Local 450

National Labor Relations Board - Board Decisions

Apr 23, 1958

120 N.L.R.B. 568 (N.L.R.B. 1958)

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 450, International Union of Operating Engineers , AFL-CIO
and Construction Employers Association of Texas, Inc., On
Behalf of Its Member Tampco Piping , Inc. Case No. 39-CC-35.
A pril 23,1958
DECISION AND ORDER
On October 28, 1957, Trial Examiner Louis Libbin 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 copy of the
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other alleged unfair labor prac-
tices and recommended the dismissal of the complaint with respect
to such allegations. Thereafter, the Respondent filed exceptions to
the Intermediate Report, together with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the modifications indicated
below.'
IFor the reasons set forth in The Great Atlantic and Pacific Tea Company, National
13akei y Division, 118 NLRI-I 1280, we affirm the Trial Examiner's denial of the Respond-
ent's motions that the General Counsel be directed to furnish the Respondent with docu-
ments secured by the Board in its investigation of this case. We also affirm the Trial
Examiner's denial of the Respondent's further motion that the complaint be dismissed
because of the General Counsel's tailure to produce such documents Member Jenkins
who expressed his disagreement with the majority's denial of a similar motion in the
cited case, and who continues to believe his dissent to be correct, now concurs because he
feels bound by Board policy as determined by the majority in that case See also
Building rG Construction Trades Council of Boston, AFL-CIO (Metropolitan District)
and John E Brady (J J Reddington Electric Service Co ), 119 NLRB 1816
2 The Trial Examiner credited Robei t A Forenian's testimony that some time between
11 . 15 and 11 45 a in. on April 3, Miller stated in a conversation with Foreman that the
operating engineers "had orders to leave the job at noon " Other credited testimony in
the record establishes that Miller received such instructions from Seaicy about 11 . 50
a. m Contrary to the Respondent's contention, we find the discrepancy as to time too
inconsequential to affect our ultimate tindings herein.
3 We make the following corrections of inadvertent ei rors appearing in the Intermediate
Report which do not, however, affect the Trial Examiner's ultimate conclusions.
George W Donovan talked with Charlie Hart on April 5, 1957, rather than on April 3,
1957.
It was Searcy, not Slime, who spoke to Donovan on April 3 and to Hubert R. Stoltz
on April 9, 1957.
120 NLRB No. 76.
LOCAL 450
ORDER
569
Upon the entire record in the 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 Local 450, Inter-
national Union of Operating Engineers, AFL-CIO, its agents, offi-
cers, representatives, successors, and assigns, shall :
1. Cease and desist from inducing or encouraging the employees
of Tampco Piping, Inc., A. A. Pruitt or T. A. Newman, or of any
employer, other than Sline Industrial Painters, to engage in a strike
or concerted refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on goods,
articles, materials or commodities, or to perform any services for
their respective employers, where an object thereof is to force or
require said employers to cease doing business with Monsanto Chem-
ical Company, or to force or require Monsanto Chemical Company,
or D. F. Pritchard & Company, or any other employer or person, to
cease doing business with Sline Industrial Painters.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Post at the business offices and meeting halls of Local 450,
International Union of Operating Engineers, AFL-CIO, copies of
the notice attached hereto marked "Appendix." 4 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof and be maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for the Sixteenth Region signed
copies of the notice attached hereto marked "Appendix" for posting
at the job sites of Monsanto Chemical Company by Tampco Piping,
Inc., A. A. Pruitt and T. A. Newman, in places where notices to their
employees are customarily posted, if Tampco Piping, Inc., A. A.
Pruitt, and T. A. Newman are willing to do so. Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by an authorized representative of the
Respondent, be forthwith returned to the Regional Director for such
posting.
IIn the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
Respondent violated Section 8 (b) (4) (A) of the Act in connection
with the work stoppage of April 12, 1957, be, and it hereby is,
dismissed.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 450, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT induce or encourage the employees of Tampco
Piping, Inc., A. A. Pruitt, or T. A. Newman, or of any employer,
other than Sline Industrial Painters, to engage in a strike or
concerted refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle, or work on goods,
articles, materials or commodities, or to perform any services
for their respective employers, where an object thereof is to force
or require said employees to cease doing business with Monsanto
Chemical Company, or to force or require Monsanto Chemical
Company or D. F. Pritchard & Company, or any other employer
or person to cease doing business with Sline Industrial Painters.
LOCAL 450, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Construction Employers Association of Texas, Inc., on
behalf of its member Tampco Piping, Inc, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued a complaint dated May 3, 1957, alleging that Local 450,
International Union of Operating Engineers, AFL-CIO, herein called Local 450 or
the Respondent, had engaged in unfair labor practices within the meaning of Section
8 (b) (4) (A ) and Section 2 (6) and ( 7) of the National Labor Relations Act,
61 Stat. 136, herein called the Act. More specifically, the complaint, as subse-
quently particularized and amended, alleges in substance that Monsanto Chemical
Company, herein called Monsanto, has awarded contracts for the performance of
certain construction and maintenance work at its Texas City plant to a number
of named contractors, including J. F. Pritchard & Co. and Tampco Piping, Inc.,
LOCAL 450 571
herein respectively called Pritchard and Tampco, that Pritchard subcontracted the
painting called for by its contract to Sline Industrial Painters , herein called Sline;
that Respondent had a dispute with Sli.ne over the latter's failure and refusal
to employ a member of Respondent to operate an air compressor, that at various
times since April 3, 1957, Respondent, through its business representative, has de-
manded that Monsanto and Pritchard intervene in the dispute with Sline and has
threatened to induce its members not to work at the Monsanto plant if Monsanto
and Pritchard did not influence and demand that Sline accede to Respondent's de-
mands, that since on or about April 3, 1957, Respondent's job steward employed at
Tampco induced the employees of Tampco and of other contractors, except Sline,
to cease work concertedly and leave the Monsanto premises; that Respondent en-
gaged in the above-described conduct with the object of forcing or requiring
Monsanto and other persons, including Pritchard, who normally do business with
Sline to cease doing such business; and that by such conduct Respondent violated
Section 8 (b) (4) (A) of the Act. In its duly filed answer, as amended, Respondent
denied generally the unfair labor practice allegations, and affirmatively averred
that there was no business or contractual relationship between Sline and Monsanto
and that therefore a work stoppage by employees of Tampco could not have as
its purpose the object of forcing or requiring Monsanto to cease doing business
with Sline.
Pursuant to due notice, a hearing was held on July 16 and 17, 1957, at Houston,
Texas. The General Counsel and the Respondent were represented at the hearing,
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, to present oral argument, and thereafter to file briefs
as well as proposed findings of fact and conclusions of law. The Respondent's
motion to dismiss the complaint, made at the conclusion of the hearing and upon
which I reserved ruling, is disposed of in accordance with the findings of fact
and conclusions of law made below.
During the course of the hearing, Respondent moved that it be permitted to
submit atter the close of the hearing a certified copy of the transcript of testimony
of John A Piangenti, a witness for the General Counsel, given at a prior injunc-
tion proceeding in connection with this case, for the purpose of impeaching the
testimony of Piangenti given in the present proceeding, and that upon receipt of
such transcript it be made a part of the record in the instant case as a Respondent's
exhibit. Counsel for the Respondent admitted that he had not seen the proposed
tianscript and was not fully familiar with its content. The General Counsel ob-
jected to this motion on the ground that he was not familiar with the content of
the proposed transcript and that this procedure would foreclose him from examining
the witness with respect to it. I denied Respondent's motion but without pre-
judice to the submission of a motion, after the close of the hearing, for the reopen-
ing of the record to include the proposed transcript with an opportunity for the
General Counsel to respond to the motion After the close of the hearing, Re-
spondent filed a motion for leave to introduce and make part of the record the
testimony of Piangenti adduced, not in the prior injunction proceeding, but in a
subsequent proceeding held on June 18, 1957, in Case No. 39-CD-25, and attached
an official transcript of the testimony of Piangenti in that proceeding. Respondent
stated that it was filing this motion "with leave of the Trial Examiner first having
been had and obtained," referring to the aforementioned ruling of the Trial
Examiner. The General Counsel filed an opposition to Respondent's motion on
the sole ground that it did not come within the purview of the Trial Examiner's
reservation. Thereafter, the Respondent filed a reply to the General Counsel's
opposition. I agree with the General Counsel that Respondent's motion does not
fall within the Trial Examiner's ruling. However, as Piangenti's testimony in
Case No. 39-CD-25 deals with the same subject matters concerning which he testified
in the present proceeding and was adduced on the day following the close of the
instant hearing, and as the same parties were present and participated in the hear-
ing in Case No. 39-CD-25, I believe that no prejudice will result in having a full
and complete record of all the testimony of Piangenti. Accordingly, I hereby grant
Respondent's motion. The documents in connection with this motion and the
entire official transcript of the testimony of Piangenti in Case No. 39-CD-25 are
hereby made part of the record in this proceeding and have been placed in the
official exhibit folder as Respondent 's Exhibit No. 4 (a)-4 (d), inclusive. Find-
ings based on Piangenti's testimony have been made upon a consideration of his
testimony in both proceedings.
Subsequent to the hearing, the General Counsel and the Respondent filed briefs,
which I have fully considered.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case , and from my observation of the witnesses,
I make the following
FINDINGS OF FACT
1. COMMERCE ; THE BUSINESS OF THE COMPANIES I
The Monsanto Chemical Company, herein called Monsanto, is a Delaware corpo-
ration with its principal plant located at Texas City, Texas, and is engaged in the
manufacture of heavy chemicals, organic chemicals, and related products. During
the calendar year of 1956, Monsanto purchased and shipped to its Texas City plant
from points outside the State of Texas materials valued in excess of $500,000;
during the same period, Monsanto sold and shipped from its Texas City plant to
points located outside the State of Texas products valued in excess of $500,000.
Sline Industrial Painters, herein called Sline, is a Texas corporation with its
principal place of business in Houston, Texas. During the calendar year of 1956,
Slane performed for Monsanto services valued in excess of $100,000, during the
same period Shne performed services outside the State of Texas, which services
were valued in excess of $600,000.
Tampco Piping, Inc, herein called Tampco, is a Texas corporation and the subsidi-
ary of another Texas corporation, Monical & Powell, Inc Tampco is an industrial
contractor engaged in the installation of piping and other industrial construction.
During the calendar year of 1956, Tampco pertormed for Monsanto services valued
in excess of $400,000, and performed for Dow Chemical Company and other indus-
trial contractors services valued in excess of $1,000,000.
J. F. Pritchard & Company, herein called Pritchard, is a Missouri corporation,
with its principal place of business in Kansas City, Missouri. During the calendar
year of 1956, Pritchard performed for Monsanto services valued in excess of
$5,000,000, and performed for other customers located outside the State of Texas
and in foreign countries services valued in excess of $10,000,000.
T. A. Newman, herein called Newman, is an individual engaged as a contractor
in the business of dirt excavating, with his principal place of business in Texas City,
Texas. During the calendar year of 1956, Newman had received more than
$1,000,000 for services performed for Monsanto and other companies admitted to be
engaged in interstate commerce within the meaning of the Act, including Pan
American Refining Company and Carbide and Carbon Chemical Company.
A. A. Pruitt, herein called Pruitt, is an individual engaged as a concrete contractor,
with his principal place of business in Texas City, Texas. During the calendar
year of 1956, Pruitt received in excess of $300,000 for concrete work performed
for Monsanto.
I find that Monsanto, Sline, Tampco, Pritchard, Newman, and Pruitt are engaged
in commerce within the meaning of the Act.
II. THE RESPONDENT
The complaint alleges, the Respondent 's answer admits , and I find, that Local 450,
International Union of Operating Engineers , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The setting 2
As of April 1, 1957, and at all material times thereafter, a number of contractors
and subcontractors were working on the Monsanto plant premises in Texas City,
Texas. Pritchard, Tampco, Pruitt,3 and Farnsworth & Chambers were working as
prime contractors of Monsanto. Tampco was engaged in the fabrication and instal-
lation of industrial piping. Pritchard's prime contract calls for the erection of an
ethylene unit. In fulfillment of this prime contract with Monsanto, Pritchard had
subcontracts with Sline and Armstrong Cork Company and an open purchase order
with Newman to supply fully operated equipment, including the operator. Sline's
subcontract with Pritchard was for the painting of the various phases of the units
constructed by Pritchard. This was known as construction painting. At the same
1 The findings in this section are based upon a stipulation of the pai ties that witnesses,
if called, would testify to the facts set forth in the text
2 The findings in this section are based on credible testimony which is wholly undisputed.
3 Until April 1 Pruitt had been operating on the premises as a subcontractor of Pritch-
ard However, on that date the subcontract was cut off and Pruitt began operating under
a direct contract with Monsanto
LOCAL 450 573
time, and for a long period prior thereto, Sline also performed maintenance painting,
described as the repainting of existing construction, under a direct purchase order
with Monsanto.
In connection with its spray painting work on new construction pursuant to its
subcontract with Pritchard, Sline had to use compressed air which was provided by
a compressor. At the time in question, Sline was using an air compressor of 60
cubic feet for this purpose. The operation of an air compressor consists of the task
of turning it on and off; an employee's presence is not required while the compressor
is running. The dispute out of which this proceeding arose was caused by Sline's
failure and refusal to have a member of Respondent Local 450 operate this 60
cubic foot compressor.
B. The events
The material events relied on by the General Counsel in support of his complaint
occurred during the period from April 2-12, 1957.
1. April 2
On April 2 Sline was using the 60-foot air compressor for spray painting of new
construction work under its subcontract with Pritchard. The employee assigned
by Sline to operate that compressor was not a member of the Operating Engineers'
craft.
About 2:30 that afternoon, Bud Miller, an employee of Tampco on the Monsanto
premises and the steward of Respondent Local 450 at Tampco, while in the plant
spoke to Leslie May, job superintendent for Sline. Miller asked May if he was
operating a compressor. When May replied in the affirmative, Miller asked May
it he was using an operator on it. May stated that he was not. Miller then asked
if May was going to employ and put an operator on the compressor. May again
stated that he was not. The term "operator" in the construction industry is gener-
ally known to refer to a member of the craft of Operating Engineers.4
Searcy, business representative of Respondent Local 450, admitted that on the
afternoon of April 2, Miller telephoned to him and reported that Sline was operating
an air compressor without using an operating engineer. Miller asked Searcy if Stine
had ordered an operator for the compressor. When Searcy replied in the negative,
Miller related his conversation with May and stated that May had talked to Hughes,
the business agent of the Painters Union, and wanted Searcy to get in touch with
Hughes. Searcy also admitted that he then called Hughes, the Painters' business
agent, and that Hughes stated that the Painters would operate that compressor be-
cause they claimed that work was within their jurisdiction.
According to the credible testimony of John A. Piangenti,5 timekeeper for Tampco,
Miller told him on April 2, "off the record, as a friend," that Sline was operating a
compressor in Area 17 without an operating engineer, that the operating engineers
employed by the various contractors were "hot about it," and that he was going to
see what he could do about it that night Piangenti had been very friendly with
Miller during the past few years and knew that Miller was the steward of Local 450
for the operating engineers employed by Tampco.
+ While Miller did not directly deny having had this conversation, he testified that the
first time he knew anything about the controversy involving Sline 's air compressor was
shortly after 8 a in on April 3, when Greenwood, an employee of Tampco, told Miller
that Sline was operating an air compressor without using an operating engineer Miller
is a completely unreliable witness and his testimony is contradictory and in direct con-
flict with that of other witnesses called by the Respondent. Thus, for example, Searcy,
Respondent's business representative, admitted that Miller had reported to him on April 2,
that Sline was operating an air compressor without using an operating engineer and that
Miller had talked to May about it Miller's testimony is also in conflict with that of
Searcy with respect to the content of their telephone conversation on April 3, and also
in conflict with the testimony of O'Callaghan, another of Respondent's witnesses, with
respect to their conveisation on the morning of April 3, all as hereinafter more specifi-
cally set forth.
Based upon the entice iecoid and upon my observation of Miller's demeanor, I find
Miller to be a witness whose testimony is entitled to no credence Accordingly, I do not
credit any of Millet's testimony which is in conflict with my findings in this Report
'Piangenti impiessed me as a very honest and torthright witness who tried to testify
to the true facts to the best of his recollection. His testimony in the second proceed-
ing is not inconsistent with that given in the instant proceeding , for the most part it
corroborates, and in some iespects supplements, his earlier testimony
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. April 3
Searcy admitted that he got up early on April 3 and went to the Monsanto
premises. According to the undisputed and credible testimony of Leslie May,
Sline's job superintendent, he had the following conversation with Searcy about
two blocks from the construction gate early that morning before working hours.6
Searcy asked May if he was operating an air compressor. When May replied in the
affirmative, Searcy asked if May had an operating engineer on it. May replied that
he did not. Searcy then asked if May was going to put an operator on it. May
stated that he was not.
Before working hours that same morning Searcy also telephoned to the home of
George W. Donovan, Monsanto's construction manager at Texas City, and had the
following conversation with Donovan 7 Searcy asked Donovan to get in touch with
Sline before 8 a. in. and tell them to put an operator on a compressor which they
were using in spray painting. Donovan declined to do so, stating that he did not
take part in any labor dispute. Searcy insisted that Donovan call Sline and
threatened that he either had or would have the operators at the gate and "would not
let any of the operators in to work in the plant unless Sline put an operator on that
air compressor." When Sline persisted further in his request, Donovan stated that
"I would prefer to do business in the plant rather than at breakfast." Donovan
finally promised that when he would get to the plant he would notify Sline of what
Searcy had said but again stated that he would not tell Sline to put an operator on
the compressor. Donovan also promised to call Searcy after Donovan got to the
plant.8
At that time the scheduled working hours for the employees of the contractors
on the Monsanto site were from 8 a. in. to 4:30 p. in. with a lunch period from
12 to 12.30 p. m. As timekeeper for Tampco, Piangenti was required to arrive
early enough to have the clocks open by 7:15 a. in. On April 3 Piangenti arrived
at the Monsanto construction gate between 7 and 7:15 a. in. He saw Bud Miller
standing at the gate and asked Miller what was wrong Miller replied that he was
waiting for Searcy to return from town, that Searcy had been out there that morning
and after looking the situation over Searcy had concluded that he (Searcy) had been
dealing with the wrong party at Monsanto the preceding day in trying to get the
situation straightened out and that Searcy now felt that the matter came under
Mr. Donovan's jurisdiction, and that Searcy was in town making a call to Mr. Dono-
van, Monsanto's construction manager, to try to get the matter straightened out.
Miller also stated that Searcy had told him to wait at the gate and to tell the other
operating engineers who arrived to wait there until Searcy came back from town.
Piangenti testified that he knew Miller was referring to the matter of the air com-
pressor being used by Sline.
After Piangenti had opened up the clocks, he went back into the parking lot to
get his lunch which he had left in his car, and saw Bud Miller getting out of his car
in the parking lot. Piangenti said, "Well, it didn't take long to get that straight."
Miller replied that Searcy had returned and had told Miller that he (Searcy) had
contacted Mr. Donovan and that Donovan was on his way back to the plant and
thought he could get everything ironed out and get back to work .9
Piangenti and Miller then passed by the construction gate where they saw Searcy.
Piangenti shook hands with Searcy and said he hoped Searcy had gotten "it
straightened out." Searcy told Piangenti, in substance, that the matter concerned a
compressor being used by Sline at the plant, that he had been to town and had tele-
phoned to Mr. Donovan, that Donovan was on his way out to the plant, that Searcy
"May judged the time of this conversation to have been about 7 30 a. in The work-
ing hours began at 8 a in
7 Donovan judged the time of this conversation to have been "about 7 o ' clock in the
morning."
s The findings in this paragraph ai e based on the credible testimony of Donovan.
Searcy admitted having called Donovan at his home early that moaning He testified
that he told Donovan that Shoe was itmmng a compiessor at Monsanto and that lie
would like for Donovan to help him get an operating engineer on it , and that Donovan
stated he would check into it when he got inside the plant and would let Searcy know.
He did not specifically deny having threatened not to let any operators in to work in the
plant unless Slme put an operator on that iii compiessor
"The findings concerning Piangenti 's conveisations with Miller are based on the cred-
ible testimony of Piangenti . Miller admitted seeing Piangentt at the gate that morning
but denied having had any conversations with him For the reasons previously indi-
cated , I do not credit Millet's contiaiy testimony.
LOCAL 450 575
thought he could get it straightened out, that the preceding day he had been dealing
with Mr. Wood, in charge of maintenance at Monsanto, and that now he had found
out that it was a construction matter and that was why he had contacted Mr.
Donovan.10 Piangenti testified that this conversation occurred "somewhere in the
neighborhood of between 7:15 and 7:30 a. m."
Searcy and Miller were present at the construction gate as the operating engineers
of the various contractors congregated there before 8 a. m. They were talking
about the matter of Sline operating a compressor without an operating engineer.
Searcy admitted talking at the gate to the operators employed by the different con-
tractors at the Monsanto site, including Shifett from Pruitt and O'Callaghan from
Farnsworth & Chambers. Sam Garrett, an employee of Tampco testified as a
witness for Respondent that both Miller and Searcy talked to the operators at that
time. Searcy told the men that he thought they would get the matter straightened
out and that they should all go in to work. The operators followed these instructions
and went to work at their regular starting time of 8 a. in.
About 10 a. in. Searcy had another telephone conversation with Donovan.
Donovan said that there was nothing he himself could do about it but that he
had talked to Charlie Fox of Sline and had asked Fox to call Searcy.ii
About 11 a. in. that day Sline began operating the 60 cubic foot air compressor,
which was the subject matter of the dispute. At that time Sline had assigned a
painter foreman to start the compressor, which continued to run until 4:30 p. m.,
when the painter foreman turned it off. These facts are not in dispute.
Otis O'Callaghan, a member of Local 450, was working on the Monsanto premises
as a crane operator for Farnsworth & Chambers on April 3. Between 11:15 and
11:45 a. m. Robert A. Foreman, general job superintendent of Farnsworth &
Chambers, saw Bud Miller talking to O'Callaghan. Foreman approached the two
men and asked what the problem was. Miller stated that they were leaving the job,
that they "had orders to leave the job at noon." Foreman then explained that he
had ordered concrete which was on the way and which had to be poured that day,
and that there was no way of stopping it. Miller replied that it was all right, and
that if Foreman had concrete coming, his operator would be left on the job to com-
plete the pouring. O'Callaghan remained on the job that day and finished pouring
the concrete. At the end of the day Foreman laid off O'Callaghan and his oiler be-
cause there was no more work for them.12
About 11 or 11.15 a. in. Piangenti answered the telephone in Tampco's office.
The operator from Galveston asked for Bud Miller. Piangenti explained that Miller
10 The findings in this paragraph are based on the credible testimony of Piangenti.
Searcy testified that Piangenti asked if the operators were going to work that morning,
that Searcy replied that they were and that he had ordered them to go to work, and that
that was the only conversation he had with Piangenti. Searcy testified with a lack of
candor and forthrightness, and did not impress me as a credible witness. I do not credit
Searcy's contrary testimony.
11 These findings ai e based on the mutually consistent testimony of Donovan and Searcy.
12 These findings are based on the credible testimony of Robert A Foreman, Miller and
O'Callaghan admitted having a conversation that morning a few feet from O'Callaghan's
crane but denied that Foienian approached them while they were talking According to
O'Callaghan's testimony, Miller asked if he knew "anything about the static they was
having over there about the compressor," O'Callaghan replied in the negative, and
Miller stated he thought the men were about to walk off on account of the compressor
and that he did not know whether they were going to stay or not Accoiding to Miller's
testimony, it was O'Callaghan who first said that he heard "something about those boys
going to walk out over there," Miller then replied that "they say they are going out at
12," O'Callaghan then asked what about him if they were all going to walk out, and
Miller replied that he had nothing to do with O'Callaghan and that he better pour con-
crete O'Callaghan turthei testified that after Miller left, Foreman came over and asked
what that "fellow wanted," and that he replied, "not anything," and went on with his
work Although O'Callaghan testified on cioss-examination that lie had never heard
about the dispute involving Sine's compressor until Miller talked to him, Searcy testified
that O'Callaghan was in the gi oup which had congi egated at the construction gate
before S a. in and which had discussed the matter of Slmo using a compressor without
an operating engineer O'Callaghan's memory became very vague on cross-examination.
He admitted that he had known Miller for several years and knew that he was the steward
of Local 450 at Tampco
Under all the circumstances, including my observation of the demeanor of the wit-
nesses, I credit Foreman's version set forth in the text and discredit the contrary testi-
mony of Miller and O'Callaghan
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was in the field and would have to be contacted, and asked her to leave the number
and he would have Miller call back. The operator left her number and the Galveston
number. Piangenti planned to get one of the clerks in the office to go out and find
Bud. Before he could locate the clerk, the telephone rang again and the same op-
erator asked for Miller. This was about 11:30 a. in. Piangenti again explained that
he would have Miller call as soon as he could be located The operator left her
number and the Galveston number, and said, "Mr. Searcy calling." The Galveston
number which the operator lett was the number of the office of Local 450 in Galves-
ton, Texas.
Miller finally arrived at Tampco's office about 11.50 a. in. Piangenti told Miller
to call Searcy and walked out of the office to take a smoke in the smoking pen. After
a short while, Miller came to the door and motioned for Piangenti to come in. Miller
then asked, "where is Ed," referring to Ed Pollock, Tampco's superintendent. Pian-
genti replied that as far as he knew Ed had already gone to lunch. Miller then stated
that he had just talked to Searcy, that Searcy said that he had been trying all morning
to get this thing "ironed out" but had not had any success, and that "we are going in
at noon." The phrase "we are going in" was a commonly used expression meaning
that the employees were going home At this point Piangenti was chiefly concerned
about not having the equipment left in the streets because Tampco was using two
operators on winch trucks at that time. So Piangenti asked Miller if he was going
to bring the trucks in and shut them down. Miller replied, "yes, I will go out and
tell them to bring the trucks in to the job and then we will punch out and go home "
Miller also said that he would notify Sam Garrett who operated the welding machines
for Tampco. Miller told Piangenti not to worry, that there was nothing wrong with
Tampco, that it was the same old story about Sline using a compressor without an
operating engineer and "we haven't got anything done about it."
Miller then went over and talked to Sam Garrett who was nearby and who then
proceeded to shut down the welding machines. The whistle for the noon lunch
period had blown about that time and it was customary for Garrett to shut down his
machines for the lunch period. Miller then went off to find the truckdrivers. He
came back during the lunch period and told Piangenti that "the boys are going to
eat their lunch first and then [are] going in." Miller and Garrett punched out
during the lunch period and left. The two operators returned with their winch
trucks about 12.35 with instructions to "shut them down." They punched out,
parked their trucks and left. Tampco had a rule requiring employees who leave the
job during the day to notify Piangenti and to punch out.
The findings in the preceding paragraphs are based on the credible testimony of
Piangenti . Searcy denied placing any long distance calls for Bud Miller from his
office in Galveston to Tampco's office on Monsanto's job site. He admitted receiving
a telephone call from Bud Miller between 11:30 and 12 a. m. on April 3. He testi-
fied that Miller asked him what he had done about the compressor and that he replied
that he had talked to all the people involved, that Mr. May had refused to put an
operator on it, and that was all he could do. Miller also admitted that he had tele-
phoned to Searcy in Galveston shortly before noon on April 3. However, he testi-
fied that he asked Searcy if Sline had called in for an operator, that Searcy replied
in the negative, that Miller asked if Searcy was going to send an operator, that
Searcy said he would not send one unless Sline called for one and that he was going
to try to get it worked out and that he would call Sline and probably get a man out
He denied having had any conversation with Piangenti after the telephone call and
also denied talking to Garrett. Garrett admitted that about the time when the
whistle blew on that day he was near Tampco's office and saw Piangenti there but
denied seeing or talking to Miller.
Piangenti has already been found to be a credible witness. His testimony as to
this incident was in such detail and with such specificity as normally does not accom-
pany a fabrication. Moreover, his testimony as to Miller's version of his conversa-
tion with Searcy was in effect verified by Searcy's testimony. On the other hand,
Miller's testimony was contradicted by Searcy and is in conflict with that of Garrett
as to when they saw and spoke to each other that morning. Garrett was a very
evasive and unresponsive witness who displayed a signal loss of memory on cross-
examination.
Upon the basis of the entire record, including any observation of the demeanor of
the witnesses, I credit the testimony of Piangenti and discredit the testimony of
Miller, Searcy, and Garrett to the extent that it conflicts with that of Piangenti. More-
over, as Searcy's testimony concerning his telephone conversation with Miller is
corroborative of the version which Miller related to Piangenti and is consistent with
Searcy's conduct that morning , as previously found, I find that with respect to his
LOCAL 450 577
efforts to get Sline to put an operator on the compressor Searcy told Miller in this
telephone conversation, in substance, that he (Searcy) had talked to all the people
involved that morning and had been unable to get the matter straightened out and
that he had done all he could do about it.
On April 3 Tampco had in its employ four operators, all members of Respondent
Local 450. Three of them, including Miller, were engaged in operating a winch
truck, the fourth, Garrett, was engaged in the operation of a number of gas driven
welding machines. All four left work during the lunch period, as previously found.
Four operators employed by Pruitt and an operator and an oiler furnished by New-
man with the rig rented by Pritchard, all members of Respondent Local 450, also
left their work at Monsanto about the same time. One of Pruitt's employees was
operating a compressor which was furnishing air for work performed by Armstrong
Cork. Pritchard did not have any operating engineers in its employ on that day.
That afternoon some of the operators went to Searcy's office in Galveston and
reported that the operators on the Monsanto job site had left work during the lunch
period. All 10 employees remained away from work until the morning of April 10
when they all returned under the circumstances hereinafter described.
During the afternoon of April 3 George Donovan, Monsanto's construction mana-
ger, had a telephone conversation with Mr. Hart, assistant business manager of
Respondent Local 450. In the course of this conversation Hart said that he felt that
Donovan should have stopped Sline from using a compressor without an operator.
Donovan replied that he did not take part in labor disputes as a representative of
Monsanto. These findings are based on the credible and undisputed testimony of
Donovan.
3. April 8-10
On April 8 Searcy first learned that Sline was a subcontractor of Pritchard. That
day Searcy went to see Stoltz, project manager of Pritchard, in his office on the Mon-
santo premises. Searcy said that he had learned that morning that Stine was a sub-
contractor of Pritchard on certain phases of the painting work; stated that Sline was
operating an air compressor without using a member of Searcy's craft; and asked
Stoltz, as a representative of Pritchard, to instruct Sline not to use the compressor
without a member of Searcy's craft as its operator. Stoltz replied that he could not
direct Sline to do so but pointed out that Sline was not using the compressor at that
time.
On April 9 Sline telephoned to Stoltz and again asked if Stoltz would direct Sline
not to operate the air compressor without a member of Searcy's craft. Stoltz replied
that he did not see how he could do that because the Painters' business representative
had contended in the past that the painters traditionally operated their own com-
pressors. Stoltz informed Donovan of Monsanto about the above conversations with
Searcy.
The findings in the preceding two paragraphs are based on the credible and undis-
puted testimony of Stoltz Searcy admitted that, after learning that Sline was a
subcontractor of Pritchard, he had two conversations with Stoltz to see if Stoltz "could
help me get an operating engineer for Sline," and that Stoltz "told me there was
nothing he could do for me." He further testified that in one of the conveisations
Stoltz assured him that the compressor would not run the remainder of that day or
the following day and asked Searcy to urge his operating engineers to go back on
the job.
Searcy further admitted that he then telephoned to each operating engineer who
worked on the Monsanto premises, told them of Stoltz' statement about the com-
pressor'not being used, and asked each one to go back to work. He also admitted
that this was the first time he asked the men to go back to work since they had left
on April 3.
Pursuant to Searcy's instructions, all the operating engineers employed by Tampco,
Pruitt, and Newman, who had left work during the lunch period of April 3, returned
to work on the Monsanto job site on April 10 at their regular starting time of 8 a. M.13
Garrett testified that it was raining on April 10, when he went back to work, and for
a few days thereafter, that Sline did not use the compressor during the rainy period,
and that then Sline "shut that machine down." That Sline did not operate the com-
pressor after the men returned to work, was corroborated by Donovan.
'3 Miller testified that he did not return to work until April 11 because he was in Hous-
ton the preceding day when Searcy called his mother-in-law and left a message foi him
to return to work
483142-59-vol 120-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. April 12
During Friday morning, April 12, a contractor by the name of Industrial Painters
and Sandblasters was performing maintenance work for Monsanto and was using a
210 cubic foot air compressor without an operating engineer. That noon some of
the operators, including Miller, again left their work. At 4.30 p. in. on April 12
Industrial Painters and Sandblasters removed this compressor from the plant. The
following workday, Monday, April 15, all the operators returned to work at 8 a. in.
Garrett, employed as a welding machine operator by Tampco, testified as follows:
About 10 a. in. on April 12, he and two other operators, Shifflett and McClura, were
ready to walk out because there was no operating engineer on this compressor but
Bud Miller spoke to them and told them to go back to work. Miller said that they
would see if they could not get it straightened out and that someone had promised
to have an operator there before 12 o'clock. They then went back to work. Just
before noon, he went by that location and saw that no operator had arrived as Miller
had promised, and so he and another operator punched out at noon and went home.
He returned to work on April 15 because he had been informed that the compressor
had been pulled out of the plant but could not remember who had so informed him.14
According to Pruitt's uncontradicted testimony the following occurred on the
morning of April 12: He had three operating engineers in his employ that morning,
Valentine, Shifflett and McClura. About 10 a. in. Valentine got sick and went
home. At noon, Shifflett and McClura told Pruitt that they were "going in." Shifflett
was working on an emergency job which would take another one-half day to finish.
Pruitt asked Shiiett to please call Searcy and ask him as a favor to Pruitt to permit
him to work the remainder of the day on this emergency job. Shifflett telephoned
to Galveston in Pruitt's presence and then worked the remainder of the day. How-
ever, McClura, who was operating an air compressor, left work at noon.
According to the credible and undisputed testimony of Piangenti, the following
occurred on the morning of April 12: Before the operators left at noon, Bud Miller
and Piangenti were "at the shack out there. He was idle and I didn't have much
to do." Miller told Piangenti that "he had talked to all the men trying to get them
to stay on, but they was hot about the matter and there wasn't much he could do
about it." At noon Miller reported to the office that he was "going in" and the
other operating engineers employed by Tampco also went in at that time. Piangenti
testified that he and Miller were very good friends and still are.
During the afternoon of April 12, Searcy had a telephone conversation with
Donovan, construction manager for Monsanto, about the matter involving Industrial
Painters and Sandblasters In reply to Searcy's question as to what was going to
be done about the matter, Donovan stated that he had nothing to do with main-
tenance work, and expressed the opinion that Searcy was wrong in having taken
the operators from the construction jobs because Sline was not operating a com-
pressor. Searcy stated that he understood that Marshall of Industrial Painters and
Sandblasters had requested an operator about 12.30 but that he (Searcy) had not
been in the office and did not know anything about it. Searcy also stated that he
did not know why the men had walked off. Searcy asked if Sline would be operat-
ing a compressor the following Monday morning. Donovan replied that Sline was
doing hand painting at that time and, in his opinion, would not be using a com-
pressor on Monday When Searcy asked if Donovan would guarantee that, Donovan
stated that he would make no guarantees as to who would be running a compressor.
Donovan asked if the men would be back to work on Monday. When Searcy stated
that he would see what he could do about it, Donovan pointed out that "it just took
him [Searcy] to put them back on again " Searcy still maintained that he would
see what he could do about it. The findings in this paragraph are based on the
credible and undisputed testimony of Donovan.
Searcy testified that he did not know about the work stoppage on April 12 until
after it had occurred and that he also did not know of any problem at the Monsanto
job site before they stopped work on that day. He further testified that while he
was out of his office that morning someone had called his office to report that Indus-
trial Painters and Sandblasters had an air compressor on the Monsanto job site
without an operating engineer. According to his further testimony, a call came into
his office in Galveston about 10 minutes to 12, requesting Local 450 to furnish an
It Miller admitted that the operator s left work at noon on April 12 but testified that he
did not know the reason for their leaving He denied having had a conversation during
the morning of April 12 with Garrett or with any other operating engineers . I do not
credLt Miller's testimony tor reasons already indicated and because it is contrary to
Piangenti's undisputed testimony set torth below.
LOCAL 450 579
operator for that compressor but that he did not have "enough time to get hold of
anyone" to get him there by 12:30. He admitted that the men, returned to. work
on Monday, the following workday.
C. Concluding findings with respect to the April 3 work stoppage
The Respondent contends in its brief that this was a voluntary work stoppage on
the part of each individual employee and that Bud Miller, Respondent' s steward
at Tampco, had tried to dissuade the employees from leaving. In support of this
contention , Respondent relies principally on the testimony of its witnesses, Miller
and Garrett, and certain testimony adduced from Piangenti in the hearing in Case
No. 39-CD-25. I find that the preponderance of the evidence does not support
Respondent's contention.
I have already pointed out how Miller and Garrett were not credible witnesses.
Miller testified that about 8:30 or 9 a. in. on April 3, the Tampco operators asked
him why Sline was not using an operator on the compressor and that Miller replied
he would find out and call Searcy; that when he went to the shop to make the call,
he saw Sam Garrett; that Garrett spoke to him in the same vein; that Miller told
Garrett he was going to call Searcy and see what Searcy could do, and that he called
Searcy from Tampco's office about 9 a. in. and canceled the call because Searcy
was not there. However, as Searcy had already informed the men before 8 o'clock
that he thought the matter would be straightened out and that they should go in
to work and as Sline did not begin to operate the compressor that day until 11 a.m.,
I cannot believe that the operators made such a complaint to Miller or that Miller
called Searcy at that time. Moreover, Garrett testified, contrary to Miller, that he
talked to Miller at the construction gate before 8 a. m.; that, after he went to work
pursuant to Searcy's instructions that morning, he had no further discussions with
anyone about the Sline compressor; and that he did not see Miller again that morning
except as Miller passed by in his winch truck. Under all the circumstances and
for the reasons previously indicated, I do not credit Miller's testimony.
Miller further testified that the operators talked to him again just before noon;
that in order to pacify them, he called Searcy again about 11:45 from Tampco's
office; that he then went back and told the boys that Searcy said he was going to
work on it and would probably get a man out; that the men said they were going to
go home at noon; that Miller urged the men to stay and continue to work and see
what Searcy could do about it; and that the men refused and said that they were
"going to the house." Since Searcy had told Miller in the telephone conversation,
as previously found, that he had already talked to all the people involved and that
there was nothing more he could do about it, it is inconceivable to me that Miller
would have misled the men about Searcy's report and would have talked to them
in the manner in which he testified. Moreover, Miller's statements to Piangenti,
immediately after the telephone conversation, to the effect that Searcy had been
unsuccessful in getting the matter straightened out, that "we are going in at noon,"
and that he would talk to Garrett and tell the winch truck operators to bring their
trucks in and punch out, as well as the report of the truck operators that they had
instructions to "shut them down," all as previously found, conclusively refute Miller's
testimony. Under all the circumstances, I do not credit Miller's testimony. It may
well be that Miller hod confused his conduct on that day with his actions on April
12, when he did in fact talk to Garrett and other operators in the manner in which
he testified occurred on April 3.
At the hearing in this proceeding, Piangenti testified, as previously found, that
Miller told him about noon of April 12, that he (Miller) had talked to the men that
morning and had tried to talk them out of leaving the job and to wait and see if it
could not be settled. This controversy related to the compressor being used by
Industrial Painters and Sandblasters That Miller did in fact talk to the men in this
manner on April 12, is verified by Garrett's testimony, as previously found. Piangenti
also testified, as previously found, that on the afternoon of April 2, Miller told him
about the matter of Sline using a compressor without an operator, that the operators
of all the contractors were "hot about it," and that Miller was going to see what he
could do about it that night. At the hearing in the subsequent proceeding, Piangenti
again testified about Miller's conversation on April 12. After a long and severe
examination on the question as to whether Miller had not made a similar statement
to Piangenti during their conversation after Miller's telephone call with Searcy before
noon on April 3, Piangenti repeated that he was positive Miller made such a state-
ment on April 12, and that he might also have said something to the same effect on
another occasion but that he could not "nail" it down as to a specific time and date.
He finally testified that he thought Miller also said something to that effect in his
conversation on April 3.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously found, Piangenti was an honest and credible witness. I believe that
he was trying to testify to the true facts as best he remembered them. However,
I believe that, as a result of the gruelling examination on this point, he was con-
fused in this respect. It should be borne in mind that Miller denied talking at all to
Piangenti after Miller's telephone conversation with Searcy on April 3. • In view of
my previous findings that Miller had in fact talked to the men in this vein on the
morning of April 12 but not on April 3, and in view of the other events which
occurred that morning, as previously found, I am of the opinion and find that
Piangenti was mistaken in this respect, that he may have confused Miller's conver-
sation on April 3 with his conversation on April 12, and that Miller did not in fact
tell Piangenti on April 3 that Miller had tried to persuade the operators from
leaving work that morning.
The record shows that what actually happened in connection with the April 3
work stoppage was as follows:
On the afternoon of April 2 Miller, Respondent's steward at Tampco, questioned
May, Sline's job superintendent, about Sline's use of an air compressor without
an operating engineer, and was informed that May intended to continue to run
the compressor without employing an operating engineer for it. Miller immediately
telephoned to Searcy and reported this matter to him. Searcy then confirmed the
report in a telephone conversation with the Painters' business agent who stated that
the Painters would run the compressor because it was within their work jurisdic-
tion. At that time Searcy was under the impression that Sline was a prime con-
tractor of Monsanto. So, during the remainder of the day, Searcy got in touch
with Wood, in charge of maintenance work for Monsanto, in an effort to get this
matter straightened out
About 7 o'clock the next morning, Searcy went to the Monsanto premises to
look the situation over. About 2 blocks from the Monsanto construction gate, he
met May and was again informed, in response to his questions, that May was going
to run the compressor without using a member of Searcy's craft Searcy met Miller
at the construction gate and told him that he had been dealing with the wrong
party the preceding day in talking to Mr. Wood about it, that after looking the situ-
ation over he had concluded that it was a construction matter over which Mr. Dono-
van of Monsanto had jurisdiction, and that he was going to town to telephone to
Mr. Donovan to try to get the matter straightened out. Searcy also instructed
Miller to have the operating engineers wait at the gate, when they arrived, until
Searcy returned.
Searcy went to town and called Donovan at his home. Searcy asked Donovan
to call Sline before 8 a. in., the regular work starting time, and to have Sline put
an operating engineer on the compressor which was being used for spray painting.
When Donovan refused, Searcy threatened that he would have the operators at the
gate and would not let them go to work unless Sline put an operator on that air
compressor. Donovan finally agreed that when he got to the plant he would notify
Sline of what Searcy had said, and promised to call Searcy back about it.
Searcy then returned to Monsanto's construction gate where he informed Miller
and Piangenti, Tampco's timekeeper, of what had transpired and of his belief that
he could get it straightened out. Meanwhile, the operators employed by the various
contractors on the Monsanto job site had assembled at the gate, as Searcy had in-
structed Miller to have them wait for him. The matter of Sline using a compressor
without an operator was discussed with the men. Searcy told them that he thought
they would get the matter straightened out and in the meantime instructed the men
to go in the plant to work. The men complied with his instructions.
About 10 a m Donovan informed Searcy that there was nothing he could do
about the matter. About 11 a. m. Sline began using the compressor again without
an operating engineer. Thereafter, Miller visited the work location of O'Callaghan.
an operating engineer employed by Farnsworth & Chambers on the Monsanto job
site, and engaged in a conversation with O'Callaghan When Foreman, job super-
intendent for Farnsworth & Chambers, approached and asked what the problem
was, Miller stated that they "had orders to leave the job at noon " When Foreman
complained that O'Callaghan was needed that day for a job which could not be
stopped, Miller assured Foreman that under those circumstances his operator would
be left on the job.
Meanwhile, Searcy made two attempts to reach Miller by long distance telephone
from his office in Galveston to Tampco's office on the Monsanto job Bite Piangenti.
who had taken the message from the operator on both occasions, told Miller to call
Searcy when Miller finally arrived at Tampco's office about 11 •45 a m Miller then
had a telephone conversation with Searcy. In this conversation Searcy told Miller,
in substance, that he had talked to all the people involved and had been unsuccess-
LOCAL 450 581
ful in his efforts to get Sline to put an operator on the compressor and that there
was nothing more he could do about it. After hanging up, Miller informed Piangenti
that Searcy had tried all morning to straighten out the matter of Sline using
a compressor without an operator but was unsuccessful and that "we are going in
at noon." Miller also stated that he would notify Garrett, who operated the weld-
ing machines , and would go out and tell the winch truck operators to bring their
trucks in and to punch out. Miller went over and spoke to Garrett, about which
time the whistle for the lunch period blew, and then went to find the truck operators.
Miller, Garrett and the two truck operators all punched out and left work during
the lunch period. When the operators brought their trucks in, they told Piangenti
that they had instructions to "shut them down." About the same time, the operators
employed by Pruitt and Newman also left work.
When Searcy learned that Sline was a subcontractor of Pritchard, he contacted
Stoltz, Pritchard's project manager; on April 8 and 9. Searcy asked Stoltz to
instruct Sline not to use the compressor without an operating engineer. Stoltz
refused but pointed out that Sline was no longer using the compressor. Searcy
then telephoned to each of the operators who had left work on April 3, told them
that Sline's compressor would not be running, and requested them to go back to
work. The operators complied with Searcy's request and returned to work on
April 10. Thereafter, Sline no longer used the compressor which was the cause of
the dispute.
Searcy thus admittedly exercised his authority to direct the men to go to work
on two occasions, the first time early on the morning of April 3 when Searcy thought
that Donovan would succeed in influencing Sline to put an operator on the com-
pressor, and the second time about April 10 when Searcy had been assured that
Sline would no longer run that compressor. On Both occasions, the operators
immediately complied with Searcy's instructions. A consideration of all the events
also convinces me that after Searcy was informed by Donovan in the second telephone
conversation on the morning of April 3 that Donovan could not do anything about
the matter, Searcy made good his earlier threat to Donovan to keep the men from
working. I am convinced and find that in the telephone conversation with Miller
shortly before noon on April 3 Searcy also indicated to Miller that the operators
were to leave work at noon. I further find that Miller thereafter transmitted this
message directly at least to the Tampco operators, knowing full well that the word
would then spread to the other operators on the job site, as in fact it did.15 This
is apparent to me, not only from Searcy's conduct, but also from Miller's conver-
sation with Piangenti immediately after his telephone conversation with Searcy,
from Miller's conduct in then speaking to Garrett and proceeding to locate the
winch truck operators, from the operators' report to Piangenti when they brought
their winch trucks in that they had instructions to "shut them down," and from the
fact that Garrett and the other Tampco operators, as well as the operators of
Pruitt and Newman, left work about the same time during the lunch period.16
Upon the basis of the entire record, I find that in furtherance of its dispute with
Sline over the use of the air compressor, the Respondent, through its agents, Searcy
and Miller, induced or encouraged the operating engineers employed by contractors
other than Sline to engage in a concerted refusal in the course of their employment
to perform services for their respective employers on the Monsanto job site.
The Respondent contends that the purpose of the work stoppage could not have
been to force or require Monsanto to cease doing business with Sline because Sline
was a subcontractor of Pritchard and therefore was not doing business with Mon-
santo. I find no merit in this contention. In the first place, Sline was performing
services directly for Monsanto insofar as maintenance painting was concerned.
Monsanto could therefore have exerted pressure on Sline's construction painting
for Pritchard by taking away the maintenance painting from Sline. In the second
place, Searcy was under the mistaken impression that Sline was a prime contractor
of Monsanto even with respect to the construction painting. That was the obvious
reason why Searcy threatened Donovan of Monsanto with a work stoppage if Sline
"Miller admitted that as a union steward he has to take orders from Searcy and that
he can call the men off the job if instructed to do so by Seaicy. I do not credit the
testimony of Searcy and Miller that no such instructions were conveyed to Miller on
April 3
16 Garrett's testimony that he left work during the noon lunch period because he was
told to do so by Piangenti, testimony which was emphatically denied by Piangenti, is
not credited
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not put an operator on the compressor, and why Assistant Business Agent Hart
told Donovan on the afternoon of April 3 that he should have stopped Sline
from using a compressor without an operator. When Searcy finally learned that
Sline was a subcontractor of Pritchard, be tried to get Stoltz of Pritchard to accom-
plish his purpose. Contrary to Respondent's contention , the fact that no employees
of Pritchard and Monsanto were induced or encouraged to engage in a work stop-
page , is not crucial. For, if Monsanto were to cancel its contract with Pritchard,
the latter would automatically cease doing business with Sline. Indeed, any cessa-
tion of work by employees of any contractors or subcontractors on the Monsanto
job site would tend to avert pressure upon Monsanto to cease doing business with
Pritchard or Sline in an effort to eliminate the work stoppage. Under Section &
(b) (4) (A) of the Act, it is not necessary that the employer or person whom the
labor organization seeks to force to cease doing business with any other person be
the employer of the employees who have been induced or encouraged to engage
in a work stoppage for that purpose.17 The Act condemns all "secondary boycotts"
which injure the business of persons not involved in the basic dispute, and the Act
is not limited in its application to such actions which have an object of interrupting
the flow of business between a neutral and the "primary" employer.18
Accordingly I find that the Respondent induced or encouraged the employees
at Tampco, Pruitt, and Newman to engage in concerted refusals in the course of
their employment to perform services for their respective employers with an object
of (1) forcing or requiring said employers to cease doing business with Monsanto
or (2) forcing or requiring Monsanto or Pritchard to cease doing business with
Sline. By such conduct, Respondent has violated Section 8 (b) (4) (A) of the
Act.
D. Concluding findings with respect to the April 12 work stoppage
The work stoppage on April 12 was not related to the dispute which brought
about the work stoppage on April 3. The later work stoppage occurred because
an air compressor was being used without an operator by another contractor, In-
dustrial Painters and Sandblasters. As previously found, Miller had attempted to
persuade the operators from leaving their work on that occasion, and Searcy was
unaware of the impending work stoppage. Nor is there any showing that Industrial
Painters and Sandblasters was unwilling to employ an operator On the contrary,
the evidence indicates that a request for an operator was made of Searcy's office
but that one could not be located in time to arrive before the lunch period. Under
all the circumstances I find that the General Counsel has not established by a
preponderance of the evidence that Respondent was responsible for the April 12
work stoppage. I will accordingly recommend the dismissal of the complaint in this
respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the employers, set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in conduct violative of Section
8 (b) (4) (A) of the Act, I will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Local 450, International Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. The above-named labor organization has engaged in unfair labor practices
within the meaning of Section 8 (b) (4) (A ) of the Act by inducing or encouraging
17 See, e. g., Local 1976, United Brotherhood of Carpenters and Joiners of America etc.
(Sand Door and Plywood Co ), 113 NLRB 1210, 1214, enfd 241 F. 2d 147 (C. A. 9).
'$ See, e g, United Marine Division, Local 333, International Longshoremen's Associa-
tion (Independent) (New York Shipping Association), 107 NLRB 686; International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 182,
etc (Jay-K Independent Lumber Corp ), 108 NLRB 1323, enfd. 219 F. 2d 394 (C. A. 2) ;
and Sand Door case, supra.
ANDERSON 'S SUPER SERVICE , INC. 583
the employees of Tampco Piping , Inc., A. A. Pruitt, and T. A. Newman to engage
in concerted refusals in the course of their employment to perform services for
their respective employers with an object of (1) forcing or requiring said employers
to cease doing business with Monsanto Chemical Company , or (2) forcing or re-
quiring Monsanto Chemical Company or J. F. Pritchard & Company to cease doing
business with Sline Industrial Painters.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices with respect to the
work stoppage of April 12, 1957, on the job site of Monsanto Chemical Company.
[Recommendations omitted from publication.]
Anderson 's Super Service , Inc. and Local 977, International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, ' and Local 758, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of America, Joint
Petitioners . Case No. 18-RC-3465. April 23,1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted under the direction and super-
vision of the Regional Director for the Eighteenth Region among the
Employer's employees in the agreed appropriate unit. Thereafter, a
tally of ballots was furnished to the parties. The tally shows that,
of approximately 18 eligible voters, 7 cast valid ballots for, and 5
cast valid ballots against, the Joint Petitioners, and that 5 cast ballots
that were challenged by the Joint Petitioners. The challenges are,
therefore, sufficient in number to affect the results of the election.
In accordance with the Board's Rules and Regulations, the Acting
Regional Director conducted an investigation of the challenges, and
on January 24,1958, issued his report on challenged ballots and recom-
mendation for certification of representatives. The Acting Regional
Director found that the employees whose ballots were challenged
were not eligible to vote in the election and recommended that the chal-
lenges to their ballots be sustained. He also recommended that the
Board certify the Joint Petitioners as the exclusive collective-bargain-
ing representative of the employees in the agreed unit. Thereafter,
the Employer filed timely exceptions to the Acting Regional Director's
report and recommendations.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
1 The Board having been notified by the AFL-CIO that it deems the Teamsters' cer-
tificate of affiliation revoked by convention action, the identification of this union is
hereby amended.
120 NLRB No. 78.