Operating Engineers Local 3 (Westar Marine Services)

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1053 (N.L.R.B. 2003)

OPERATING ENGINEERS LOCAL 3 (WESTAR MARINE SERVICES) 1053
Operating Engineers Local Union No. 3 of the Inter-
national Union of Operating Engineers, AFL–
CIO and Cross-Link Inc. d/b/a Westar Marine
Services. Case 20–CC–3381–2
November 28, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER
AND WALSH
On March 31, 2003, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
counsel for the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 3 of the judge’s
conclusion of law.
“3. By threatening to cause a work stoppage on the
Richmond-San Rafael Bridge Retrofit Project of the Tu-
tor-Saliba/Koch/Tidewater Joint Venture, with an object
to force or require the Joint Venture to cease doing
business with Westar Marine Services, the Respondent
violated Section 8(b)(4)(ii)(B) of the Act.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent has also excepted to the judge’s finding that Re-
spondent Rrepresentative Roger Wilson called Project Superintendent
Mike Green after the July 2002 meeting between the Respondent and
Westar, and informed Green that the Respondent was going to try to
“shut the job down on Monday.” The record indicates that it was
Westar Port Captain Bill Sherfy who contacted Green, not Wilson. The
judge’s error was harmless, however, because the Board does not re-
quire that a threat to shut down the job be communicated to a neutral
employer in order to be unlawful. See, e.g., Teamsters Local 247
(Rymco), 332 NLRB 1230, 1233 (2000) (and cases cited).
2 We shall amend the judge’s conclusions of law and modify his
cease-and-desist order to conform to the violation alleged in the com-
plaint and established at the hearing.
3 See also Operating Engineers Local 3 (Westar Marine Services),
340 NLRB No. 131 (2003), a companion case issued this day, finding
reasonable cause to believe that the Respondent violated Sec.
8(b)(4)(D) of the Act by the conduct that is the subject of the instant
proceeding.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Operat-
ing Engineers Local Union No. 3 of the International
Union of Operating Engineers, AFL–CIO, its officers,
agents, and representatives, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Threatening to cause a work stoppage on the
Richmond-San Rafael Bridge Retrofit Project of the Tu-
tor-Saliba/Koch/Tidewater Joint Venture, with an object
to force or require the Joint Venture to cease doing busi-
ness with Westar Marine Services.”
2. Substitute the following for paragraph 1(b).
“(b) In any like or related manner threatening, coerc-
ing, or restraining the Tutor-Saliba/Koch/Tidewater Joint
Venture or Tutor-Saliba Corporation, where an object
thereof is to force or require the Tutor-
Saliba/Koch/Tidewater Joint Venture or Tutor-Saliba
Corporation to cease doing business with Westar Marine
Services.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES
GOVERNMENT

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten to shut down the Richmond-
San Rafael Bridge Retrofit Project of the Tutor-
Saliba/Koch/Tidewater Joint Venture with an object to
force the Joint Venture to cease doing business with
Westar Marine Services.
WE WILL NOT in any like or related manner threaten,
coerce, or restrain the Tutor-Saliba/Koch/Tidewater Joint
Venture or Tutor-Saliba Corporation, where an object
340 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
thereof is to force or require the Tutor-
Saliba/Koch/Tidewater Joint Venture or Tutor-Saliba
Corporation to cease doing business with Westar Marine
Services.

OPERATING ENGINEERS LOCAL UNION
NO. 3 OF THE INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL–CIO
Shelley Brenner, Esq., for the General Counsel.
Paul D. Supton, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Respondent.
Mark D. Roberts, Esq., of Ontario, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial in San Francisco, California, on Novem-
ber 18, 19, and 21, 2002, pursuant to a complaint and notice of
hearing issued by the Acting Regional Director for Region 20
of the National Labor Relations Board on September 19, 2002.
The complaint is based on a charge filed by Cross-Link, Inc.
d/b/a Westar Marine Services (the Charging Party) against
Operating Engineers Local Union No. 3 of the International
Union of Operating Engineers AFL–CIO (the Respondent) on
July 25, 2002, and docketed as Case 20–CC–3381–2.
The complaint, as amended at the hearing, alleges, and the
answer denies, inter alia, that the Respondent, on or about July
2 or 3, 2002, by threatening a work stoppage, threatened, co-
erced, or restrained persons engaged in commerce or in indus-
tries affecting commerce with an object to force or require the
Charging Party to recognize the Respondent as the representa-
tive of certain of its employees when it had not been certified as
such representative by the Board in violation of Section
8(b)(4)(ii)(B) of the National Labor Relations Act (the Act).
On the entire record, including helpful briefs from the Re-
spondent and the General Counsel, I make the following
FINDINGS OF FACT1
I. JURISDICTION
The Charging Party is a California corporation with an office
and place of business in San Francisco, California, and has for
many years been in the business of providing tugboat, crew
boat, and barge services in the San Francisco Bay. During the
year ending June 30, 2002, the Charging Party, in conducting
its business operations, purchased and received at its San Fran-
cisco, California facility goods valued in excess of $50,000
directly from points outside the State.
Tutor-Saliba Corporation, a California corporation with an
office and place of business in Sylmar, California, has been at
all times material engaged in the businesses of transportation
contractor. During the year ending June 30, 2002, Tutor-Saliba

1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters. Where
not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, or unchallenged credible evidence.
Corporation, in conducting its business operations, purchased
and received at its construction projects throughout California
goods valued in excess of $50,000 directly from points outside
the State.
Tutor-Saliba/Koch/Tidewater, J. V., a joint venture respect-
ing which Tutor-Saliba Corporation is the managing partner, at
all material times had an office and place of business in Rich-
mond, California, and has been engaged as the general contrac-
tor for the Richmond-San Rafael Bridge Seismic Retrofit Pro-
ject. During the year ending June 30, 2002, Tutor-
Saliba/Koch/Tidewater, J. V. provided services to the State of
California in conjunction with the Richmond—San Rafael
Bridge Seismic Retrofit Project of a value in excess of $50,000.
Based on the above, there is no dispute and I find the Charg-
ing Party, Tutor-Saliba Corporation, and Tutor-
Saliba/Koch/Tidewater, J. V, are, and each of them is, and have
been at all times material, employers and persons engaged in
commerce within the meaning of Section 2(1), (2), (6), and (7),
and Section 8(b)(4)(ii)(B) of the Act.
II. LABOR ORGANIZATIONS
The record establishes, there is no dispute, and I find the Re-
spondent and the International Organization of Masters, Mates,
and Pilots2 (the MM&P) are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The San Francisco Bay, comprising the geographical heart of
California’s San Francisco Bay Area, is a substantial body of
water with various ports and commercial docks. It is crossed by
various major bridges including the Richmond-San Rafael
bridge. The Bay Area, while generally blessed with nature’s
favor is a seismically active area. With the improvement of
seismic knowledge and engineering techniques, and in the
knowledge of inevitable temblors to come, important structures
have received and are receiving seismic retrofits to improve the
structures’ ability to withstand seismic events. One important
aspect of that process is the current seismic retrofit of the major
bridges crossing the Bay. One of the bridges currently experi-
encing a major retrofit is the Richmond-San Rafael Bridge.
The seismic retrofit of the Richmond-San Rafael Bridge (the
Retrofit Project or Project) involves work undertaken at least in
part from the foundations of the bridge and the waters it spans.
Some of this work is done from marine vessels and other ves-
sels are used to supply necessary transportation of personnel
and materials to the project. Both tugboats and crew boats or
water taxis are utilized as part of this operation. Tugboats are
used to tow or push other vessels such as crane barges on the
construction site and crew boats transport personnel to and
from the construction sites.
2 Attorney John M. Singleton, Albertini, Singleton, Gendler & Darby
of Owings Mills, Maryland, moved to appear as counsel for the Interna-
tional Organization of Masters, Mates, and Pilots as an labor organiza-
tion integrally involved in the dispute underlying the unfair labor prac-
tice allegations. The Respondent objected to the appearance, the Gen-
eral Counsel took no position, and the Charging Party supported the
motion. I denied the motion as without legal precedent.
OPERATING ENGINEERS LOCAL 3 (WESTAR MARINE SERVICES) 1055
The Tutor-Saliba Corporation and Tutor-
Saliba/Koch/Tidewater, J. V. (the General Contractors), in mas-
ter and project agreements, have contracted with various labor
organizations for the retrofit work. Among those labor organi-
zations is the Respondent. The Respondent from the beginning
of the Project has provided under the agreements all boat opera-
tors and crews for the construction project employed by the
General Contractors. The General Contractors, at least relevant
to the work in question herein, did not have a contractual rela-
tionship with the International Organization of Masters, Mates,
and Pilots.
The Charging Party has long provided tugboat, barge, and
water taxi services in the San Francisco Bay and maintains a
fleet of such vessels. For many years the operators and crew of
the Charging Party’s vessels have been exclusively represented
by the International Organization of Masters, Mates, and Pilots.
The Charging Party has never recognized the Respondent as the
representative of any of its employees.
B. Events
The General Contractors for the Retrofit have contracted
with the Charging Party for tugboats and crew boats. The Re-
spondent’s district representative and dredge representative,
Roger Wilson, testified without contradiction that he learned of
the General Contractor’s use of the Charging Party’s vessels
with their International Organization of Masters, Mates, and
Pilots represented crews in mid-2001, and complained about
the situation to General Contractor’s supervision. He testified
that he received assurances that the General Contractor was
utilizing these vessels due to temporary unavailability of its
own vessels and their Respondent represented crews. The use
of the Charging Party’s equipment and crews continued into
2002, and the Respondent continued to complain to the General
Contractors regarding that use.
The Project expanded in the early spring of 2002, and the
General Contractors in the following months utilized the
Charging Party’s vessels as well as its own. In April the Re-
spondent’s representative, Wilson, telephoned the Charging
Party’s captain and principal, William (Bill) Sherfy, and sought
a meeting to discuss entering into a contract for project bridge
construction work.
On April 22, 2002, a meeting was held between Wilson,
Sherfy, and the Charging Party’s counsel, Mark Roberts, and
two other Respondent representatives, Carl Goff and Bran
Eubanks. There is no dispute that the Respondent sought the
Charging Party to enter into a collective-bargaining agreement
covering boat work on construction projects and suggested to
the Charging Party that it was improperly doing work with
MM&P employees that was properly done by employees repre-
sented by the Respondent and that the Charging Party’s remu-
neration of employees performing such work was contrary to
California State prevailing wage obligations. There is also no
doubt that the Charging Party’s representatives noted that its
employees were and had long been represented by the MM&P
and that the Charging Party did not believe that its employees
desired to change unions. The Charging Party declined to enter
into a contract with the Respondent.
Wilson and Sherfy had frequent telephone conversations
thereafter with Wilson proposing agreements with varying lan-
guage and Sherfy declining to sign. Wilson recurred to the
theme that the Charging Party was in violation of prevailing
wage provisions and at risk for making very substantial reme-
dial payments for those violations. Wilson offered, if an agree-
ment was entered into, to assist the Charging Party in obtaining
the necessary backpayments from the Joint Venture.
On two occasions following this meeting, in early May and
in late June, Wilson spoke by telephone with Roberts, request-
ing the Charging Party sign an agreement covering workboats.
The conversations culminated with Roberts declining to sign an
agreement and Wilson suggesting that the Charging Party and
Roberts were making a mistake.
The Respondent filed a grievance under the Master Agree-
ment with the General Contractors on May 7, 2002, challenging
the use of the Charging Party’s vessels staffed by employees
not represented or dispatched by the Respondent. A copy of the
grievance was mailed to the Charging Party. On May 8, 2002,
the Joint Venture replied, with a copy to the Charging Party,
that it did not regard the grievance as subject to the parties’
grievance procedure because the Charging Party had assigned
the work to “another union” and the dispute was therefore a
jurisdictional dispute to be settled by the “Unions themselves.”
A few days later, the Respondent informed the Joint Venture
that it would pursue the grievance without their participation.
During this period, the Respondent was also in ongoing
communications with the California Department of Industrial
Relations regarding prevailing wage issues for construction
workboat wage rates on various Bay Bridge retrofit construc-
tion including the Project.
By letter dated July 1, 2002, to the Joint Venture from the
Respondent and facsimile transmitted that same day, the Re-
spondent notified the Joint Venture of a board of adjustment
hearing to be held on July 18 respecting the grievance de-
scribed above. On the same day, the Respondent filed an unfair
labor practice against the Joint Venture respecting its refusal to
process the Respondent’s grievance. Also on that day, the Re-
spondent arranged a meeting with the Charging Party for July 2
or 3.
On July 2 or 3, 2002, Wilson and the Respondent’s director
of contracts and industry relations, Robert Clark, met at the
Charging Party’s office with Sherfy and the Charging Party’s
vice president, David Morrow. The Respondent presented an
agreement covering construction site boat work for the Charg-
ing Party’s signature and the earlier arguments for and against
the Charging Party’s adoption of the agreement were revisited
and expanded. Agreement was not reached and the meeting was
coming to a conclusion when, as reflected below, the versions
of events among the witnesses sharply diverges.
Sherfy testified that at the end of the meeting, when it was
clear that no agreement was going to be concluded, he spoke to
Wilson:

And I said, well, Roger, this is coming to a head, what are we
going to do, how’s this going to happen? And I says, you
know, we’re no—I says, we’re unable to sign this, what’s go-
ing to happen? Roger said, there’s going to be storm on Mon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
day. I says, a storm, what does that mean? I said, are you go-
ing to shut down Tutor, are you going to shut down AGRA,
and he said, we’re going to start with Tutor, there’s going to
be a storm on Monday. So that was pretty much the end of the
meeting, actually, and they left.
Morrow recalled the meeting’s end:

At that point the meeting was starting to break up, everybody
was collecting their—whatever paperwork they had in front
of them, and I recall Bill asking if they were going to shut
down Tutor and AGRA at the Richmond/San Rafael Bridge.
And I recall Mr. Wilson saying yes, and the meeting contin-
ued to break up, and I asked Mr. Wilson if—before the meet-
ing broke up, I recall Mr. Wilson replying, yes, and that
there’s going to be a storm next week. And just as we were
getting ready to leave, I remember asking Mr. Wilson that—
asking him if the storm was going to be coming from the sky,
and he looked at me and smiled, and the meeting broke up,
and we shook hands and left.

The Respondent’s representatives, Wilson and Clark, spe-
cifically and categorically denied that they were asked by the
Respondent’s agents if there was to be a shutdown of the work
or that they responded to such a question directly or indirectly
or in terms of the metaphor of a “storm” or its heavenly origins.
Wilson did recall the following exchange near the meeting’s
end:

Sherfy said, well, what if we don’t sign? I said, well,
we need to do something before the lid blows off this.
Q. You did say that?
A. Yes.
Q. Did—what did you say after you said that?
A. He said what do you mean by that? I said, we have
a grievance filed against Tutor-Saliba in May. We’ve been
sitting on it trying to resolve this for a long period of time.
At some point, we are going to be instructed to have a
Board of Adjustment and get resolution on this matter.
Q. What else did you say on that subject, if anything,
and what was his reply?
A. He then asked me, well, what would that mean? I
said, well, somebody would be accountable for the differ-
ence in monies between the prevailing rate and what’s be-
ing paid out on these boats, and Tutor is signatory with us.
We’re going to approach them for that money. They, in
turn, are going to come knocking on your door.

After the meeting, Wilson called a representative of the Joint
Venture, Mike Green, the Marine superintendent of the Project,
and told Green that he had been told “there was going to be a
storm on Monday . . . and that I felt that it meant that the Re-
spondent was going to be trying to shut the job down on Mon-
day.”
No strike or shutdown occurred. The parties continued com-
munications respecting the matter and further Board filings
were made. At the time of the hearing a work jurisdictional
hearing under Section 10(K) of the Act was pending at the re-
gional level.
C. Analysis and Conclusions
1. Narrowing the issues
The instant complaint—the only matter before me regarding
the parties—deals with the threat allegedly made at the end of
the July 2 or 3 meeting as described above. It does not turn on
the correctness of the parties’ contentions respecting the work
involved or on any ultimate disposition of the work dispute
under other State or Federal proceedings.
This is so because, as the Act makes clear, a threat to shut
down a general contractor’s job in order to pressure a sub-
contractor to sign an agreement with a union covering the un-
certified employees of the subcontractor is improper secondary
conduct prohibited by the Act. NLRB v Operating Engineers
Local 825, 400 U.S. 297, 304 (1971). And, while on construc-
tion projects, as here, the law allows contractual restrictions on
subcontracting of work which the union may enforce through
contractual processes and recourse to courts of law, self-help
measures including strikes, picketing or strike threats in fur-
therance of such an object violate Section 8(b)(4)(ii)(B) of the
Act. Cahill Trucking Co., 277 NLRB 1286 (1985); Associated
Building & Contractors, Pacific Northwest Chapter v. NLRB,
699 F.2d 488 (9th Cir. 1983).
2. The arguments of the parties
The parties’ arguments at trial and on brief largely addressed
the disputed events of the July 2 or 3 meeting, what occurred,
and what could have been fairly understood from the words
spoken. Thus, the General Counsel argued at hearing and on
brief, joined by the Charging Party at trial, that the agent of the
Respondent, Wilson, frustrated by the repeated lack of success
he experienced in convincing the Charging Party to sign a col-
lective-bargaining agreement covering work the Respondent
claimed, simply lost control when his efforts seemingly had
failed once more and as the meeting ended, threatened to shut
down the entire project the following Monday. The General
Counsel and Charging Party argue that the Charging Party’s
agents who testified at the hearing be credited in full. The Gen-
eral Counsel further argues that there can be no question that
the words used, i.e., “that a storm” was coming, was clearly a
strike and/or closure threat and should be held as such as a
matter of law. From this argument, based on the cases cited
above, the General Counsel further argues the Respondent vio-
lated Section 8(b)(4)(ii)(B) of the Act.
The Respondent too argues the credibility of its witnesses to
the contested conversation advancing favorable estimations of
their honesty and memory of events. But the Respondent goes
further. Counsel emphasizes that the Respondent had at rele-
vant times doggedly continued to take proper procedural steps
to prevail in its dispute respecting the work in contest and that
it simply had no motive to threaten a strike or a closure which,
since it would not as a practical matter occur, would simply
undermine the Respondent’s integrity and determination in the
eyes of the Charging Party and potentially violate the Act fur-
ther complicating the Respondent’s efforts to properly resolve
the dispute in its favor. The Respondent emphasizes that there
is no contention the Respondent had before this meeting threat-
ened direct action or acted other than in a proper if perhaps
dogged manner to advance its claims. In effect, the Respondent
OPERATING ENGINEERS LOCAL 3 (WESTAR MARINE SERVICES) 1057
argues, since the Respondent had gone so far down legitimate
paths to win its claim both under the contract with the Joint
Venture and with the State of California, why should it under-
mine its efforts with a shutdown threat that would never have
been consummated and which would therefore quickly be
shown to be empty and ineffectual.
The Respondent further notes neither of its agents at this
meeting had the authority either to initiate or threaten a work
stoppage or job shutdown. It notes that the alleged threat, even
under the version of events as testified to by the Charging
Party’s agents, was not initiated by the Respondent’s agent but
was, in effect, dragged out of Wilson through challenging ques-
tioning by Sherfy and that the wording of the alleged threat,
that a storm was coming, could not in all events be reasonably
taken to be a strike or shutdown threat directed to the Project.
3. Resolution of the evidence respecting
the disputed events
The Respondent’s argument, described above and presented
at length on brief, that Representative Ronald Wilson and the
Respondent generally had long been embarked on a proper
course of action to either negotiate, or by means of contractual
process or state intervention, require claimed work to be as-
signed to Respondent represented employees and therefore had
no motive to suddenly threaten a work stoppage that it could
not properly and did not in fact undertake, is powerful and per-
suasive.
Combining those opposing arguments of the Respondent
with the burden of proof the General Counsel bears respecting
each element of his complaint, the General Counsel faces a
particularly difficult task in establishing the alleged threat in
this case. The evidence the General Counsel advances is pri-
marily the testimony of Sherfy and Morrow respecting the
day’s events.3 The unchallenged testimony that Sherfy called
the Joint Venture’s representative following the meeting and
reported a strike threat is additional evidence that the strike
threat was made. However on this record I find the pivot on
which this case turns is the resolution of the disputed testimony
of the meeting participants respecting the asserted “storm” that
was to come.
I observed the testimony of the four meeting participants
with special care during the hearing and have reviewed that
testimony carefully given my view that the disputed testimony
is the heart of the case. Unusually, in my experience in hearing
and deciding Board unfair labor practice cases, one witness’
testimony in this matter was so persuasive as to carry the case
for the advancing party.
I found the testimony of William Sherfy concerning the criti-
cal testimony to be particularly credible. His demeanor was
outstanding. His memory, while perhaps no better than most
layman witnesses, was clear and definite respecting these criti-

3 The parties augmented the record with evidence of events in the
days following the contested meeting. While relevant to and considered
for the determination of what was said and done at the critical meeting
insofar as it cast light on the state of mind of the meeting participants,
the subsequent events were of far less significance on this record than
the events preceding, during, and immediately after the disputed con-
versation.
cal events. Importantly, through the course of his testimony
both in response to the direct examination of sympathetic coun-
sel and under skilled cross-examination by the Respondent’s
counsel, Sherfy demonstrated to an unusual degree, a habit of
listening to the question, considering his memory of the events
under examination, and answering honestly and directly. I
formed the strong impression that Sherfy testified to what he
remembered and only what he remembered, as clearly and hon-
estly as he could. Such agenda free testimony is rare indeed in
my experience. I specifically credit his testimony including his
attribution of the “storm” threat to Wilson in the contested
meeting.
I did not find Morrow to be as persuasive a witness. This was
so not because he seemed to be less honest than Sherfy, but
rather because I concluded his participation in the critical
events largely as an observer may well have effected his mem-
ory of events and because he did not demonstrate in his testi-
mony the clarity of memory of Sherfy. I do not credit his testi-
mony beyond that corroborated by Sherfy.
The Respondent’s agents, Wilson and Clark, were also not in
my judgment bad witnesses and did not demonstrate a pattern
of evasiveness or failure of recollection. They simply did not
match the persuasiveness of Sherfy however. In particular, their
denials did not overcome the specific “storm” attribution found
above. Based on their demeanor and the record as a whole, I
find that Wilson, perhaps impulsively in the frustration of hav-
ing the Charging Party’s agents repeated refusals to sign a con-
tract giving the Respondent the work it believed it was entitled
to, made the storm statement. I further find Wilson simply de-
ferred to the institutional interests of his employer and denied
making the statement attributed to him. I further find that Clark
did not hear the remark made or, as with Wilson above, chose
simply to deny having heard it. Their denials are discredited.
4. The “Storm” statement as a violation of Section
8(b)(4)(ii)(B) of the Act
Having found the Respondent’s District representative told
agents of the Charging Party that a “storm” was coming to the
Project, I further find that such a remark in the context in which
it was made as described above, is a threat to cause a work
stoppage at the job. The absence of actual authority of a labor
organization’s representative to initiate a strike or to threaten to
do so, is not a defense to a violation of Section 8(b)(4)(ii)(B) of
the Act.
Based on the analysis and cases discussed above, a threat to
shut down a general contractor’s job in order to pressure a sub-
contractor to sign an agreement with the union affecting the
employees of the subcontractor is improper secondary conduct
and violates Section 8(b)(4)(ii)(B) of the Act as alleged in the
complaint. I therefore sustain the complaint and find that the
Respondent through Wilson on July 2 or 3, 2002, violated Sec-
tion 8(b)(4)(ii)(B) of the Act
REMEDY
Having found that the Respondent violated the Act as set
forth above, I shall order that it cease and desist therefrom and
post remedial Board notices. Further, the language on the Board
notices will conform to the Board’s recent decision in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), that notices
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
should be drafted in plain, straightforward, layperson language
that clearly informs employees of their rights and the violations
of the Act found.
On the basis of the above findings of fact and the record as a
whole, I make the following
CONCLUSIONS OF LAW
1. The Charging Party, Tutor-Saliba Corporation, and Tutor-
Saliba/Koch/Tidewater, J. V., and each of them, has been at all
times material, employers and persons engaged in commerce
within the meaning of Section 2(2), (6), and (7) and Section
8(b)(4)(ii)(B) of the Act.
2. The Respondent and MM&P are, and each of them is, and
have been at all relevant times labor organizations within the
meaning of Section 2(5) of the Act.
3. By threatening to cause a work stoppage on the Rich-
mond-San Rafael Bridge Retrofit Project of the Tutor-
Saliba/Koch/Tidewater, J. V., with an object to force or require
the Charging Party to recognize or bargain with the Respondent
as the representative of the Charging Party’s employees when it
had not been certified as the representative of such employees
under the provisions of Section 9 of the Act, the Respondent
violated Section 8(b)(4)(ii)(B) of the Act.
4. The unfair labor practice described above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
Based on the above findings of fact and conclusions of law,
and on the basis of the entire record, I issue the following re-
commended4
ORDER
The Respondent, Operating Engineers Local Union No. 3 of
the International Union of Operating Engineers AFL–CIO, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to cause a work stoppage on the Richmond-
San Rafael Bridge Retrofit Project of the Tutor-

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections shall be waived for all purposes.
Saliba/Koch/Tidewater, J. V., with an objective to force or
require the Charging Party to recognize or bargain with the
Respondent as the representative of the Charging Party’s em-
ployees unless such labor organization has been certified as the
representative of such employees under the provisions of Sec-
tion 9 of the Act.
(b) In any like or related manner violating the National La-
bor Relations Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Within 14 days after service by the Region, post at its San
Francisco Bay Area offices copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 20, in English and such
other languages as the Regional Director determines are neces-
sary to fully communicate with employees and union members,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure the notices are
not altered, defaced, or covered by other material. Signed cop-
ies of the notice shall also be sent to Cross-Link, Inc. d/b/a
Westar Marine Services and Tutor-Saliba/Koch/Tidewater, J.
V., in sufficient number to allow posting, if the employers are
willing, at any facilities on the Richmond-San Rafael Bridge
Retrofit Project of the Tutor-Saliba/Koch/Tidewater, J. V.,
where employee notices are normally posted.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”