Local 324, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Apr 24, 1961

131 N.L.R.B. 228 (N.L.R.B. 1961)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go to Ayuso 's office . Her testimony then becomes confusing . At best it would indi-
cate that she met Pacheco, Hector Cintron Ayuso (Cintron ), Respondent 's general
manager, and Ayuso-one of them said , "Go and , lock yourself in the bathroom until
after the elections ." When she refused , Ayuso told her to use an inside stairway from
his office to the offices of a lawyer in the building . This she did not do.
In addition to the above , Cunipiano testified that Pacheco gave her $2 to go to the
movies. On cross-examination she testified that at the end of the lunch hour (on
April 25), before the election, she met Pacheco and told him that "Ayuso wanted me
to go to the movies" and Pacheco "pulled out $2 and gave" it to her.
All of the above testimony by Cunipiano was uncorroborated. Ayuso's testimony
with reference to his conversation with Cunipiano during the period in question was,
he remonstrated , concerning her habitual tardiness . By stipulation this was corrobo-
rated by Ayuso's secretary. Ayuso denied offering her a car and a salary increase
from $ 173 to $250 a month , denied offering her any inducement to abstain from
voting, denied authorizing anyone to give her any money , and asserted he did not
think she had even the right to vote because she was a conditional employee. In
addition, Ayuso testified, in effect, that it was ridiculous to think he would offer
such inducements to Cunipiano to refrain from voting because "I knew we had
enough votes. .
Pacheco testified that at lunch time on the day of the election he was talking to a
group of fellow workers when Cunipiano asked him for $2 to go to the movies. Two
witnesses testified that they were present when Cunipiano called Pacheco aside, spoke
to him out of their hearing, and saw Pacheco hand some money to Cunipiano. Pa-
checo admits giving the money; he had done so often in the past. He denied that
anyone had given him instruction to give the money to Cunipiano on this occasion.
There is unrebutted testimony that Cumpiano was in the habit of borrowing money.
In the light of all the facts it seems unlikely that Ayuso would make such ex-
travagant offers to induce Cunipiano not to vote . She was but 1 employee out of
47 eligible to vote, of whom 46 voted.
I find that Cunipiano 's testimony as to offers of inducements and other suggested
actions to refrain from voting is incredible ; also, that she, for reasons of her own,
solicited the $2 from Pacheco . Further, I find that the General Counsel has not
proven , by a preponderance of evidence , the allegations set forth in the caption of
this section . I recommend they be dismissed.
Upon the basis of the foregoing findings of fact , the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and in activities affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has not engaged in unfair labor practices as alleged in the complaint.
[Recommendations omitted from publication.]
Local 324, International Union of Operating Engineers, AFL-
CIO and Brewer 's City Coal Dock . Case No. 7-CC-118. April
24, 1961
DECISION AND ORDER
On August 29, 1960, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent did not engage in the alleged unfair labor practices as
set forth in the copy of the Intermediate Report attached hereto and
recommending that the complaint be dismissed. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
brief in support thereof.
131 NLRB No. 36.
LOCAL 324, INT'L UNION OF OPERATING ENGINEERS 229
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
1. We find, as did the Trial Examiner, that the Respondent did not
threaten, coerce, or restrain Wellpoint, the secondary employer, in
violation of Section 8(b) (4) (ii) (B) of the Act. In agreement with
the Trial Examiner, we find that the Respondent's business agent,
Giaimo, did not threaten the Wellpoiht supervisor, Davidson, with any
reprisals if Wellpoint accepted the delivery of Brewer's sand, but
merely informed him of the existence of the strike at Brewer's and
appealed to him not to use Brewer's sand until the strike was over.
2. We also find, as did the Trial Examiner, that Supervisor David-
son, who in the absence of Superintendent La Russo was the top
management representative on the project, was not an "individual
employed by any person" within the meaning of clause (i) of Section
8(b) (4), and that for this reason the Respondent by inducing David-
son to refuse to accept the delivery of two carloads of Brewer's sand
did not violate Section 8(b) (4) (i) (B) of the Act.
In Carolina Lumber 1 the Board found that the term "individual
employed by any person" as used in clause (i) of Section 8(b) (4)
refers to "supervisors who in interest are more nearly related to rank-
and-file employees than to management, as the term is generally
understood." Accordingly, the Board found that a project superin-
tendent who was free to exercise authority, including requisitioning
and purchasing supplies, without immediate on-the-job supervision,
was not an "individual." On the other hand, the Board also found
that a working foreman, who had no authority beyond supervising
a small group of laborers, was an "individual" within the meaning of
clause (i).2 In the instant case, the record shows that Davidson was
a supervisor who under general supervision of Superintendent La
Russo was in charge of the installation of dewatering equipment on
the construction site. Superintendent La Russo was the top manage-
ment representative on the job. He hired and had charge of all men
working on the project. He did all the buying of materials required
and could reject any of such materials. He apparently had authority
to make independent decisions without consulting the home office of
his company. As La Russo did all the buying for the project, which
'Local 505 , International Brotherhood of Teamsters , etc (Carolina Lumber Co.),
,130 NLRB 1438
2 See also Alpert v. Excavating and Building Material Chauffeurs and Helpers Local
Union No . 319, etc . ( Consalvo Trucking, Inc.), 184 F. Supp. 558 (D . C. Mass ), where
Judge Wyzanskl found that " Section 8 ( b) (4) (1) is concerned with appeals addressed to
those who perform services manually or clerically, or who manually use goods, or who
have minor supervisory functions."
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took a considerable amount of his time, Davidson, would be left "in
charge" of the project in La Russo's absence. Davidson was spe-
cifically instructed by La Russo in case of labor trouble or any other
problem arising in his absence to do what he thought best and that
La Russo would handle it from there. Davidson testified, without
contradiction, that at the time of the incident and generally during
La Russo's absence "this type of problem was in his hands," that he
was "in charge" of the project, and that as the "top man" he had also
other problems to deal with.3
On the entire record we find that Superintendent La Russo, who
was the top management representative on the project with authority
to make independent decisions without immediate on-the-job super-
vision, was "more nearly related to the managerial level than to
rank-and-file employees," and therefore was not an "individual em-
ployed by any person" within the meaning of clause (i) of Section
8 (b) (4).' We further find that Supervisor Davidson, who in Super-
intendent La Russo's absence from the project had authority to make
decisions in dealing with problems arising at the project without
immediate on-the-job supervision, was also not an "individual em-
ployed by any person" within the meaning of Section 8(b) (4) (i) of
the Act while so substituting for La Russo.'
[The Board dismissed the complaint].
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
8 Business Agent Glaimo testified that on the day in question he approached Davidson,
whom - he knew to be an assistant to La Russo , asked him where La Russo was, and who
was in charge when La Russo was not there , and that Davidson said that he was It was
after Glaimo thus ascertained that Davidson was in charge in La Russo's absence that he
had asked Davidson not to accept the delivery of Brewer's sand
' Of. Copeland Refrigeration Corporation , 118 NLRB 1364, where the Board excluded
from the unit , as a person "primarily allied with management," an employee who sub-
8ttituted as head of the purchasing department during the frequent absences of the chief
purchasing agent, and who in exercising this managerial prerogative used independent
judgment See also The Santa Fe Trail Transportation Company, 119 NLRB 1302, where
the Board found that a 8ubststute for an employee in charge of a freight terminal who
acts as an employer 's representative in soliciting freight business and protecting em-
ployer's interest was a managerial employee
5 Board Member Rodgers agrees that Supervisor Davidson was "in charge" of the
project in La Russo's absence. For this reason he agrees that Davidson was not an
"individual" within the meaning of Section 8 (h) (4) (1). See Member Rodgers' concurring
opinion in Carolina Lumber.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint charges Local 324, International Union of Operating Engineers,
AFL-CIO, with violation of Section 8(b)(4)(i) and (ii )(B) of the Act in general
terms. However, the specific violation alleged in paragraphs numbered 10 and 11
of the complaint is that on or about December 11, 1959, the union , through its agent,
Anthony Giaimo , induced , encouraged , threatened , coerced, and restrained individ-
uals employed by Wellpoint Dewatering Corporation not "to perform services in
the course of their employment" with the result that such individuals refused to per-
form such services.
LOCAL 324 , INT'L UNION OF OPERATING ENGINEERS 231
These allegations of the complaint having been denied by the union, a hearing with
respect to them was held by the duly designated Trial Examiner at Grand Rapids,
Michigan, on July 27, 1960. It should be noted that no representative of Brewer's
City Coal Dock, the Charging Party, appeared at the hearing or testified in support
of the charges. Subsequent to the hearing, counsel for the General Counsel filed a
brief which has been considered by the Trial Examiner.
Based upon the record so made, and on my observation of the witnesses, I hereby
make the following:
FINDINGS OF FACT
I. THE UNION
Local 324, International Union of Operating Engineers , AFL-CIO (hereinafter
referred to as the Union), is a labor organization within the meaning of Section
2(5) of the Act.
II. THE EMPLOYERS
Brewer's City Coal Dock (hereinafter denominated Brewer's) is a copartnership
consisting of Cornelius and Henrietta J. Brewer who do business under the name of
Brewer's City Coal Dock. The copartnership, which has its principal office and
place of business at Holland, Michigan, is engaged in the business of selling and
distributing ready-mix concrete aggregates, coal, and sand. The total sales of
Brewer's for the calendar year 1959 to businesses meeting the Board's jurisdictional
standards exceeded $55,000.
Wellpoint Dewatering Corporation (hereinafter denominated Wellpoint) is a
subsidiary of Griffin Wellpoint Corporation. Wellpoint, which is a New York cor-
poration, is engaged in the dewatering and stabilization of the soil in connection with
construction projects in at least three States of the Union other than New York,
namely Florida, Texas, and Indiana, and performs in these States services valued
in excess of $50,000. At the time of the violation charged in the complaint, Well-
point was engaged in the dewatering of the site of a powerplant being constructed
at Fort Sheldon, Michigan, for Consumers Power Company, a public utility which
annually receives gross revenue in excess of $11,000,000. The name of the general
contractor constructing the powerplant for Consumers was Townsend & Bottum.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The Union, together with Local 406 of the General Teamsters Union, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, had been joint bargaining representative at Brewer's
since 1953. Two days before Labor Day in 1959, the two unions went out on strike
over the negotiation of a new contract, and this strike was continuing at the time
that Wellpoint commenced dewatering the site for the construction of the Consum-
ers powerplant at Fort Sheldon, Michigan. This work has not yet been completed.
The incident that forms the basis of the charge against the Union occurred a week
or two before Christmas 1959. There are two versions of this incident, one by
James K. Davidson, who, under the general supervision of one LaRusso, was in
charge of the installation of Wellpoint equipment in connection with dewatering of
the site of the Consumers powerplant,' and the other by Anthony Giaimo, business
agent of Local 324.2
Davidson testified as follows: On the day in question two dump trucks loaded
with sand-they were the first two truckloads of sand to arrive on the jobsite-
approached the Wellpoint job. He went over and asked the drivers if the sand was
for the Wellpoint job, and they replied in the affirmative. He told them to wait
while he went to find the best place to dump the sand. On the way back, he met
Giaimo who asked him whether he was going to use the sand. When Davidson
informed Giaimo that such was his intention, the latter said to him: "Well, that
1In supervising the installation of Wellpoint equipment, Davidson engaged in consider-
able traveling over the United States Of course, he performed no physical labor himself,
merely supervising the installation crews Although La Russo was his superior, the
former appears to have been principally engaged in buying activities. Davidson was in
full charge when La Russo was away
2 Davidson and Giaimo were the only two witnesses at the hearing, which opened at
10 a.m. and closed at 12.25 p in. It did not take much more than an hour to complete
the examination of both Davidson and Giaimo The rest of the time was spent In off-the-
record discussions and In oral argument at the conclusion of the hearing.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had pickets around, picketing the plant,3 and he didn't know if his men 4 would
handle the sand or not." 5 As Davidson had been instructed by LaRusso that if labor
trouble should develop, he should do what he thought best at the moment, and report
the matter to him. Davidson told Giaimo that he would send the sand back, and
Giaimo could take the matter up with LaRusso. As Davidson put it: "I was too
busy to debate the point." Davidson also reported the incident to LaRusso, and this
was the last contact that he had with the matter.
Davidson testified that he was not sure whether the first two truckloads of sand
which he sent back had the name of the supplier on them. While he also testified
that there were no further interruptions in the delivery of sand, and that they ob-
tained all the sand which they needed on the job,6 he had no direct firsthand know-
ledge concerning the supplier or suppliers of this sand. He did testify that he was
subsequently told by LaRusso that the first loads of sand had been from Brewer's,
and that the sand had been ordered from Brewer's but he was not told by LaRusso
whose sand was being delivered, and it was merely his surmise that subsequent loads
of sand did not come from Brewer's, the surmise being based on the fact that the
trucks were not Brewer's. He finally exclaimed: "I don't know whose sand it was."
Giaimo testified with respect to the delivery of the sand as follows: On the day
in question he was in the Townsend and Bottum office, and as he looked out of the
window, he saw two Brewer's trucks drive on the project with loads of sand. He
walked out and found Davidson whom he asked if LaRusso was around. When
informed by Davidson that LaRusso was away from the project, Giaimo pointed out
to Davidson that the trucks were Brewer's and said to him that "we had a picket
line-by we, I mean the Teamsters and Operating Engineers-had a picket line at
Brewer's City Coal Dock and the trucks were coming through our picket line and
we would appreciate it if he did not use the material until after the strike was over."
[Emphasis supplied.] Davidson said nothing at all to Giaimo in reply but did say
to one of the drivers something which Giaimo, being too far away, could not over-
hear. Giaimo did observe that the trucks, which had the name of Brewer's on them,
turned around and left. Giaimo specifically denied that he ever said anything to
the members of the Union about not handling the sand, and he testified that he
never discussed the matter with LaRusso, although he had subsequent meetings with
him. However, Giaimo did ask a "fellow" who was not the union steward, to let
him know "if any of Brewer's trucks came on the job . .." but he received no such
reports, and he, himself, during subsequent visits to the jobsite, which occurred about
once a week, did not observe any trucks of Brewer's delivering sand. Indeed, the
trucks which he did observe delivering sand were not Brewer's trucks.
In the course of his examination, Giaimo's attention was called by counsel for the
Respondent to the conflict between his testimony and that of Davidson, and he was
asked how he could be sure that his testimony rather than Davidson's was correct.
Giaimo replied that when the strike started at Brewer's he had sought his advice,
and had been told by him that he could only "ask the contractors not to use materials
that had gone through the picket line," and that in approaching Davidson he had
merely carried out this advice.
Not only is there no evidence that Giaimo ever attempted to induce the members
of the Union not to handle Brewer's sand-indeed such an attempt would have been
pointless since Davidson had readily acceded to his request-but Davidson, when
asked whether the job had been held up in any way because he had sent back the
two truckloads of sand, replied: "No, it was not." It is also undisputed that the
approach of Giaimo to Davidson did not result in the refusal of the members of the
union to perform any services normally performed.
I do not believe it is necessary for me to determine whether Giaimo's musing about
whether his men would handle the sand amounted to a threat since I have reached
8 The "plant" to which Davidson was referring was not the powerplant under construc-
tion but Brewer's place of business in Holland, Michigan, which was 8 to 10 miles from
the construction site
I The "men" referred to were the members of Local 324 on the construction job. Seven
members of the local were employed by Wellpoint and about 30 of them were employed
by Townsend & Bottum.
3 On cross-examination, Davidson gave a somewhat different version of what he remem-
bered Giaimo to have said. Thus, he testified : "I asked or rather Mr Giaimo asked me
if I was going to use the sand. I replied that I was. He said he didn't think it would
be a good idea because he didn't know if his men would handle it or not. I said all
right I will send the sand back " It should be noted that Davidson did not now make any
reference to the picketing of any plant.
6 This was from 2,000 to 2,500 yards of sand.
LOCAL 324, INT'L UNION OF OPERATING ENGINEERS 233
the conclusion that Giaimo 's rather than Davidson 's version of the conversation
between them must be accepted . I have not reached this conclusion because I doubt
at all the veracity of Davidson . Indeed , my contact with him , as well as with Giaimo,
was so brief that I should hesitate to reach any conclusion with respect to the testi-
mony of either of them that was based solely on what is called "demeanor" evidence.
I believe that Davidson , as well as Giaimo , testified in accordance with his best
recollection . It seems to me, however , that there is more reason to rely on Giaimo's
than on Davidson 's recollection . It is my distinct impression that Davidson attached
very little importance to his encounter with Giaimo , and, treated the whole incident
in a rather casual and offhand manner. This is apparent alone from his testimony
that he was "too busy to debate the point," and his inability to recollect whether the
trucks about which Giaimo had talked to him were Brewer's, despite the fact Giaimo
had called his attention to the ownership of the trucks. Thus, it is not very likely
that he would remember too well precisely what Giaimo had said to him more than
7 months earlier . Moreover , it is apparent from his testimony that he was not
repeating Giaimo's exact words, since his version of the conversation on cross-
examination was not the same as on direct examination . On the other hand, while
Giaimo, too , may not have remembered the precise words he used in talking to
Davidson , it is likely that he would be careful and circumspect in his choice of words,
since he had sought and received legal advice as to how he should comport himself.
The fact that the words Giaimo used were not followed by coercive deeds is also
persuasive that the words themselves were not of a threatening nature. Finally, it
is apparent from Giaimo 's testimony itself that he was being entirely candid as a
witness. He made no effort to conceal the fact that the first two truckloads of sand
came from Brewer's, although Davidson had been unable to identify them, nor did
he attempt to conceal the fact that he had asked someone on the job to keep him
informed of sand deliveries by Brewer 's. The admission of these facts were cer-
tainly not to his interest . I find, therefore , that Giaimo merely informed Davidson
of the existence of the strike at Brewer 's, and appealed to the latter not to use
Brewer's sand until the strike was over.
As for the question whether Giaimo's appeal to Davidson served to prevent any
further delivery of Brewer 's sand to the jobsite, the proof of this can hardly be said
to meet the requirements of the best evidence rule. Davidson , the only witness on
behalf of the General Counsel , had no direct knowledge concerning the deliveries
of sand. Indeed, as already mentioned , if it had not been for Giaimo 's testimony,
there would not even be any proof that the first two truckloads of sand that were
turned back were Brewer's. It is true that Giaimo also testified that he neither
observed any further deliveries of sand by Brewer's, nor received any information
concerning such deliveries . It is possible, however, that Brewer's did deliver sand
on days when Giaimo was not on the jobsite, or that trucks that did not bear the
name of any supplier were used to deliver the sand. But whatever inferences might
be justified by Giaimo 's testimony are greatly weakened , if not undermined, by the
failure of Brewer's to participate in any way in the hearing. For all that appears
to the contrary, this lack of interest may have been due to the fact that the order
for the sand may have been canceled for reasons that had nothing to do with
Giaimo's appeal to Davidson. Conceivably, Brewer's may have been unable, as a
result of the strike , or for some other reason , to obtain sufficient sand to supply all
of its customers , and may have decided , therefore , to supply more favored customers.
I must conclude therefore , that there is no satisfactory proof that Giaimo 's inter-
vention had any greater effect than to prevent the unloading of the first two truck-
loads of sand.
N. THE LAW OF THE CASE
Despite the variance between the specific violation alleged in the complaint and the
specific violation which the General Counsel attempted to prove, it would seem
that this variance was not fatal , since the complaint also alleged generally the viola-
tion of Section 8(b)(4)(i ) and (ii ) (B), and the issue whether the Respondent in-
duced the secondary employer not to accept the primary employer's sand, or threat-
ened reprisals if it were accepted , was fully litigated at the hearing without objection
by either party.
I have found that Giaimo , the business agent of the Respondent , did not threaten
Davidson , the supervisor of Wellpoint . Thus, the actual issue is whether the
Respondent 's agent violated the Act by inducing Wellpoint 's supervisor to refrain
from accepting the two truckloads of sand which Brewer 's had attempted to deliver.
Insofar as pertinent to this case , Section 8(b)(4)(i) and ( ii)(B) provide that it shall
be an unfair labor practice for a labor organization or its agents
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) (i) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in industry affecting commerce to engage
in, a strike or a refusal in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles, materials,
or commodities or to perform any services; or (ii) to threaten, coerce, or restrain
any person . . . affecting commerce, where in either case an object thereof is
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person, ... .
In the only judicial decision construing these provisions to which my attention has
been called,7 the court aptly characterized the type of conduct proscribed by Section
8(b) (4) (i) as "prohibited inducements," and the type of conduct proscribed by
Section 8(b),(4)(ii) as "prohibited threats." Absent any threats by the union, the
court held that Section 8(b)(4),(i)(B) had not been violated by the union where
it attempted to enforce its contract with a prime construction contractor, under which
subcontractors also were required to observe the contract's provisions, through
inducement of the construction job superintendent to terminate a subcontract with
a nonunion subcontractor from whom the union had been seeking to gain recog-
nition . In coming to this conclusion, the court reasoned that:
Unlike § 8(b),(4)(ii)'(B), § 8(b)(4),(i) has not within its scope conduct which
has merely the object of persuading another to cease doing business.
§ 8(b)'(4) (i) is concerned with appeals addressed to those who perform services
manually or clerically, or who manually use goods, or who have minor super-
visory functions. It does not cover appeals to those who on behalf of their
employer have power lawfully to terminate, cease, or otherwise control business
relations with the so-called primary employer. [Emphasis supplied.]
The court also reasoned that, in view of the provisions of the First Amendment,
and of Section 8(c) of the Act, which protects the right of free speech in the
absence of threats of reprisals, it could not have been the intention of Congress to
prevent a union or its representatives from addressing "noncoercive pleas to em-
ployers or to individuals who had authority on behalf of the employer to make and
terminate contracts."
Four of the Board's Trial Examiners have already had occasion to consider how
high up in the pyramid of management Congress intended to go in enacting Section
8(b)(4)(i), but have reached diverse conclusions. One Trial Examiner has reached
the conclusion that the provision prohibits inducement of supervisors only when the
supervisor is being induced "to do something against the interest of his employer
rather than the contrary." 8 Two other Trial Examiners, while agreeing that Sec-
tion 8 (b) (4) (i) extends to supervisors, would not include in this category individual
proprietors, partners, and the officers of corporations.° The fourth Trial Examiner,
after a searching and painstaking analysis of the legislative history, has come to
the same conclusion as Judge Wyzanski, namely that Section 8 (b) (4) (i) extends
only to working foremen.10
In view of the extended examination which the question has already received,
there would be little justification for my setting forth in detail the basis for my
concurrence in the view that Section 8(b) (4) (i) extends only to such minor super-
visory employees as working foremen . I must say, however, that I attach more
importance to the language of Section 8 (b) (4) (i) than to its legislative history,ll
'Alpert V. Excavating and Building Material Chauffeurs and Helpers Local Union
No. 319, etc (Consalvo Trucking, Inc ), 184 F. Supp. 558 (D.C. Mass.).
B Trial Examiner Wallace E Royster in Amalgamated Meat Cutters etc (Peyton
Packing Company, Inc ), 131 NLRB 406
B Trial Examiner Ramey Donovan in Upholsterers Frame & Bedding Workers (Minne-
apolis International Furniture Co ), 132 NLRB 40, and Trial Examiner Martin S
Bennett in International Brotherhood of Teamsters , etc (Lohman Sales Co .), 132 NLRB
No 67.
10 Trial Examiner A. Norman Somers in Local 29 b, International Brotherhood of Team-
sters, etc (Van Transport Line, Inc ), 131 NLRB 242
u All Government lawyers dote on legislative history. I suppose it is because, being
located at the seat of government, it is so readily available to them. While legislative
history is of some value in illuminating the background of a statute, it has been my
experience that it rarely supplies anything conclusive as to any particular point at issue.
In the last analysis , it is the language of the statute that counts, and, if it is not seri-
ously ambiguous , all the legislative history in the world should not prevail against it.
BARR'S JEWELERS 235
especially when the provision is considered in relation to Section 8(b) (4) (ii) of the
Act. To be sure, Section 8(b)(4)(i) does not speak in terms of an express distinc-
tion between higher and lower echelons of supervisory personnel. But the dis-
tinction is, nevertheless, implicit in the provision because it does speak in terms of
individuals who in the course of their employment "use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials," or "per-
form services." This language seems to suggest that it could be applied appro-
priately only to such horny-handed sons of toil as working foremen. The impor-
tance which I attach to Section 8(b) (4) (ii) derives from the fact that there would
be little, if any, need for this provision, which is aimed at threatening or coercive
action against any person, if mere inducement was prohibited in most cases.
Upon the basis of my findings of fact, and upon the entire record, I hereby reach
the following:
CONCLUSIONS OF LAW
1. Local 324, International Union of Operating Engineers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. Brewer's City Coal Dock and Wellpoint Dewatering Corporation are persons
engaged in commerce or in industries affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By inducing and encouraging James K. Davidson, a supervisor of Wellpoint
Dewatering Corporation, who at the time was in complete charge of operations at
a construction site being dewatered by the Wellpoint Dewatering Corporation, not
to accept two deliveries of sand made by Brewer's City Coal Dock against which
the Respondent was conducting a strike, the Respondent did not engage in any
unfair labor practice affecting commerce within the meaning of Section 8(b)(4)(i)
or (ii) (B) of the Act.
[Recommendations omitted from publication.]
Barr's Jewelers I and Retail Clerks Union Local 1390 , Retail
Clerks International Association , AFL-CIO, Petitioner. Case
No. 4-RC-4388. April 04, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Katherine W. Neel, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Members Rodgers, Leedom, and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The appropriate unit :
i As noted at the hearing, Employer Is composed of the five following separate corpora-
tions, all owned and operated by members of the Barr family : Associated Barr Stores,
Inc. ; Barr's Jewelers and Silversmiths, Inc. ; Barr 's, Inc. ; Barr Brothers of New Jersey ;
and Barr Brothers, Inc.
131 NLRB No. 37.