not operated by members of Local 825 and that the men would not
work until the pumps were covered [by a contract with Local 825]. While the
General Counsel contends that this stoppage was a part of the scheme to force
Public Service to stop business with Gates, his own witness belies his theory. Here
the only evidence is that Local 825 sought to have Gates stop doing business with
(another contractor, identified by Pierson at the hearing as Morris Electrical Company.
Since there is no allegation in the complaint which involves Morris Electrical Com-
pany I shall recommend dismissal of the complaint with respect to the Hudson gen-
erating station project.
3. With United
Gerald A. Brown, vice president and construction manager for United, testified
that on September 29 he received a telephone call from Weber in which Weber told
him that Public Service 15 was in trouble with Local 825 because it was hiring "scab"
contractors (Utility) at Hackensack. When Brown told Weber that United had
nothing to do with the Hackensack job Weber allegedly said, "If this difficulty up
there isn't cleared up I'm going to pull all the Public Service jobs." Weber said
he would strike United because United worked for Public Service. That day, and
in response to the call, Brown attended the luncheon, previously described, at the
Howard Johnson Restaurant together with Skeie. Later that day Brown called
Weber and told him that Utility had removed its equipment at Hackensack and
Weber agreed not to strike United.
On October 5 Brown again received a call from Weber protesting conditions at the
Marion job where Chester was the general contractor. Weber had the same com-
plaint-that Chester was operating (with electricians) equipment over which Local
825 claimed jurisdiction. Weber told him that if the situation was not settled by
Monday morning (October 9) United would not have any men. Later that day
Brown tried to arrange a meeting with Weber but Weber was leaving for Philadelphia.
Robert Baker, chief engineer for Public Service, testified that on the same day,
October 5, he received a telephone call from Weber 16 who told him that Public
Service had made a mistake and had contracted with a contractor (Chester) who
did not have a contract with 825 but was under contract with George Renz and
Local 164, IBEW. Weber told Baker he wanted him to cancel the contract with
Chester and that if he did not stop making contracts with contractors who had
agreements with Renz he (Weber) would shut down the Marion job and all jobs
for Public Service where Local 825 engineers were employed. Baker testified that
Weber engaged in a lengthy harangue concerning Renz, using profane and violent
language.
14 See H Rept. 1147, p. 39, Leg. Hist, vol. 1, p. 943; Senator Kennedy, Leg. Hist.,
-vol 2, p. 1433; Senator Goldwater, Leg Hist, vol. 2, p. 1858
The record reveals that United performed much of the construction work for Public
Service and that Local 825 representatives appear to have identified United as the con-
struction arm of Public Service The two corporations are otherwise unrelated according
to the record
N 'Brown testified that at the Howard Johnson Restaurant Weber had asked Brown to
intervene with Public Service regarding the "scab" contractors, and Brown did speak to
Baker the next day. What he said is not disclosed.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 289
Skeie testified that on October 9 he received calls from his superintendents at the
Mercer and Bergen stations that the engineers were not working. He then called
Duffy who told him he knew about it and that United would not get any men and
that the next day he would not have men on the other jobs until the situation was
straightened out. The next day the men at Seawaren failed to report and United
did not have any men. On that same day J. R. Cunningham, industrial relations
manager for United, sent a telegram to Local 825 requesting that the men return
to work. To this telegram Weber paid no attention.
George Stribling was construction superintendent for United at the Bergen generat-
ing station in October. He testified that on October 9 the operating engineers em-
ployed at that project did not work and did not report for work until October 17.
Stribling gave no explanation.
John O'Driscoll, construction superintendent for United at the Mercer generating
station, gave almost identical testimony. He testified that on October 9 the operating
engineers at Mercer did not work and did not report until October 17. On October
9 he received a call from his assistant at the Burlington generating station informing
him that the engineer employed there had not reported. This engineer, according to
O'Driscoll, did not report until October 17. Like Stribling, O'Driscoll gave no
explanation.
Charles Pearce testified that he was construction superintendent for United at the
Paterson gas plant at Paterson, New Jersey. He employed two operating engineers
who were members of Local 825. On October 11 he received a call from his boiler-
maker foreman and as a result he went to the jobsite and saw the engineers' steward,
Carey. Carey told him he was going to leave at noon and not return. Carey said he
had received a telephone call and was not going to work. Both engineers left at
noon and did not return until October 17.
John Dmytryk, construction superintendent for United at the Seawaren generating
station during September and October, employed about 53 engineers, all members
of Local 825. He testified that on September 28 he had a conversation with Edmond
Tafilowski, shop steward on the job,17 in which Tafilowski told him there was "some
trouble within the State of New Jersey affecting the operating engineers," and that
it might affect the job the following Monday, October 2. The engineers, however,
worked that day. On October 5 Tafilowski again came to Dmytryk's office and
told him there was other trouble and there might be no engineers on Monday,
October 9. The engineers worked on Monday but on Tuesday, October 10, when
he checked in the time office informed him that no operating engineers had reported.
They did not work until October 19. The record does not indicate that there were
any other jobs which United was performing for Public Service on which members
of Local 825 were employed at this time.
The Union's defense to this prima facie case of violation is that the action of the
men in stopping work was voluntary and, in fact, beyond the control of Local 825.
The record does not support the contention.
Weber testified that at the luncheon at the Howard Johnson Restaurant he had
a discussion with Brown as to the general policy of Public Service, particularly as
to its allocation of work to contractors employing "non'union" subcontractors.
Such subcontracting Weber believed to be a clear violation of the Union's contract
with the prime contractor (which it was) and this was the reason Weber requested
a meeting with Public Service through Brown. The testimony of Pierson and
Duffy indicates that the genesis of these disputes was this violation of Local 825's
contractual right to operate specific equipment, a right the Respondents thought
they were entitled to enforce. This belief was a firm one and, in the case of Weber,
an emotional one, particularly in view of his personal feeling toward Renz.18 Weber
was obviously dedicated to protecting what he considered to be the jurisdictional
rights of Local 825. Weber not only ignites quickly but explodes loudly when those
lights have been jeopardized and it would be impossible for anyone who has observed
him under emotional stress to believe that he could recollect with any degree of
accuracy what he has said in those moments. I therefore credit both Brown and
Baker in their statements that Weber threatened to shut down all the Public Service
jobs if the Marion (Chester) job was not straightened out, a threat which was
carried out on schedule. I also note that Bellezza, whom I have credited, was able
to have his men return to work for 3 days after he made the request of Pierson
and that Gates was able to have welding work done upon request when it was not
connected with the work done by Utility. It is clear to me, from this record, that
17 Dmytryk testified that lie dealt with no business agent at Seawaren, only with
Tafilowski.
18 Weber claimed, and it Is not disputed, that Local 825 had been awarded this work in
arbitration but that Renz refused to abide by the award.
290 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
control over the membership, both with respect to stoppage and resumption, was
at all times in the hands of Local 825 and its representatives.
In further support of its contention Respondents introduced 12 members em-
ployed at various jobsites and Shop Steward Tafilowski.19 All testified, in effect,
that their quitting was voluntary and in protest of violations of contractual obli-
gations by Public Service or because they heard Public Service had been struck.
Apart from the fact that I have found Local 825 responsible for the stoppages on
other evidence, I have difficulty in accepting some of this testimony even though
it is, since it goes to the state of mind of the member, uncontradicted. Thus Robert
Illario, employed at Seawaren testified that the engineers there, whom he estimated
at 60, heard "through the grapevine" that there was "trouble" at the Mercer job
at which Chester was the prime contractor. The grapevine was the Green Lantern
Saloon in Woodbridge which seems to have acted as a clearinghouse for craft
information much as Lloyd's of London did for insurers. The information received
was that the electricians at Mercer were running the cherrypicker and the side-
boom and, Illario testified, "Naturally, we won't put up with a situation like that."
The men discussed this among themselves and finally went to Tafilowski with their
complaint and, after he took no action, they went out and "When he come to work
that day, we were out of work and he was surprised." 20 The substance of this
testimony is that some 60 engineers employed by United at a jobsite some 15 miles
removed from the situs of the dispute, which did not involve United, walked off the
job in protest without notifying their shop steward or the Local's business agent.
This despite the fact that another member employed at Seawaren, Walter Zarnoch,
testified that "some of the fellows wasn't too happy about not going to work, because
they all got up (on the first day of the strike at Seawaren) and wanted to go to
work."
Smith, an engineer at the Bergen station, testified that he and two other engineers
employed at Bergen "heard" ( also in a saloon ) that electricians were operating
engineers equipment at Mercer and decided on Friday, October 6, not to report for
work on October 9.
Lawrence Carey, employed at the Paterson station , testified that he and the two
other engineers quit at noon on October 11 when he heard that engineers had
ceased work on other Public Service jobs. Lawrence called Cahill, the local 825
dispatcher, to notify him of their contemplated action and was told by Cahill to
"sit tight." Nevertheless Carey states he told the two other engineers that now was
the time to act and that by the time a business agent got around to Paterson too
much time would be lost. Paterson, too, was some 10 to 15 miles from the area
of dispute and Carey admitted that nothing like that (a strike instigated by the
employees over a dispute at another location ) had happened in his 25 years as
an engineer.
Reluctant as I am to reject the en masse testimony of the membership,21 it is not
the kind of testimony which serves to rebut the evidence, which I find convincing, to
the contrary. It must be noted that the so-called voluntary action which took place
at some seven separate jobsites followed the threat made by Pierson to Bellezza to
shut down the Mercer job. The threat was made October 4 but, as a result of the
safety plea, the job was not shut down until October 5. The Mercer job was one
source of a standing dispute between Local 825 and Public Service. On the day
the strike started Weber threatened both Brown of United and Baker of Public
Service that all Public Service jobs would be shut down on October 9 unless the
Mercer strike was settled and on the same day Tafilowski predicted to Dmytryk
that there might be no engineers at Seawaren on October 9. On October 9 and 10
(and at Paterson on October 11) the Public Service jobs were shut down. To hold
that such a clear and consistent pattern 22 of strike threat by union representatives
followed by strike action as scheduled was the result of voluntary action on the
part of the members based, to a large degree, on rumors circulated in saloons,
19 After these witnesses had testified counsel for the General Counsel moved to reject
further testimony as superfluous. This motion was granted. I therefore find that had all
of the members of Local 825 employed on United jobs been called, their testimony, in sub-
stance, would have been the same , i.e , that they quit voluntarily
20 This is contradictory, of course, to Tafilowski's prediction to Dinytryk on October 5,
that there might be no engineers at work on Monday, October 9
21 See Local 825, International Union of Operating Engineers, AFL-CIO (R. G. Maupai
Co., Inc.), 135 NLRB 578 (IR).
22I find additional significance in the fact that temporary resumption of work was per-
mitted at Mercer after appeal to Pierson and that gasline welding was permitted at
Hackensack after appeal to `Veber. .
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 291
strains the credulity to the breaking point. Naivette, however becoming to the
young and innocent, is a dispensable asset in evaluating labor disputes. It invites
miscalculation
I find that Respondents Local 825, Peter Weber, William Duffy, and John Pierson
induced and encouraged individuals employed by United to refuse to perform
services and coerced and restrained United with an object of forcing United to cease
doing business with Public Service and with the further object of forcing Public
Service to cease doing business with Gates and Chester and forcing Public Service to
force Gates to cease doing business with Utility 23 By said conduct Respondents
have violated Section 8(b) (4) (1) and (ii) (B) of the Act
IV, THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
The General Counsel has specifically asked for a broad cease and desist order.
In support thereof the General Counsel requested that the Trial Examiner take
official notice of prior cases in which the Board had found violations of the Act
on the part of Respondent Local 825.24 The Trial Examiner has taken such official
notice. The General Counsel also asked that the Trial Examiner take official
notice of other proceedings, including injunction proceedings and 10(k) proceed-
ings. The Trial Examiner declined to take notice of proceedings in which injunc-
tions under 10(1) may have issued on the ground that such injunctions constituted
no evidence of violation by the terms of the section itself. He further declined
to take notice of 10(k) proceedings where there was compliance with the determina-
tion or the award on the ground that no unfair labor practice was committed until
there was a failure to comply. The General Counsel's proffer of such proceedings
for such a purpose is difficult to understand.
I believe, however, that the evidence in this proceeding clearly establishes that
the Respondents had determined to threaten and coerce Public Service by inducing
and encouraging individuals employed by United and other contractors to refuse to
perform services for their employers with an object of forcing and compelling
Public Service to cease doing business with contractors who did not employ members
of Local 825 to operate specified equipment. The recommended order will there-
fore, be designed to prevent the commission of similar and related unfair labor
practices which may reasonably be anticipated. See N.L.R.B. v. Express Publish-
ing Company, 312 U.S. 426. A broad order is permitted where the evidence shows
the existence of a general scheme, pattern, or course of conduct contemptuous of
the Act. N.L.R B. v. Local 522, Lumber Drivers, Warehousemen and Handlers,
International Brotherhood of Teamsters, etc. (Republic Wire Corp.), 294 F. 2d 811
(C.A. 3) 1 find such a general pattern here.
Upon the basis of the foregoing findings and conclusions and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. United Engineers & Constructors, Inc, Utility Service Corp, W. A. Chester,
Inc, Public Service Electric & Gas Company, Gates Construction Company, and
Lettieri and Bellezza Company are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2 Local 825, International Union of Operating Engineers, AFL-CIO, is a labor
organization within the meaning of the Act.
Respondents Local 825, Peter Weber, and John Pierson 25 have induced and
encouraged individuals employed by Bellezza to refuse to perform services, and
have coerced and restrained Bellezza with an object of forcing or requiring Bellezza
to cease doing business with Chester, and have thereby violated Section 8(b) (4) (i)
and (ii) (B) of the Act
23I find the language of the statute sufficiently broad to cover such tertiary objective
24The General Counsel cited Local Union 825, International Brotherhood of Operating
Engineers, AFL-CIO (Carleton Brothers Company), 131 NLRB 452; Local 825, Inter-
natioinal Union of Operating Enginccis, AFL-CIO (R C Maupai Co., Inc), 135 NLRB
578 Local 827, Inteinational Hiotlierliood of Operating Gngincers (11'arrea Ccoige, Inc
Case No 22-CC-99 (not published in NLRB volumes)
26 John Pierson was not named as a Respondent in the complaint in Case No 22-CC-141,
he is a Respondent in the consolidated proceedings and his activities in Case No
22-CC-14I were fully litigated without objection
M',23-53-63-vol. 138-20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondents Local 825, Peter Weber, and William Duffy have induced and
encouraged individuals employed by Gates to refuse to perform services, and have
coerced and restrained Gates with an object of forcing or requiring Gates to cease
doing business with Utility, and have thereby violated Section 8(b)(4)(i) and
(ii) (B) of the Act.
5. Respondents Local 825, Peter Weber, John Pierson , and William Duffy have
induced and encouraged individuals employed by United to refuse to perform services
and have coerced and restrained United with an object of forcing and requiring
United to cease doing business with Public Service and with the object of forcing
and requiring Public Service to cease doing business with Gates and Chester and
forcing and requiring Public Service to force Gates to cease doing business with
Utility. By the aforesaid conduct Respondents have violated Section 8(b)(4)(i)
and (ii ) (B) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Rocky Mountain Phosphates, Inc. and International Union of
Operating Engineers , Local 375, AFL-CIO. Case No. 19-CA-
2192. August 27, 1962
DECISION AND ORDER
On December 1, 1961, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. The Trial Examiner also recom-
mended that the allegation of discrimination in the complaint be
dismissed. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
Rocky Mountain Phosphate Workers Union, herein called the Inde-
pendent, was certified on July 12, 1960, as the bargaining representa-
tive of Respondent's employees. Following certification, the Inde-
pendent and Respondent bargained until March 1961, when an
impasse was reached. As a result, the employees discussed the possi-
bility of affiliating with an International union. On March 23, 1961,
18 of Respondent's 23 employees signed authorization cards designat-
ing International Union of Operating Engineers, Local 375, AFL-
'The complaint alleged that Respondent violated Section 8(a)(3) by discharging
Edward Reindl . The Trial Examiner recommended dismissal of this allegation. As no
exceptions were filed thereto, the Board adopts the 'dismissal pro forma.
138 NLRB No. 35.