Local 107, Int'l Hod Carriers, Building, Etc.

National Labor Relations Board - Board Decisions

Aug 13, 1962

138 N.L.R.B. 102 (N.L.R.B. 1962)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to our employees ' hire or tenure or any term or condition of employment,
except as authorized by Section 8(a) (3) of the Act.
WE WILL NOT question our employees as to their union interest or member-
ship , tell our employees that if they were organized into a union and there was
a slack in work some employees would not be transferred to other work at the
shop , change our practice of permitting our employees to have their coffee break
outside when union organizers are present , or in any other manner interfere
with, restrain , or coerce our employees in the exercise of their right to self-
organization , to join or form a labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining , or other mutual aid or pro-
tection , or to refrain from any and all such activities , except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8(a)(3)
of the Act.
WE WILL offer William Nolan and John Colon immediate and full reinstate-
ment to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make them whole for any
loss of pay suffered as a result of the discrimination against them.
All our employees are free to become , remain , or refrain from becoming or
remaining members of any labor organization , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3) of the Act.
MAK-ALL MANUFACTURING INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 745 Fifth
Avenue , New York 22 , New York , Telephone Number , Plaza 1-5500, if they have
any question concerning this notice or compliance with its provisions.
Local 107, International Hod Carriers , Building and Common
Laborers ' Union of America , AFL-CIO; and Northwest Arkan-
sas Building Trades Council , AFL-CIO and Texarkana Con-
struction Company. Case No. 26-CP-3. August 13, 1962
DECISION AND ORDER
On October 27, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report, finding that Respondent had not violated Sec-
tion 8(b) (7) (C) as alleged in the complaint and recommending that
the complaint be dismissed in its entirety, as set forth in the attached
Intermediate Report. Thereafter the General Counsel filed exceptions
with a supporting brief. The Board has reviewed the rulings of the
Trial Examiner made at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and hereby adopts the
138 NLRB No. 10.
LOCAL 107, INT'L HOD CARRIERS, BUILDING, ETC. 103
findings, conclusions, and recommendations of the Trial Examiner,
except as noted herein.
The facts, as more fully set forth in the Intermediate Report, are
that in the spring of 1961, Brammer, the business representative of
the Respondent Local, and representatives of other members of Re-
spondent Council, approached Crawford, the Charging Party's
(Texarkana's) superintendent, and inquired whether Texarkana pro-
posed to use "union men" on its Van Buren school project. Crawford
replied that he would not hire any "union men" from the Respondent
Local, The union officials made no further inquiry or request. There-
after, the Employer hired nonunion laborers at $1.25 per hour. The
"prevailing wage rate" for the area as determined by the Department
of Labor under the Davis-Bacon Act was $1.791/2 per hour. The con-
tract between the Respondent Local and the Fort Smith Contractors
Association applicable to member employers in the immediate geo-
graphical area called for an hourly rate of $2.05. On May 29, after
the hiring of the nonunion laborers, Respondents began picketing with
a sign announcing "Texarkana Construction Co. Not Paying Prevail-
ing Wage Rate." This picketing has continued for more than 30
days without the filing of an election petition under Section 9(c) of
the Act. Neither Respondent has ever been certified as the collective-
bargaining representative of Texarkana's employees. A number of
employees of Texarkana's suppliers have refused to cross the picket
line. There is no evidence that either of the Respondents, in con-
versation or through its picket line, has demanded recognition from
Texarkana, claimed to represent its employees, or attempted to or-
ganize them.
On these facts we conclude that the purpose of the picketing, as the
sign indicated, was to induce Texarkana to raise its wages to the level
of the prevailing rate for the area. Texarkana could, of course, in-
crease its wages without recognizing any labor organization and with-
out its employees joining any union. Accordingly, contrary to our
dissenting colleagues, we cannot equate picketing to maintain this
wage standard with conduct "forcing or requiring an employer to
recognize or bargain with a labor organization as the representative
of his employees, or forcing or requiring the employees . . . to accept
or select such labor organization as their collective bargaining rep-
resentatives,"-the conduct proscribed by Section 8(b) (7).1
1Local Union No 741, United Association of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith Riggs
Plumbing and Heating Corporation ), 137 NLRB 1125 ( Members Rodgers and Leedom
dissenting ) ; Houston Building and Construction Trades Council ( Claude Everett Construc-
tion Company ), 136 NLRB 321 ( Members Rodgers and Leedom dissenting ) ; see also
International Hod Carriers , Building and Common Laborers ' Union of America, Local
No. 41 , AFL-CIO ( Calumet Contractors Association and George DeJong ), 133 NLRB 512
( Members Rodgers and Leedom dissenting).
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, we do not agree with our dissenting colleagues' contentions
that other facts, not adverted to by the Trial Examiner, indicate that
Respondents were in fact seeking recognition from Texarkana or at-
tempting to organize its employees, contrary to the limited objective
of the picket signs. Our colleagues contend primarily that the request
to hire union labor should be coupled with Brammer's admission that
the Respondent Local only refers laborers to the contractors who fol-
low the terms of its area contract, and that, in conjunction, this neces-
sitates the inference that the request and the subsequent picketing con-
stituted demands upon Texarkana to be bound by the same contract.
However, Brammer further testified without contradiction that the
Respondent Local would refer, and frequently has referred, laborers
to contractors who did not follow the area contract, but who paid only
the "prevailing wage rate" under the Davis-Bacon Act. Inasmuch as
the prevailing rate is some 25 cents less per hour than the union con-
tract rate, we do not view Respondent's picketing or inquiries as an
attempt to impose the union contract upon Texarkana, or otherwise
to require Texarkana to bargain with it.
Our colleagues also contend that the union representatives present
at Brammer's only conversation with Crawford understood the request
to place "union men" on the job as a demand for recognition because
they asserted, after Crawford's refusal, that they would not refer
union craftsmen to Texarkana. The full testimony is, however, that
no referral would be made if a picket line were present. Thus, after
the picket line was established, the Carpenters' business agent told
Crawford that he would refer carpenters but that he thought his men
would leave the project should a picket appear. In the light of these
surrounding circumstances, the only inference which we draw from
this evidence is that the other unions in the Council and their members
would support Respondent's efforts to advertise that Texarkana did
not pay its laborers the prevailing wage rate. We find no indication
of any support for any alleged demand for recognition or for a
contract.
Lastly, our colleagues urge that, because several of Texarkana's
employees walked off the job or refused to report to work after the
establishment of the picket line, this requires the conclusion that the
picketing had an object of organization. Again we disagree. As
stated, there is no evidence that these employees were solicited to
become members of Respondents or that they left their work for this
purpose. At most, their action reflects tacit approval of the area
standards picketing. But neither tacit nor vocal approval of such
picketing is tantamount to the acceptance or selection of a labor or-
ganization as a collective-bargaining representative. Accordingly, we
are unable to conclude that the picketing had an object of organization.
LOCAL 107, INT'L HOD CARRIERS, BUILDING, ETC. 105
Inasmuch as we have found that the picketing herein did not have
any object proscribed by 8(b) (7) (C), we find that such picketing did
not violate the Act 2 Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
Our colleagues have herein found that the Respondent's picketing
did not have an object of organization or recognition, and therefore
did not violate Section 8(b) (7) (C) of the Act. We disagree. In our
view, the record, when fully considered, clearly establishes that Re-
spondents' picketing had as'its object and purpose both organization
and recognition, and was plainly violative of Section 8(b) (7) (C) of
the Act.
With respect to recognition, the picketing of Texarkana with signs
proclaiming "Texarkana Constr., Co. Not Paying Prevailing Wage
Rate" clearly establishes an object and purpose to force Texarkana to
recognize and bargain with Respondent Local as the representative of
its employees. As we stated in our dissenting opinion in Houston
Building and Construction Trades Council (Claude Everett Construc-
tion Company), 136 NLRB 321, the picketing of an employer to com-
pel a change in wages of its employees necessarily is picketing for
the purpose and object of recognition or bargaining.
But apart from the picketing signs, other facts, in our view, clearly
reveal that Respondents' picketing had a recognition objective. Re-
spondent Local's business agent, Brammer, admitted that no union
laborers are referred to any job unless the contractor agrees to follow
the collective-bargaining agreement Respondent Local has with the
Fort Smith Contractors Association.' Thus, when Crawford, Tex-
arkana's superintendent, was asked by Brammer, in the presence of
other union business agents, if he was going to use "union men" on
the job, he was impliedly asked if he were going to agree to be bound
2 Because of our finding that the picketing was not for a prohibited object, we do not
reach the questions of delivery stoppages under the final proviso to 8(b ) ( 7) (C), as dis-
cussed by the Trial Examiner and our dissenting colleagues See Houston Building and
Construction Trades Council ( Claude Everett Construction Company), supra.
s The record in John J. A. Reynolds , Jr. v. Local 107, International Hod Carriers , Build-
ing and Common Laborers ' Union of America , AFL-CIO, et at. (Western District of
Arkansas Civil Action No. 1609, Fort Smith Division ), an injunction proceeding involving
the instant dispute, has been made part of the record in the instant proceeding . There,
Lloyd Brammer, business representative of Respondent Local and president of Northwest
Arkansas Building Trades Council, AFL-CIO, herein called Respondent Council , testified
that the Respondent Local furnished men to contractors with whom it had no signed agree-
ment but who agreed to "follow the area contract ," and who agreed to pay the contract
wage rate. Brammer also stated that Respondent Local would not permit its members to
work for less favorable conditions than those set forth in the area contract.
While it is true that Ilrammer also testified to the effect that on occasion he did supply
men to those special projects where the Secretary of Labor, pursuant to the Davis-Bacon
Act, had established a prevailing wage rate some 25 cents less per hour than the union
contract rate, there is no evidence in this record that the school projects involved herein
were projects of this nature or were of the type where the Respondent Local would permit
its members to work for other than the union contract rate
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the contract between Respondent Local and the Fort Smith Con-
tractors Association, or, in other words, if Texarkana was going to
recognize and bargain with Respondent Local at the school projects.
That the other union representatives accompanying Brammer also
believed this to be the true import of Brammer's query is clear. Thus,
when Crawford answered that he would not hire laborers through the
Respondent Local, these union representatives stated that if this were
Crawford's position then none of the unions would furnish union-
men; and thereafter the Carpenters' union business agent did, indeed,
refuse to furnish carpenters to the school projects, even though Tex-
arkana agreed to pay all carpenters "scale" pay.'
In addition, the record shows that while the picket signs proclaimed
that the dispute arose from the fact that Texarkana was not paying
the prevailing wage rate, it does not appear that Respondents ever
asked that Texarkana pay that rate. In fact, the only discussion
between Respondents and Texarkana pertained to "using union men."
In view of the foregoing, we cannot conclude, as do our colleagues,
that Respondents were not attempting to obtain recognition from
Texarkana. Rather, in our view, the foregoing conduct which is
typical of a union seeking recognition and bargaining, establishes that
recognition was indeed an object of Respondent's picketing here.
Nor can we lose sight of the organizational objective implicit in
Respondents' picketing. Here, the picket signs did not disclaim any
intent of Respondents that the employees of Texarkana should not
engage in a work stoppage. In fact, when the picketing commenced,
according to Crawford there "was a lot of commotion" on the job and
four of Texarkana's employees who were working on the project
walked off. Moreover, the next day two other Texarkana employees
also failed to report for work. Plainly, in the light of industrial
reality, this, coupled with the other evidence referred to herein, illus-
trates that Respondents were thereby calling upon Texarkana's
employees to join with them in getting Texarkana to change its exist-
41D this regard , Crawford, at page 123 of the transcript , testified as follows
Q was the subject brought up as to what the consequences would be of a picket
line when you and Mr . Brammer and these other Union men had a discussion as to
whether or not you were going to have a Union job there on your school projects in
Van Buren?
A They stated at that time there would be no Union men furnished on the job
The majority apparently views this and other testimony as showing that the members of
the Council would refer unionmen to this job provided no picket line were present, and
that therefore the proper inference to be drawn from the record is that the other unions
and their members by refusing to supply unionmen to Texarkana after the establishment
of the picket line , were merely supporting Respondents ' efforts to advertise that Texarkana
did not pay its laborers the prevailing wage rate we cannot agree with such an un-
realistic appraisal of the record In our view, the entire record , as illustrated by the
foregoing , reveals a clear threat by all those union representatives present at that meet-
ing to establish a picket line and to thereafter refuse to furnish men to Texarkana ' s school
projects if Crawford refused to hire laborers through Respondent ' s local Indeed, the
whole context of the picket line discussion occurred in connection with Texarkana's
operating a "Union job"-not in connection with Texarkana ' s paying the prevailing wage
rate.
LOCAL 107, INT'L HOD CARRIERS, BUILDING, ETC. 107
ing wage. It follows, then, that an object of the picketing was also
organization.
Nor can the Respondents take refuge in the proviso to Section
8(b) (7) (C) to protect their recognitional and organizational picket-
ing. It is obvious that the language on the picket signs does not
comport with the proviso. And, as we have stated elsewhere, to bring
picketing within the protection of this proviso, the picketing must be
for the object and purpose of advising the public that an employer
does not employ members of, or have a contract with a labor organi-
zation.5 For the reasons indicated above, we cannot find, on the basis
of this record, that such was Respondents' objective and purpose.
But assuming, arguendo, that the objective and purpose of the
picketing was informational alone, we would nevertheless find, for
reasons expressed in our separate opinion in the Stork Restaurants
case that the picketing was violative of Section 8(b) (7) (C) because
the record clearly establishes that there were delivery stoppages and
delivery delays resulting from the picketing.
For all of the foregoing reasons, and as Respondents concededly
picketed for more than 30 days without a petition having been filed,
we would find that the Respondents violated Section 8 (b) (7) (C), and
would enter an appropriate order.
5 Crown Cafeteria, 135 NLRB 1183 , our dissenting opinion.
° Chefs, Cooks , Pastry Cooks and Assistants , Local 89, Hotel and Restaurant Employees
Union, AFL-CIO, etc ( Stork Restaurant, Inc ), 135 NLRB 1173.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges is the above -entitled case having been filed and served , a complaint and
notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board , and an answer having been filed by the
above-named Respondent Unions, a hearing involving allegations of unfair labor
practices in violation of Section 8(b) (7) (C) of the National Labor Relations Act,
as amended , was held in Van Buren , Arkansas, on September 19, 1961 , before Trial
Examiner C. W. Whittemore.
At the hearing General Counsel and the Respondents were represented by counsel
and were afforded full opportunity to present evidence pertinent to the issues, to
argue orally , and to file briefs . By agreement of the parties there was received as
part of the record the entire transcript , consisting of 86 pages , of the testimony in
Civil Action No. 1609, in the United States District Court for the Western District
of Arkansas , Fort Smith Division , before the Honorable John E . Miller, United
States District Judge, on August 21, 1961.
Briefs have been received from General Counsel and the Respondents.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
Texarkana Construction Company is a Texas corporation with its principal office
and place of business at Texarkana, Texas, where it is engaged in the building and
construction industry.
During the 12 months preceding issuance of the complaint it purchased and
received goods and materials directly from suppliers located outside the State of
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas valued at more than $50,000. At all times material herein it has been engaged
in the construction of two public school buildings in Van Buren, Arkansas.
Texarkana is engaged in commerce within the meaning of the Act.
II. THE RESPONDENT UNIONS
Local 107, International Hod Carriers, Building and Common Laborers' Union
of America, AFL-CIO, and Northwest Arkansas Building Trades Council, AFL-
CIO, are labor organizations within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and issues
The issues here arise from the undisputed fact that since May 29, 1961, picketing
has continuously occurred at the two school projects in Van Buren being performed
by the Charging Party. It is also undisputed that the Respondent Unions have
caused such picketing.
It is the General Counsel's contention, denied by the Respondents, that this
picketing violated Section 8(b) (7) (C) of the Act.'
The section and subsection of the Act invoked are:
Sec. 8. (b) It shall be an unfair labor practice for a labor organization or
its agents-
(7) to picket or cause to be picketed, or threaten to picket or cause to
be picketed, any employer where an object thereof is forcing or requiring
an employer to recognize or bargain with a labor organization as the
representative of his employees, or forcing or requiring the employees
of an employer to accept or select such labor organization as their collective
bargaining representative, unless such labor organization is currently certi-
fied as the representative of such employees:
(C) where such picketing has been conducted without a petition
.under section 9(c) being filed within a reasonable time not to exceed
thirty days from the commencement of such picketing: Provided,
That when such a petition has been filed the Board shall forthwith,
without regard to the provisions of section 9(c)(1) or the absence of
a showing of substantial interest on the part of the labor organization,
direct an election in such unit as the Board finds to be appropriate and
shall certify the results thereof: Provided further, That nothing in this
subparagraph (C) shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the public (including
consumers) that an employer does not employ members of, or have a
contract with, a labor organization, unless an effect of such picketing
is to induce any individual employed by any other person in the course
of his employment, not to pick up, deliver or transport any goods or
not to perform any services.
B. Relevant facts
(1) There is no evidence that the Respondent Unions, or any of them, have
-sought at any time in the past or were at the time of the hearing seeking recog-
nition from the Charging Party.
(2) There is no evidence that the Respondent Unions, or any of them, have
sought at any time in the past or were at the time of the hearing seeking to have
the Charging Party bargain with them, or any of them , as the representative of its
employees.
(3) During the material period it is conceded that the Respondents have not
been certified as the representative of any of Texarkana's employees.
(4) It is also conceded that no petition has been filed under Section 9(c) of the
Act.
'Through typographical omission, it appears, the complaint alleges violation of Section
8(b) (7) only. The charge alleges violation of Section 8(b) (7) (C), and the above-cited
U.S. district court record indicates that injunction was sought on the basis of a petition
alleging violation of Section 8(b) (7) (C). Paragraph 9 of the complaint uses language
from 8(b) (7) (C), and it Is clear from the Respondent's brief that their counsel considered
that 8(b) (7) (C) had properly been invoked.
LOCAL 107, INT'L HOD CARRIERS, BUILDING, ETC. 109
(5) So far as the record shows the first construction work undertaken by the
Charging Party in the so-called Van Buren area, encompassed within the jurisdiction
of the Respondent Unions, began in February 1961, in building a plant for a concern
not here involved, but located in nearby Fort Smith, Arkansas.
(6) At the time of starting the Fort Smith job the Charging Party called the
Respondent Local 107 for laborers, and this Respondent supplied them. The Charg-
ing Party paid these laborers at the rate of $2.05 an hour, which was the union
contract rate for the area although, as heretofore noted, no contract between the
parties existed or was sought.
(7) Shortly after starting on the Fort Smith job the Charging Party was awarded
contracts for the building of two schools in Van Buren. Upon such award Lloyd
Brammer, head of the Respondent Council and business representative of Local 107,
filed suit as a taxpayer to enjoin it because the Charging Party's subcontractors were
not licensed as required by State law.
(8) It appears that after the Charging Party had complied with the State law
the school contracts were reawarded to it.
(9) Thereafter Brammer and other representatives of members of the Respond-
ent Council approached George Crawford, Texarkana's superintendent in that area,
and inquired if he was going to use unionmen on the school projects. In effect
Crawford said he would not hire laborers through Local 107-asking them if they
thought they deserved consideration after filing suit against his Company.
(10) Crawford hired nonunion laborers, and paid them $1.25 an hour, a wage
rate considerably lower than the prevailing wage rate of $1.79'/2 for laborers set by
the Secretary of Labor for this area.
(11) Picketing began the morning of May 29. Picket signs bore the legend:
"Texarkana Constr. Co. Not Paying Prevailing Wage Rate." Picketing with these
signs has continued since that date, Mondays through Fridays, from 6:30 a in. to
3:15 p.m.
(12) During the period from May 29 to the date of the hearing, September 19,
1961, it appears that three local or nearby business concerns either failed or delayed
making, through their rank-and-file employees, certain deliveries of materials to
the school projects.
(13) Summary of the evidence as to each follows:
(a) Arkola Sand and Gravel Company: According to R. N. Dills, president of
this company, it had a verbal contract with the Charging Party to supply it with
certain construction materials. Dills said that he was "informed by our Superin-
tendent and the salesman" that "there was a picket line on the job." Upon this in-
formation he "contacted" someone connected with Local 107 to inquire if it was
a "bona fide" picket line, He then decided not to make deliveries to the job because
his company had a contract with the local which provided that "the employer shall
not require or instruct any employee to go through a picket line in the jurisdiction of
the Fort Smith Building Council or its affiliates."
(b) Arkansas Best Freight System, Inc: Charles Cox, the office manager of this
common carrier, testified that on some six or seven occasions between July and the
hearing date either he or his dock foreman had made deliveries at the picketed job-
sites because "naturally our Union employees, our city dock boys won't cross the
picket line." Both he and the dock foreman are salaried. On or about June 15,
according to the testimony of the Charging Party's superintendent, Crawford, some
unidentified truckdriver appeared at the site with materials to be delivered by
Arkansas Best Freight. The driver halted his truck by the picket line. Crawford
approached him, he said, and the driver told him he would not cross the picket line.
Crawford then sent his own truck out and hauled the materials onto the site.
(c) Jones Truck Lines: According to Glenn Click, terminal manager for this car-
rier, his dock foreman, otherwise unidentified, instructed an unidentified driver to
deliver a certain shipment of materials being forwarded to the Charging Party's
jobsite. The driver came back later and told him, he said, that "there was a picket
line and he couldn't make delivery."
C. Conclusions
General Counsel submits his case on two grounds: (1) The picketing was unlaw-
ful because, without a certification or having filed a timely petition, an object was
recognition and bargaining; and (2) even if the picketing be considered purely
"informational," it had an "effect" of "inducing" individuals "not to pick up, deliver,
of transport any goods."
Ground (1) is wholly without merit. There is not the slightest evidence that at
any time have any of the Respondent Unions sought recognition and collective bar-
gaining with the Charging Party.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ground ( 2), in the opinion of the Trial Examiner , must fail because the record
contains insufficient competent evidence to support it. There is no question but that
the picket sign contains a truthful statement of fact-the representative of the Charg-
mg Party admits paying laborers considerably below the prevailing standard for the
area set up by the U.S. Department of Labor.
As clearly suggested by Circuit Judge Waterman of the Second Circuit, in his
concurring opinion in McLeod v. Chefs, Cooks, Pastry Cooks, and Assistants, Local
89, et al. (Stork Restaurant) 280 F. 2d 760 (C.A. 2), the second proviso of Section
8(b) (7) (C) invites varying interpretations , depending upon whether emphasis is
placed upon "induce" or "effect." But whatever the ultimate interpretation, it would
appear that some "cause-and-effect relationship" is involved in the proviso, and that
to establish its existence competent evidence must be adduced . In the instant case the
Trial Examiner finds no direct testimony either from parties alleged to have caused
an effect or from any individual alleged to have been "induced" or otherwise affected
which would firmly support a finding of fact that "an effect of such picketing is [was]
to induce any individual employed by any other person in the course of his employ-
ment, not to pick up, deliver or transport any goods." There is hearsay testimony,
as noted above, but the Trial Examiner hesitates to rest a conclusion of law upon
inferences drawn from inference or hearsay. It is understood that such practice is
frowned upon by courts generally.
Even if Superintendent Crawford's testimony, to the effect that some unidentified
truckdriver told him on June 15 that he would not drive across the picket line were
to be accepted as of somewhat more weight, and the fact were to be disregarded
that Crawford is plainly the most interested party involved, the finding that one
driver declined to cross a picket line in a period of several months appears to be
trivial and not "illustrative."
After careful view of the testimony in the record made in these proceedings as
well as the transcript of testimony before Judge Miller the Trial Examiner is in full
accord with the latter 's succinct comments in dismissing the petition for an injunction.
He voiced his opinion that the evidence failed to sustain the allegations and said:
"The Court is convinced that the petitioner did not have reasonable cause to believe
that a violation of the Act as alleged in the petition had been committed."
In short, the Trial Examiner is convinced and finds that the evidence is insufficient
to sustain the allegations of the complaint that the Respondents have violated Section
8(b) (7) (C) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings and conclusions , and upon the entire
record in the case , the Trial Examiner recommends that the complaint be dismissed
in its entirety.
Michael Benevento and John Benevento d/b/a M . Benevento
Sand & Gravel Co. and Hoisting & Portable Engineers Union,
Local 4, International Union of Operating Engineers, AFL-
CIO. Cases Nos. 1-CA-3258 and 1-CA-3304. August 13, 1962
SUPPLEMENTAL DECISION AND RECOMMENDATION
On April 28, 1961 , the Board issued a Decision and Order in the
above -entitled proceeding 1 in which it adopted the Trial Examiner's
findings and conclusions that the Respondent was engaged in com-
merce within the meaning of the Act and that it had engaged in certain
unfair labor practices in violation of Section 8(a) (1) and ( 5) of the
Act.
The Board thereafter petitioned the United States Court of Appeals
for the First Circuit to enforce its Orders against the Respondent.
On December 29, 1961, the court handed dow n its opinion and
i 131 NLRB 358.
138 NLRB No. 9.