International Union of Operating Engineers, Local 18, AFL-CIO

National Labor Relations Board - Board Decisions

Nov 8, 1974

214 N.L.R.B. 819 (N.L.R.B. 1974)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18, AFL-CIO
International Union of Operating Engineers , Local 18,
AFL-CIO and Medina Supply Company Case 8-
CC-663
November 8, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On August 8, 1974, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc. 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
819
A. J. Baltes, Inc. herein called Baltes or the Company, that
the Union would withhold the services of its members from
Baltes for work on the Hinckley Waste Water Treatment
Plant project hereinafter referred to as the Hinckley proj-
ect, if Medina were permitted to furnish materials for the
project and that the Union would prevent the nonunion
employees of Medina from entering the Hinckley project
jobsite if they should attempt to make deliveries of materi-
als to the project, and (2) on June 8, 1974, further threat-
ened Baltes that it would have trouble on the job if Medina
continued to deliver materials to the Hinckley project. Re-
spondent filed an answer generally denying that it commit-
ted the alleged unfair labor practices. A hearing in this
proceeding was held on June 17, 1974, in Norwalk, Ohio.
Thereafter, briefs were filed with the Administrative Law
Judge by General Counsel and by Respondent.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The employers involved in this proceeding are A. J.
Baltes, Inc., an Ohio corporation with its principal office
located in Norwalk, Ohio, and Medina, an Ohio corpora-
tion, with its principal office and place of business located
in Medina, Ohio. A. J. Baltes, Inc., which is a general con-
tractor engaged in highway and heavy construction, in the
conduct of its business annually purchases and receives
through channels of interstate commerce products in ex-
cess of $50,000 directly from points located outside the
State of Ohio. Medina, which is engaged in the business of
supplying building materials to the construction industry,
in the course of its business annually purchases and re-
ceives through channels of interstate commerce goods val-
ued in excess of $50,000 directly from points located out-
side the State of Ohio. Respondent admits, and I find, that
Baltes and Medina are employers within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon a
charge and an amended charge filed on April 16 and April
30, 1974, respectively, by Medina Supply Company, herein
called Medina, a complaint was issued on May 14, 1974,
alleging that International Union of Operating Engineers,
Local 18, AFL-CIO, herein called the Union, has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(b)(4)(ii)(B) of the National Labor
Relations Act, as amended. The complaint, as amended at
the hearing, alleges that the Union through its business
agent, Dudley E. Snell (1) on April 11, 1974, threatened
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act
and that during all times material hereto Dudley E. Snell
has been a business agent of Respondent and an agent of
Respondent within the meaning of Section 2(13) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issue in this case is whether the Union directed
threats against A. J. Baltes, Inc., with whom it has a con-
tractual relationship, to force that Company not to use
building supplies furnished by Medina. On April 11, 1974,
before Baltes began work on the Hinckley project, in ac-
cordance with area custom , a meeting was held between
Baltes and the Union and other construction trades to dis-
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuss subjects affecting the performance of the work on the
project. The meeting is referred to as a prejob conference.[
Representing Baltes at the pre job conference were Rob-
ert Rudowski, labor relations representative for the Ohio
Contractors' Association; Cornelius Ruffing, Jr., contract
administrator for the Company; and Michael Mcllrath,
project superintendent for the Company. Representing the
Union were its business agent, Dudley E. Snell, and Roy
Everett. Everett's position with the Union was not given
and he was not a witness at the hearing. Also in the meet-
ing room were representatives of other crafts.
The meeting began with a discussion between the Union
and Baltes directed towards filling out a form which is
headed simply, "Pre job Conference." After the form was
completed but before it was executed by both the Union
and the Company, the discussion between the Union and
Baltes was temporarily suspended. Baltes then held pre job
conferences with the other crafts. In the meantime, Snell
left the meeting room and had a telephone conversation
with Union President Earl Erwin. After Baltes completed
its discussions with the other crafts, the pre-job conference
form with the Union was executed
The three company representatives testified for General
Counsel and Snell testified for Respondent. There are sub-
stantial discrepancies, not only between the testimony of
Snell and that of the Baltes' representatives, but also
among the latter three, as to what was said during the April
11 pre job conference. It should be noted that Baltes began
work on the Hinckley project shortly after the April 11
meeting, that Medina has been furnishing materials to the
project without any difficulty, and that none of the things
allegedly threatened have come to pass.
The pre job conference form was filled out by Snell who
obtained the called for information mainly from Mcllrath.
i The nature and purpose of a prejob conference is described in par 9 of
the Ohio State Highway Heavy Agreement, effective May 1, 1972, to May 1,
1975, to which the Union and Baltes are parties, as follows
Upon the request of either party a pre-job conference will be held at
least five (5) days poor to commencing work and the Union may re-
quest and receive the pre-job conference with the Employer on an indi-
vidual Union basis. In case of an emergency start of a construction job,
the pre-job conference will be held as soon as possible after the com-
mencing of work When an Employer is awarded a contract of $300,000
or more the Employer will notify the Union at the time he is awarded
such job Following are the items which will be discussed at the pre-job
conference
(a) The Employer will advise the Union representative of the
Employer's requirements of necessary employees in the classifica-
tions of work under this Agreement and the Union will determine
and advise the Employer of the ability of the Union to fulfill such
requirements when requested
(b) Work schedules
(c) Questions of jurisdiction and assignment of work
(d) The Employer agrees that wherever possible at such pre-job con-
ference he will notify the Union having jurisdiction over the project
of any subcontracts let by the Employer, the names of the subcon-
tractors, and the nature of the work to be performed by the subcon-
tractors The Union may request a subcontractor to meet with the
Union and the subcontractor will meet with the Union prior to com-
mencing work on a project if the subcontractor did not attend the
original pre-job conference for the project
It is understood and agreed that no agreement may be made at the
pre-job conference which will in effect change, modify, or abrogate the
Labor Agreement in effect between the two parties hereto.
Thus, the conversation was primarily between Snell and
Mcllrath, although Rudowski and Ruffing participated
and were able to hear what was said.
Rudoski testified that Snell began the meeting by asking
the standard questions that appear on the prejob confer-
ence form. When Snell came to the question relating to the
materials contractor for the project, he inquired whether it
would be Medina Supply Company. After a telephone call
was made to the Company's office, Snell was informed that
Baltes had a contract whereunder Medina would furnish
the materials for the project. According to Rudowski, "At
this point Mr. Snell kind of pushed back the pre job form
and stated that he would not work on that job with a non-
union supply company. Then, he made the statement that
he would not continue with the pre job." Rudowski
pressed Snell to complete the prejob conference form but,
"Mr. Snell stated that he would just wait and see what the
other unions were going to do before he would complete
the pre job." Rudowski further testified that the Company
then proceeded to fill out prejob conference forms with the
other crafts. During this interval, Rudowski observed Snell
outside the meeting room engaged in a telephone conversa-
tion. After the discussions with the other crafts were con-
cluded and Snell had returned to the room, Snell's attitude
changed; he was cooperative, he no longer shouted, and
the Union and the Company completed and executed the
prejob conference form without any conditions being
placed upon its implementation. Rudowski explained that
execution of the form meant that the Union would furnish
operating engineers for the project, that there would be no
jurisdictional disputes among the crafts, and that the other
terms of the instrument would be observed. However, after
the form had been executed, according to Rudowski, Snell
"made the casual comment that to avoid problems on the
job, he suggested that the company check back at their
office in regard to the use of Medina Supply."
Ruffing testified as follows- During the prejob confer-
ence, when Snell was informed that Medina was going to
furnish the materials for the project, "Mr. Snell pushed the
paper and said he wasn't going to conduct a pre-job con-
ference and then he raised his tempo of voice and just went
on and ranted for awhile that we were not going to let a
non-union contractor on this job." However, Rudowski
persuaded Snell to continue with the prejob conference,
pointing out that such conference was a requirement under
the applicable collective-bargaining agreement. When the
form was completed but before it was executed Snell left
the room and the Company proceeded to develop prejob
conference forms with the other crafts. After those confer-
ences were over and Snell had returned to the room, Snell
told the company representatives that he would sign the
prejob conference form.2 He added, however, "You're
going to have troubles because the Medina Supply Compa-
ny was supposed to have concrete at the Holiday Inn (the
one at which the parties were meeting) . . . but they [only
received] a couple of loads." 3 Also, "he insinuated the
2 Ruffing testified that, among other things, execution of the prejob con-
ference form meant that the Union would furnish the personnel to operate
the machinery on the project
3 On cross-examination, Ruffing testified, "When [Snell] came in and said
he would sign the pre-job form, he said, `I'll sign the pre-job form, but I'm
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 18, AFL-CIO
problems existed at the Holiday Inn was going to be same
kind of problem we had ." However , Snell did not mention
anything about a picket line nor did Snell say that the
Union would withhold the services of its members. Ac-
cording to Ruffing , after Snell returned to the meeting
room following his telephone call, he was more amiable;
"[i]t signified that he got on the phone and talked to his
superiors and his superiors said you're out of line and you
had better sign this form." However, Ruffing testified that
Snell stated both before and after his telephone call that
the Union would not let Medina on the job.
Mcllrath testified that, after Snell was informed that
Medina was going to furnish the materials for the project,
Snell said there was no further use conducting a confer-
ence . However , Snell "was coaxed into finishing the pre-
job conference by Rudowski and once he had finished, we
started with the Laborers and I understand he left the
room." Mcllrath was uncertain as to when the prejob con-
ference form with the Union was signed. Mcllrath testified,
however, that "Mr. Snell, at least, three times during the
course of the afternoon, said that we were going to have
problems if we had Medina Supply on the job. He said that
this building which we were in and having our meeting,
was supposed to be supplied by Medina Supply and that
they only got three or four loads in to the site before they
stopped it. The union stopped it. . . To the best of my
knowledge, I believe he did say that they wouldn't dump
the concrete." When asked on cross-examination whether
Snell had indicated that the Union would not work on the
job if Medina furnished the materials, Mcllrath testified
that at the end of the meeting Snell said "that they will not
dump the concrete."
Snell's testimony would indicate that he was more tem-
perate in his remarks than is suggested by the testimony of
General Counsel's witnesses. According to Snell, when he
was informed that Medina was going to furnish the materi-
als for the project, he said "that Medina Supply was a
non-union supplier and that we had had problems with the
Teamsters on the project for Medina Supply work. Then, I
told him that I would like to hold my pre job .. ." but
Rudowski insisted that he had to finish the prejob confer-
ence. Snell acceded. The prejob conference form was com-
pleted and both Snell and Roy Everett signed the instru-
ment. However, the instrument was not then executed by
the Company. Snell left the room. He telephoned Union
President Erwin and informed Erwin that he had not com-
pleted the prejob conference with Baltes because Medina
was furnishing the materials for the project and the Team-
sters had picketed other projects in the area where Medina
had furnished materials. Snell asked what authority he had
not to sign the prejob conference form. Erwin advised Snell
that the problem was between the Teamsters and Medina
and that Snell should complete the prejob conference and
sign the prejob conference form. Snell returned to the
meeting room and the prejob conference form was given to
Mcllrath to execute for the Company. Snell further testi-
fied that when he first was advised that Medina was the
materials subcontractor he asked the company representa-
821
tives if they knew that Medina was nonunion and had had
problems in the past with the Teamsters. Snell told them
that there had been problems at a vocational school job
and also at the Holiday Inn where the parties were then
meeting because the Teamsters had picketed both projects
Snell also testified that on the projects which had been
picketed by the Teamsters he had instructed the union
members to continue working and that he did not withhold
the services of members of the Union from any employer
because Medina was the materials subcontractor on the
job .4 Snell specifically denied that he said that he or the
Union would prevent Medina from making deliveries to
the Hinckley project or that the Union would withhold the
services of its members from Baltes if Medina were permit-
ted to furnish materials for the project.
The allegations in the complaint with respect to the April
II meeting are that Snell had threatened that ( 1) the Union
would withhold the services of its members from Baltes if
Medina were to furnish the materials for the Hinckley proj-
ect and (2) the Union would prevent the nonunion employ-
ees of Medina from making deliveries of materials to the
project. The testimony of General Counsel's witnesses, al-
though not necessarily contradictory, is not mutually cor-
roborative . Thus, Rudowski testified that when Snell first
learned Medina was going to be the matenals subcontrac-
tor he stated that he would not work on the job with a
nonunion supply company. However, after Snell made his
telephone call, according to Rudowski, he was more coop-
erative and did not make any further threats other than a
casual comment that Baltes would avoid problems on the
job if it reconsidered using materials furnished by Medina.
Presumably, Rudoski's testimony was offered to prove the
first threat. Ruffing's testimony vanes from Rudowski's in
that, according to Ruffing, when Snell was informed that
Medina would furnish the materials for the project Snell
stated that he was not going to let a nonunion contractor
on the job, and this threat was repeated by Snell after he
had made his telephone call. Presumably, this testimony
was offered to prove that the second threat was made Mc-
Ilrath's recollection of what was said differs from both
Rudowski's and Ruffing's. He testified that Snell said
Medina would not be permitted to dump the concrete,
which he interpreted to mean that the Union would pre-
vent Medina from making such deliveries. Contradicting
General Counsel's three witnesses , Snell testified that he
made no threats whatsoever on behalf of the Union but
merely advised the company representatives that a dispute
existed between Medina and the Teamsters and that on a
couple of projects, including the construction of the Holi-
day Inn where the parties were then meeting, the Team-
sters had picketed and had prevented Medina from deliver-
ing materials . Both Ruffing and Mcllrath recalled in their
testimony that Snell did make references to the difficulties
Medina had in making deliveries at other projects but did
not recall that Snell had referred to the Teamsters as the
cause of such difficulties.
Snell's testimony undoubtedly was sanitized . I doubt
that he was as restrained in the comments he made at the
April I I meeting as his testimony suggests . However, I am
warning you now, you're going to have problems.' and then he signed it " 4 No evidence to the contrary was adduced
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the opinion that of the four differing versions Snell's
testimony was the most accurate. The fact that none of the
alleged threats have been carried out and that Medina has
been furnishing materials to the Hinckley project without
interference tends to support Snell's testimony. Upon con-
sideration of all the circumstances, I find that General
Counsel has failed to prove by a preponderance of the evi-
dence that Respondent has engaged in the conduct set
forth in subparagraphs (A) and (B) of paragraph 11 of the
complaint.
Mcllrath testified that on June 8, 1974, he had a conver-
sation with Snell at the Hinckley project site following a
routine inspection check by Snell with the union members
on the job. According to Mcllrath, "I had brought up the
subject of whether [Snell] got a subpoena to appear [at the
hearing in this proceeding] and he said, `Yes, I have,' and
everything was really friendly but he maintained that Med-
ina Supply was still not going to be the supplier. . . . It
was just something in passing, I believe. I don't believe he
came out and made a threat as such." As of that time,
Medina had been delivering materials to the project and
there had been no difficulties with the Union. According to
Snell, in their conversation he merely "told Mr. Mcllrath
that I had no problem with Medina Supply and that the
problem was with the Teamsters." Accepting the testimony
of Mcllrath, I find that the allegation of the complaint that
Snell threatened the Company that it would have trouble if
Medina continued to deliver materials to the Hinckley
project has not been proved.
Upon the basis of the above findings of fact, and the
entire record of the case, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practic-
es alleged in the complaint.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERS
The complaint is dismissed in its entirety.
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes