M. Benevento & Sand & Gravel Co.

National Labor Relations Board - Board Decisions

Aug 13, 1962

138 N.L.R.B. 110 (N.L.R.B. 1962)

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-
ing 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 ,u on "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' 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 down its opinion and
1 131 NLRB 558.
138 NLRB No. 9.
M. BENEVENTO SAND & GRAVEL CO. 111
remanded the case to the Board for a further determination as to
whether the Respondent's operations, which the court otherwise con-
sidered to be purely local, affected interstate commerce under the
particular facts of the case. On May 9, 1962, following a supple-
mental hearing held pursuant to the court's remand decree, Trial
Examiner Louis Libbin issued his attached Supplemental Intermedi-
ate Report, in which he reaffirmed his original finding, on the basis
of additional evidence adduced at the reopened hearing, that the
Respondent's operations affect commerce within the meaning of the
Act. Thereafter, the Respondent filed exceptions to the Supplemental
Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the supplemental hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed 2 The Board has con-
sidered the Supplemental Intermediate Report, the exceptions and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
Respondent is engaged in the extraction of sand and gravel from
pits at Wilmington, Massachusetts. In the year preceding the issu-
ance of the complaint in this case, it sold sand and gravel in amounts
valued at $117,000 to Red-E-Mix Corp., its principal customer, whose
concrete mixing plant is also at Wilmington, adjacent to Respondent's
plant. Red-E-Mix purchased between 80 and 90 percent of its sand
and gravel requirements from Respondent and purchased all its
cement from suppliers located outside of Massachusetts. Red-E-Mix's
importation of cement from outside the State amounted to approxi-
mately $180,000. Red-E-Mix combined the sand and gravel pur-
chased within the State from Respondent with the cement imported
from outside the State, in the production of concrete which it sold
to road and building contractors for projects located almost exclu-
sively in Massachusetts.
In its remand decree, the court requested the Board, in determining
the effect of Respondent's local activities on interstate commerce, to
take into consideration (1) that Respondent was not an intermediate
processor of materials moving in interstate commerce, but was the
originator of a product which would probably never leave its State
of origin; and (2) whether cessation of Respondent's operations
would be likely to curtail the operations of Red-E-Mix and thereby
affect interstate commerce, in view of the likelihood that Red-E-Mix
could avail itself of other suppliers of sand and gravel.
2 The Respondent contended that the Board' s order of remand was broader than that of
the court of appeals. We agree with the Trial Examiner that the remand decree of the
court constituted a direction to the Board to determine the effect, if any , of Respondent's
operations on interstate commerce , but without imposing any specific limitation on the
type of evidence to be introduced . Since our remand order was limited to the issue of
jurisdiction , we consider it to be within the area about which the court desired further
elucidation
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that Respondent's employees had gone
on strike for a 7-week period during the height of the construction
season, in August and September 1960, because of Respondent's refusal
to recognize the Union. The strike caused Red-E-Mix, which shared
a common site with Respondent, to be completely shut down during
the strike so that it had to discontinue its purchases and importation
of cement from outside the State. The Trial Examiner also found
that during the same period Red-E-Mix could not receive supplies of
sand and gravel from other potential sources of supply because its
employees refused to work during the strike of Respondent's employ-
ees, and that it was immaterial in this case that Red-E-Mix might
have been able to acquire all its needs for sand and gravel within the
State if its employees had remained at work. The Trial Examiner
concluded that the shutdown of Respondent's operations had a sub-
stantial impact on interstate commerce since Red-E-Mix was unable
to import any of its cement from outside the State during the 7-week
strike. We agree with the Trial Examiner that, under the criteria
set by the court in its remand decree, the cessation of the Respondent's
local activities had an effect on interstate commerce which was more
than de minimis.
Although we assert jurisdiction here because of the particular
effect which the strike of Respondent's employees had upon the inter-
state operations of Red-E-Mix, we deem it appropriate at this time
respectfully to note our disagreement with the criteria which the court
deemed to be controlling. The court remanded the case to the Board
for findings as to whether a labor dispute with the Respondent would
in fact impede commerce. The Supreme Court has held, however,
that in order for the Board to have jurisdiction, it is not necessary to
demonstrate an actual impact on commerce, but only the potentiality
of such an impact, that is, whether the flow of commerce across State
lines would tend to be impeded if the business immediately involved,
and others like it, were disrupted as a result of a labor dispute caused
by unfair labor practices. If so, the Act applies regardless of the
volume of interstate commerce affected, provided that it is more than
de minimis 3 The potential obstruction to $180,000 worth of out-of-
State shipments of cement as a result of a labor dispute involving the
Respondent is not de minimis, and the impact on commerce is even
more substantial when there is added the danger that a labor dispute
involving Respondent might, if unchecked, have spread to other sand
and gravel firms or concrete suppliers in the area.
Moreover, the courts of appeals in other circuits also have held that
it need not be shown that a labor dispute will actually impede inter-
8 N L R.B. v. Denver Building and Construction Trades Council , et al. (Gould & Preisner),
341 U.S. 675; Polish National Alliance of the United States of North America v N L.R B.,
322 U.S. 643.
M. BENEVENTO SAND & GRAVEL CO. 113
state commerce in order for the Board to have jurisdiction. Thus,
the availability of substitute facilities or the amount of commerce
actually impeded by a labor dispute, has been held to be immaterial
in establishing the Board's jurisdiction.'
The decision of the court that the Board's jurisdiction is not to be
decided by the application of a formula, as in Siemons Mailing Serv-
ice, 122 NLRB 81, appears to us to be inconsistent with the provisions
of Section 14 (c) (1) of the Act. That section, which was added by
the 1959 amendments, authorizes the Board, by rule of decision or by
published rules, to decline to assert jurisdiction over any labor dispute
involving any class or category of employers where, in the Board's
opinion, the effect of such labor dispute on commerce is not substantial,
provided that the Board may not decline to assert jurisdiction over
any labor dispute over which it would assert jurisdiction under the
standards prevailing on August 1, 1959. Congress thereby recog-
nized that the Board's jurisdiction may be defined in terms of the
general effect upon commerce of labor disputes involving categories
of employers, and need not turn upon a determination of the effect
on commerce of any particular labor dispute. The Board's standard
of jurisdiction on August 1, 1959, for nonretail businesses was based
upon $50,000 worth of outflow or inflow, direct or indirect. Indirect
outflow was defined as referring to sales of goods or services to users
meeting any of the Board's jurisdictional standards except the indi-
rect outflow or indirect inflow standard. The present case, in which
the Respondent, a nonretail business, sold products valued in excess
of $50,000 within the State to a firm which purchased goods valued
at more than $50,000 directly from outside the State, satisfied the
Board's indirect outflow standard.
On the basis of the entire record, we find that the Respondent's
unfair labor practices affected commerce within the meaning of the
Act and that it would effectuate the policies of the Act to assert juris-
diction in this case.
RECOMMENDATION
The National Labor Relations Board respectfully recommends to
the United States Court of Appeals for the First Circuit that the
Board's Order of April 28,1961, be enforced.
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Recommendation.
' N.L R B. v. BI Dorado Water Company, [no, 195 F. 2d 950 (C A. 8) ; N L.R B v
Mid-Co Gasoline Company, 183 F. 2d 451 (C.A 5) ; N.L R B. v. Phoenix Mutual Life
Insurance Company, 167 F 2d 983 (C.A. 7). But of N L.R B . v. Reliance Fuel Oil
Corporation, 297 F. 2d 94 (C.A. 2) The Supreme Court has granted certiorari, upon the
petition of the Board , to review the contrary holding of the court of appeals in this case
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On April 28, 1961, the Board issued a Decision and Order (131 NLRB 358) in
the above-entitled proceeding. With respect to the Respondent's business, the Board
found that: (1) Respondent was a partnership engaged at Wilmington, Massachusetts,
in the manufacture, sale, and distribution of sand and gravel; (2) during the calendar
year preceding the issuance of the complaint, Respondent sold products, valued in
excess of $50,000, to Red-E-Mix Corp. of Reading, Massachusetts; and (3) during
the same calendar year, Red-E-Mix Corp. purchased and received, from sources out-
side the Commonwealth of Massachusetts, products valued in excess of $50,000.
Upon the above facts, the Board found that Respondent was engaged in commerce
within the meaning of the Act (131 NLRB 358, 361).
On December 29, 1961, the United States Court of Appeals for the First Circuit
entered an order remanding the case to the Board for further proceedings to deter-
mine "the impact, if any," of a cessation of Respondent's operations by a labor
dispute upon interstate commerce (279 F. 2d 873). Thereafter, on March 6, 1962,
the Board ordered the record to be reopened and that a further hearing be held
before a Trial Examiner. The Board's Order further provides that, "upon conclusion
of such hearing, the Trial Examiner shall prepare and cause to be served upon the
parties a Supplemental Intermediate Report containing findings of fact upon the
evidence received pursuant to the provisions of this Order, conclusions of law, and
recommendations."
Pursuant to due notice, the hearing on remand was held before Trial Examiner
Louis Libbon at Boston, Massachusetts, on April 4 and 5, 1962. All parties ap-
peared, participated in the hearing through counsel, and were afforded full opportunity
to be heard, to adduce relevant evidence, to examine and cross-examine witnesses,
to present oral argument, and to file briefs.
Upon the entire record, and from my observation of the witnesses, I make the
following:
SUPPLEMENTAL FINDINGS OF FACT
1. THE BOARD'S REMAND ORDER
The Board's remand order provides that a further hearing be held "for the purpose
of considering additional evidence relating to":
1. The effect of a cessation of Respondent's operations because of a strike, upon
the operations of Red-E-Mix Co., Reading, Massachusetts, and upon other customers
of Respondent, and the availability and cost to them of other sources of sand and
gravel.
2. Common control, ownership, and direction of operations which may exist be-
tween Respondent and Red-E-Mix Co.
3. The value of goods and services, purchased, sold, or performed by or for the
Respondent and/or Red-E-Mix Co. during the year preceding issuance of the com-
plaint herein which originated or was utilized outside the Commonwealth of Massa-
chusetts.
U. THE FACTUAL SITUATION AFTER HEARING ON REMAND
The factual findings made herein are based on testimony and evidence which is
either undisputed or admitted . There is no serious dispute regarding the material
facts.
A. As to point No. 1, in remand order
Respondent Benevento Sand & Gravel Co. is engaged in digging sand and gravel
out of the pits, processing it through crushers and washers , piling it up, and then
trucking it to customers . Respondent's principal customer is Red-E-Mix Corp.,
whose plant is located on the same site, only about 50 yards from where the material
is piled and only about a mile from the farthest point where the gravel is dug.
Red-E-Mix Corp . herein called Red-E -Mix, is engaged in the manufacture , sale, and
delivery of concrete , which is made by mixing processed sand and gravel with cement
and water . The concrete is then put into mixer trucks for delivery by Red-E-Mix
to various jobsites of its customers . During the year preceding the issuance of the
complaint in this proceeding , all cement was purchased by, and shipped to , Red-E-Mix,
from suppliers located outside the Commonwealth of Massachusetts . During the
same period , Red-E-Mix purchased between 80 and 90 percent of its processed sand
and gravel , amounting to $117 ,000, from Respondent.
Respondent's employees were represented by Hoisting & Portable Engineers Union,
Local 4, International Union of Operating Engineers , AFL-CIO, the Charging Union
M. BENEVENTO SAND & GRAVEL CO. 115
in this proceeding. The employees of Red-E-Mix were represented by Local 477
of the Teamsters Union, which had a contract with Red-E-Mix. Both companies are
the sole occupants of a single story building on the premises, where they have sep-
arate offices. Prior to about August 12, 1960, the employees of both companies
used a common roadway to enter the premises. Up until that them, the names of
both companies, with their respective telephone numbers, appeared on a single sign
located at the beginning of the road leading to the premises and to the offices of both
companies.
The strike which closed down Respondent's operations began on August 2 and
ended on September 23, 1960. During that period Respondent's employees picketed
the premises. About five truckloads of cement from Hudson, New York, was sched-
uled to be delivered to Red-E-Mix on August 2, 1960. When the trucks approached
the premises on that day, the drivers refused to cross the picket line and the delivery
was not made. From the first day of the strike, the drivers employed by Red-E-Mix
refused to cross the picket line to go to work. About August 12 a separate road was
cleared away for the use of Red-E-Mix employees. However, the picketing by
Respondent's employees was also extended to that road and the Red-E-Mix drivers
continued to honor the picket line and refused to cross to go to work. About that
time, one of the employees of Red-E-Mix began carrying a picket sign, stating that
"Local 477, Teamsters, is on strike." Whether the employees of Red-E-Mix there-
after refused to go to work because of a desire to honor the picket line or because
they themselves were engaging in a sympathy strike, the result was that the operations
of Red-E-Mix were completely shut down during the entire 7-week period of the strike.
Red-E-Mix normally received about three deliveries of cement each week from
outside the Commonwealth of Massachusetts. August and September are concededly
very active months in the industry. Because Red-E-Mix was unable to operate during
the entire period of the strike from August 2 to September 23, it ceased its pur-
chases of cement during that period and none was delivered to it.
To fulfill its contract on the jobs 1 which were in progress by its customers when
the strike began and its operations shut down, Red-E-Mix first attempted to buy
some ready-mix from other companies for delivery in Red-E-Mix's trucks, but were
stopped by the Teamsters from making such deliveries during the first day. There-
after, Red-E-Mix bought finished concrete from its competitors at a premium price
of $1.50 per yard above the going market price, and had the competitors make the
deliveries to the jobsites. As a result of the delays involved in fulfilling its commit-
ments, Red-E-Mix lost a $6,000 contract for a high school.
There are a sufficient number of sand and gravel companies located in the area
from whom Red-E-Mix could have purchased all the processed sand and gravel it
needed to continue its operations despite the Respondent's shutdown, although it
might have had to pay a higher trucking charge for some of it because of the longer
hauling distance involved. However, this would not have enabled Red-E-Mix to
continue its operations even if its employees had remained at work. For, as Re-
spondent's own official, Jacob Freedman, admitted, the drivers of the other sand and
gravel companies would not go through a picket line and, as long as the picket
line remained in front of the Red-E-Mix premises , neither sand and gravel nor
cement could be delivered to Red-E-Mix from any sources.
B. As to point No. 2 in remand order
During the period material herein, Respondent was a partnership consisting of
Michael Benevento and his son, John Benevento. During this same period, Michael
and John Benevento together owned 50 percent of the stock of Red-E-Mix. The
remaining 50 percent was owned by the three Freedman brothers, Maurice, Jacob,
and Louie. The officers of Red-E-Mix were Maurice Freedman, president; John
Benevento, vice president; Michael Benevento, treasurer; and Jacob Freedman, clerk.
The directors of Red-E-Mix were Michael Benevento, John Benevento, Maurice Freed-
man, and Louie Freedman. As previously noted, the employees of Red-E-Mix are
covered by a contract which was negotiated and signed by Maurice Freedman with
Local 477 of the Teamsters Union.
The operations of the two companies are located on a common situs, in close
proximity to each other. Both companies have their offices in separate rooms in
a single story building located on the premises and of which they are the sole
occupants. One side of the building is occupied by Red-E-Mix, and the other side
1 These were for structures on Route 128, which is partially financed by Federal funds,
for W reslep-Addison Publishing Co , and for Zayers Department Store
662353-63-vol 138-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is occupied by Respondent. Each office has its own telephone, with a different num-
ber and separate listings. They have separate toilets, washrooms, office facilities, and
separate entrances. They also have separate checking accounts and separate book-
keeping systems. Employees of both companies punch in one the same timeclock.
Until August 12, 1960, the employees of both companies used a common roadway
to enter the premises. Up to that time, the names of both companies, with their
respective telephone numbers, appeared on a single sign at the beginning of the
roadway leading to the plant and offices. After August 12, a separate path was
cleared to be used as an entrance to Red-E-Mix and a separate sign posted. The
land on which the Red-E-Mix plant and office is located is owned by the Benevento
family. Red-E-Mix has 12 mixer trucks with the corporation's name on the panel.
Respondent's trucks are solely dump trucks, with Respondent's name on the cab,
which are used for delivering the sand and gravel or aggregate. In addition, there
are three pickup trucks, only one of which has the corporation's name on it. There
is only one set of scales, owned by Respondent, which is used by both Respondent
.and Red-E-Mix.
As previously noted, Respondent is engaged in the digging, processnig, sale, and
delivery of sand and gravel; while Red-E-Mix is engaged in the manufacture, sale,
and delivery of concrete. About 40 percent of Respondent's total sales are to Red-
E-Mix, its principal customer. This constitutes about 80 to 90 percent of Red-E-Mix's
requirements. Indeed only when Respondent does not have the particular type of
sand and gravel needed or when Respondent's supply happens to be low, does Red-
E-Mix make purchases from other sources. When Red-E-Mix needs sand and gravel,
Manager Derderian merely tells John Benevento "to take some sand and gravel
upstairs." There is "nothing formal, no letters or anything like that, no purchase
orders, just take some sand and gravel upstairs." Respondent's trucks then deliver
the material to the Red-E-Mix hoppers, located nearby. Red-E-Mix pays Respondent
by checks, signed by Maurice Freedman and Michael Benevento.
Donald Rideout was employed as a welder by Red-E-Mix about April 1960.
During the first month, he occasionally worked on the crane and bulldozer in the
Respondent's pit, at the request of John Benevento. On such occasion Rideout was
paid directly by Red-E-Mix for the time that he worked for Respondent. The
matter was then adjusted between the two companies by an internal bookkeeping
arrangement whereby the account which Red-E-Mix owed Respondent was reduced
by the amounts involved. One day, about a month after first starting to work for
Red-E-Mix, Rideout was working at Respondent's shop, assembling the dozer.
Michael Benevento told him at that time that from then on Rideout would work for
Respondent, that Michael Benevento was his boss, and that he should pay no atten-
tion to what anyone from Red-E-Mix told him. Thereafter, Rideout did no more
work for Red-E-Mix and, except for one check, was paid by check from Respondent.
The payroll summary card maintained by Red-E-Mix for its employees has the fol-
lowing notation on Rideout's card: "Transferred to Benevento Company." When
an employee is terminated or laid off by Red-E-Mix, no designation to that effect is
listed on the employee's summary card; there would just be no more entries on his
card.
George Kent, employed by Red-E-Mix as a mechanic for about 3 years, earned
some extra money one winter by also working for Respondent about three times a
week after he had finished the day's work for Red-E-Mix. He was paid directly by
Respondent for the work he performed for Respondent. In addition, when Re-
spondent's mechanic became too busy, Kent would help him out even during his
regular workday for Red-E-Mix. On such occasions, which happened about once
a month, Kent was required to inform the bookkeeper employed by Red-E-Mix of
the amount of time he worked for Respondent. According to Kent, he would then
receive a check from Red-E-Mix, which would include the time he worked for
Respondent, and the two companies would then adjust the matter among themselves.
According to Shaughnessy, the then bookkeeper of Red-E-Mix, Kent received a
separate check from Respondent for the work performed for it. There were also
times when Kent and Respondent's mechanic helped each other out as a personal
favor, without informing anyone about it.
Prior to December 8, 1960, Shaughnessy was employed as a bookkeeper by Red-
E-Mix. While so employed, he also did bookkeeping work on his own time at home
for Respondent, who at that time had no bookkeeper, and was paid separately for
that work by Respondent. After December 8, 1960, Shaughnessy was employed full
time by Respondent as its bookkeeper.
During the wintertime when the drivers employed by Red-E-Mix had no work
available, and on occasion during the summertime when such drivers had time off,
they would frequently be employed by Respondent to drive its trucks and were paid
for such work directly by Respondent.
M. BENEVENTO SAND & GRAVEL CO. 117
C. As to point No. 3 in remand order
During the year preceding the issuance of the complaint in the instant proceeding,
all cement purchased by and delivered to Red-E-Mix were from suppliers located
outside the Commonwealth of Massachusetts. During that period, the value of the
cement purchased by and delivered directly to Red-E-Mix from outside the Common-
wealth of Massachusetts was approximately $180,000. During that period, no pur-
chases or deliveries of cement were made from August 2 to September 23, 1960,
when the operations were shut down because of the strike
All sales of concrete by Red-E-Mix are made and delivered to locations within
the Commonwealth of Massachusetts, except for "probably one-quarter of one per-
cent" which may be delivered to Salem, New Hampshire. The value of the total
direct-out-of-State shipments made by Red-E-Mix during the year preceding the issu-
ance of the complaint was approximately $3,000 or $4,000.
III. CONCLUSIONS AND RECOMMENDATIONS
I deem it unnecessary to determine whether Respondent and Red-E-Mix consti-
tute a single employer within the meaning of the Act. Assuming, without deciding,
that they do not constitute a single employer, it nevertheless is apparent that the
close association between the two companies, including the proximity in location,
the loose and informal manner of dealing with each other, and the practice of
giving employees of Red-E-Mix opportunities to earn extra money by working for
Respondent, at the very least facilitated, if they did not actually contribute to, the
conduct of Respondent's employees in also picketing the operations of Red-E-Mix,
the sympathetic conduct of Red-E-Mix's employees in refusing to report for work,
and the enmeshing of Red-E-Mix in the Union's dispute with Respondent.
In any event, the record is clear, and I find, that the cessation of Respondent's
operations because of the strike had a direct and substantial impact upon the free
flow of commerce into the Commonwealth of Massachusetts It caused the opera-
tions of Red-E-Mix to be completely shut down so that Red-E-Mix ceased its
purchases and importation of cement from outside the Commonwealth of Massa-
chusetts for a period of 7 weeks during the busy season. This is admitted by
Red-E-Mix. Thus, Manager Derderian testified as follows:
Q (By Mr. FLAMM.) But for the strike at Benevento, you would have con-
tinued to have cement coming in9
A. Definitely.
Q. But in any event, as a result of the dispute with Benevento your plant
was shut down too?
A. That's right
Q. And as a result of your plant being shut down, you ceased your purchases
of cement from out of the State?
A. I had no alternative.
Q. And as a result of that occurring, Mr. Derderian, a number of the con-
struction jobs that you referred to were held up?
A. Yes.
Jacob Freedman, an officer of Red-E-Mix, testified to the same effect as follows:
Q. (By Mr. FLAMM.) Well, let me rephrase it, Mr. Freedman, that the shut
down at Red-E-Mix resulted from the dispute at Benevento?
A. That's right.
Contrary to Respondent's contention, it is immaterial that Red-E-Mix could have
obtained all the processed sand and gravel it needed from other nearby sources to
have enabled it to continue its operations if its premises were not picketed and if
its employees remained at work. We are not here concerned with what would have
happened under a different set of facts. The court instructed the Board to deter-
mine, not what might have happened, but what "as a matter of fact" did happen in
this case The admitted facts are that the premises of Red-E-Mix were also picketed,
that the employees of Red-E-Mix refused to report for work, and that neither sand
and gravel nor cement could be delivered to Red-E-Mix from any sources so long
as the picket line remained. As a result, there was in fact a total shutoff of the flow
of commerce from sources outside of Massachusetts to Red-E-Mix.
I find that, during the year preceding the issuance of the complaint in this pro-
ceeding, Respondent's operations affected commerce within the meaning of the
Act, and recommend that the Board reaffirm its findings in this respect.