Operating Engineers, Local 17, et al

National Labor Relations Board - Board Decisions

Apr 19, 1974

210 N.L.R.B. 150 (N.L.R.B. 1974)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers Local No.
17, 17A and 17B, AFL-CIO and Firelands Sewer
and Water Construction Co., Inc. Case 3-CC-809
April 19, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 14, 1974, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a brief in support thereof and the
General Counsel filed limited exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge as
herein modified, and to adopt his recommended
Order.
The record discloses and the Administrative Law
Judge found that a meeting had been arranged with
the Buffalo Sewer Authority for July 11, 1973, to
discuss the Authority's award of a contract to
Firelands Sewer and Water Construction Co., Inc., a
nonunion contractor with which Respondent had its
primary dispute. The Authority informed the repre-
sentatives of the various unions at the meeting that
Firelands was the lowest responsible bidder. Accord-
ing to Respondent's business representative, Thomas
McPartlan, whose testimony about the meeting was
credited by the Administrative Law Judge, someone
asked the union representatives what their local
unions intended to do. McPartlan replied that if
Firelands were awarded the contract, the Respon-
dent would engage in informational picketing.
The Administrative Law Judge, citing United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local No. 639 (American Modulars Corpo-
ration), 203 NLRB No. 162, concluded that M%,j'at-
lan's statement constituted a threat within the
meaning of Section 8(b)(4)(ii)(B) of the Act inasmuch
as it was "by its terms unrestricted in scope and
contemplated picketing the entire jobsite including
future phases and any employer working there." We
do not agree.
In American Modulars Corporation respondent
union, when several neutral contractors were work-
ing at the jobsite, threatened to engage in "informa-
tional picketing of the Sherwood Acres jobsite." The
Board found, "This statement, by its breadth,
210 NLRB No. 30
contemplated picketing of the entire jobsite and
anyone working there, whether connected with the
primary or neutral persons or employers." Unlike the
situation in American Modulars Corporation, McPart-
lan's statement was not a threat to picket neutral
contractors who were or would in the future be
working at the jobsite. To find that the statement was
a general threat to picket neutrals is to disregard the
context in which the statement was made. Discussion
at the meeting had centered on Firelands; no
contracts other than the one to Firelands had been
let; no other contractors or subcontractors were at
the time involved in the contracted work or talked
about at the meeting; and McPartlan was responding
to a question as to what Respondent would do. In
these circumstances, McPartlan's statement, al-
though not specific, is reasonably construed as
threatening to picket Firelands. A threat made to a
contractor to engage in informational picketing
against a subcontractor with which a union has a
primary dispute is not a threat to engage in
proscribed activity but rather is the mere giving of
notice of prospective picketing against a subcontrac-
tor of the general contractor. Such is the case here.
For the above reasons, we find that McPartlan's
statement at the July 11, 1973, meeting with the
Buffalo Sewer Authority is not violative of Section
8(b)(4)(ii)(B) of the Act. Since we are adopting the
Administrative Law Judge's finding that the Respon-
dent engaged in unlawful picketing which violates
both clauses (i) and (ii) of Section 8(b)(4)(B) of the
Act, the remedy remains the same. Accordingly, we
shall adopt the Administrative Law Judge's recom-
mended Order in toto.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Union of Operating Engineers Local No. 17, 17A
and 17B, AFL-CIO, its officers, agents , and repre-
sentatives, shall take the action set forth in the said
recommended Order.
MEMBER KENNEDY, dissenting in part:
I agree with the majority's adoption of the
Administrative Law Judge's finding that Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the Act by its
picketing at the Squaw Island jobsite, I disagree with
the majority's reversal of his related finding that
Respondent violated Section 8(b)(4)(ii)(B) by threat-
ening the Buffalo Sewer Authority with a picket line
if Firelands Sewer and Water Construction Co., Inc.,
was awarded a contract at the Squaw Island site.
OPERATING ENGINEERS , LOCAL 17, ET AL.
According to the credited testimony, at a meeting
called by the Sewer Authority to discuss the
awarding of a contract to Firelands, Respondent's
business representative, McPartlan, said that if the
contract was awarded to Firelands, his Union would
engage in an informational picket. The Administra-
tive Law Judge found that this threat "was by its
terms unrestricted in scope and contemplated picket-
ing the entire jobsite including future phases and any
employers working there" and therefore constituted
a violation of Section 8(b)(4)(ii)(B).
My colleagues disagree with the Administrative
Law Judge's interpretation of McPartlan's threat.
They say his threat did not contemplate anything
more than lawful informational picketing limited to
Firelands. It seems to me that this interpretation is
disingenuous; it can only be reached with the aid of
blinkers. I would remind my colleagues that as
observed by Justice Holmes, "Words are not crystals,
transparent and unchanged." Meaning of words can
rarely be deduced simply by contemplating the
words in a vacuum. It is the context in which the
words are uttered, the before and after which must
be examined to ascertain meaning. It is a fact that
when the time came for Respondent to carry out its
threat to "engage in an informational picket," it
unlawfully picketed the entire Squaw Island jobsite
and not simply Firelands' operation at the site. It
would be naive not to believe that this was
Respondent's intent when it threatened to engage in
informational picketing. The Administrative Law
Judge so construed the threat; and so do I.
Accordingly, I would adopt the Administrative Law
Judge's decision in its entirety.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Buffalo , New York, on November 19
and 20, 1973,1 pursuant to a charge filed on October 16 by
Firelands Sewer and Water Construction Co., Inc. (herein
referred to as Firelands) and a complaint issued on
November 1.
The complaint alleged that the International Union of
Operating Engineers Local No. 17,17A and 17B, AFL-CI-
O (herein referred to as the Respondent) violated Section
8(b)(4)(i) and (iiXB) of the National Labor Relations Act,
as amended (herein referred to as the Act), by threatening
the Buffalo Sewer Authority (herein referred to as the
Authority) it would strike and/or picket if the Authority
awarded Firelands a contract ; ordered, instructed, request-
ed, and appealed to the employees of the Authority,
Dunbar and Sullivan Dredging Co. (herein referred to as
1 All dates referred to are in 1973 unless otherwise stated.
2 The picketing conducted by Respondent at Tifft Street Farms where
Firelands as part of its contract with the Authority was also performing
work was not alleged to be unlawful
151
Dunbar), Herbert F. Darling, Inc. (herein referred to as
Darling), and other neutral persons to cease work at Squaw
Island ; and by unlawfully picketing at Squaw Island2 with
an object of forcing or requiring the Authority , Dunbar,
Darling, and other neutral persons to cease using , selling,
handling, transporting, or otherwise dealing in the prod-
ucts of and to cease doing business with Firelands.
Respondent in its answer filed on November 8 denied
having violated the Act.
The issues involved are whether the Respondent violated
Section 8(bX4Xi) and (iiXB) of the Act by threatening the
Authority; inducing employees of neutral or secondary
persons to cease work ; and by picketing at Squaw Island
for the proscribed object alleged.
The parties at the hearing were afforded the opportunity
to introduce relevant evidence , to examine and cross-
examine witnesses , to argue orally on the record, and to
submit briefs.
Upon the entire record in this case , from my observation
of the witnesses , and after due consideration of the briefs
filed by the General Counsel and Respondent ,3 I hereby
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Firelands , with its principal office and place of business
located in Ohio, is engaged in the construction industry.
During the 12-month period preceding November 1,
Firelands , in the course of its operations , performed
services valued in excess of $50,000 in states outside the
State of Ohio.
The Authority operates and maintains a sewage and
water treatment disposal facility for the city of Buffalo,
New York, which is located at Squaw Island.
Dunbar, with its principal office and place of business
located at Dearboard, Michigan , is engaged in the business
of dredging and building docks.
Darling, with its principal office and place of business
located at Williamsville, New York, is engaged in business
as an engineering contractor in the construction industry.
Firelands has a contract with the Authority, valued at
approximately $10.4 million, for the removal of decom-
posed garbage from the Authority's waste facility located
at Squaw Island . Firelands in connection with this contract
awarded Dunbar a contract for the construction of a dock
at Squaw Island and Dunbar awarded Darling a contract
for the pile-driving work to be performed in constructing
the dock.
Respondent admits, and I find that Firelands , Dunbar,
Darling, and the Authority4 are employers and/or persons
engaged in commerce within the meaning of Section 2(6)
and (7) and Section 8(bX4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find that the International
3 The Charging Party did not submit a brief.
4 Public employers are "persons" protected from secondary activity
within the meaning of Section 8(b)(4) of the Act Local No. 16, International
Longshoremen and Warehousemen 's Union (City of Juneau), 176 NLRB 889.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of Operating Engineers Local No. 17, 17A and 17B,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondents Threat Made to the Authority
Gillman Laehy, who is the general manager of the
Authority, testified in December 1972 that Authority
opened bids for the site preparation of a secondary
treatment plant to be constructed on Squaw Island (herein
referred to as the Squaw Island jobsite), which involved
removal of approximately 2 million yards of solid waste
material from Squaw Island to a disposal site located
approximately 6 or 7 miles distance at Tifft Street Farms.
After the contract was rebid in June it was awarded by the
Authority to Firelands which was the lowest responsible
bidder.
Thomas McPartlan, who is the business representative of
Respondent, stated after learning in June that Firelands
who worked as an open-shop contractor in other areas was
the low bidder on the job, he had a meeting arranged
through the Buffalo AFL-CIO Council with the Authority.
George Wessel, who is the president of the Buffalo AFL-
CIO Council testified he arranged the meeting.
This meeting at which awarding the contract to Fire-
lands was discussed was held on July 11, and was attended
by representatives of the Authority and various labor
organizations including Respondent.
General Manager Laehy stated during the meeting there
was a discussion concerning why the Authority would
employ an open-shop contractor rather than a union
contractor whereupon it was explained that the Authority
because of the funding involved, including the use of
Federal funds, had no choice but to award the contract to
the lowest responsible bidder which was Firelands. Laehy
testified about the middle of the meeting which lasted
approximately 1 1 /2 to 2 hours he heard Respondent's
Business Representative McPartlan make the statement if
they proceeded to engage Firelands as the contractor for
the job his union would go on strike. Laehy's response was
it seemed to him that wasn't legal because they had,
followed the procedure for lettmg the contract to the letter
of the law and had no choice except to give it to the lowest
responsible bidder which was Firelands. Laehy, however,,
did not testify concerning what conversation immediately
preceded McPartlan's alleged remark and under cross-'
examination expressed uncertainty whether McPartlan had
used the word strike or picketing. Although at least four,
other representatives of the Authority were present during
this meeting none of them testified.
Business Representative McPartlan denied having stated,
his union would go on strike. His version was he told the
Authority if the contract was awarded to Firelands hisl
union would engage in an informational picket.
According to McPartlan this statement was made)
following a discussion about what effect awarding the first,
phase of the job to an open shop or nonunion contractori l
8 The southern part of the island was formerly called Bird Island.i when at is sometimes closed.
would have on future phases of the job and the representa-
tives of the various unions present being asked by someone
what their unions intended to do. McPartlan further stated
when someone questioned the legality of informational
picketing he expressed it was legal. While McPartlan
claimed he did not know whether the Authority's contract
with Firelands had been signed he acknowledged it was
discussed at the meeting that Firelands was the lowest
responsible bidder.
Other union representatives present at the meeting
including President Wessel of the Buffalo AFL-CIO
Council, Daniel Vujakovich, who is business agent of Iron
Workers Local 6, and John Kelleher who is business
representative of Asbestos Local 4 substantially corrobo-
rated McPartlan's testimony that he didn't mention a strike
but said if Firelands was awarded the contract there would
be an informational picket line put up.
I credit Business Representative McPartlan's testimony
which was substantially corroborated by President Wessel,
Business Agent Vujakovich , and Business Representative
John Kelleher rather than the uncorroborated testimony of
General Manager Laehy who expressed uncertainty in his
own testimony and find that McPartlan informed the
Authority if Firelands was awarded the contract his union
would engage in an informational picket.
B. Respondent's Picketing at the Squaw Island
Jobsite
Squaw Islands is an island separated from the mainland
by the Black Rock Channel (herein referred to as the
channel) which runs north and south and was estimated to
be approximately 300 feet wide . Access to Squaw Island
from the mainland may be obtained by two bridges which
are located approximately three -forths of a mile apart.
The bridge at the north end of the Island is the
International Railroad Bridge which has a road called the
Authority's Access Road (herein referred to as the Access
Road). The Bridge at the south end of the Island is the
West Ferry Bridge (herein referred to as the Ferry Bridge).
On the island itself and running parallel with and adjacent
to the Channel there is a road which runs between the two
bridges . Along this road between the two bridges but closer
to the Ferry Bridge is located a building belonging to the
Authority which has a gate that controls the use of the road
(herein referred to as the Authority's Gate).6
Firelands , whose employees are not represented by any
labor organization, began work on the Squaw Island
jobsite about September 1. According to Firelands Project
Superintendent Gillum the process to be employed for
removing the waste material from Squaw Island to Tifft
Street Farms was to load the waste material at Squaw
Island by conveyors onto barges which would then
transport the waste material to a dock located approxi-
mately 6 miles south where it would be unloaded with clam
buckets into trucks to be transported to and disposed of in
a sanitary land fill.
On October 9 Respondent began picketing at the Squaw
Island jobsite with picket signs captioned:
e This gate is normally open during the week except for the weekends
I
OPERATING ENGINEERS, LOCAL 17, ET AL.
Employees of Firelands Sewer and Water Construction
Company, Inc. are employed to perform Operating
Engineers work on this job under wage and other
conditions of employment inferior to those enjoyed by
employees represented by the Operating Engineers
Local 17, 17A, 17B, affiliated with the AFL-CIO.7
The picket lines were established at the entrance to the
Access Road on the mainland side of the channel and on
Squaw Island itself at the Authority's Gate.
When the picketing began and throughout the course of
the picketing, Firelands' employees , who used both the
Access Road and the road through the Authority's Gate
for ingress to and egress from their work area on the
Squaw Island jobsite were performing work only in the
area of a dock being constructed by the channel between
the Authority's Gate and the Access Road. The location of
this worksite was estimated by Firelands ' Project Superin-
tendent Gillum to be approximately 3,000 feet north of the
Ferry Bridge towards the International Railroad Bridge.
Dunbar, whose employees are represented by Local 18,
which is the marine branch of the Operating Engineers
Union, had a contract with Firelands to construct a dock
at Squaw Island and to haul barge material from Squaw
Island to Tifft Street Farms. Dunbar began work on the
Squaw Island jobsite on the afternoon or evening of
October 9 at which time using tugboats it bought two
barges containing pile-driving equipment up the Channel
and moored them along the bank on Squaw Island just
north of Ferry Bridge. The overall length of this moored
equipment was estimated by Dunbar's Representative
Headley to be approximately 260 feet and Headley and
Firelands' Project Superintendent Gillum estimated the
barges were moored approximately 200 feet south of the
Authority's gate towards the Ferry Bridge . One barge
contained a derrick with Dunbar's name on it. Both
Firelands' Project Superintendent Gillum and Dunbar's
representative Albert Headley estimated the distance from
where these barges were moored to the area north where
Firelands employees were working on the Squaw Island
jobsite to be approximately 2,500 feet. Respondent offered
no evidence to dispute their testimonies concerning the
distances which I credit.
Dunbar's Representative Headley testified on October
10 it had planned to pick up Darling's employees and to
move the barges from their mooring site directly across the
Channel to the mainland side where Darling was located,
pick up pilings and proceed to the proposed docksite to
begin driving pilings . Darling's contract with Dunbar was
to furnish personnel and supply and drive the pilings.
Darling's Representative Roy Shafer , corroborated Head-
ley's testimony concerning the proposed plan which I
credit.
Dunbar's Representative Headley testified on October 9
the pickets were picketing within 50 feet of the Authority's
gate . However early on the morning of October 10 he
observed some of the pickets move from the area of the
Authority's gate about 200 feet south along the road
Respondent since September 25 had been picketing Tifft Street Farms
with identical picket signs where Firelands was also performing work under
its contract with the Authority.
6 Respondent had not been prohibited from picketing at the Authority's
Gate.
153
towards the Ferry Bridge to where they began picketing on
the road about 5 feet from and adjacent to where Dunbar's
barges were moored.8 Both Firelands' Project Superintend-
ent Gillum and Darling's Representative Roy Shafer
corroborated Headley's testimony that on October 10
Respondent began picketing on the road adjacent to the
barges. Respondent's Business Representative McPartlan
acknowledged on October 9 the pickets were picketing
closer to the Authority's Gate and did not deny the
picketing was thereafter conducted adjacent to the barges.
Headley testified Dunbar's employees who worked
aboard the barges drove their vehicles across the Ferry
Bridge where they parked and boarded the barges at the
mooring site having to cross the picket lines.
On the morning of October 10 Respondent also began
picketing in the Channel using two picket boats containing
identical pickets signs as those picket signs used on land.9
According to McPartlan the pickets on the picket boats
were instructed to conduct their picketing activities in the
channel area between the Ferry Bridge and the Interna-
tional Railroad Bridge. Darling's jobsite was located on the
mainland directly across the channel from where Dunbar's
barges were moored. Its employees entered their jobsite
through a gate with a sign designating the gate was to be
used exclusively by Darling's employees.
Darling's Representative Shafer testified on the morning
of October 10, which was the day his company was to
begin work on the job, he observed Respondent's Business
Manager Chaffee walk across the Ferry Bridge from
Squaw Island through Darling's gate to its jobsite where he
had a discussion with Darling's employees. Shafer did not
hear what was said. Shafer then observed Chaffee who had
a picket sign with the wording concealed leave the work
area, flip the picket sign over exposing its caption to those
persons who faced him,'° and return to where the pickets
were situated on Squaw Island.
While Business Manager Chaffee did not testify and the
incident was undenied since the evidence does not
establish what was discussed or that Shafer engaged in
picketing on that occasion no finding is made with respect
to this incident.
Both Shafer and Dunbar's Representative Headley
testified they observed two picket boats picketing that
morning between Dunbar's barges and the mainland and
between Ferry Bridge and the docksite. Headley stated
when Dunbar's employees crossed the channel that
morning in a rowboat to pick up Darling's employees and
transport them back across the channel to Dunbar's
barges, Darling's employees refused to enter the rowboat.
Headley stated while they were attempting to pick up
Darling's employees the picket boats were picketing
between Dunbar's barges and the east bank of the channel
where they were attempting to pick them up.
Respondent did not deny the picketing was conducted in
the channel area where Dunbar and Darling were
attempting to work which would have been included in the
area where McPartlan had instructed them to picket.
9 Business Representative McPartlan had made arrangements for
obtaining the picket boats several days earlier.
10 The evidence does not establish whether Darling's employees could
observe the caption on the picket sign earned by Chaffee when he flipped
the sign over.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Darling's Representative Shafer stated after leaving his
jobsite that morning he was informed his men had refused
to go to work that day.
Shafer testified that from October 10 to about October
19 when Dunbar's barges were removed, that although his
employees reported to their jobsite every morning they
refused to perform any work . On each of these occasions
Shafer observed the picket boats picketing in the Channel
area between Dunbar 's barges and the mainland where his
employees were located as well as between the Ferry
Bridge and the International Railroad Bridge . Shafer
testified after his company was unable to perform any
work pursuant to its contract with Dunbar its contract was
rescinded.
Although Darling's employees did not testify Shafer
stated the only reason given by them for refusing to work
was because they couldn't cross the picket line.
Since Darling's employees reported to work each day
and except for the picketing which was being conducted by
the picket boats in the area where they were to perform
their work with no other reason given by them for their
refusal to work , I find such refusal resulted from the
picketing.
Dunbar's Representative Headley testified Respondent
continued to picket adjacent to Dunbar's barges from
October 10 to October 19 at which time the barges were
removed by Dunbar because they were unable to get
personnel to come aboard the barges to proceed with the
work. Headley stated on several occasions he saw a picket
boat tied to Dunbar 's barge and on one occasion when he
was aboard a barge he saw pickets on the barge itself.
Under cross-examination Headley acknowledged he did
not ask the pickets aboard the barge to leave or unmoor
their boat and was informed on one occasion they had
coffee aboard the barge.
Firelands Project Superintendent Gillum corroborated
Headley testimony that the picketing continued adjacent to
the Dunbar's barges from October 10 through October 19
and that on one occasion he observed a picket boat tied to
Dunbar's barge.ii
Respondent 's Business Representative McPartlan did
not deny that during this period the picketing was
conducted adjacent to Dunbar's barges. While he acknowl-
edged he had observed the picket boat moored to the barge
and had observed pickets aboard the barge he denied they
were actually picketing on the barge itself but were instead
crossing the barge to get fuel for the picket boat. According
to McPartlan and one of the pickets using the picket boat,
James Mann, Respondent used a docking area south of
where the barges were moored to refuel the picket boats,
obtain supplies, and change crews. Mann testified the only
place they would refuel was by using stairs located by the
Ferry Bridge.
Based upon the above evidence I find that Respondent,
from October 10 until the barges were removed about
October 19, conducted picketing on the road adjacent to
Dunbar's barges. Assuming picketing did occur aboard the
barges themselves in view of the evidence I find this to be
an isolated incident. With respect to these occasions on
1 1 Headley's testimony is unclear whether he actually observed pickets
aboard the barges.
which the picket boats were moored to the barges the
evidence does not establish whether the picket boats were
either manned or displayed picket signs.
Dunbar's Representative Headley testified on three
occasions in November when his company's tugboat which
was identified with the Dunbar's name was proceeding up
the channel to perform work at the docksite where
Firelands employees were working it was turned back
because of the picket boat. Headley stated the first
occasion occurred on November 14 when his tugboat was
proceeding to the Squaw Island jobsite to move some
equipment. As the tugboat proceeded up the Channel
through the Ferry Bridge it encountered a picket boat
approximately 200 feet north of the Ferry Bridge. Headley
first observed the picket boat while the tugboat was
approximately 800 feet south of the Ferry Bridge as the
picket boat was proceeding from the area where Dunbar's
barges had been previously moored towards the center of
the channel.
Headley stated while the tugboat captain, who refused to
proceed upon encountering the picket boat, was in the
process of turning the tugboat around he engaged one of
the two pickets in the picket boat subsequently identified
as James Mann in a conversation. Headley's version was
he asked Mann if there was a picket line and Mann nodded
affirmatively. Headley asked who they were picketing and
Mann replied "Firelands." Headley stated he then ex-
plained they were a bona fide union company with union
personnel and asked Mann if he was picketing them
whereupon Mann replied "Yes sir." According to Headley
during the conversation the picket boat was approximately
75 feet from the tugboat. Under cross-examination
Headley was uncertain whether he had asked were they
picketing "us" or "this company."
James Mann testified on November 14 he and Harry
Gerlach were in the picket boat which was moving east and
west in the channel when he observed Dunbar's tugboat
come through the bridge. According to Mann they had just
refueled the picket boat and gotten out in the channel
before seeing the tugboat.12 Mann stated as they turned the
picket boat around to get out of the way of the tugboat a
man on the tugboat asked were they picketing union
contractors saying they were a bona fide union contractor.
Mann's response was "No, I'm picketing Firelands." Mann
believed either he or Gerlach pointed to the picket sign.
Mann who stated he had no trouble hearing the man's
voice denied hearing the man on the tugboat ask if he was
picketing them or his company and denied having said
they were picketing Dunbar.
Harry Gerlach, who is a member of Respondent and was
in the picket boat with Mann on November 14 stated after
refueling the picket boat and starting out in the channel
they saw the tugboat coming up the channel. On direct-
examination Gerlach testified the only words of the
conversation between Mann and the man of the tugboat he
remembered were the last ones by someone on the tugboat
asking "Are you picketing a bona fide union company" or
"outfit" or something and Mann replying "No, we're
picketing Firelands."
12 Mann stated they had been picketing in the channel that day in the
direction north and south as well as east and west.
OPERATING ENGINEERS , LOCAL 17, ET AL. 155
However under cross-examination Gerlach, who ac-
knowledged he did not overhear the entire conversation
because he had been having trouble with the motor and
because of the noise of the tugboat , admitted he was
uncertain whether he had heard the question about
whether they were picketing a bona fide union company or
outfit as he had testified to on his direct examination.
Gerlach also admitted , contrary to Mann 's testimony,
that the reason they proceeded into the channel upon
seeing the tugboat was to be sure the tugboat would see
their picket signs.13
I credit the testimony of Headley who impressed me as
being a more credible witness than Mann and find that
pursuant to Headley's inquiry Mann had informed him
they were picketing his company . 14 Apart from my
observation of the witnesses Gerlach not only failed in his
attempt to corroborate Mann's testimony but contradicted
him by his testimony concerning the reason they had
proceeded into the channel upon seeing Dunbar's tugboat.
Headley stated on November 16 while he was on the
dock where Firelands ' employees were working he ob-
served Dunbar's tugboat proceeding north towards the
dock. When the tugboat was approximately 400 feet from
the dock he saw the picket boat which was located
approximately 50 to 100 feet north of the dock proceeding
south down the channel, subsequently turn and position
itself about halfway between the dock and the tugboat
whereupon the tugboat turned around and proceeded
south back down the channel . The evidence does not
establish exactly how close the picket boat was from the
dock when it actually turned in front of the tugboat.
James Mann who stated he was in the picket boat on
November 16 acknowledged positioning the picket boat
between the dock and the tugboat but claimed he did so to
get out of the way of the tugboat which had been preceded
by a freighter coming up the channel . According to Mann
when the incident occurred the picket boat was picketing
in the area of the dock where Firelands' employees were
using a crane on one barge to unload stone from another
barge in the channel.
Headley testified on November 17 Dunbar's tugboat was
proceeding north up the channel headed for the dock and
upon approaching the Ferry Bridge he observed the picket
boat with Business Representative McPartlan aboard
coming out from the bank of the channel proceeding
towards the center of the channel about the same time they
were coming through the Ferry Bridge whereupon the
tugboat captain turned the tugboat around and proceeded
south back out of the channel.
McPartlan testified on that occasion they were proceed-
ing north about the center of the channel going in the same
direction as the tugboat . However, under cross-examina-
tion McPartlan acknowledged that prior to this incident
the picket boat had been docked at Squaw Island to get
fuel and change people and as they proceeded into the
channel he did not see the tugboat.
According to Firelands' Project Superintendent Gillum
the work performed by Firelands ' employees at the dock
which dock has since been completed included unloading
equipment , assembling conveyors, and mounting the
conveyors on the dock prepatory to loading barges. Gillum
denied Firelands used the channel for performing its work
including moving equipment or employees.
Both Dunbar's Representative Headley and Darling's
Representative Shafer denied Fireland 's employees ever
performed any work in the vicinity of their employees or
Dunbar's barges or tugboats.
Business Representative McPartlan while observing
attempts by Dunbar and Darling to use the channel
acknowledged that no Firelands' employees had either
worked in the vicinity of Dunbar' s barges or used the
channel . According to McPartlan by picketing at the
Authority's gate and the Access Road they would be able
to reach all of Firelands' employees getting onto the
jobsite.
McPartlan asserted as his reason for utilizing the picket
boats was because of the possibility Firelands might use
the channel as an access route . While McPartlan claimed it
was never their intention or desire by picketing in the
channel to prevent employees of Dunbar or Darling from
working he admitted he knew it had that effect.
While McPartlan testified the picketing was conducted
for informational purposes under cross-examination he
acknowledged he did not know what kind of wages or
benefits Fireland's employees were receiving nor had he
investigated such matter.
The picketing at the Squaw Island jobsite was still
continuing at the time the hearing was held. However, with
respect to the picketing conducted in the channel only one
picket boat has been used since about October 23.
C. Analysis and Conclusions
The General Counsel contends while Respondent denies
that the Respondent violated Section 8(bX4Xi) and (iiXB)
of the Act 15 by unlawfully threatening the Authority it
would strike or picket if Firelands was awarded the
contract ; unlawfully inducing employees of neutral or
secondary persons to cease work ; and by unlawfully
picketing the Squaw Island jobsite. Respondent asserts as
its defense the picketing was for informational purposes
and therefore lawful.
13 Although Gerlach was cross-examined about what instructions he had
received for picketing , the form of the question which also asked about his
own intentions rendered his answer on this point unclear.
14 A tape recording of the conversation between Headley and Mann
which was made by Headley at the time the incident occurred and offered
as evidence by the General Counsel for the purpose of impeaching Mann's
testimony, the sounds of which I find are not clearly audible , had not been
considered in making this credibility resolution.
15 Section 8(bX4) of the Act makes it an unfair labor practice for a
union:
(i) to engage in, or to induce or encourage any individual . . 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 .. where in either case
an object thereof is:
(B) forcing or requiring any person to cease using, selling , handling,
transporting, or otherwise dealing in the products of any other
producer, processor, or manufacturer, or to cease doing business with
any other person ...: Provided That nothing contained in this clause
(B) shall be construed to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing ....
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The findings, supra, concerning the threat established
Respondent 's Business Representative McPartlan at the
July 11 meeting informed the Authority's representatives if
Firelands, a nonunion contractor which was the lowest
responsible bidder, was awarded the contract his Union
would engage in an informational picket. Inasmuch as this
threat to the Authority to keep it from awarding the
contract to Firelands was by its terms unrestricted in scope
and contemplated picketing the entire jobsite including
future phases and any employers working there, I find that
it constituted a threat within the meaning of Section
8(b)(4)(iiXB) of the Act. See United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, Local No.
639 (American Modulars Corporation), 203 NLRB No. 162.
Absent evidence and findings of any inducement other
than the picketing itself the remaining issue is whether the
subsequent picketing conducted at the Squaw Island
jobsite was also unlawful.
The undisputed evidence established Respondent's
primary dispute was with Firelands, a nonunion contrac-
tor, rather than with the Authority or the other contractors
including Dunbar and Darling which were also performing
work at the Squaw Island jobsite.
The Board in Moore Dry Dock16 set forth the following
criteria to serve as a guide in determining whether
picketing a primary employer at a common situs, as here,
violates Section 8(b)(4)(B) of the Act: (a) The picketing is
strictly limited to times when the situs of dispute is located
on the secondary employer's premises; (b) at the time of
the picketing the primary employer is engaged in its
normal business at the situs; (c) the picketing is limited to
places reasonably close to the location of the situs; and (d)
the picketing discloses clearly that the dispute is with the
primary employer.
These standards are not to be applied on an indiscrimi-
nate "per se" basis but regarded merely as aids in
determining whether a violation has occurred. International
Brotherhood of Electrical Workers, Local Union 861
(Plauche Electric, Inc.), 135 NLRB 250, 255. In applying
these standards the controlling consideration is to require
that the picketing be conducted so as "to minimize its
impact on neutral employees insofar as this can be done
without substantial impairment of the effectiveness of the
picketing in reaching the primary employees." Retail Fruit
& Vegetable Clerks' Union, Local 1017 (Crystal Palace
Market), 116 NLRB 856, 859, enfd. 249 F.2d 591 (C.A. 9,
1957).
Respondent's contention the Moore Dry Dock standards
are inapplicable here because its picketing at Tifft Street
Farms was not alleged to be unlawful is rejected. The fact
picketing conducted at more than one location may not be
unlawful at some locations would not preclude finding it to
be unlawful at a given location.
Applying the Moore Dry Dock standards to the picketing
conducted at the Squaw Island jobsite the findings, supra,
established that Respondent, while initially picketing at the
Access Road and in the immediate vicinity of the
Authority's gate which entrances were used by Firelands'
employees for ingress to and egress from its worksite,
thereafter beginning on October 10 extended and main-
tained its picketing on the road adjacent to Dunbar's
barges where Dunbar's employees boarded the barges to
work and utilized picket boats to picket in the channel area
where the employees of Dunbar and Darling were
attempting to use the channel to perform their work
notwithstanding the fact Firelands ' employees who did not
use the channel in performing their work were at all times
during such picketing confined to a worksite located at a
distance of approximately 2,500 feet away . As a result of
such picketing the employees of Darling and Dunbar were
unable to perform their work and Darling's contract with
Dunbar was rescinded.
Clearly such picketing, which was not reasonable limited
to places close to the worksite where Firelands was
performing its work, failed to comply with the Moore Dry
Dock standard that the picketing be limited to places
reasonably close to the location of the situs.
Apart from the manner in which the picketing was
conducted, other evidence bearing on Respondent's true
objective included the statement by Respondent 's picket
James Mann to Dunbar 's Representative Headley, while
Dunbar's tugboat was attempting to use the Channel, that
the picketing was against his company in addition to the
prior unlawful threat to the Authority to picket if it
awarded the contract to Firelands.
Respondent by its conduct herein found rather than
seeking to insulate those employers including the Authori-
ty, Dunbar, and Darling with whom Respondent had no
dispute instead deliberately enmeshed them in its dispute
with Firelands.
Under these circumstances , I find, that Respondent by
its threat to picket and by picketing the Squaw Island
jobsite intended thereby to induce or encourage employees
of Dunbar, Authority, and Darling to strike or engage in a
refusal to perform services for their respective employers
and threatened, coerced, and restrained Dunbar, Authori-
ty, and Darling with an object of forcing Dunbar and the
Authority to cease doing business with Firelands and
forcing Darling to cease doing business with Dunbar in
order to force or require Dunbar, in turn, to cease doing
business with Firelands, thereby violating Section 8(bX4Xi)
and (iiXB) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of those employers
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several states and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. Firelands Sewer and Water Construction Co., Inc.,
Dunbar and Sullivan Dredging Co., Herbert F. Darling,
is Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547, 549.
OPERATING ENGINEERS , LOCAL 17, ET AL. 157
Inc., and the Buffalo Sewer Authority are employers or
persons engaged in commerce or in an industry affecting
commerce within the meaning of Section 2 (6) and (7) and
Section 8(bX4) of the Act.
2. Respondent, International Union of Operating
Engineers Local No. 17, 17A and 17B, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening the Buffalo Sewer Authority with a
picket line if Firelands Sewer and Water Construction Co.,
Inc., was awarded the contract in furtherance of its dispute
with Firelands Sewer and Water Construction Co., Inc.,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(bX4XiiXB) of the Act.
4. By engaging in picketing at the Squaw Island jobsite
inducing and encouraging individuals employed by Dun-
bar and Sullivan Dredging Co., Herbert F. Darling, Inc.,
and the Buffalo Sewer Authority to engage in a strike or
refusal in the course of their employment to perform
services, and by coercing or restraining Dunbar and
Sullivan Dredging Co., Herbert F. Darling, Inc., and the
Buffalo Sewer Authority with an object of forcing or
requiring Dunbar and Sullivan Dredging Co., and the
Buffalo Sewer Authority to cease doing business with
Firelands Sewer and Water Construction Co., Inc., and
forcing or requiring Herbert F. Darling, Inc., to cease
doing business with Dunbar & Sullivan Dredging Co., in
order to force or require Dunbar and Sullivan Dredging
Co., in turn, to cease doing business with Firelands Sewer
and Water Construction Co., Inc., Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(4xi) and (ii)(B) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) and Section 8(bX4) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(b)(4xi) and (ii)(B) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and to take
certain affirmative action to effectuate the policies of the
Act.
The Remedy proposed by General Counsel for the
removal of all picketing from the jobsite which would
infringe upon Respondent 's right to engage in lawful
primary picketing is rejected.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
Respondent, International Union of Operating Engi-
neers Local No. 17, 17A and 17B, AFL-CIO, its officers,
representatives, agents, and assigns, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging individuals
employed by Dunbar and Sullivan Dredging Co., Herbert
F. Darling, Inc., and the Buffalo Sewer Authority, or by
any other person engaged in commerce or an industry
affecting commerce to engage in, strikes or refusals in the
course of their employment to use , manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities , or perform services for
their respective employers ; and from threatening, coercing,
or restraining the Buffalo Sewer Authority , Dunbar and
Sullivan Dredging Co., Herbert F. Darling, Inc., or any
other person engaged in commerce or in an industry
affecting commerce , where , in either case , an object thereof
is to force or require the Buffalo Sewer Authority, Dunbar
and Sullivan Dredging Co., or any other person to cease
doing business with Firelands Sewer and Water Construc-
tion Co., Inc., or to force or require Herbert F. Darling,
Inc. to cease doing business with Dunbar and Sullivan
Dredging Co., in order to force or require Dunbar and
Sullivan Dredging Co., in turn, to cease doing business
with Firelands Sewer and Water Construction Co., Inc.
(b) In any manner, or by any means , including threats to
picket , picketing, orders , directions, instructions, requests,
or appeals, however given, made or imparted or by any like
or related acts or conduct by permitting any such to
remain in existence or effect, engaging in, or inducing or
encouraging any individual employed by Dunbar and
Sullivan Dredging , Co., the Buffalo Sewer Authority and
Herbert F. Darling, Inc., or by any other person engaged in
commerce or in an industry affecting commerce to engage
in, a strike or 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 service or in any manner, or by any
means, threatening, coercing, or restraining Dunbar and
Sullivan Dredging Co., the Buffalo Sewer Authority and
Herbert F . Darling, Inc., or any other person engaged in
commerce or in an industry affecting commerce , where in
either case an object thereof is to force or require Dunbar
and Sullivan Dredging Co., the Buffalo Sewer Authority,
or any person to cease doing business with Firelands Sewer
and Water Construction Co., Inc., or to force or require
Herbert F. Darling , Inc., to cease doing business with
Dunbar and Sullivan Dredging Co., in order to force or
require Dunbar and Sullivan Dredging Co., in turn, to
cease doing business with Firelands Sewer and Water
Construction Co., Inc.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at Respondent 's business office, hiring halls,
meetings halls, and other places where notices to members
are customarily posted, copies of the attached notice
marked "Appendix." is Copies of said notice, on forms
provided by the Regional Director for Region 3, after
17 In the event no exceptions are filed as provided by Sec. 102.46 of the deemed waived for all purposes.
Rules and Regulations of the National Labor Relations Board, the findings , 18 In the event the Board's Order is enforced by a judgment of the
Conclusions , and recommended Order herein shall, as provided in Sec. United States Court of Appeals, the words in the notice reading "Posted by
102A8 of the Rules and Regulations , be adopted by the Board and become Order of the National Labor Relations Board" shall be read "Posted
its findings , conclusions , and order, and all objections thereto shall be Pursuant to a Judgment of the United States Court of Appeals Enforcing an
(Continued)
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being duly signed by a duly authorized representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 3 for posting by the
employers named above, if they are willing, at all places
where notices to their respective employees are customarily
posted.
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
other person engaged in commerce or in an industry
affecting commerce to engage in a strike or refusal in
the course of their employment to perform any services
for their employers, nor will we threaten, coerce, or
restrain the above-named Employers, or any other
person, where an object thereof is to force or require
the Buffalo Sewer Authority, Dunbar and Sullivan
Dredging Co., or any other person to cease doing
business with Firelands Sewer and Water Construction
Co., Inc., or to force or require Herbert F. Darling, Inc.
to cease doing business with Dunbar and Sullivan
Dredging Co. in order to force or require Dunbar and
Sullivan Dredging Co., in turn, to cease doing business
with Firelands Sewer and Water Construction Co., Inc.
Dated By
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage , by threats to
picket, by picketing , or any other means, individuals
employed the Buffalo Sewer Authority, Dunbar and
Sullivan Dredging Co., Herbert F. Darling , Inc., or any
INTERNATIONAL UNION OF
OPERATING ENGINEERS
LOCAL No. 17, 17A 17B,
AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Ninth
Floor Federal Building, 111-West Huron Street, Buffalo,
New York 14202, Telephone 716-842-3100.