Local No. 825, Operating Engineers

National Labor Relations Board - Board Decisions

Feb 13, 1967

162 N.L.R.B. 1617 (N.L.R.B. 1967)

LOCAL NO. 825, OPERATING ENGINEERS 1617
WE WILL NOT in any like or related manner interfere with the rights of
our employees as guaranteed by Section 7 of the Act.
CONNIE JEAN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 849
South Broadway, Los Angeles, California, Telephone 688-5229.
APPENDIX B
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT demand or accept recognition from or contract with Connie
Jean , Inc. as the representative of the crew members of the vessel Connie
Jean, nor will we enforce the contract entered into with Connie Jean , Inc. on
or about February 16, 1966, unless and until we have been certified by the
National Labor Relations Board as the exclusive representative of such crew
members.
WE WILL NOT in any like or related manner , restrain or coerce crew mem-
bers of the Connie Jean in the exercise of the rights guaranteed by Section
7 of the Act.
FISHERMEN 'S UNION LOCAL 33, INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If members have any questions concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 849
South Broadway , Los Angeles , California , Telephone 688-5229.
Local No. 825, International Union of Operating Engineers, AFL-
CIO and Burns & Roe, Inc.
Local No . 825, International Union of Operating Engineers, AFL-
CIO and White Construction Company. Cases 4-CC-359 and
4-CD-144. February 13, 1967
DECISION AND ORDER
On September 28, 1966, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
162 NLRB No. 155.
264-047-67-vol. 162-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended that those allegations be dismissed. Thereafter, the Respond-
ent, the General Counsel, and the Charging Parties filed exceptions
to the Trial Examiner's Decision and supporting briefs. An answer-
ing brief was also filed by the Charging Parties.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members 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 Trial Ex-
aminer's Decision,' the exceptions, the briefs, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, insofar as they are consist-
ent with this Decision and Order.
1. We agree with the Trial Examiner that the Respondent violated
Section 8(b) (4) (i) and (ii) (D) of the Act, because it was respon-
sible for three separate work stoppages,' with an object of forcing
White Construction Company, herein called White, to assign work
on its electric welding machine to engineers who are members of
Respondent, rather than to ironworkers who are members of Local
350, International Association of Bridge, Structural & Ornamental
Ironworkers, AFIr-CIO, herein called the Ironworkers.3 With regard
to an earlier work stoppage which occurred on October 1, 1965, and
had the same proscribed object; the Trial Examiner found that there
was insufficient evidence to hold the Respondent responsible for the
strike. We do not agree.
' We specifically disavow the gratuitous , injudicious, and wholly unwarranted remarks
contained in footnotes 17 and 26 of the Trial Examiner 's Decision.
The following inadvertences contained in the Trial Examiner's Decision are hereby
corrected : The name "Norton " is changed to "Wharton" ( section III , A, 5, third para-
graph , seventh sentence) ; the correct spelling of one of the employers herein is Poirier.
paragraph 7(a) of the complaint refers to the forcing of Chicago Bridge, Poirier, and
White to cease doing business with Burns , and paragraph 7(b) refers to the forcing of
Burns to cease doing business with White ( section III , B, 2, first sentence ) ; the words
"Board Order" are changed to "broad Order" ( section IV, second paragraph, first line).
2 These strikes , which lasted from a few days to several weeks, began on October 7
and November 4 and 16, 1965.
a On October 19, 1965, the National Joint Board for Settlement of Jurisdictional Dis-
putes, Building and Construction Industry , herein called the Joint Board , after a proceed-
ing in which all parties participated, issued an award confirming White's assignment of
the disputed work to the ironworkers The complaint herein was issued by the Regional
Director for Region 4 in accordance with Section 102 93 of the Board's Rules and Regula-
tions, Series 8, as amended , after the Respondent failed to comply with the aforesaid
award. See Electrical Workers Local 2 6 (McCloskey & Co.), 147 NLRB 1498, 1502-03.
LOCAL NO. 825 , OPERATING ENGINEERS 1619
Burns & Roe, Inc., herein called Burns, is a general contractor for
Jersey Central Power and Light Company, which is constructing a
nuclear power generator plant at Oyster Creek , New Jersey . Certain
construction work was subcontracted by Burns to White, Chicago
Bridge & Iron Co. ( herein called Chicago Bridge ), and Poirier &
McLane Corporation ( herein called Poirier ). These subcontractors
employ operating engineers , ironworkers , carpenters , and laborers.
Burns has no construction employees on the job. All the operating
engineers on the project are members of the Respondent , which has
bargaining contracts with Chicago Bridge and Poirier, but not with
Burns and White. Prior to 1963 , Burns and White, who are mem-
bers of Building Contractors Association of New Jersey, were covered
by a multiemployer bargaining contract with the Respondent . In Jan-
uary 1964 , this Board found the Respondent in violation of Section
8(b) (1) (B ) and (3 ) of the Act for attempting to bargain unilater-
ally with the individual members of the Association 4
As detailed in the Trial Examiner's Decision , during the days
immediately preceding October 1 , 1965, on which date all the operat-
ing engineers employed by White, Chicago Bridge, and Poirier
engaged in a work stoppage , Bill Bonatz , Hank Behrend, and Bobbie
Illario, agents of the Respondent , were involved in the conduct
described below.
In the latter part of September , Chris Gunderson , White's construc-
tion superintendent , was approached by Bonatz and Behrend and told
that an engineer would be required to push the buttons which oper-
ated an electric welding machine recently installed by White on the
jobsite. After Gunderson checked with his office and was informed
that this work had been assigned to White's ironworkers who were
f o perform the actual welding , he relayed this information to Bonatz
and Behrend . On September 30, Bonatz and Behrend again
approached and told Gunderson that they were going "to knock the
engineers off the crane," and they gave Gunderson three copies of a
proposed agreement for White to sign. On that date, the engineer and
oiler on the crane stopped work at 10 a.m. and did not return to work
until about 1 p.m. on October 1.
On September 29, 1965, Giles Willis, resident construction manager
for Burns , was visited by Bonatz and Behrend and told that members
of the Respondent employed by subcontractors on the job had taken
a vote to cease work unless Burns signed a contract with Respondent.
On the next day, Bonatz , Behrend, and Illario approached Willis,
'International Union of Operating Engineers , Local 82 .. ( Building Contractors A88o-
ciation of New Jersey ), 145 NLRB 952 , enfd. by consent decree entered by the U.S. Court
of Appeals for the Third Circuit on August 5, 1966, in Case 22-CB-538 (1-2).
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who was given copies of the abovementioned proposed contract and
told that, unless Burns signed the contract by the following morning,
all the operating engineers would walk off the job. On October 1, at
8 a.m., the same three agents again met Willis and asked if Burns had
signed the contract .' When Willis replied in the negative , they left
his office and proceeded to the parking lot outside the gate and
engaged in conversations with the engineers who had gathered there.
The engineers , who were employees of White, Chicago Bridge, and
Poirier, did not report for work until 1 p.m.
The Trial Examiner viewed the October 1 work stoppage as spon-
taneous conduct on the part of the engineers and found that the Gen-
eral Counsel did not sustain his burden of proof to show that the
strike was authorized or directed by the Respondent . In our opinion,
the preponderance of record evidence requires a finding that the
Respondent induced and encouraged the engineers to engage in the
strike. Thus , Behrend presided at a meeting of all engineers employed
on the project which was held on the jobsite a few days prior to Octo-
ber 1. A unanimous vote was taken to strike because of White's refusal
to assign the welding machine work to an engineer and because
neither White nor Burns had contracts with the Respondent . Bonatz
and Illario were also present at this meeting . Thereafter , there were
requests that the work be performed by Respondent 's members and
threats of work stoppage were made by Respondent's agents. Imme-
diately before the stoppage of October 1, Bonatz, Behrend , and Illario
talked to the engineers assembled at the parking lot.6
Upon the foregoing facts and the entire record, we find that a pre-
ponderance of evidence establishes that the Respondent , with an
object to force or require White to assign the disputed work to engi-
neers represented by the Respondent , induced or encouraged employ-
ees employed by White, Chicago Bridge, and Poirier to engage in a
work stoppage on October 1, 1965, and threatened , restrained, or
coerced Burns and these other employers , all in violation of Section
8(b) (4) (i ) and (ii ) ( D) of the Act.
2. Contrary to the Trial Examiner , we find, that the Respondent
violated Section 8 ( b) (4) (i) and ( ii) (B) of the Act by its work stop-
5 The contract sought from white and Burns provided for Respondent 's members to
perform the disputed work The contract also provides that any employer who becomes a
party thereto could not subcontract any work covered by the agreement unless the sub-
contractor agreed in writing to perform all work subject to the terms and conditions of
the agreement.
u Behrend testified that , after the strike began , he reported it to the Respondent ' s office
and that shortly thereafter he received a message from an unidentified individual at that
office that "there was some kind of negotiations going on and to get the men back on the
job right away ." It also appears that the Joint Board was notified of the dispute by tele-
gram immediately after the strike began and the Joint Board requested the general presi-
dent of International Union of Operating Engineers to direct the Respondent local union
to have the men return to work immediately , pending an adjustment of the dispute
LOCAL NO. 825, OPERATING ENGINEERS 1621
pages of October 1 and 7, 1960, as alleged by the complaint in Case
4-CC-359.'
We have found that the Respondent was responsible for the strike
of October 1, and in agreement with the Trial Examiner, we have
found the Respondent also responsible for the strike of October 7.8
It is clear that Respondent's strike threats and strikes were in further-
ance of the Respondent's primary dispute with White who refused to
reassign the welding machine work to engineers represented by the
Respondent.° It is equally clear that the respondent sought to achieve
the assignment of this disputed work by applying economic pressure
on neutrals to the dispute-Burns, the general contractor, and sub-
contractors Chicago Bridge and Poirier-with an object of causing a
disruption of the business relationship among the various employers
at the jobsite.10 Unlike the Trial Examiner, who found the object pro-
scribed by.Section 8(b) (4) (B) to be a literal cessation of business,
the Board has held that an object such as the Respondent's herein,
although something less than a total cancellation of a business rela-
tionship, constitutes a "cease doing business" object within the mean-
ing of this section of the Act.- Here, therefore, within the meaning
of the statute, an object of the Respondent was to force Burns to
cease doing business with White, and to force Chicago Bridge and
7 Member Fanning dissents from this finding His view, expressed in Local J, Plumbers
Union (Arthur Veneers Company), 137 NLRB 828, 834, and 145 NLRB 1580, 1601, and
recently in Millwrights Local Union No. 1102 (Dobson Heavy Haul, Inc ), 162 NLRB
217, is that the finding herein that a jurisdictional dispute exists in these consolidated
cases precludes a finding that the Respondent's conduct for the purpose of resolving this
dispute is also violative of Section 8(b) (4) (B). But see the contrary position taken by
it majority of the Board in Venneri and Dobson, and the recent opinion in Local 2i. In-
ternational Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Com-
pany), 162 NLRB 703, wherein the Board found violations of 8(b) (4) (B) and (D) in
a consolidated proceeding.
8 With regard to the strike which began on October 7, the evidence shows that on
October 6, the Respondent threatened Willis and Telghman Suffrecal, representatives of
Burns and Poirier, respectively, with a strike, and that Langlinais, project manages for
Chicago Bridge, was told by the Respondent after the strike was underway that it resulted
from the welding machine dispute Employees of Poirier and Chicago Bridge, engaged In
a work stoppage between October 7 and 11. These employees had also ceased work on
October 1
The work stoppages which began on November 4 and 16, 1965, were confined to em-
ployees of White, with whom the Respondent had a primary dispute, and are not alleged
as violations of Section 8(b) (4) (B).
The General Counsel has argued that the Respondent also had a primary dispute with
Burns arising out of the latter's refusal to sign a contract with Respondent, and that
White, Poirier, and Chicago Bridge were neutrals enmeshed in that dispute, but we
perceive no useful purpose for deciding whether a violation should be predicated upon
that theory. We note, however, that the apparent purpose of Respondent's request for a
contract from Burns was to obtain the disputed work from White.
10 See Local 25, International Brotherhood of Electrical Workers, AFL-CIO (New York
Telephone Company), supra; Millwrights Local Union 1102 (Dobson Heavy Haul, Inc ),
supra; Local 1291, International Longshoremen's Association (Pennsylvania Sugar), 142
NLRB 257, 261, enfd 332 F 2d 559 (C A 3)
"Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Tele-
phone Company), 140 NLRB 729, 730; Local 1291, International Longshoremen's Asso-
ciation, (Pennsylvania Sugar), supra.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Poirier to cease doing business with Burns in order to compel Burns
to cease doing business with White.
3. We agree with the Trial Examiner's recommendation that a
broad cease-and-desist order is required to remedy the Respondent's
unfair labor practices found violative of Section 8(b) (4) (D) of the
Act. In addition to the work stoppages which stemmed from White's
assignment of work, the Respondent has also been involved in juris-
dictional disputes concerning the assignment of work by other employ-
ers on the Oyster Creek project and has been enjoined by the
court from engaging in other work stoppages on this project.12 There-
fore, until all building and construction work at the Oyster Creek
project is completed, we shall order the Respondent to cease and desist
from forcing or requiring White or any other employer engaged on
the project to assign any work to employees represented by the
Respondent rather than to employees represented by another labor
organization, except insofar as permitted by Section 8(b) (4) (D) of
the Act.
Having found that the Respondent has also engaged in violations
of Section 8 (b) (4) (D) and because of the Respondent's demonstrated
proclivity to engage in unlawful secondary activities, as noted in the
Trial Examiner's Decision, we shall issue a broad cease-and-desist
order to prevent the Respondent from committing future violations
in its disputes with White and other primary employers.13
Additional Conclusions of Law
1. By inducing and encouraging the employees of Chicago Bridge
and Poirier to engage in work stoppages, and by threatening, coerc-
ing, and restraining these employers and Burns with an object in
each case of forcing or requiring Chicago Bridge and Poirier to cease
doing business with Burns, and with a further object of forcing or
requiring Burns to cease doing business with White, the Respondent
has engaged in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (B) of the Act.
2. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in these cases and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
12 Bernard Samoff, Regional Director, et aZ . v. Local No 825, International Union of
Operating Engineers , AFL-CIO, Civil No. 66-66, consent decree entered on February 1,
1966 , by U.S. District Court for the District of New Jersey. See also this Board's Decision
and Determination of Dispute , Local 825 , IUOE ( Utilities Line Construction Co, Inc ),
159 NLRB 1416.
' See Local 825, International Union of Operating Engineers , AFL-CIO ( United Engi-
neers 8 Constructors , Inc.), 138 NLRB 279, 280, enfd . 332 F 2d 478 (C.A. 3).
LOCAL NO. 825, OPERATING ENGINEERS 1623
Relations Board hereby orders that the Respondent, Local No. 825,
International Union of Operating Engineers, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging any individual em-
ployed by Chicago Bridge & Iron Co., Poirier & McLane Corpora-
tion, or any other person engaged in commerce or an industry affect-
ing commerce, to engage in a strike or a refusal in the course of his
employment to perform any services ; or threatening, coercing, or
restraining Chicago Bridge & Iron Co., Poirer & McLane Corpora-
tion, Burns & Roe, Inc., or any other person engaged in commerce or
an industry affecting commerce, where, in either case, an object
thereof is to force or require Chicago Bridge & Iron Co., Poirier &
McLane Corporation, or any other person, to cease doing business
with Burns & Roe, Inc., or any other person, or to force or require
Burns & Roe, Inc., or any other person to cease doing business with
White Construction Company, or any other person.
(b) Engaging in, or inducing or encouraging any individual
employed by White Construction Company, Chicago Bridge & Iron
Co., Poirier & McLane Corporation, or any other person engaged in
commerce or an industry affecting commerce, to engage in a strike or
a refusal in the course of his employment to perform any services; or
threatening, coercing, or restraining White Construction Company,
Chicago Bridge & Iron Co., Poirier & McLane Corporation, Burns
& Roe, Inc., or any other person, where, in either case, an object
thereof is to force or require White Construction Company, or any
other person engaged on the Oyster Creek, New Jersey, project, to
assign any work to employees who are represented by the Respondent,
rather than to employees who are represented by another labor orga-
nization, except insofar as any such action is permitted under Section
8(b) (4) (D) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its business offices and meeting halls, copies of the
attached notice marked "Appendix." 14 Copies of said notice, to be
furnished by the Regional Director for Region 4, after being duly
signed by the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
14 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order."
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Sign and mail copies of said notice to the Regional Director
for posting by White Construction Company, Chicago Bridge & Iron
Co., Poirier & McLane Corporation, and Burns & Roe, Inc., these
companies willing, at all locations where notices to their respective
employees are customarily posted.
(c) Notify the Regional Director for Region 4, in writing, within
10 days from the date of this Decision, what steps the Respondent
has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS
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 induce or encourage any individual employed
by Chicago Bridge & Iron Co., Poirier & McLane Corporation,
or any other employer, to engage in a strike or a refusal in the
course of his employment to perform any services; or threaten,
coerce, or restrain the above-nalned companies, and Burns &
Roe, Inc., or any other employer, Where an object in either
case is to force or require Chicago Bridge & Iron Co., Poirier &
McLane Corporation, or any other employer, to cease doing busi-
ness with Burns & Roe, Inc., or any other employer, or to force
or require Burns & Roe, Inc., or any other employer, to cease
doing business with White Construction Company, or any other
employer.
WE WILL NOT induce or encourage any individual employed by
White Construction Company, Chicago Bridge & Iron Co., Poir-
ier & McLane Corporation, or any other employer, to engage in
a strike or a refusal in the course of his employment to perform
any services; or threaten, coerce, or restrain the above-nalned
companies, and Burns & Roe., Inc., or any other employer, Where
an object in either case is to force or require White Construction
Company, or any other employer engaged on the Oyster Creek,
New Jersey, project, to assign any work to employees represented
by Local No. 825, International Union of Operating Engineers,
AFL-CIO, rather than to employees represented by another
labor organization, except insofar as any such action is lawful
under Section 8(b) (4) (D) of the Act.
LOCAL No. 825, INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
LOCAL NO. 825, OPERATING ENGINEERS 1625
This notice must remain posted for 60 consecutive days from the
day of posting, and must not be altered, defaced, or covered by any
other material.
If members have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 1700 Bankers Securities Building, Walnut and Juni-
per Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7601.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A charge having been filed by Burns & Roe, Inc., herein called Burns, on Octo-
ber 8, 1965, against Local No. 825, International Union of Operating Engineers,
AFL-CIO, herein called Local 825 or the Respondent , alleging Respondent violated
Section 8 ( a) (4) (i) and ( ii) (B) of the Act and a charge having been filed by
White Construction Company, herein called White, on November 5, 1965, against
Respondent alleging it violated Section 8(b) (4) (i ) and (ii ) (D) of the Act, the
General Counsel issued a consolidated complaint against Respondent alleging viola-
tion of said section.
The answer of Respondent denied the commission of any unfair labor practices.
This proceeding with all parties represented was heard before Trial Examiner
John F . Funke on January 6 and 7, March 31, April 1, and May 16, 1966, at Phil-
adelphia, Pennsylvania .' At the conclusion of the hearing the parties were granted
leave to file briefs and briefs were received from the General Counsel.2
Upon the entire record and from my observation of the witnesses , including their
demeanor while testifying , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES INVOLVED
Burns is a New Jersey corporation engaged as engineering constructor for Jersey
Central Power & Light Co., at a nuclear power plant at Oyster Creek, New Jersey.
During the course of the construction of the Oyster Creek plant Burns purchased
materials valued in excess of $50,000 annually from points outside the State of
New Jersey.
White is a New York corporation engaged as a subcontractor for Burns at Oyster
Creek in the construction of a reactor plant at the site. During the course of con-
struction of this plant White has purchased materials valued in excess of $50,000
annually from points outside the State of New Jersey.
At all times material herein Porier & McLane Corporation, herein called Porier,
and Chicago Bridge & Iron Co., herein Chicago Bridge, have been engaged as sub-
contractors for Burns at Oyster Creek.
1 The hearing was originally scheduled for December 7, 1965. At the request of counsel
for the Respondent the hearing was rescheduled by the Regional Director for Region 4
on January 6. On that date I recessed the hearing until January 7, 1966, at request of
counsel for Respondent made through the General Counsel. On January 7, no representa-
tive of the Respondent appeared and the hearing was opened, testimony taken, and the
hearing closed. On January 25, counsel for Respondent, Thomas E. Durkin, Jr, moved
to reopen the hearing and, the General Counsel not opposing the motion, the motion was
granted by me by order of February 8, and the date of the reopened hearing was fixed for
February 24 The order limited the reopened hearing to cross-examination of the General
Counsel's witnesses and to the testimony of Respondent' s witnesses and Respondent's
documentary evidence By agreement of the parties the reopened hearing was again post-
poned to March 21 and, at request of the counsel for the Charging Parties it was again
postponed until March 31. At the conclusion of the hearing on April 1, two witnesses
under subpena by Respondent failed to appear (one due to illness ) so the hearing was
rcce,sed indefinitely The hearing was reopened on May 16, by agreement of the parties
and concluded on that date.
2 A brief was received from the General Counsel on January 25 following the close of
the hearing on January 7 At the conclusion of the reopened hearing the General Counsel
was given leave to file a supplemental brief and counsel for the Respondent leave to file
a brief. A supplemental brief was received from the General Counsel July 1.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns, White, Porier, and Chicago Bridge are engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent and Local Union No. 350, International Association of Bridge, Struc-
tural & Ornamental Ironworkers, herein called the Ironworkers, are labor organi-
zations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. Background
In September 1964, Burns started construction of a multimillion dollar nuclear
power generator plant at Oyster Creek, New Jersey, for Jersey Central Power and
Light Company. Burns was the architect engineer and general contractor but
employed no construction workers. Construction was subcontracted to White (con-
struction of the reactor building), to Chicago Bridge (construction of compression
chambers, containment vessel and suppression chambers for the reactor), and to
Porier (construction of the turbine structure, intake and discharge structuies).3 All
the operating engineers on the job were represented by Local 825. Neither Burns
nor White had a contract with Local 825, Chicago Bridge and Porier did. Burns
had a contract with the International Union of Operating Engineers, and both
Burns and White were members of the Building Contractors Association of New
Jersey which had had contracts with Local 825 prior to 1963. On January 9, 1964,
the National Labor Relations Board in Local 825, Operating Engineers, 145 NLRB
952, found Respondent in violation of Section 8(b)(1) and (3) of the Act for
attempting to bargain unilaterally with the individual members of the Association 4
2. The work stoppage on October 1
Robert C. Kylberg, general superintendent for White until the middle of January
1966, testified that discussion as to the assignment of an electric welding machine
to be used at Oyster Creek by White started in August 1965, before White com-
menced operations at the site. These discussions were conducted with the contrac-
tors association (presumably the Building Contractors Association), and it was
decided to give the assignment to the Ironworkers. Kylberg testified that this deci-
sion was arrived at by "consensus."
Robert A. Escher, president of White, testified that early in September (White
started on the job on September 1, 1965), he had a meeting with representatives of
the various crafts to discuss the job in general and among those present were Peter
Weber, president of Local 825, and T. J. Norton, business agent for the Iron-
workers. There was, according to Escher, no discussion of the operation of the
electric welding machine which did not arrive at the jobsite until on or about Sep-
tember 20.
Chris Gunderson, construction superintendent for White at Oyster Creek, testified
that when White installed the electric welding machine at the jobsite in September
he was approached by Bill Bonatz, job steward for Local 825, and Hank Behrend,
lead engineer for Porier, and was told he needed an engineer to push the buttons
which started and stopped the machine.5 Gunderson called his office and was told
There were other subcontractors who were not involved in the dispute
s The Board Issued a supplemental decision in this case on February 2, 1960, which
did not relate to or affect the Board's 8(b) (1) and (3) findings.
6 Respondent concedes that Bonatz was an agent of Local 825. It does not concede that
two lead engineers, Behrend for Porier and Illario for Chicago Bridge, were agents. A lead
engineer, also called a master mechanic, is provided by and designated by Local 825 when
five or more engineers are employed by a contractor at a jobsite. The duties of a lead
engineer are defined in Local 825's contract (General Counsel's Exhibit 10) article II,
section as follows :
He shall be responsible for the performance of all duties of Engineers , Apprentice
Engineers, Repair Mechanics, Oilers, Firemen, Maintenance Engineers , and other em-
ployees under his jurisdiction under the direction of the Employer.
He will not be allowed to operate an Engine, only in the temporary absence of the
regular engine. He shall have complete supervision over all repairs made on all
machines and other automotive equipment used, when such repairs are done on the job.
The testimony in this case , however, establishes that Behrend and Illario participated with
Bonatz in submitting demands upon the contractors, that they warned the contractors
LOCAL NO. 825, OPERATING ENGINEERS 1627
that the work had been assigned to the Ironworkers. When or where Gunder-
son reported this to Bonatz and Behrend is not disclosed but on September 30
Gunderson was again approached by them and told they were "to knock the men
off the crane" (White at this time had one crane operating with an engineer and
an oiler), and gave him three copies of an agreement with Local 825 for White to
sign 6 According to Gunderson his engineer and oiler stopped work at 10 a.m. on
September 30 and did not return to work until about 1 p.m. on October 1.7
Giles Willis, resident construction manager for Burns at Oyster Creek, testified
that on September 29, 1965, he met in his office at the jobsite with Bill Bonatz and
Hank Behrend who told him that members of Local 825 employed by subcon-
tractors at the jobsite had taken a vote to cease work unless Burns signed a con-
tract with Local 825. On the next day Bonatz, Behrend, and Bobbie Illario saw
Willis, and Illario give him three copies of a standard Local 825 contract 8 and
told him that unless Burns signed them all the members of Local 825 employed at
Oyster Creek would walk off.9 The following day, October 1, at 8 a.m. Bonatz,
Behrend, and Illario again met Willis and asked if Burns had signed that contract
and when Willis replied in the negative they left his office. Willis saw them pro-
ceed to the parking lot outside the gate where the engineers were gathered and
after what appeared to be some discussion the engineers left.
R. T. Daricek, superintendent for Chicago Bridge, testified that on September 30
he met Bonatz and asked him if the rumors were true that the engineers would
not work the following day and was told by Bonatz that if Burns did not sign a
contract with Local 825 the following morning no engineers would work. When
Daricek protested that Chicago Bridge was under contract with Local 825 Bonatz
told him that all the contractors must have contracts.
Behrend and Bonatz testified that this stoppage took place after the members
of Local 825 employed on the job (approximately 35) held a meeting in the
Porier shanty on September 28 and expressed disagreement with the policies of
Burns and White. Their disagreement with Bums was directed to the failure of
Burns to enter into a contract with Local 825 and with White to its failure to con-
tract with Local 825 and with its assignment of work on the welding machine to
the Ironworkers. It was the testimony of both witnesses that this was a spontaneous
reaction on the part of the members and was not directed nor instigated by any
official of Local 825. The members did not go to work on the morning of Octo-
ber 1.
Behrend testified that when the men failed to go to work he called the office of
Local 825, spoke to a clerk and informed him of the work stoppage. Subsequently
he received a call from Peter Weber, business manager of Local 825, to get the
men back on the job "right away." Behrend complied with instructions, made sev-
eral telephone calls, contacted Bonatz in a restaurant, and the work was resumed.
There is no evidence, apart from Behrend's testimony that Weber told him the
matter had been settled, as to why Weber told him to get the men back to work.
(Weber did not testify at the hearing.)
3. The stoppage on October 7
Gunderson testified that on October 6 he still had one engineer and an oiler
working for him and that on October 7 neither "showed up." Gunderson called
Local 825 at Newark and asked for replacement for the next day. The next day an
engineer and oiler appeared at the site, told him they were going to check with
the other engineers before going to work and he "didn't see them since." On Octo-
ber 12 the engineers employed by White returned to work. There is no explanation
in the testimony of either Gunderson, Kylberg, or Escher, as to the reason for
the stoppage nor for the return.
when stoppages were to occur and told the contractors what the causes of dispute were
It was Behrend and not Bonatz who call the Newark office of Local 825 when the first
walkout occurred. Having joined with the job steward and having displayed authority
equal to his when disputes and stoppages arose I think it clear that they acted as agents
of Local 825 and there is no evidence that Local 825 ever repudiated this authority.
I General Counsel's Exhibit 10.
7 Whether or not White' s engineers quit on September 30 the engineers employed by
Chicago Bridge and Porier worked that day.
8 General Counsel's Exhibit 4. This exhibit is the same as General Counsel's Exhibit 10
which was submitted to White for signature. Both are copies of Local 825's A G.C contract
6 Although this remark is denied by Illario, I found Willis to be a completely credible
witness and I accept his testimony on this point
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willis, however, testified that about 4 p.m. on October 6 Bonatz and Illario came
to his office and told him that unless an operating engineer was assigned to the
welding machine there would be no engineers at work the following day and Illario
again brought up the failure of Burns and White to sign contracts with Local 825.
On that day Burns submitted the dispute over the work assignment to the National
Joint Board for the Settlement of Jurisdictional Disputes. (General Counsel's
Exhibits 5 and 6.) Willis told them there would be no change in the assignment
unless it was by the Joint Board.
Telghman Suffrecal, general superintendent for Porier, testified that he had 20
operating engineers working on October 6 and that Behrend, shop steward for his
engineers,10 told him he might or might not have engineers the next day On Octo-
ber 11 Suffrecal again saw Behrend who told him the engineers would return on
the 12th. He admitted that Local 825 had no dispute with Porier but that it did
have a dispute with Burns and with White." Behrend gave him no other reason
for the stoppage. Porier's engineers worked continuously thereafter.
Langlinais, project manager for Chicago Bridge, testified that his engineers did
not work on October 7 and that on October 8 he had a conversation with Bonatz
in which Bonatz told him that the stoppage was the direct result of the welding
machine assignment and the fact that Burns and White did not have a contract with
Local 825. The engineers returned on October 12 and worked thereafter. There
was no dispute between Chicago Bridge and Local 825.
The only testimony by any representative of Local 825 relating to this stoppage
is that of Bonatz. He testified as follows:
Q. Correct. Now on or about October 6, 1965, did you say to anyone that
unless an operating engineer was assigned to the welding machine there would
be no operating engineers on the job the following day?
A. Not that I can remember.
Q. There was a work stoppage, was there not, sir, on or about October 7?
A. I believe so, yes.
Q. How did this work stoppage come about, do you know?
A. I believe they started the welding machine.
Q. Now after the welding machines were started, what happened?
A. The men walked off.
Q. Did you tell the men to walk off?
A. No sir.
Q. Well, when the men walked off was there a meeting?
A. No, I think the meeting was prior to that.
Q. When, sir?
A. A week, maybe.
Q. This would be the meeting you discussed back on or about October 1
or on or about September 29?
A. I believe so.
Bonatz' statement that he believed the men walked off on this date because
White started operating the welding machine may have been made in confusion as
to dates. There is no evidence that the machine was started on October 7 and sub-
sequent testimony indicates that the machine was first operated by an ironworker
on November 4. (It may have been operated by engineers for 2 days prior to that
date. )
4. The work stoppage on November 4
On October 20 the Joint Board notified the parties to the dispute over the weld-
ing machine that there was no reason to disturb the assignment of work on the
welding machine to the Ironworkers. (General Counsel's Exhibit 7.) On Octo-
ber 26 a meeting was held at the jobsite to discuss the award. Kylberg met with
Weber, Behrend, Bonatz, and Gatti 12 and went to lunch with Weber and Gatti.
10 Suffrecal was apparently confused since the record is clear that Bonatz was shop
steward for all engineers employed at Oyster Creek and that Behrend was lead engineer
for Porier Suffrecal subsequently corrected this testimony.
11 This statement was denied by Behrend and was the subject of lengthy cross-
examination when Suffrecal was recalled on March 31, 1966 Despite Suffrecal's evasive
and confusing testimony on the latter date I credit this statement chiefly because the
record is barren of any conflict between Porier and Local 825 and the statement was one
which would quite likely have been made. Suffrecal was clear and convincing on direct
and I credit his testimony on direct
"Gatti was a member of Local 825.
LOCAL NO. 825, OPERATING ENGINEERS 1629
Weber told Kylberg that the Joint Board award was all wrong and that the assign-
ment of the welding machine meant a great deal to him. He told Kylberg that if
he would work with Local 825 it would be advantageous and that if not there
would be complications. According to Kylberg he pointed to a crane a few feet
away, asked him how he would like to have three men on the crane instead of two.
He also asked him how he would like to have a 30-hour week with triple over-
time.13 President Escher of White was at that time on a business trip and it was
agreed to withhold final decision until his return. There is nothing in the record
to indicate that Escher had any conversation with Weber after his return until
December 1.
Gunderson testified that on November 4 he started the welding machine and that
his crane operators walked off and surrounded the machine and it was not operated
that day.14 At this time Bonatz came to him and asked if he had signed a contract
with Local 825. At this time the witness' testimony was interrupted and he did
not give the remainder of the conversation. Gunderson stated that on the next
day he again started the machine and it was again surrounded by his engineers
and was not operated. On November 8 a temporary injunction was granted by the
District Court (General Counsel's Exhibit 11), restraining Respondent from strik-
ing, etc., to compel White to assign the work of starting and stopping electric weld-
ing equipment at Oyster Creek to employees represented by Respondent rather than
to members of any other labor organization. Gunderson could not remember when
the men resumed work.
Bonatz testified that he was working on the crane on November 4 and that when
the welding machine started he joined "some of the fellows around the machine."
He admitted the machine had been shut off but did not know who did it He stayed
at the welding machine only a few minutes but did not return to his crane. While
he testified that the crane was not working he admitted that he did not believe
there was anything wrong with it. He did not work November 4 or 5 but again
there is no evidence to show when or why he returned.
5. The concrete pump
On November 1 White brought an electric pump to the jobsite to be used for
pouring concrete. Gunderson set the pump on November 15 and Bonatz told him
he would need an engineer to operate it. Gunderson agreed and told Bonatz to
send one out the next day as he wanted to pour on the 17th. On the 16th Illario
came out with two additional engineers to act as standbys on the pipe running from
the pump and announced that since there were now five engineers on the job he
was lead engineer. Gunderson refused to employ the engineers on the ground they
were not needed. The next day, the 17th, the same dispute continued and no engi-
neer operated the concrete pump. On that day Ed Smith, Ironworker foreman, told
Gunderson the wires on the electric welding machine had been cut and oil poured
into the armature. There is no evidence to establish who sabotaged the welding
machine. About noon the other engineers employed by White walked off the job
Gunderson testified that on either the 16th or 17th 15 he spoke with Illario and
that Illario "mentioned the fact that this was more or less because of the electric
welding machine being in operation." Since the only dispute at this time was over
the number of engineers to be employed and since Illario, who was bringing out
the additional engineers, was the only person directly involved in the dispute there
can be no doubt that Illario was referring to the pump dispute and attributing
it to the welding machine dispute where an injunction prevented a stoppage.
Robert Escher, president of White, testified that he called Weber at his home on
December 1, to find out how to get the men back to work. He told Weber in the
course of a conversation which lasted over an hour that he had heard that if he
took the electric equipment (the welding machine) off the job and put in gasoline
11 On cross-examination counsel for Respondent attempted to draw a distinction between
the use of the words "would" and "could" in this conversation. The distinction, to the
extent it exists, is that between a direct and implied threat, a distinction not relevant in
Section 8(b) (4).
i' At this time, according to Gunderson, he employed four engineers, Cherry, Bonatz,
Gatti, and one whose name he could not recall. These were the men who surrounded the
machine
16 While Gunderson testified that it was either on the 16th or 17th and it is a fact that
Gunderson and Mario talked on both days the nature of the remark indicates it was
probably on the 17th.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment that White could go back to work. According to Escher, Weber an-
swered, "Yes, but you have got to sign a contract." Escher told him he could not
sign a contract because there had been a dispute between them ever since 1962
over this. (This refers to the efforts on the part of Local 825 to have members of
the Building Contractors Association sign individual contracts.) 16 When Escher
tried to discuss the award of the Joint Board Weber told him they (the Joint
Board) "didn't know what the hell they were talking about, that this was his work
and had been his work historically and that they were just a bunch of dopes and
he wasn't going to abide by it and that it meant four hundred new jobs in the State
of New Jersey." Weber denied that Norton, president of the International Union
of Operating Engineers, had ordered him to put the men back to work, and added
that he "didn't have to." Again Weber mentioned such demands as 30-hour week,
triple overtime, and four men on a crane.
The engineers who walked off on November 17 returned to work on either
December 21 or 22. Again there is no explanation given in the record as to the
reason for this return.
B. Conclusions
1. Credibility
Credibility is an issue in the case and I have already made certain specific find-
ings which need not be repeated here. It must be noted, however, that two of the
General Counsel's witnesses, Suffrecal of Porier and Gunderson of White, who
testified forthrightly and without reservation on January 7, were recalled on cross-
examination on March 31. On this occasion, confronted for the first time by a
representative of the Respondent, their testimony became both evasive and con-
fusing. It was apparent from their conduct on the stand and the hesitancy with
which they answered that they were reluctant to testify adversely to the interests
of the Respondent, generally regarded as one of the most powerful local labor
organizations in the East. I conclude that their testimony given on January 7 when
they were free from any pressures, however imaginary in nature, was truthful. I
also base this finding on the fact that this testimony corroborates and fits the pat-
tern of the testimony of other witnesses for the Charging Party whom I have cred-
ited in full and who did not weaken under cross. Apart from these two, the General
Counsel's witnesses were forthright and credible on both direct and cross-examination.
I might also note that much of the testimony of the witnesses called by Respond-
ent was confusing if not evasive and that no specific finding can be made on much
of it.
Where I have credited the testimony of a witness as to a specific conversation
I have, a fortiori, discredited testimony of other witnesses which was contradictory
whether or not such a specific finding has been made.
2. Violations of Section 8(b)(4)(B)
The complaint, paragraphs 7(a) and (b), alleges that the conduct of Respond-
ent as above set forth, supra, had among its objects the forcing of Chicago Bridge,
Porier, and White to cease doing business with White. There is not a scintilla of
evidence to support these allegations. On this record Respondent may be found
to have two objections, (1) to force Burns and White to agree to Local 825's
contract in violation of the Board's Order in the Building Contractors' case, supra,
and (2) to force White to assign the operation of the welding machine to its
members. Neither objective would have been furthered by a general cessation of
business among the parties. Local 825 never made any request upon Chicago
Bridge, Porier, or White to cease doing business with Bums. Such a request would
have been totally irrational for it would have simply forced Burns to employ
other subcontractors which, with the possible exception of White, would not have
furthered either interest of the Respondent . But Respondent never indicated it
wanted White off the job-it wanted to harass White to gain compliance with its
requests. Nor was any demand made upon Burns to cease doing business with
White. Respondent never suggested that cancellation of the contract would have
served its purpose. It did inform Bums, through persons I have found to be its
16 When Escher inquired why Local 825 was supplying engineers on three other White
projects in New Jersey, Weber told him be would pull them off the next day. These engi-
neers were never pulled off the White jobs.
LOCAL NO. 825, OPERATING ENGINEERS 1631
agents, that the failure of Burns and White to sign contracts and the assignment
of the work on the job were the sources of the dispute. All Respondent wanted
was the work, not a substitution of contractors nor a termination of contractual
relationships between the contractors.
The General Counsel attempts to distinguish this case from Local Union 825,
International Union of Operating Engineers, AFL-CIO (Nichols Electric), 138
NLRB 540, enforcement denied 326 F.2d 218 (C.A. 3), by stating "there is ample evi-
dence to show Respondent sought these objectives." The brief, which is character-
ized elsewhere by specificity, give no citation of fact or testimony to support this
conclusion and a search of the record reveals no testimony to support it.17 Neither
the General Counsel nor any other counsel should so mislead a Trial Examiner.
In this case it was necessary for me to waste my time in a painstaking recheck
of the record in search of this alleged "ample evidence." Attorneys for the Gen-
eral Counsel should regard themselves as bound by the Canon of Ethics of the
American Bar Association and it is lamentable that the admonition of a distin-
guished attorney to his junior associates that they would meet no more unscrupu-
lous adversary in court than counsel for the Government should ever find
support.l$
3. Violations of Section 8(b)(4)(D)
The Respondent has failed to file a brief in this case so its contentions and
defenses are subject to speculation on my part. Based solely on the lines of inter-
rogation taken by counsel for the Respondent upon examination of its witnesses
and cross-examination of the General Counsel's witnesses I find those defenses to be:
(1) That the work stoppages, at least those of October 1 and 7, were neither
authorized nor directed by the Respondent but were spontaneous on the part of
the employed members themselves in resentment of the fact that there were no
contracts between White and Burns and that operation of the welding machine
had been assigned to the Ironworkers.
(2) That the award of the work on the welding machine to the Ironworkers
was invalid in that the dispute was submitted to the Board by Burns and not by
White and that Burns was not a party to the dispute.
(3) That the work traditionally and historically had been performed by Oper-
ating Engineers and not by the Ironworkers.
(4) That the Ironworkers had made no claim to the work.
This proceeding does not follow a 10(k) hearing but is brought pursuant to
the "Alternative Procedure" as set forth in the Board's Rules and Regulations,
Series 8, as amended, Section 102. 93. This section reads:
Sec. 102.93 Alternative procedure.-If, either before or after service of
the notice of hearing, the parties submit to the regional director satisfactory
evidence that they have adjusted the dispute, the regional director shall dis-
miss the charge and shall withdraw the notice of hearing if notice has issued.
If, either before or after issuance of notice of hearing, the parties submit to
the regional director satisfactory evidence that they have agreed upon
methods for the voluntary adjustment of the dispute, the regional director
shall defer action upon the charge and shall withdraw the notice of hearing
if notice has issued. If it appears to the regional director that the dispute has
not been adjusted in accordance with such agreed-upon methods and that an
unfair labor practice within the meaning of section 8(b)(4)(D) of the act
is occurring or has occurred, he may issue a complaint under section 102.15,
and the procedure prescribed in sections 102.9 to 102.51, inclusive, shall, insofar
as applicable, govern; and section 102.90 to 102.92, inclusive, are inapplicable.
It has been found that on October 6, 1965, Burns submitted the dispute respect-
ing work on the welding machine to the Joint Board and that on October 19 the
Board decided not to disturb the assignment of this work to the Ironworkers. On
" The Board has, however , specifically supported misleading briefs on the part of the
General Counsel and has reprimanded a Trial Examiner for calling attention to one in
S. Klein's Department Stores, Inc., 149 NLRB 466.
18 Apart from this the case was ably tried and ably briefed by counsel for the General
Counsel and as to this specific criticism it must be remembered that counsel operate under
direction.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 20 it so notified the parties. Burns, White,1° and Local 825 were both
bound by Joint Board rulings.
At the hearing I made certain rulings which are hereby affirmed. I stated that
I would not examine the procedures before the Joint Board or determine whether
or not Burns was entitled to submit the dispute to that Board. Since all parties
appeared I felt that this issue could not be raised in the instant proceeding. Neither
would I permit the merits of the assignment to be attacked in this proceeding.
Whether the work had been traditionally performed by Operating Engineers was
not an issue before me since this was not a 10(k) proceeding. These rulings would
eliminate defenses (2) and (3), supra.
The fact that the Ironworkers had made no claim to work is equally irrelevant
As the court said in Carpenters, et al. v. C. J. Montag & Sons, 335 F.2d 216, 221
(C.A. 9) :
The fact that one union has the jobs and holds on to them in a polite,
non-belligerent manner while the other union uses forbidden tactics to in an
effort to get them, or some of them, does not mean that what Congress
regarded as the evils of a jurisdictional dispute are not present.
The crux of this case lies in the contention that the work stoppages were not
authorized by Local 825. As to the work stoppage of October 1, I would find
that the General Counsel has not sustained his burden of proof to show that this
stoppage was authorized or directed by Local 825 or its agents.
There is nothing in the record to indicate that either Bonatz, Behrend, or
Illario were not conveying to Willis the feeling of the men when they advised
him that there would be a stoppage on October 1 if Burns did not sign a contract.
Whether this feeling had been generated among the men by the agents of Local
825 is open to question but there is insufficient evidence to support such an
inference. Among the major difficulties in resolving issues in labor-management
relations disputes is the fact that most decisions, both by labor and management,
are made in camera and full disclosure of the motives of decisions so reached
is seldom, if ever given. If the motive is unlawful the more realistic term is
never. If simple truthfulness and honesty were ever to prevail the decisional-
making process would be an easy one, but truthfulness and honesty are not com-
monly found when a party is charged with violations of the Act. If people were
honest there would be telephones at racetracks. A fact not disputed which sup-
ports the conclusion reached is that Behrend reported the walkoff to Newark on
the morning of October 1 and that shortly thereafter he was ordered by Weber
to get the men back to work. I do not view this walkout without suspicion but
resort must be taken to the familiar cliche that suspicion is not proof.20
A different conclusion must be reached as to the walkout on October 7. I have
credited the testimony of Willis that late in the afternoon of October 6 he was
approached by Bonatz and Illario and told that unless an engineer was assigned to
the welding machine the men would not work. Suffrecal of Porier was told by his
lead engineer, Behrend, on October 6 that he might or might not have men work-
ing the next day. Langlinais of Chicago Bridge was told by Bonatz on October 8
that the stoppage was the direct result of the failure of White to assign the welding
machine to the members of Local 825. Unlike the work stoppage of October 1
none of Local 825's agents testified that the stoppage was the result of a vote of
19 The contract between Burns and White contained the following clause :
Article 31 Labor Relations
The subcontractor shall be responsible for its own labor relations with any trade or
Union representing his employees and he shall negotiate and seek to adjust all disputes
between himself and his employees or anyone representing such employees. The same
responsibility- shall extend to the Lower Tier subcontractors All contractors in lower
tier subcontractors shall in the settlement of any jurisdictional dispute be bound by
the Rules and Procedures of the National Joint Board where the settlement of juris-
dictional disputes and shall make assignments in accordance with such Rules and
Procedures.
Escher testified that White had in the past submitted jurisdictional disputes to the Joint
Board.
20 As the court stated in N L.P.B v. Local 217, Plumbers (The Carvel Company), 361
F 2d 160 (C A. 1), there is no violation unless the employees are induced and a totally
self-generated cessation of work would not be proscribed.
LOCAL NO. 825, OPERATING ENGINEERS 1633
the members 21 Since this is that kind of case in which the issues must, for the
most part, be decided on rather tenuous inferences I find, in view of the warnings
given by union representatives, that the walkout was authorized.22 It is true that
these same representatives gave the same warnings of a prospective walkout on
October 1 but those warnings were accompanied by statements that the members
were making the decision. The warnings which related to the walkout of October 6
did not attribute the decision to the men. It does not seem likely that members
of a well disciplined union (and this characterization is based on a review of
Board decisions involving Local 825 and my recollection of testimony in four
cases which I heard in which Local 825 was the Respondent), would again strike
on their own initiative after having been ordered back to work on October 1, an
order with which they immediately complied.
The motive for the walkout on November 4 is manifest. We have a history of
the dispute between Local 825 and the two Charging Parties by that date going
back to the time the machine was first installed at Oyster Creek. More importantly
we had the jobsite meeting with Weber on October 26 in which Weber told Kyl-
berg that the Joint Board's assignment was all wrong and that the assignment of
the welding machine operation meant a great deal to him, a statement which was
accompanied by thinly veiled threats to impose burdensome conditions on White.
When the machine was first operated by an ironworker on November 4, White's
four engineers promptly ceased work and surrounded the machine. At or about the
time the engineers ceased work Bonatz went to Gunderson and asked him if White
had signed the contract with Local 825.23 Gunderson told him, "I did not have."
The men did not return to work until after the District Court injunction issued
on November 8. Nothing could be clearer than that this walkout was proscribed by
Section 8(b) (4) (D) of the Act and that the methods employed were in violation
of Section 8(b) (a) (i) and (ii) (D).
Such doubt as might exist that the walkout on November 17, when the concrete
pump was to start operating, and the demand for additional engineers to operate
the pump is resolved by the credited testimony of Gunderson and Escher. Gunder-
son testified that while he was disputing the number of engineers required to
operate the pump with Illario (Gunderson thought one sufficient while Illario was
demanding three), Illario stated that the requirement was more or less due to the
electric welding machine dispute. Escher, anxious to get the men back to work,
called Weber on December 1 and in the course of a lengthy conversation was told
that if he replaced the electric machine with a gasoline welding machine (equip-
ment which would be operated by engineers), and signed a contract, the men would
go back. While it may have been no more than a coincidence that the wires on
the welding machine were cut and oil poured into its armature on that same day,
this coincidence does nothing to diminish the General Counsel's case.
In reaching the conclusion that Respondent violated Section 8(b)(4)(i) and
(ii)(D) in these three specific work stoppages as above found I have considered
the fact that neither Burns nor White had any difficulties with Local 825 until after
the welding machine was brought to the jobsite about September 20. White, with-
out a contract, was able to obtain engineers from Local 825 and there was no hint
until after September 20 that the failure to contract would occasion trouble on the
job. During this entire period White was engaged on three other projects in New
Jersey which were not shut down, another indication that the Oyster Creek prob-
lem stemmed from the welding machine.
While the Board (Member Leedom dissenting) has held that the mere giving of
notice of prospective strike action against a subcontractor to the prime contractor
is not a violation of Section 8(b) (4) (ii) (B), Construction, Building Material and
21 While Behrend testified that he did not tell the men to walk off on October 6 and
that he believed the walkout was the result of the vote taken a week earlier his testimony is
far from conclusive
22 The inference relates only to the authorization of the walkout The purpose of the
walkout was clearly stated by Local 825's agents.
^ This contract submitted to both Burns and to White (General Counsel's Exhibits 4
and 10), contains an addendum which includes in the job classifications the work on both
gas and electric welding machines as part of the equipment to be operated by members of
Local 825 A signing of the contract would therefore accomplish both objectives sought by
Respondent-contractual status and the right to operate the machine
264-047-67-vol 162-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miscellaneous Drivers Local Union No. 83, Teamsters (Marshall & Haas), 133
NLRB 1144. I find that case clearly distinguishable from the instant case. In
Marshall & Haas the prime contractor was not a party to the dispute with the
subcontractor and the notice was given to show the possibility of a stoppage might
occur on the job and, presumably, to offer it the chance to settle the dispute. Here
Burns was a primary party to the dispute and the threats made to White and the
work stoppages were directed to the failure on the part of Burns as well as White
to sign a contract. Under such circumstances I find that the threats and coercion
directed to White were directed equally to Burns. It was only the fortuitous circum-
stance that Burns employed no engineers at the jobsite that precluded it from suffer-
ing stoppages. I shall therefore include Burns in the Recommended Order.
1V. THE REMEDY
Having found the Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
The General Counsel has requested that a Board Order issue in this case in
view of prior violations of the Act by Respondent and its failure to comply with
Board Orders.24 I agree and shall recommend an order in the form requested by
the General Counsel.25
Upon the foregoing findings and conclusions and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. By inducing and encouraging individuals employed by Chicago Bridge, Porier,
and White to engage in work stoppages and refusal in the course of their employ-
ment to perform any services, by threatening, coercing, and restraining Burns,
Chicago Bridge, Porier, and White with an object in each case of forcing and
requiring White to assign the work of operating its electrical welding machine at
Oyster Creek to employees engaged as operating engineers who are represented by
Respondent and who are not lawfully entitled to such work rather than to employ-
ees engaged as ironworkers who were represented by the Ironworkers and were
lawfully entitled to such work, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.] 26
24 See Operating Engineers, Local 825, 145 NLRB 952; Local 825, Operating Engineers,
140 NLRB 458; enfd. 326 F.2d 213 (C.A. 3) ; Local 825, Operating Engineers, 138 NLRB
279 ; enfd. 332 F.2d 478 (C.A. 3) ; Local 825, Operating Engineers, 131 NLRB 452; Local
825, Operating Engineers, 120 NLRB 545.
=Local 825, Operating Engineers (United Engineers), 138 NLRB 279.
26In keeping with Board policy, see L. L. Glascock, Inc., 160 NLRB 922, in which the
Board revised Examiner Reel's notice to make it unintelligible to the average employee,
the attached notice has been drafted with the purpose of similar obfuscation. It might
appear, as it seemingly did to the Trial Examiner in Glascock, that it would be the policy
of the Board to make its decisions clear to those most vitally affected by them, which
in this instance would include union members as well as the employers. Such is not the
case. The operating engineer who understands this notice has missed his vocation. He
should be deciphering the Dead Sea scrolls.
Sperti Sunlamp Division Cooper -Hewitt Electric Co., Inc. and
United Steelworkers of America , AFL-CIO. Case 9-CA-3669.
February 14, 1967
DECISION AND ORDER
On May 11, 1966, Trial Examiner Robert Cohn issued his Decision
in the above-named proceeding, finding that Respondent had
162 NLRB No. 158.