International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Nov 2, 1962

139 N.L.R.B. 778 (N.L.R.B. 1962)

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. All of the Company's warehouse employees, exclusive of office clerical employ-
ees, professional employees, guards, watchmen, and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. The Union was on February 7, 1962, and thereafter the exclusive representative
within the meaning of Section 9(a) of the Act, of all employees in the aforesaid
unit for the purposes of collective bargaining.
4. By promise of benefit and other remarks, thereby interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed in Section 7 of the
Act, the Company has engaged in unfair labor practices within the meaning of Sec-
tion 8 (a)( 1 ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Company has not engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
7. The Company has not engaged in unfair labor practices within the meaning of
Section 8(a) (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the complaint be dismissed in its
entirety.
International Union of Operating Engineers , Local 545 and Syra-
cuse Supply Company. Case No. 3-CC-142. November 2, 1966
DECISION AND ORDER
On December 26, 1961, Trial Examiner Thomas F. Maher issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent that they are consistent
herewith.
1. A majority of the Board, consisting of Members Rodgers,
Leedom, and Fanning, adopts the Trial Examiner's findings and con-
clusions that the Respondent violated Section 8 (b) (4) (i) and (ii) (B)
by its conduct at the Bero jobsite.1 The members of the majority
agree with the Trial Examiner that one object of the Respondent
'As set forth in their separate dissent attached hereto, Chairman McCulloch and Mem-
ber Brown would reverse the Trial Examiner's findings regarding the Bero site.
139 NLRB No. 50.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 779
was to force or require Bero to cease doing business with Syracuse be-
cause the latter's employees were not represented by the Respondent.
However, they do not agree with his further conclusion that the Re-
spondent also sought to force or require Syracuse to recognize or bar-
gain with it as the exclusive representative of Syracuse's enlployees.2
2. The Trial Examiner further found that the Respondent's con-
duct at the J.D. & P. jobsite also violated Section 8(b) (4) (i) and
(ii) (B). A majority of the Board, namely, Chairman McCulloch
and Members Fanning and Bro'^ ti, disagrees.' They conclude, for
the reasons set forth below, that the Respondent's conduct at the
J.D. & P. site constituted lawful primary activity fora valid objective.
The record discloses, in pertinent part, that, following the sale of
certain equipment to J.D. & P. and pursuant to request by J.D. & P.
under the sales warranty, Syracuse dispatched its field service repre-
sentative, Gerhart, to the jobsite on a number of occasions in April
1961. According to Gerhart, whose testimony was credited by the
Trial Examiner in all respects, he was authorized by Syracuse only
to instruct employees of J.D. & P. in the operation of new equipment
and to supervise repair work at J.D. & P. In fact, his activities
at the jobsite during the period April 5 to 24 were confined, with
but one incidental exception,' to the performance of these two func-
tions. He had never been told by either J.D. & P. or Syracuse t o
make repairs himself. Not only is it clear that Gerhart only super-
vised the bargaining unit employees in the performance of the repair
work during this period, but it is established by the testimony of
Project Manager Dixon and Dirt Superintendent Harris that both
of these J.D. & P. representatives were aware of this fact.
On April 24, at a time when Union Steward Murtaugh 6 was engaged
in repairing a caterpillar scraper under Gerhart's supervision, Harris
ordered Gerhart to do the work himself. When Gerhart began to
comply, Murtaugh walked off the job and proceeded along the site,
informing other employees in the bargaining unit that Gerhart, a
nonunion man, was working on the job. A number of the operators,
including those to whom Murtaugh spoke, stopped work.
It seems clear from the above that the dispute arose by reason of
the assignment of the repair work to Gerhart. However, events sub-
sequent to the walkout further crystallized the true nature of the
2 In rejecting this latter conclusion , the majority notes that there is no evidence in the
record to show that the Respondent sought to organize Syracuse 's employees or requested
recognition by Syracuse.
s Members Rodgers and Leedom, for the reasons set forth in their separate dissent,
agree with the Trial Examiner and would adopt the conclusions of the Intermediate
Report in this respect.
`Gerhart testified that he had done one little job on a machine at the site which neces-
sitated his handling a wrench.
2 The Board unanimously agrees that the union stewards herein were agents of the
Respondent whose conduct is attributable to the Respondent
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's dissatisfaction. Thus, according to Dixon's own testimony,
he contacted Business Agent Coville by telephone on the evening of
the 24th and was informed that the Union would not tolerate Gerhart
"doing any physical repair work." [Emphasis supplied.] More-
over, on the morning of April 25, at a meeting held at the site among
repres3ntatives of J.D. & P., Syracuse, and the Union, Steward
Murtaugh explained the Union's position thusly : ". . . we would be
glad to have him [Gerhart] supervise, he would not be taking our
work...." B [Emphasis supplied.]
Lastly, as found by the Trial Examiner, the parties resolved the dis-
pute by entering into a tripartite agreement on April 25 whereby :
(1) all minor repairs would be accomplished at the jobsite by em-
ployees in the bargaining unit; (2) Syracuse's personnel would only
be used to supervise this repair work; (3) Syracuse would reimburse
J.D. & P. for the labor costs expended by the latter in making these
repairs; and (4) all major repair work would be done on Syracuse's
premises.
On the basis of all the foregoing evidence, it is clear to the majority
of the Board that the crux of the instant dispute at the J.D. & P. site
revolved around the assignment of work to J.D. & P. employees-
that is, over the terms and conditions of employment of J.D. & P.
employees ; that the Respondent Union reasonably believed that the
employees whom it represented were entitled to the repair work in
question on the basis of the provision of their collective-bargaining
contract with J.D. & P. which is quoted in the margin; 7 that, indeed,
the bargaining unit employees had in the past performed work of a
similar nature; 8 and that the Union engaged in a walkout at the situs
6 Murtaugh 's above-quoted testimony was corroborated in general by Gerhart' s testi-
mony. The Respondent also noted that several weeks earlier Murtaugh had told Gerhart
that "he was free to supervise , but not to work as far as the men were concerned "
7 At the time of the alleged unfair labor practices , there was a collective-bargaining
agreement in effect between the Respondent and J D & P. which provided in part that:
"Highway and heavy construction includes . . . the assembly and operation and mainte-
nance of all equipment . . . except . . . when the matter of repairs is such that they
cannot be made by the employees ." (Article III.)
8 In concluding that the incident at this jobsite was not a violation of the Act, Member
Fanning, unlike his colleagues who dissent as to this incident , is not satisfied that the
,General Counsel has sustained the burden of proving that the Respondent ' s conduct
"aimed at J.D. & P. was secondary ." He attaches particular significance to the fact that
the employees at this jobsite had been doing the equipment repair work for more than
3 weeks when the employee so engaged at the time was told to stop and the Syracuse
representative to proceed , and he notes particularly the credited testimony of Steward
Murtaugh concerning his position at the April 26 conference among all parties, to the
effect that the Union had men qualified to do the work and that this was their work. On
the Bero site , however, the equipment was newly delivered and the Union voiced objection
to the Syracuse men starting assembly work by asking to see his union "book," an ap-
proach consistent with refusal to work with nonunion men rather than preservation of
work for the bargaining unit, particularly in the absence of any showing that the men
considered it theirs by reason of having done it. Thus, unlike his colleagues , Member
Fanning sees the facts as dictating a different result for each jobsite despite both being
resolved ultimately by a work assignment-a solution which achieves either objective:
keeping the work in the bargaining unit or not working with a nonunion man.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 781
of the dispute with the object of preserving this work for employees
in the bargaining unit rather than because Syracuse Supply em-
ployees were or were not represented by this or any other union. In
bringing direct economic pressure to bear on their own employer
for that purpose, the Respondent was engaging in lawful primary
activity?
Under these circumstances, it is of no legal consequence that an
incidental effect, as contrasted with an object, of the walkout was to
force J.D. & P. to modify its method of doing business with Syracuse 10
Chairman McCulloch and Members Fanning and Brown therefore
agree that the complaint be dismissed insofar as it relates to the
J.D. & P. incidents.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, International
Union of Operating Engineers, Local 545, its officers, representatives,
agents, successors, and assigns, shall :
1. Cease and desist from engaging in, or inducing or encouraging
employees of Bero Construction Corporation, or any other person
engaged in commerce or in an industry affecting commerce, to en-
gage in a strike or refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any services,
or to threaten, coerce, or restrain Bero Construction Corporation, or
any other person, where an object thereof is to force or require Bero
Construction Corporation, or any other person, to cease doing busi-
ness with Syracuse Supply Company.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at the Respondent Union's business
offices, meeting halls, and places where notices to members are cus-
tomarily posted, copies of the notice attached hereto marked "Ap-
pendix." 11 Copies of said notice, to be furnished by the Regional
Director for the Third Region, shall, after being duly signed by an
authorized representative of the Respondent Union, be posted by the
9International Longshoremen 's and Warehousemen's Local Union No 19 (Pacific Mari-
time Association ), 137 NLRB 119. Cf. Retail Clerics Union Local 770 et at. v . N L R.B.,
et at. ( Food Employers Council, Inc ), 296 F. 2d 368 , 373 (C A.D.C ).
10 Local 761, International Union of Electrical , Radio and Machine Workers v. N L.R.B.
(General Electric Co.), 366 U.S. 667, 673-674. See also Local 1066, International Long-
shoremen's Association , et at. (Wiggin Terminals , Inc.), 137 NLRB 45.
"In the event that the Board 's Order is enforced by a decree of a United States Court
of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and
Order."
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter. Reasonable steps
shall be taken by the Respondent to insure that said notice is not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Third Region for posting by Bero Construction Cor-
poration and Syracuse Supply Company, if willing, at all locations
where notices to their respective employees are customarily posted.
(c) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleged violations of the Act based on the
events at the J.D. & P. jobsite.
CHAIRMAN MCCULLOCH and MEMBER BROWN, dissenting in part :
As noted in the main opinion, we disagree with our colleagues in-
sofar as they find that the Respondent violated the Act by its conduct
at the Bero jobsite. We are of the opinion that the fundamental char-
acter of the Bero dispute was similar to the dispute at J.D. & P. al-
though it arose in a slightly different factual context. In our view,
it is clear that the employees walked off the Bero site in an effort to
protect the work of the bargaining unit, just as they did at J.D. & P.
This view is supported by the evidence. Thus, the true nature of
the Bero dispute was aptly explained through the testimony of Presi-
dent John Bero that "it was generally agreed among all of us" that
the Respondent Union walked off the job "because Syracuse Supply
had come onto the job and had attached a blade to the [bull] dozer in
question and didn't have the Operating Engineers employed on the
project do it. They were doing it themselves rather than having our
people do it." [Emphasis supplied.] Further substantiation is found
in the fact that the Respondent did, in fact, achieve this objective
when the parties resolved the dispute. That is, the parties entered
into a tripartite arrangement (identical to that entered into at J.D. &
P.), whereby all minor repair work would be accomplished at the job-
site by employees of Bero in the bargaining unit, subject only to super-
vision by Syracuse's field servicemen. Under these circumstances,
where the disputed work was within the scope of the duties normally
performed by the Bero employees, it is immaterial that they had not
previously performed the precise function on that particular machine
solely because the equipment had not been on the jobsite.12
Accordingly, we would also dismiss the instant complaint insofar as
it relates to the incidents at the Bero site.
' See Retail Clerks Union Local 770 et al . v. N L.R B, et al ( Food Binyloyere Council,
Inc.), 296 F. 2d 368 (C.A.D.C.).
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 783
MEMBERS RODGERS and LEEDOM , dissenting in part:
Unlike the majority, we would find, in agreement with the Trial
Examiner , that the Respondent's conduct at the J.D. & P. site also
violated Section 8(b) (4) (i) and (ii) (B).
As described more fully in the majority opinion and in the Inter-
mediate Report, mechanical difficulty developed on a piece of con-
struction equipment which had been sold by Syracuse Supply Com-
pany to J.D. & P. and Syracuse sent its field representative, Gerhart,
to supervise the repair work.13 On April 24, 1961, at a time when
Murtaugh, a J.D. & P. employee, was engaged in repairing the equip-
ment under Gerhart's supervision, J.D. & P.'s Dirt Superintendent
Harris instructed Gerhart to do the repair work himself. Gerhart
complied, and Murtaugh, who was a union steward,14 walked off the
job. Murtaugh thereupon spoke to five other J.D. & P. employees,
informing them that Gerhart, a nonunion man, was working, and
they too walked off the job. Concluding that an object of the Re-
spondent's conduct was to cause J.D. & P. to cease doing business with
Syracuse unless Syracuse recognized and bargained with the Respond-
ent, the Trial Examiner found that the Respondent's conduct at the
J.D. & P. jobsite violated Section 8(b) (4) (i) and (ii) (B).15 The
majority, however, are reversing the Trial Examiner and are find-
ing no unlawful object. According to them, the Respondent's
object in engaging in the walkout at J.D. & P. was to preserve the
disputed repair work for employees in the unit, and therefore, in
"bringing pressure on its own employer for that purpose," the Re-
spondent engaged in lawful primary activity. We do not agree that
the Respondent was engaged in a primary dispute with J.D. & P.
Rather, like the Trial Examiner , we would find that Syracuse Supply
was the primary employer and that the Respondent engaged in un-
lawful secondary conduct aimed at compelling J.D. & P. to cease
doing business with Syracuse.1e
33 The Trial Examiner found , and the majority does not disagree , that the employees of
Syracuse Supply are not members of the Respondent or of any other labor organization.
14A9 noted in the principal opinion, the Board unanimously agrees that the union
stewards herein were agents of the Respondent and that their conduct was attributable
to the Respondent.
" We would find, in agreement with the Trial Examiner , that Murtaugh 's conduct in
simultaneously leaving the job and informing employees that a nonunion man was on the
job constituted inducement of these employees to engage in a strike within the meaning
of subparagraph ( i) of Section 8(b) (4). H. E. Doyle, et at., doing business as Doyle and
Russell, 125 NLRB 571 , 572. We would also find that the ensuing strike by T.D. & P.
employees was a form of economic pressure on J.D. & P. constituting restraint and
coercion within the meaning of subparagraph ( ii) of Section 8 ( b) (4). Gilmore Con-
struction Company, 127 NLRB 541, 545. Unlike the Trial Examiner , however , we would
not find that Murtaugh 's statement to Gerhart that the Respondent would shut the job
down if he did any work constituted threats, restraint , or coercion of a "person" within
the meaning of subparagraph ( it), as Gerhart was not such a "person ," and there is no
evidence that this statement was intended to be conveyed to anyone who was such a
"person "
1e We do not believe, however , that the record supports the Trial Examiner 's finding
that the Respondent 's conduct was also for an object of forcing Syracuse to recognize and
bargain with the Respondent as representative of its employees.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted, the majority, in finding that the Respondent was engaged
in a lawful primary dispute, having concluded that the object of Re-
spondent's conduct was to protect the repair work for employees in
the bargaining unit. The record does not support this conclusion.
On the contrary, the Trial Examiner found, and the record clearly
establishes, that the Respondent objected to Gerhart doing red air
work not because he was employed by Syracuse Supply but rather
because he was nonunion.17 Thus, as indicated above, when Murtaugh,
the union steward, walked off the job, he expressly told other J.D. & P.
employees that Gerhart, a nonunion man, was working. Moreover,
according to the credited testimony of Harris, J.D. & P.'s dirt super-
intendent, Murtaugh told him that if Gerhart did any repair work,
"the men would walk off the job because they didn't want to work
with a nonunion man." Finally, on April 25, according to the un-
contradicted testimony of Sales Manager Wallace, Murtaugh told
him that "the operators did not want to work with nonunion me-
chanics, so they walked off the job." 18 It is therefore apparent that
the Respondent brought economic pressure against J.D. & P., as well
as against Bero, not to protect the repair work for employees in the
bargaining unit but rather to protect such work for union members
in general. The Board has repeatedly held that where a labor or-
ganization seeks to prevent employees of one employer from doing
certain work because another employer is not under contract with
the union, the latter employer is the primary employer and the union's
conduct is secondary.19 The majority departs from these well-estab-
lished precedents without valid reason 2°
It is clear that the underlying dispute in this case was between the
Respondent and Syracuse Supply and that the dispute arose because
17 In view of this evidence , we cannot agree with Member Fanning that the prior per-
formance of this work by J.D. & P employees constitutes a valid basis for distinguishing
Respondent ' s conduct here from its conduct at the Bero site , as to which he agrees with
us that Respondent violated the Act.
18 We also regard as significant the statement appearing in the Respondent 's quarterly
publication, written by the Respondent 's business agent, which referred to the J.D. & P.
dispute and thanked "those members who refused to work alongside of nonunion equipment
mechanics."
18 Milk Drivers and Dairy Employees Union, Local No. 546, etc. (Minnesota Milk com-
pany ), 133 NLRB 1314; District No. 9, International Association of Machinists ( Greater
St. Louis Automotive Trimmers and Upholsterers Association , Inc.), 134 NLRB 1354;
Butchers' Union Local 563 , etc. (Monarch Building Maintenance Co ), 134 NLRB 136:
Bakery Salesmen's Local Union No. 1778, etc ( Associated Grocers ), 137 NLRB 851.
While the court in Food Employers Council, supra, cited by the majority , indicated that
under some circumstances a union may lawfully seek to protect work for employees in
the bargaining unit, it made it abundantly clear that a different result was required where
"the work was being claimed for members of the Union in general and not merely for
those employed by the markets [ the alleged primary employer]."
28As indicated , there is some suggestion in the majority opinion that , in finding that
the dispute herein was primary, the majority is relying on the fact that the employees
involved brought economic pressure on "their own employer." However , the Board has
held that the fact that employees bring pressure on their own employer does not In itself
make the dispute a primary one International Longshoremen's Association, et al (The
Board of Harbor Commissioneis ), 137 NLRB 1178
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 785
Syracuse did not employ members of the Pespondent. Syracuse wi s
therefore the primary Employer 21 and ; he Respondent's conduct
aimed at J.D. & P. was secoadary. We would accordingly find that
the Respondent's conduct at. the J.D. & P. jobsite violated Section
8(b) (4) (1) and (ii) (B).
"While, as indicated above, we would not find that the Respondent sought to win
recognition from Syracuse , this fact , of course , does not mean that Syracuse was not the
primary employer . See John E. Martin, et at., doing hustness as Sound Shingle Co
101 NLRB 1159.
XPPENDIX
NOTICE TO ALL MEMBERS o r INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 545, AND TO ALL EMPLOYEES Or SYRACUSE SUPPLY
COMPANY AND BERO CONSTRUCTION CORPORATION
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 give notice that :
1ATE WILL NOT induce or encourage any individual employed by
Bero Construction Corporation, or any other person engaged in
commerce or in an industry affecting commerce, to engage in a
strike or refusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform any services, or
threaten, coerce, or restrain Bero Construction Corporation, or
any other person, where an object thereof is forcing or requiring
Bero Construction Corporation, or any other person, to cease do-
ing business with Syracuse Supply Company.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 545,
Labor Organization.
Dated---------------- By-------------------------------------
(Representat ive) (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.
Employees may communicate directly with the Board's Regional
Office, 4th floor, The 120 Building, 120 Delaware Avenue, Buffalo 2,
New York, Telephone Number, TL 6-1782, if they have any question
concerning this notice or compliance with the provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on July 5', 1961, by Syracuse Supply Company, and amended
charges filed by it thereafter on July 14 and August 4, 1961, the Regional Director
for the Third Region of the National Labor Relations Board , herein called the Board,
issued a complaint on August 30, 1961, against Internaitonal Union of Operatinz
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineers, Local 545, Respondent herein, alleging violations of Section 8(b)(4)
(i)(B) and 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended (29
U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respond-
ent, while admitting certain allegations of the complaint, denied the commission
of any unfair labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
at Syracuse, New York, on October 9 and 10, 1961. All parties were represented
at the hearing and were afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs. Briefs were filed by all
parties on November 13, 1961.
Upon consideration of the entire record and the briefs of the parties, and upon
my observation of each of the witnesses,' I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
Syracuse Supply Company, the Charging Party herein and referred to hereafter
as the Company, is a New York corporation engaged in the sale and servicing of
heavy construction equipment, being the authorized sales and service representative
of Caterpillar Tractor Company, of East Peoria, Illinois, said sales to builders an-
nually exceeding a gross value of $2,000,000. During the 12-month period prior
to hearing, the Company purchased and caused to be delivered to it heavy construc-
tion equipment valued in excess of $1,000,000, which heavy equipment was trans-
ported to it in interstate commerce directly from points outside the State of New
York. Upon the foregoing stipulated facts it was further stipulated by all parties
that the Company was engaged in commerce within the meaning of Section 2(6) and
(7) of the Act, and I so find. Upon these same facts I find that the Company is
an employer engaged in commerce within the meaning of Section 8(e).
Johnson, Drake and Piper, Inc., herein called J.D. & P., is a corporation engaged
as a general contractor in the construction of a highway at Pulaski, New York, and
elsewhere, under contract with the State of New York. During the past 12 months,
in the course and conduct of its operations, it purchased and caused to be delivered
to it supplies and materials valued in excess of $50,000, of which supplies and mate-
rials valued in excess of $50,000 were transported to it in interstate commerce from
points outside the State of New York. Upon the foregoing stipulated facts it was
stipulated by all parties that J.D. & P. is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and I so find. I likewise find it
to be an employer engaged in commerce within the meaning of Section 8(e).
Bero Construction Corporation, herein called Bero, is a corporation engaged as
a general contractor in the construction of a highway at Old Forge, New York, and
elsewhere, under contract with the State of New York. During the past 12 months
in the course and conduct of its operations it purchased and caused to be delivered
to it supplies and materials valued in excess of $50,000, of which supplies and
materials valued in excess of $50,000 were transported to it in interstate com-
merce from points outside the State of New York. Upon the foregoing stipulated
facts it was stipulated by all parties that Bero is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, and I so find.
I likewise find it to be an employer engaged in commerce within the meaning
of Section 8(e).
IT. THE STATUS OF THE RESPONDENT
International Union of Operating Engineers, Local 545, Respondent herein, con-
cedes that it is a labor organization within the meaning of Section 2(5) of the Act,
and I so find.
M. THE ISSUES INVOLVED
1. The status of job stewards as representatives of Respondent.
2. The evidence of the stewards' responsibility for the walkouts in protest of the
presence of a nonunion mechanic on the job.
' Unless specifically indicated to the contrary , any credibility evaluation I make of the
testimony of any witness appearing before me is based , at least in part, upon his demeanor
as I observed it at the time the testimony was given. Cf. Bryan Brothers Packing Com-
pany, 129 NLRB 285. To the extent that I indicate that I do not rely upon or reject in
part or entirely the testimony of any given witness, It is my intent thereby to indicate that
such part or whole of the testimony as the case may be, is discredited by me. Jackson
Maintenance Corporation, 126 NLRB 115 , 117, footnote 1.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 545 787
3. The responsibility of Respondent for the conduct of the stewards.
4. The quantum of evidence necessary to establish inducement of employees to
quit their jobs.
5. The evidence of threats to employers, the two contractors herein, to cease doing
business with the nonunion mechanic's employer.
IV. THE UNFAIR LABOR PRACTICES
The allegations of unlawful conduct relate to two separate and distinct incidents,
one occurring near Pulaski, New York, where Johnson, Drake and Piper, Inc., is
engaged in the construction of Interstate Highway 81, and the other at a location
immediately south of Old Forge, New York, where Bero Construction Corporation is
engaged in construction on State Highway 28. At each site members of Respondent
are employed by the respective contractors as operators of the roadbuilding equip-
ment and as maintenance mechanics on this equipment. The equipment itself is,
in great measure, sold or leased to the respective contractors by Syracuse Supply
Company, Charging Party herein. The mechanics employed by Syracuse Supply are
not members of the Respondent, nor, so far as the record discloses, of any other labor
organization.
A. The J.D. & P. job
On April 24, 1961, mechanical difficulties developed on a piece of heavy construc-
tion equpiment at the J.D. & P. jobsite. This piece, a 631 Caterpillar Scraper
recently purchased from Syracuse Supply, was still operating within the warranty
period during which period service and repairs were the responsibility of the Company.
Accordingly the Company dispatched to the jobsite its field service representative,
Frank Gerhart, a qualified mechanic. He was not a member of the Respondent labor
organization nor of any other. Under normal repair circumstances Gerhart would
function in a supervisory capacity while a qualified mechanic employed by the con-
tractor, J.D. & P., would do the actual repair work. On April 24 Gerhart, after
receiving instructions "to go to the Pulaski jobsite to supervise repairs on a 631
scraper," the equipment in question, proceeded to supervise the repair work of the
job mechanic, Ralph Murtaugh, the union steward on the job.2 During the course of
this repair work Fred R. Harris, the dirt superintendent on the job, came upon the
scene. Upon his understanding that this repair work was within the warranty period
of the machine and was properly the responsibility of Syracuse Supply, Harris asked
Murtaugh why he was working on a machine that was under warranty. In reply,
Gerhart told him that he had been informed by Murtaugh that if he would touch any
tools or do any mechanical work at all on the machines they would shut the job
down, for the reason that the men did not want to work with a nonunion man.9
Whereupon Harris, after consulting by telephone with Project Manager Howard G.
Dixon, ordered Murtaugh to stop working on this repair work and directed Gerhart
to complete it as part of the warranty period service. Gerhart proceeded to the com-
pletion of the repairs. Whereupon Murtaugh left the job he had been working on
and, by his own admission, went from one equipment operator to another, talking
briefly with a total of five. First he went to Theron Lancto who immediately there-
after quit,4 stating that he did so because a nonunion man was on the job. Thereafter
2 The credited testimony of Gerhart. Except where his testimony is corroborated by
the testimony of credited witnesses or constitutes an admission against his own or Re-
spondent's interest I do not credit Steward Murtaugh. I observed him on the witness
stand and he did not impress me as an entirely unbiased witness. Further, upon a review
of his testimony I note evidences of conscious hedging, obfuscation, and contradiction.
Illustrative of the latter Is his description of a conversation with Master Mechanic Gokey
and Mr. Rowells, representing the contractor. Murtaugh stated he said nothing during
the conversation-"as far as talking about the men," that is. Immediately thereafter,
without indicating that he was correcting his testimony, he stated, " I told him (Rowells)
that the men wanted to go back to work."
3 The testimony of Harris and Gerhart. Because Murtaugh testified extensively at the
hearing and was never called upon to testify as to this particular conversation, I attach
particular significance to his failure to deny it, and accordingly credit Harris' and
Gerhart's account of the incident.
# I do not credit Lancto's testimony that he had already quit when Murtaugh told him
there was a nonunion man on the job. The incident as described by Murtaugh makes it
clear that the men he saw and spoke to were still at work. Although I discredit Murtaugh
generally I consider his testimony on this subject to be contrary to his interests and I
rely upon it. See Glass-Tite Industries, Inc., 133 NLRB 1287.
672010-03-vol. 139-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he went to operators Robinson, Unger, Colwell, and Elkins. To each Murtaugh
admittedly announced that there was a nonunion man working on the job and walked
on without awaiting a reply.5 In the case of Robinson, however, Murtaugh had a
longer conversation. Thus, after climbing onto Robinson's machine 6 he told him-
the boys have asked me to let them know if there's a non-union man working on
the job . as this is your first day I'll explain what's taking place. The men
have told me that they would not work if there's a non-union man on the job.
I just want to let you know what's going on.
Thereafter, a number of the operators, all members of Respondent and including all
five whom Murtaugh admittedly spoke to, stopped work. In addition Dirt Super-
intendent Harris announced over the radio communication system that a number of
men had stopped work because a nonunion man was on the job. Another employee,
Stenton, exclusive of the five considered above, quit his work upon learning of
Gerhart's presence on the job, testifying however that he did so voluntarily and with-
out any information or advice from Union Steward Murtaugh.
Murtaugh continued with his repair work until 7:30 in the evening and returned
again on the following morning, April 25. Meanwhile it appears that representa-
tives of Syracuse Supply, J.D. & P., and Respondent made arrangements for future
handling of such situations involving Gerhart. Thus it was decided that henceforth
machines on warranty would be repaired by mechanics employed by the con-
tractor and that Syracuse Supply would reimburse the contractor for labor costs so
incurred. Machines requiring major repairs would be returned to Syracuse for re-
pair at the Company's facilities. With this arrangement in mind Respondent's
business agent, James Coville, sought to call Steward Murtaugh later in the evening.
Not having Murtaugh's telephone number he called the master mechanic on the job,
Lionel Gokey, and directed him to have the men return to work in the morning.?
Whereupon Murtaugh and Gokey called the men individually and they appeared on
the scene the following morning, April 25, congregating at a nearby diner. Upon
learning that Gerhart, the nonunion mechanic, had also reported to the job, they
refused to work despite the repeated assurances that Business Agent Coville had
directed that they do so. A number of these men testified credibly at the hearing that
regardless of Coville's instructions to them they individually refused to work on a job
that employed a nonunion mechanic.
As the day was rainy it is speculative that they would have worked at all. The
men did, however, return on the following day after a conference among representa-
tives of the Company, the contractor, and the Union. Present were Wallace, the
Company's sales manager, Dirt Superintendent Harris, General Superintendent
Rowells, Master Mechanic Gokey, and Steward Murtaugh. Prior to this meeting
Gokey had told Rowells that the men would not go back to work knowing that
Gerhart was still working. The meeting was then convened, as noted above, and
Steward Murtaugh described his part in it as follows:
To the best of my ability, the question was brought up whether we had men
qualified to do the work on the machines , and I tried to convince Mr. Wallace
that we do have. He said-He asked me if Frank could not be on the job,
and I said No, if they wanted him, we would be glad to have him supervise,
he wouldn't be taking our work and our men could go back to work if he
was just the supervisor. [Emphasis supplied.] 8
6I do not credit Elkins' denial that Murtaugh spoke to him , conflicting as it does with
Murtaugh's contrary testimony which I deem to be an admission against interest Robin-
son's testimony confirms Murtaugh 's admission in this respect. Neither Unger nor
Colwell testified at the hearing.
8I do not credit Harris' testimony to the effect that he overheard this conversation
between Murtaugh and Robinson See Glass-rite Industries , Inc., supra.
4 The credited testimony of Gokey. I specifically reject Murtaugh's denial that Coville
first tried to reach him by telephone. Murtaugh did not appear to have any basis for
arriving at such a conclusion , and Gokey specifically quoted Coville as stating that "He
couldn't call Mr. Murtaugh because he didn't have his phone number."
8 Murtaugh sought to minimize the significance of his attendance at this and several
other meetings held about the same time, when no other union representative was present.
He did this by suggesting that he was merely representing the men ; thus, "the men ask
me to convey to management that they were unhappy with the situation." As Respondent
represents these very men by contract appearing in the record it cannot be heard to insist
that they were also being represented independently by Murtaugh. I accordingly reject
any suggestion that in these meetings or in dealings with management generally the
employees were represented by an agency or agent other than the one selected by them,
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 789
Murtaugh's position in this respect is confirmed by his own admission that on an
occasion several weeks previously he had told Gerhart "that the men did not want
him working, he was free to supervise, but not to work as far as the men were
concerned."
Gerhart was thereupon assigned only to the supervision of the work of mechanics
employed by the J.D. & P. and members of Respondent Union and the operators
returned to their work.
B. The Bero job
Several months following the incident at the J.D. & P. job at Pulaski, a similar
one occurred at the highway construction jobsite south of Old Forge, New York,
where Bero Construction Corporation, another contractor dealing with Syracuse
Supply, had arranged with Syracuse to conduct a demonstration of a heavy con-
struction tractor called the D-8 Bulldozer.
On the morning of June 15, 1961, Robert Champlin, an employee of Syracuse
Supply, appeared at the Bero jobsite with the bulldozer loaded on a trailer, and
prepared to demonstrate the equipment in accordance with previous arrangements .9
His activities included assembling the various loose parts to make the tractor usable.
While thus engaged, Richard Schoonmaker, the union steward on the job, climbed
onto the tractor, introduced himself as the "Union steward for the operating engi-
neers," and asked Champlin if he had a book, referring to the union book which
Schoonmaker would normally check on. When Champlin stated he had no book,
Schoonmaker replied, "That's all I want to know," and crawled off the tractor.
Because Schoonmaker's activities from this point forward form the focus of this
case, an understanding of his position and duties is in order. Thus he credibly
testified that he was appointed to the position of steward by Albert Miller, business
agent of Respondent, and that among his duties was the checking of members'
books, as he sought to do with Champlin, entry of dues payments in such books,
making periodic steward's reports to the Union, and "to take care of minor
grievances on the job." Describing the extent of his grievance handling as part of
the enforcement of Respondent's contract with the employer, Schoonmaker stated
that-
if another craft was doing the work that under our agreement we should do,
I went to the superintendent or master mechanic and told him that another
craft was doing our work that was under our jurisdiction and this should be
stopped.
Upon the foregoing credited testimony it is clear that Schoonmaker, like Murtaugh
on the J.D. & P. job (supra), represented the Union and spoke in its behalf in con-
ferences with management , and I so find.10
Upon the arrival of the new tractor at the jobsite, Steward Schoonmaker at ap-
proximately 9:30 a.m. sought out Master Mechanic Chest and said, "If the Syracuse
Supply men work on that machine, the men on the job will not work with them." 11
As of this time there is no evidence in the record that any employee on the job had
namely, Respondent. To conclude otherwise would be to suggest that the Respondent was
actually condoning a possible violation on the part of the contractor of Section 8(a) (5) of
the Act.
6 There is considerable conflict in the record as to the time of the arrival of this equip-
ment at the jobsite. There is also an apparent conflict of 1 hour between Champlin's
credited testimony of this arrival, of his conversation with Schoonmaker, and Master
Mechanic Chest's credited testimony of a conversation with Schoonmaker during the
same period . I recognize a possibility of error as to time within an hour, particularly as
these witnesses were asked to recall events 4 months previous . As the precise time is
not relevant here and the account of what transpired 18, I credit both Chest and Champlin
upon the forthrightness of their testimony , and view the time discrepancy as evidence of
an absence of collusion and a further basis for accepting their testimony.
30 Business Agent Miller testified subsequent to Schoonmaker and at no point in his
testimony, which I find unnecessary to rely upon , generally, did he disavow Schoonmaker's
recitation of his duties and representative authority.
u The credited testimony of Master Mechanic Chest.
There is considerable testimony respecting a telephone call which Schoonmaker ad-
mittedly made to Business Agent Miller immediately following the arrival of the disputed
tractor. The testimony was adduced to support the General Counsel's position that the
Respondent , through its business agent, inspired the walkout. Because I have already
found Schoonmaker to be a representative of Respondent I find it unnecessary to consider
the alleged subject matter of the telephone call that is intended to confirm what I feel
requires no confirmation.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge or had been informed that a nonunion man was present, nor is there
any evidence that at this time on June 15 any employee had expressed to Steward
Schoonmaker their unwillingness to work on the job with a nonunion man from
Syracuse Supply. But on the contrary, a number of employees including employees
Bouchard, Burnett, Wisensack, and Marsh told Foremen Ruliffson and Speck even
after the walkout that they would like to return to work and "they didn't know why
it was happening." 12 And one employee, Bronson , a union member, testifying
in Respondent's behalf, stated he had no conversation with Schoonmaker for the
2 weeks previous, and when he did quit "he didn't know what it was about " 13 In
short, all that appears in the record to suggest that the refusal to work with the
Syracuse Supply men originated with the men and not with the union steward was
testimony of employee William Ahles who stated that he told Steward Schoonmaker,
"Well, they're nonunion ; I won't work with them." To which Ahles quoted Schoon-
maker as replying, "Well, that's up to the men." 14 Ahles' testimony lacks signifi-
cance, however, because the conversation with Schoonmaker which he relates oc-
curred, according to his best recollection, at 10 or 11 o'clock in the morning, an
hour or two after the new tractor had arrived, and by comparison with Schoon-
maker's estimate, at least an hour or two after Schoonmaker (1) had verified the
Syracuse Supply man's nonunion status ( supra) and (2) had announced to the
master mechanic, Chest, that the men would not work with the Syracuse Supply
man. Thus it is apparent that by the time Ahles, the only employee so testifying,
had resolved not to work with a nonunion man and Schoonmaker told him that
"That's up to the men," Schoonmaker had already expressed to management,
through Chest, what he claimed was the men's final decision.15 As there is no
evidence whatever of the men's determination on the morning of June 15 to walk
off the job (other than Ahles' dubious claim that it was he and not the steward
who originated the idea). I would find that Schoonmaker's statement to Master
Mechanic Chest-"If the Syracuse Supply men work on that machine, the men on
the job will not work with them"-whatever else it may ultimately be found to be,
has not been established as an expression of the men's wishes, determination,
or decision. Thereafter and while the men were having lunch, Steward
Schoonmaker was seen talking with two or three groups immediately after he had
approached Foremen Ruliffson, Speck, and Phillips and informed them that the
men represented by Respondent refused to work with the nonunion Syracuse Supply
man, a statement he had already made 3 hours previously to Master Mechanic
Chest.16 Foreman Phillips' credited and undenied testimony further describes the
circumstances under which the men at that time left their jobs. Thus after Schoon-
maker had spoken to the three foremen as noted above and as he went off to
talk with the several groups of men who had by then returned to their work from
lunch, he was observed by Foreman Phillips as signalling one group of men, con-
sisting of a backhoe operator, an oiler, and three laborers. The signal, as de-
scribed by Phillips and not elsewhere disputed in the record, consisted of the move-
ment of the clenched hand, with thumb extended, laterally across the front of the
body, in a motion similar to the standard hitchhiking signal.17 Immediately fol-
lowing this signal the operator of the backhoe left his machine, announcing to the
other crew members that he was sick 18 As previously noted, no sooner did Steward
Schoonmaker speak with other groups of operators than they too were observed
immediately leaving their machines, some of them with the machinery remaining
12 The credited testimony of Ruliffson and Speck.
is Bronson credibly testified that he quit on General Superintendent Roberts' advice in
connection with Roberts' shutting down of the entire operation after the walkout was in
effect (infra).
14 Schoonmaker was never questioned concerning this incident and the remark remains
otherwise unverified.
10 In any event, because of its inherent contradiction I do not rely upon Ahles' account
of the incident.
10 The credited and undenied testimony of Foremen Speck, Ruliffson, and Phillips
17 A gesture previously described by the Board (International Union of Operating
Enginecr8, Local 12 (Crook Company), 115 NLRB 23, 27) without further comment, as
"the 'thumbs-up' signal to cease work "
There is no indication in the record that Schoonmaker was soliciting transportation.
19 This operator, Babbitt, did not testify at the hearing Superintendent Roberts credibly
testified that he was working when first Roberts spoke to him after the lunch hour, but
that he stopped work later
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 791
running and parked in positions deemed unsafe to the machines themselves and
to the passing traffic.19
Immediately thereafter, upon hearing of the walkout described above, Superin-
tendent Roberts toured the project, conversing with the several groups of idle men
that had congregated about the area. He told them they should be at work;
one group, at least, indicated "they would like to but were not able to." 20 While
there is no indication in the record that Superintendent Roberts did not know the
reason for the walkout, it did appear to him not only that some of the men were not
in sympathy with it but indeed that others had not even learned of it. These latter
operators he instructed to park their machines and quit work as the job, generally,
had been shut down. Meanwhile Roberts approached Schoonmaker and upbraided
him for calling the men off, an accusation which Schoonmaker denied to Roberts
at that time.21 Whereupon Roberts discharged Schoonmaker.22
With respect to the men already off the job Roberts urged them to return to
work but they refused, stating, "They were not permitted to go back to work by
the Union, they had to stay off of work." So, by regular quitting time on Thursday,
June 15, all operators, members of Respondent Union, had left their jobs.
On the following morning efforts were made to get the work started. On the
previous evening Roberts had called Respondent 's business agent and left a message
in which he requested replacement for those who had walked off. None appeared
in the morning but the striking employees did appear and they were asked to return
to work. Stating that they would like to return but that they needed the Union's
permission to do so, they refused to work at this time 23 A series of meetings be-
tween representatives of the contractor, Syracuse Supply, and Respondent followed,
the contractor insisting that the men could return to work but that Schoonmaker
was through, with everyone being of a mind that adjustments be made concerning
the repair of machinery supplied by Syracuse Supply. By Wednesday morning,
June 21, the parties were in agreement and as a result the men returned on that
date. Schoonmaker was relieved of his duties as steward but returned as a tractor
operator. The repair work on machinery under warranty with Syracuse Supply
was thereafter to be performed by mechanics employed by the contractor and mem-
bers of Respondent, with Syracuse Supply assuming the labor costs for such work.
C. Analysis and conclusions
It may well be that an individual workman may and has walked off a job as an
expression of his personal principle not to work with a nonunion workman. But
to conclude that the men were so motivated here, in the face of the credible evidence
I have set forth above, would amount to a futile exercise of mindreading in which
I do not feel competent to indulge. On the contrary, the evidence is strongly sug-
gestive, albeit strongly denied by Respondent's counsel, that the men's individual
action was an expression of Respondent's militant policy. Indeed Respondent's
Business Manager Webb warmly complimented them for their militance (infra) 24
But without exploring the chain of remote causation that resulted in the walkout
on each occasion herein, it is indeed simpler and more direct to concentrate upon
the actions and statements that actually caused the walkouts.
Once it has been established, therefore, that Stewards Murtaugh and Schoonmaker
represented the Respondent Union and that it was they who initiated the walkout
on the two jobs involved here, it follows that the Respondent Union was itself
responsible for the conduct and had thereby violated the Act in the terms alleged
19 The undenied testimony of Superintendent Roberts
20 Both Superintendent Roberts and Foreman Ruliffson included employees Bouchard
and Marsh among this group, while employee Dodge was mentioned by Roberts and em-
ployees Wisensack and Burnett were mentioned by Foreman Ruliffson . None of these
were called as witnesses.
21 Schoonmaker was not questioned concerning this incident at the hearing
re There is considerable credible testimony that Schoonmaker 's brother , in the company
of several employee members of Respondent , rode about the jobsite talking to employees
who were still at work. I do not consider this evidence in arriving at my findings herein.
za The credited testimony of Roberts . Although Respondent 's Business Agent Miller
was present , to my distinct knowledge , when Roberts so testified , and himself testified
thereafter , I find nothing in the record of his testimony that could possibly be viewed as
a refutation of the stated condition imposed by the striking employees.
u Local 756. International Brotherhood of Electrical Workers, et al, AFL-CIO (The
Martin Company ), 131 NLRB 1010.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the complaint. The stewards' representative status, therefore, and their causal
relationship to the incidents described herein, are of prime consideration.
1. The stewards as representatives of Respondent
In assessing the representative or agency status of these stewards, or indeed of
stewards generally, I need only rely upon the Board's own estimate, wherein it stated
that "a union steward usually has broad general authority with relation to the
union members at the site at which the steward operates." 25 By the same token
I am not disposed to deliberate excessively upon Respondent's protestation that the
steward does not represent it; 26 for if ever the Board were justified in the exercise of
its expertise 27 it would be to underscore the established principle of labor relations
that a union steward, in his dealings with members and management, represents
the union. In Building and Construction Trades Council of Tampa and Vicinity
(Tampa Sand and Material Co.), for example, the Board, referring to the respon-
sibility of a union for an alleged steward's acts, stated:
In view of the insufficiency of evidence to establish that Thornton assumed
the stewardship for the Laborers Union, we do not find his conduct or state-
ments binding upon Respondent Laborers. [Emphasis supplied.] 28
Nothing in the instant record, including Stewards Murtaugh's and Schoonmaker's
admission that, among other usual steward functions, they discussed grievances with
management (supra), suggests that their authority to bind Respondent was less than
stewards' generally. Accordingly, upon the record herein the upon a universal
understanding of the duties and authority of a union steward, I find that both
Murtaugh and Schoonmaker represented Respondent in the incidents described.
2. The stewards' and Respondent's responsibility for the walkouts
Next is the determination of the precise cause of the walkouts in each incident.
In this respect I am quite aware that many of the men on each of the jobs left their
work voluntarily and without instructions. This is not to say, however, that their
voluntary action colors what I hereafter find to be the induced walkout of other
employees; nor does their voluntary decision to quit preclude the very lively pos-
sibility that the information upon which they based their decision or the militant
policy they were pursuing as union members might well be, in itself, a form of
inducement.
By his own admission Union Steward Murtaugh went to five employees on the
J.D. & P. job, informing each in words and substance that a nonunion man was on
the job, and each of the five immediately quit his work. Similarly, on the Bero job,
Union Steward Schoonmaker verified the nonunion status of the newly arrived
Syracuse Supply man (supra), announced to management that the men would not
work with a nonunion man, gave the men what the Board has previously described 29
as the signal to quit, went from group to group talking to the men, and immediately
upon his signal and visits the men quit their work.
Respondent's protestations and the testimony of some employees as to their vol-
untary action is not, in my view, adequate to nullify the law of cause and effect.
In each case a duly appointed and recognized union steward conveyed either by
word or signal that a nonunion man was working and a strike commenced. To say
that this is mere coincidence, or that the information imparted-or the signal given-
by a union representative was irrelevant to the walkout is sheer fantasy. Thus
25 Local 1016, United Brotherhood of Carpenters, et at ., AFL-CIO (Booher Lumber Co ,
Inc ), 117 NLRB 1739, 1746, enfd. 273 F. 2d 686 (CA. 2). See also Local 1150, United
Electrical, Radio & Machine Workers (Cory Corporation), 84 NLRB 972, 973 and
footnote 4.
28Thus at the hearing when counsel for the General Counsel questioned a witness con-
cerning a steward and referred to him as a "Union representative," Respondent's counsel
stated:
Now I was waiting for this. I object to the characterization of Union representa-
tive. If he wants to name his position . . I don't hold that he's a Union repre-
sentative; I say that for purposes of the record and otherwise.
87 N L R B. v. Stow Manufacturing Co , 217 F 2d 900, 905 (C.A. 2) cert. denied 348
U.S. 964, Republic Aviation Corporation v. N L R.B., 142 F. 2d 193, 196 (C.A 2), affd
324 U S 793
:s 132 NLRB 1564 Cf. N.L R.B v. International Brotherhood of Teamsters, etc , Local
182 (The Lane Construction Co.), 228 F. 2d 83, 84 (CA. 2)
29 International Union of Operating Engineers, Local 12 (Crook Company), supra
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 7013
upon facts less obvious than those presented here, the Board has held that a strike
may be called "informally in a manner which is understood by the initiated," stating
that "the critical question is not how the Respondents gave the strike call but whether,
no matter how they did give it." 30 So viewed I do not think the stewards' actions
here carry the concept of "the nod and the wink" too far.
But lest it be suggested that Murtaugh and Schoonmaker were acting at cross-
purposes with the Union they represented, or that the men, in acting upon the
word they received from Murtaugh or Schoonmaker, were thereby embarrassing
the Respondent Union, the following excerpt from Respondent' s Business Manager
James Webb's report in its quarterly publication to its membership adequately de-
scribes the Syracuse Supply situation:
Your Business Manager Reports:
In my last report I thanked those members who refused to work alongside of
non union equipment mechanics. This refusal shows that our members are
militant and wish to preserve their union conditions, but as a result of this re-
fusal the following charges have been placed against Local 545 by the Syracuse
Supply Company and investigators from the N.L.R.B. sent in to check them.
"Since on or about April 25, 1961, and at all times thereafter with respect to
Johnson, Drake and Piper, Inc., and since on or about June 15, 1961, and at all
times thereafter with respect to Bero Construction Corporation, the above-named
labor organization, by its officers, agents, representatives and members engaged
in induced or encouraged the employees of said employer to: (i) engage in a
strike or concerted refusal in the course of their employment to use, manufacture,
process, transport or otherwise handle or work on any goods, articles, materials
or commodities, or to perform any services; and (ii) to threaten, coerce, or
restrain the above-named employers, where an object thereof is to force or re-
quire the above-named employers to cease using, setting, handling, transporting
or otherwise dealing in the products of Syracuse Supply Company, or to cease
doing business with Syracuse Supply Company."
As all members know these charges are false and little enough can be said of
the contractors who are parties to these accusations. Again I would like to
compliment the member [sic] who stick up for their union rights against non-
union people, for that is what makes Local 545 the militant organization it is
today.31
Upon the foregoing it is clear therefore that the walkout of the men at both the
J.D. & P. and the Bero jobs had the blessing of the Respondent's business agent as
they had the impetus, in each instance, of Respondent's representative on the job
itself.32
Respondent placed strong reliance upon the Board's recent decision in Building
and Construction Trades Council of Tampa and Vicinity (Tampa Sand and Material
Co.) case 33 Excepting only one item, I fail to see its relevance. Respondent, how-
ever, would equate the walkoff of Steward Edwards in the Tampa case with Mur-
taugh's and Schoonmaker's activities here. Edwards, it is to be noted, simply walked
off the job, stating he was sick, and an assistant steward took his place. Murtaugh's
80Amalgamated Meat Cutters and Butcher Workmen of North America (AFL), Local
421 (The Great Atlantic and Pacific Tea Company), 81 NLRB 1052, 1057, citing United
States v. International Union , United Mine Workers, 77 F. Supp. 563 , 566, wherein the
court stated:
These men, it is contended, did as individuals, what they had a right to do, work
or not to work and they decided not to work.
Now we have to consider the validity of that claim objectively. If a nod or a
wink or a code was used in place of the word "strike" there was just as much a strike
called as if the word "strike" had been used
Affirmed 177 F 2d 29, 35 (C.A D C ), cert. denied 338 U S 871.
"The Upstate Engineer," vol. 3, No. 3, September 1961, p. 3.
Respondent suggests that there is no labor dispute with Syracuse Supply, thus elimi-
nating any basis for unfair labor practice allegations herein. The above-quoted message
to the membership from its business agent substantially spells out an effort "to preserve
their union conditions." Directed as they are to the "non-union" conditions at Syracuse
Supply, the Respondent's "indirect method of organizing" is obvious Chauffeurs,
Teamsters, Warehousemen and Helpers Local No 135, etc (Irvin J. Cooper et al.),
101 NLRB 1284, 1291; Washington-Oregon Shingle Weavers', et at. (John E Martin,
et at, doing business as Sound Shingle Co.), 101 NLRB 1159.
33 Supra.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, on the other hand, was not the result of claimed sickness , but after telling the
nonunion man, Gerhart, that the men would not work if he did and after telling the
other men on the project that a nonunion man was present , only then did he walk off
himself, and no one took his place. Similarly, Schoonmaker did far more on the
Bero job than simply walk off. He checked the Syracuse man for a union card,
announced to management the men 's intention of not working with a nonunion man,
gave the signal to them , talked to others of them, and then walked off with them.
Nor does the Tampa case have relevance in the manner in which the men learned
of the presence of the nonunion men on the respective jobs or in the manner in which
they had formulated their intent to quit. Unlike the suggestion in the Tampa case
that this intelligence came from a prior union meeting , I do not rely here upon any
testimony suggesting union meetings as a similar source. Whatever disposition the
men had here not to work with a Syracuse Supply man, it crystallized when they got
the word of his presence from the respective union stewards at the time, and on the
job. But if, however, and quite apart from how the men learned of it, there be
question at all of Respondent's official attitude toward Syracuse Supply, the above-
qu.ted excerpt from its house organ should lay such a question to rest.
In ose respect, however, I do find the Tampa case pertinent. Thus, in treating of
Steward Knight's instigation of a work stoppage, the Board stated:
Although the issue is not free from doubt we think the evidence does not
establish that [the steward] was the instigator of the work stoppage. [The super-
intendent's] testimony with respect to the stoppage is very brief and we find the
mere statement that [the steward] "circulated around" before the stoppage in-
sufficient to support inference of inducement, particularly where, as here, there
is evidence that the rank-and-file were unwilling to handle Cone products. Since
there is no other evidence from which inducement or encouragement by the
steward may reasonably be inferred, we find no violation. [Emphasis supplied.]
Thus, by clear implication the Board has reaffirmed 34 that a union steward can
authoritatively induce and encourage employees and that evidence of such "may
reasonably be inferred."
Having thus found and concluded that Murtaugh and Schoonmaker, as representa-
tives of Respondent, were responsible for the walkout of the employees at the re-
spective jobsites, it remains to be determined what application these conclusions have
to the violations alleged in the complaint.
3. The inducement and encouragement of employees in violation of Section
8(b) (4) (i) (B)
It has already been established to my satisfaction upon credible evidence that
Murtaugh, by his statement to Gerhart that they would shut the job down if he worked
with tools, thereby manifested a significant predisposition which he put into effect
when he told the men that there was, in fact, a nonunion man on the job. That the
men may well have asked to be informed of such a contingency is of no moment,
for the fact remains it was the information supplied them by the union steward that
caused them to quit. This, then, is the basic "called strike," whether it be named
"strike" or not 35 I have no reasonable alternative but to consider the employees
who thus went on strike as having been induced to do so by Murtaugh's announce-
ment to them.
The Bero job is on even stronger footing. Thus Steward Scboonmaker, after
announcing the men's intention not to work with the Syracuse Supply man, signaled
them and spoke to them in groups, followed immediately by their leaving the job.
This strike, like the J.D. & P. strike, has no indication of coincidental action by
individual workmen, and has all the indicia of a walkout called by Schoonmaker's
signaled gesture and his conversation with separate groups. As in the previous
instance I have no alternative but to conclude that Schoonmaker's conduct was
responsible for the walkout he had earlier predicted.
In particular view of Respondent's views toward the nonunion status of Syracuse
Supply Company, as stated in its own official publication, there can be no question
but that both walkouts described above, induced as they were by Respondent's
stewards, had as their object the forcing of J.D. & P., Inc., and Bero to cease doing
business with Syracuse Supply Company unless and until Syracuse recognized and
54 See, for example, International Union of Operating Engineers, Local 12 (Crook
Company), supra
05Amalgamated Meat Cutters and Butcher Workmen of North America (AFL), Local
421 (Great Atlantic and Pacific Tea Company), supra
INT'L UNION OF OPERATING ENGINEERS, LOCAL 545 795
bargained with the Respondent . By its actions noted above Respondent has thereby
violated Section 8 (b) (4) (i) (B).36
4. The threatening of employers in violation of Section 8(b)(4)(ii)(B)
Concurrent with their inducement and encouragement of J.D. & P., Inc.,
and Bero employees, respectively, Stewards Murtaugh's and Schoonmaker's con-
duct had still another effect. Thus, by their statements to representatives of each
of the contractors' responsible supervisors they registered effective threats of the
consequences that would flow from the continued presence of a nonunion man on
the job.
In the case of J.D. & P., Inc., it has been found upon the credible testimony of
the Syracuse Supply employee, Gerhart, that Steward Murtaugh informed him they
would shut down the job if he, a nonunion man, would work with tools. Gerhart
further testified that he conveyed this information to J.D. & P.'s Dirt Superintendent
Harris, the senior supervisor at the jobsite on that occasion. Harris, by his own
admission, relayed this information to Project Superintendent Dixon who instructed
Harris to permit Gerhart to continue the job he was working ion despite the steward's
ultimatum of what would happen. There can be no question but that Harris, as
well as Project Manager Dixon who testified credibly to the incident, are supervisors
whose interests are related, not to rank-and-file employees, but to management.37
Accordingly, when it was thus conveyed to them from Union Steward Murtaugh that
the job would be shut down if a nonunion Syracuse Supply man worked with tools
on it, it is plain to see that this constituted more than idle conversation and specula-
tion. On the contrary the only reasonable deduction that flows from such a
transaction is that Murtaugh thereby threatened J.D. & P., Inc., with a shutdown
unless it ceased doing business with Syracuse Supply Company so long as Syracuse
failed to recognize and bargain with the Respondent. Similarly, with respect to
the Bero job there is credible testimony upon which to establish that Union Steward
Schoonmaker told three responsible officials of Bero 38 that, confirming what he
had previously told Master Mechanic Chest, "if the Syracuse Supply men work on
that machine, the men on the job will not work with them." Whatever else such
a statement may suggest, there can be no doubt but that Schoonmaker was con-
veying to Bero, through its responsible supervisors,39 the threat that Respondent
would, as it did do with J.D. & P., Inc., call a strike unless it ceased doing business
with Syracuse Supply, so long as that organization failed to recognize and bargain
with Respondent.40
Upon the foregoing incidents, which in each case I find to constitute a threat,
Respondent has thereby violated Section 8(b) (4) (ii) (B) of the Act 41
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section IV, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
Be Plumbers Union of Nassau County, Local 457, etc. (Jerry Bady, d/b/a Bomat Plumb-
ing and Heating), 131 NLRB 1243.
Local Union No. 505 International Brotherhood of Teamsters ( Carolina Lumber
Company), 130 NLRB 1438.
38 Foreman Allen Ruliffson who substituted for Project Manager Robertson in his ab-
sence, Foreman Phillips, In charge of all pipelaying, and Grading Foreman Marl Speck
'*Local Union No. 505, International Brotherhood of Teamsters ( Carolina Lumber
Company), supra.
SU Plumbers Union of Nassau County Local 457, etc., supra , Local Union 825, Inter-
national Brotherhood of Operating Engineers , AFL-CIO ( Carleton Brothers Company),
131 NLRB 486 ; Highway Truckdrivers and Helpers , Local No. 107 , International By other-
hood of Teamsters , etc. (Ries & Company, Inc ), 130 NLRB 943.
u There is throughout the record a profusion of testimony relating to efforts on the
part of Respondent 's officers and business agents to get the men back to work , to disavow
the original walkouts and continued refusal to return to work, and to otherwise seek to
establish that what happened on both occasions was not the responsibility of the Re-
spondent but the product of individual action Having found as I have herein that the
walkouts were induced and encouraged by two duly appointed, responsible union repre-
sentatives who also threatened the respective employers as found above, and noting in
passing that Respondent appears to have arranged with the contractors to so handle
repairs as to eliminate the need for the Syracuse Supply mechanic on the job, I find it
unnecessary to place any weight or consideration upon such testimony as seeks to disclaim,
disavow explain, or remedy such conduct
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Syracuse Supply Company; Johnson, Drake and Piper, Inc.; and Bero Con-
struction Corporation are engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union of Operating Engineers, Local 345 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By engaging in or inducing or encouraging individuals employed by persons
engaged in commerce or in an industry affecting commerce to engage in a strike
or refusal to perform services, and by threatening, coercing, or restraining persons
engaged in commerce, or in an industry affecting commerce, with the object of
forcing or requiring Johnson, Drake and Piper, Inc., and/or Bero Construction
Corporation to cease doing business with Syracuse Supply Company, Respondent,
has violated Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Moore-McCormack Lines, Inc. and National Maritime Union of
America, AFL-CIO, Petitioner . Case No. 2-RC-12010. Novem-
ber 92, 1962
DECISION ON REVIEW
On June 8, 1962, the Regional Director for the Second Region is-
sued a Decision and Order in the above-entitled proceeding dismiss-
ing the petition filed by the Petitioner, referred to herein as NMU,
seeking an election in a fleetwide unit of all unlicensed seamen em-
ployed by the Employer on its vessels operating out of Atlantic and
Gulf coast ports. Thereafter, NMU, in accordance with Section
102.67 of the Board's Rules and Regulations, Series 8, as amended,
filed with the Board a timely request for review of such Decision
and Order on the ground that the fleetwide unit it seeks is appro-
priate and requested oral argument. The American Merchant Marine
Institute filed a brief as amicus curiae in support of the request and
the Intervenor, Seafarers International Union of North America,
Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, re-
ferred to herein as SIU, filed opposition to the request.
The Board by telegraphic order dated July 10, 1962, granted the
request for review and for oral argument. Thereafter, NMU and
SIU filed briefs in support of their respective positions and the Ameri-
can Maritime Association filed a brief as amicus curiae in opposition
to a fleetwide unit.
139 NLRB No. 70.