International Union of Operating Engineers

INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO 847 International Union of Operating Engineers, AFL-CIO, Local 513 [Harrison Engineering and Construction Company] and Charles Ragan. Case No. 141-CB-503. April 22, 1959 DECISION AND ORDER On February 13, 1959, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the 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. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Charles Ragan, an individual , the General Counsel of the National Labor Relations Board issued a complaint dated May 2, 1958, against International Union of Operating Engineers , AFL-CIO, Local 513, herein called the Respondent , alleging that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2 ) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. In due course the Respondent filed its answer in which it denied the commission of any of the unfair labor practices alleged in the complaint. Since the allegations in the complaint regarding the commission of unfair labor practices grew out of certain incidents that occurred on September 3 and 4, 1957, the Trial Examiner is convinced that it would be better for all concerned to set forth the allegations in section III of this report entitled "The Alleged Unfair Labor Practices." Pursuant to notice, a hearing was held on June 12 , 1958, in Poplar Bluff, Missouri, before the duly designated Trial Examiner. The General Counsel and the Re- spondent were represented by counsel at the hearing and had opportunity to examine and cross-examine witnesses , to introduce relevant evidence, to present oral argu- ment, and thereafter to file briefs. A brief was received by the Trial Examiner from the General Counsel 's representative on July 17, 1958. Upon the entire record in the case, and upon observation of the demeanor of the witnesses, the Trial Examiner makes the following: 123 NLRB No. 104. D 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. BUSINESS OF THE COMPANY The complaint as amended at the hearing herein alleges and the answer admits that: A. Harrison Engineering and Construction Company (hereinafter referred to as Harrison) is, and at all times material hereto has been, a corporation duly organized under and existing by virtue of the laws of the State of Delaware, with its principal office at 3706 Broadway, Kansas City, Missouri. During the calendar year 1957 Harrison in the course and conduct of its business performed road-building services for the State of Missouri valued in excess of $500,000, and performed services outside the State of Missouri valued in excess of $5,000. B. Earl E. Snodgrass, a private individual, is and has been at all times ma- terial herein doing business under the trade name and style of Snodgrass Con- struction Company (hereinafter called Snodgrass), and has maintained his principal office -and place of business at 1920 South Pickwick, Springfield, Missouri. During the calendar year 1957 Harrison in the course and conduct of its business business, performed road-building services for the State of Missouri valued in excess of $100,000, for Harrison Engineering and Construction Company. From all of the foregoing the Trial Examiner finds that the Employers named above are engaged in commerce within the meaning of Section 2(6) of the Act. II. RESPONDENT LABOR ORGANIZATION International Union of Operating Engineers, AFL-CIO, Local 513, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES As indicated above, the complaint alleges in effect that there are two employers involved herein; however, the record, as will be shown below, shows otherwise. In addition the complaint also alleges in paragraph III that "Since on or about Sep- tember, 1956, Harrison and Snodgrass have been engaged in the construction of a portion of U.S. Highway 60, in Stoddard County, Missouri, between Dexter, Missouri, and Fisk, Missouri, the project involved in this proceeding." The record clearly shows that Snodgrass rented his equipment, which consisted of dirt-moving machinery, to Harrison, under the terms set forth in a contract between the parties dated September 10, 1956, and as later amended by letter, dated No- vember 1, 1956.1 The contract further provided that Snodgrass would supervise the operation of the equipment as an employee of Harrison. Hence at all times material herein Snodgrass was a supervisory employee of Harrison. As indicated above, we are primarily concerned herein with certain incidents that occurred on September 3 and 4, 1957. The record shows that when the employees of Harrison reported for work on the morning of September 3, 1957, at the place where Snodgrass' equipment was being used, it was raining. The majority of the employees who reported for work were members of either the Respondent Union or the Teamsters Union. Some few did not belong to any labor organization, but had been working right along for Harrison on the Route 60 project in this par- ticular area. Snodgrass told the employees that it was too wet to work at that time and requested that they report back to the job site a 10 a.m. so that they could get "show up" time. The record shows that several of the employees who were members of the Respondent Union did not report back for work at 10. In the meantime it had stopped raining and Snodgrass decided to go on with the job. One of the reasons for his decision was that the Company was behind schedule on this particular job. Since there were not enough of the regular operators present to man the equipment, Snodgrass checked with the other employees who had reported back to work and put a few members of the Teamsters Union on the machines, one of whom was Charles Ragan, the Charging Party herein. That same evening after working hours the employees who were members of the Respondent Union got together and discussed amongst themselves the propriety of their working with and permitting members of the Teamsters Union to operate the dirt-moving equipment. The upshot of their discussion was that Charles E. 1 See General Counsel's Exhibits Nos. 3 and 4. INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO 849 Eichelberger was instructed to call Lester Straughan, business agent of Local 513, and tell him about the events of the day. Eichelberger did so and Straughan agreed to meet with the members of the Local the next morning at a restaurant near the job site. What transpired at that time will be set forth below. As the Trial Examiner sees it, the General Counsel's entire case rests primarily upon the testimony of Eichelberger. According to Eichelberger's credible testimony the employees met with Straughan at a restaurant located in Green Oaks, Missouri , the next morning . It was the custom for the employees of Harrison , including the Teamsters , to meet there every morning and have coffee before reporting for work. The restaurant was only a short distance from the job site. The members of the Respondent Union who were employed on the Harrison job met with Straughan at Green Oaks and had coffee with him. Among those present was one Jim Davis, who though a member of Local 513 was not employed at the time, but was on his way to the job site to see if he could get a job. He had a brother, however, Brent Davis, who was employed by Harrison but not on the job that we are primarily concerned with herein. According to Eichelberger, Straughan told the members of the Respondent Union who were present at the restaurant that the Teamsters "wasn't supposed to be on that equipment and he's having a little trouble down there, and he was going to get it straightened out once and for all. . Shortly thereafter the meeting broke up and the employees proceeded to the job site. There are three accounts of what transpired at the job site when the employees arrived. Let us first look at Eichelberger's testimony . (The testimony of Straughan and Snodgrass will be discussed below.) According to Eichelberger, he drove to the job site alone. Straughan's car was behind his, and "he had some fellows" with him in his car. Upon arrival at the job site the employees got out of the cars and assembled in a group. About this time Jim Davis came up and said to the group "he wanted to know which one of the son of a bitch was, this Ragan who was operating the equipment , which one he was to chop. . . At this time Eichelberger "walked over to Ragan," 2 and Jim Davis "he walked over there ," meaning to where Ragan was standing . The above quotes are from Eichelberger's testimony on direct examination . In the considered opinion of the Trial Examiner, they are of the utmost importance because they go to the heart of his appraisal of Eichelberger 's testimony when considered in the light of the whole record. Another excerpt from Eichelberger's testimony follows below, and must be considered in the light of that of Snodgrass and Straughan, as well as the excerpts referred to immediately above concerning the statements of Jim Davis. Q. (By Mr. Slaight.) You said Jim Davis asked who was this Jim Ragan, the guy he was supposed to come and whip? A. Yes, sir. Q. And who did he say that to? A. Mr. Straughan. Q. And what did Mr. Straughan say, if anything? A. I am pretty sure it was Les who said that, he was standing over there by the car. - Mr. ARMBRUSTER : I move that be stricken unless the witness knows. He said he is pretty sure it was Les Straughan. The WITNESS : There was quite a few in the crowd . I am sure it was Les Straughan. TRIAL EXAMINER : Overruled . You know it was Les Straughan, the witness that just preceded you? The WITNESS : Yes, sir. Q. (By Mr. Slaight.) Now, what happened after that , after this conversa- tion between Mr. Davis and Mr. Straughan? A. Well, this Davis boy walked over to Chuck and I was beside him all the way over there and he told Chuck, he said, "I am going to teach you once and for all to stay off this goddamed equipment because it belongs to the operators and not the teamsters," and he slapped Chuck. And Chuck says , "I don't want to fight, there is no sense in this." He said, "I wouldn't have got on it if I hadn't been told to get on it. " And this boy slapped him again and say, "By God, I'll make you fight." That's when I stepped between Jim Davis , and he asked 2 See infra.. 50SSS9-60-vol. 123 55 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me who it was and I told him, and he said, "Maybe you want some of it," and I turned around, I told Chuck, I started to say that, that's when he hit me. Q. Who hit you? A. Davis did. Q. Who's Chuck? A. He's the teamster. Q. That's Ragan? A. Chuck Ragan. Q. So as you turned to Chuck and you told him to go sit-and that's as far as you got? A. Yes. I turned around and I said, "Chuck, why don't you go sit-", and I didn't say "down," he hit me before I said "down." Q. Who hit you? A. Jim Davis. Q. And where were you standing at the time? A. I was standing directly in back of Mr. Snodgrass' station wagon. Q. Was Straughan present? A. Straughan was beside the automobile talking to Mr. Snodgrass. [Em- phasis supplied.] Eichelberger was severely beaten up.by Davis, and as a result was absent from work for a few days. The record shows that Snodgrass and Straughan stopped the fight. Their testimony in this regard will be discussed below. After the fight was over Snodgrass and Straughan got the employees together and assigned them to their jobs. There are several versions of what transpired at this time, particularly that of Eichelberger, Snodgrass, and Straughan. Let us first look at Eichelberger's testimony in this regard. According to Eichelberger, Snodgrass and Straughan talked first amongst them- selves and then they said, "Well, now, let's get back to work." "And Mr. Snodgrass said he wanted this one, he started pointing to ones he wanted to go back to work. Mr. Straughan said, 'We will just compromise here."' "They, both of them,'picked out the men they wanted to go back . . . to go to work." 3 Eichelberger was assigned to his job and worked until about a half hour before quitting time, when he was forced to quit on account of injuries he had received in his fight with Jim Davis. He went to Snodgrass and told him about his condition, and was "let off to go home." He was off for several days on account of his injuries. In the interim he did go to the job site on one occasion and had a conversation with Fritz Whitmer, the steward for Local 513. According to Eichelberger, Whitmer told him that the "boy said" meaning Jim Davis, "if you wasn't satisfied with the whipping that he'd come back and give you another one." Whitmer's version of the above conversation will be discussed below. The incidents set forth above are the predicate for the following allegations in the complaint regarding the violation of Section 8(b)(1) (A) and (2) of the Act by the Respondent Union. V Respondent, by its officers, agents, and representatives from on or about September 4, 1957, and continuing to date has restrained and coerced and is restraining and coercing the employees of Harrison and the employees of Snodgrass because they engaged in concerted activity within the rights guaranteed .to them in Section 7 of the .Act by: a. Business Agent Les Straughan, on or about September 4, 1957, threatening to inflict bodily injury to certain of Harrison's and Snodgrass' employees. b. Jim Davis and Charlie Estes, agents of Respondnet, on or about September 4, 1957, threatening to inflict bodily harm to certain of the • companies' employees. c. Jim Davis, on or about September 4, 1957, inflicting bodily injury to certain of Harrison's and Snodgrass' employees. d. Business Agent Straughan, Jim Davis, and Charlie Estes, on or about September 4, 1957, engaging in demonstrations, statements, and other acts and conduct constituting threats of reprisal against employees of Harrison and Snodgrass. e. On or about September 15, Steward Fritz Whitmer threatening to inflict bodily injury to certain of the employees of Harrison and Snodgrass in further- ance of said object. 3 From Eichelberger's credible testimony. INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO 851 f. On or about September 4, 1957, Business Agent Straughan, compelling Harrison and Snodgrass by threats of force and violence to employ only members of Respondent or persons approved by Respondent. VI Respondent from on or about September 4, 1957, down to and including the date of issuance of this Complaint, has caused or attempted to cause Harrison and Snodgrass to discriminate against their employees and prospective employees in regard to hire or tenure of employment and other terms and conditions of employment by: a. Requiring the discharge or other discriminatory treatment of Charles. Ragan, Billy Joe Lee, Troy Lee, Charles E. Eichelberger, and William Cryts. b. Forcing and requiring Harrison and Snodgrass to assign particular work, such as operating earth-moving equipment, only to members of Respondent rather than to non-members or employees in other labor organizations or in other trades, crafts or classes. c. Requiring Harrison and Snodgrass to employ only members of Respondent.. VII Respondent by the acts set forth and described in Paragraphs V and VI above, and by each of said acts, did restrain and coerce and is restraining and coercing employees of the Company in the exercise of the rights guaranteed to them by Section 7 of the Act, and did thereby engage in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. VIII Respondent, by the acts set forth and described in Paragraph VI above, and by each of said acts did cause or attempt to cause and is now causing or at- tempting to cause the Company to discriminate in regard to hire, tenure or other terms and conditions of employment of Charles Ragan, Billy Joe Lee, Troy Lee, Charles E. Eichelberger, and William Cryts in violation of Section 8(a) (3) of the Act, and did thereby engage in and is now engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. At the onset of the hearing the General Counsel called as his first witness Lester Straughan, business agent of Local 513, under rule 43(b) of the Federal Rules of Procedure.. Straughan testified that Eichelberger called him at his home in Farming- ton, Missouri, on the night of September 3, 1957, and told him that the "Teamsters had taken over . the dirt moving equipment." Since members of Local 513 had always handled this equipment on the Harrison job,.he was very much concerned and told Eichelberger that he would meet him the next morning at a restaurant near the job site in Green Oaks, Missouri. Straughan lived at Farmington, Missouri, which was about 95 miles from the job site. When he arrived at Green Oaks around 6:30 a.m., he found several employees of Harrison and the Bushman Construction Company (which the record discloses was closely associated with Harrison on the Route 60 project), assembled.in the restau- rant. He met Eichelberger and other members of Local 513, including Fritz Whitmer, the steward on the job, Jim Davis, and three or four others. After they had their coffee together, they went out to the job site. According to Straughan, the only person who rode with him to the job site was one Koen, the steward for the Teamsters on the Harrison job. Straughan denied that he had a conversation with either Jim Davis or Charles Estes regarding the situation on the Harrison job either at Green Oaks or any other place. He admitted that he met Davis at Green Oaks and that he along with other members of Local 513 had coffee with him. He further testified that when he arrived at the job site there were several of the employees standing around, some of whom were members of local 513. About the same time Snodgrass drove up to the job site in his station wagon. Straughan im- mediately got out of his car and went over and talked to Snodgrass who remained seated in his car. The principal subject of their conversation was the incident that had occurred the day before. While they were talking they heard a commotion and" a "thud" against the back of the station wagon. The record shows that the "thud was caused by Davis knocking Eichelberger against the station wagon. Snodgrass and Straughan immediately left the station wagon and went around to see what was. going on. As they approached the group of employees they saw Davis pommelling. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eichelberger. Both agreed that the fighting should be stopped, order restored, and the men put to work as soon as possible. After things quieted down, Straughan and Koen, the Teamsters steward, got into Snodgrass' station wagon and drove off to a spot near the job site and discussed the situation. All agreed that the fight was a bad thing and that "we oughtn't have fights on the job." 4 After some further discussion, they returned 'to the job site. What happened thereafter will be • thor- oughly discussed below. Let us now go back to the fight and consider the testimony of Straughan and Snod- grass. As indicated above, this incident is of prime importance in the Trial Ex- aminer's utimate determination of the issues herein. Eichelberger, in his testimony regarding the fight, testified after some hesitation that Straughan pointed out Ragan to Davis in answer to Davis' query as to who "the son-of-a-bitch was, this Ragan who was operating the equipment, which one he was going to chop." 5 Straughan not only emphatically denied Eichelberger's testimony, but also testified that he did not even know Ragan. The Trial Examiner credits Straughan's denial of Eichelberger's testimony in this regard and finds that Eichelberger was in error as to the person who pointed out Ragan to Davis: Several factors have entered into his finding.- -In the first place, Ragan lived at Fisk, 11 miles each of Poplar Bluff, Missouri, while Straughan lived in Farmington, Missouri, 95 miles north of the job site. In addition, Ragan belonged to the Teamsters Union, and Straughan was the business agent of Local 513, which not only had members employed on the Harrison job, but at other jobs as well, such as one at Kennett, Missouri, which was in Local 513's territory.6 By the very nature of things they had nothing in common, and Straughan's testimony as to his relations with Ragan was not only logical but, when viewed in the light of the record considered as a whole, most convincing. Quite frankly, the Trial Ex- aminer is convinced that it was Eichelberger himself who "put the finger," so to speak, on Ragan when he walked over and talked to him at the time Davis made his inquiry. While the Trial Examiner is convinced that he had no intention of pointing out Ragan to Davis, nevertheless his inadvertent conduct served the pur- pose, just the same. In addition to the foregoing, another factor that has been most persuasive to the Trial Examiner in his finding, is the testimony of Snodgrass regard- ing the fight. An excerpt from his testimony follows below: Q. Did you see anything that occurred while you were having this conversa- tion with Mr. Straughan? A. I didn't see a thing until Less said, "What's going on there?" and at that time I looked off to the right, in the station wagon, and we had a wide, flat- bottom ditch, and Eichelberger was down on his hands and knees with his hand up on the bank and this other fellow-later described to me as Mr. Davis-hit him once or twice. TRIAL EXAMINER: You saw this? The WITNESS: Yes, sir. Q. (By Mr. Slaight.) When you saw them, they were down in this ditch and Mr. Eichelberger was on his hands and knees, and you saw this fellow was Mr. Davis? A. Yes, sir. TRIAL EXAMINER: That's the same Mr. Davis you identified awhile ago? The WITNESs: Yes, sir. Q. (By Mr. Slaight.) Now, what happened then, when you saw this.fight? A. Mr. Straughan said, "Earl, you are taking that awful cool. Why don't you get out there and stop it?" And I said, "I never started it." Q. What else was said? A. He said, "We have got to get that stopped. We can't have this fighting on the job." So he walked over and about that time Eichelberger said, "I have had all I want," and they quit. Straughan's testimony regarding the fight is about the same as Snodgrass' except it is more descriptive and pertinent to the issues herein. For that reason the Trial Examiner feels that it, too, should be set forth herein below. Q. Now, at the beginning you mentioned something about a fight happening. Now, did this conversation you just had with Mr. Snodgrass, that happened before or after the fight? A. Well, we were talking before and after both. Quotes from Snodgrass' credible testimony. See supra. 6 See the testimony of `Vhitmar, infra. INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO 853 Q. But this particular conversation about picking his men- A. (Interrupting.) That was after the fight. TRIAL EXAMINER: After what? Mr. SLAIGHT: The-fight. TRIAL EXAMINER : Fight? Mr. SLAIGHT: Fight, yes, Your Honor. The WrrNEss: Fist fight. TRIAL EXAMINER : Have you got to that yet? Mr. SLAIGI-IT: We are going to get to it right now. TRIAL EXAMINER: Okay, let's explore the fight. Q. (By Mr. Slaight.) Did you see this fight? A. Part of it. Q. Did you see the first of it? A. No, sir. Q. When did you first become aware of the fact that there was a fight? A. Well, I heard a commotion on the back end of a station wagon and a guy rammed against it. He was either knocked into it or fell into it or something, I don,t know. Q. You say the first knowledge you had, somebody flew against or was knocked against the back end of the station wagon? A. That's right. Q. Did you see what happened thereafter? A. Yes, sir. Q. (By Mr. Slaight.) Will you tell us what you saw, what happened in this fight? A. I saw Davis and Eichelberger scrapping. Q. What Davis was that? A. James Davis. Q. And Eichelberger you have testified about earlier, is that right? A. That's right. Q. Now, you saw them scrapping. What exactly were they doing? A. They were doing a pretty good job of fist fighting, I thought. Q. Did you see any blows struck? A. Yes, sir. Q. About how many? A. Oh, three or four. Q. And who struck the blows? A. Well, Jimmy Davis. Q. Did you see Eichelberger strike any? A. He -tried to. Q. He didn't, though, actually? A. What do you mean? Q. Did he hit Davis? A.• He wasn't fast enough is the only reason he didn't. He tried. Both Snodgrass and Straughan impressed the Trial Examiner as honest and forthright witnesses. In the circumstances the Trial Examiner fully credits their account of what transpired at the job site prior to the fight and immediately after it was brought to their attention in the manner described above in their testimony. The Trial Examiner also finds that their testimony regarding the conversation they were engaged in when the fight was first brought to their attention further discredits Eichelberger's testimony that Straughan pointed out Ragan to Jim Davis just before the fight started.? Having found as above, the Trial Examiner is convinced and finds that Jim Davis was not an agent for the Respondent Local 513 at times material herein. He further finds that Davis' conduct at the job site was solely on his own. Why he indulged in such conduct is beyond the comprehension of the Trial Examiner. Findings of fact must be predicated upon reliable, probative, and substantial evidence when considered in the light of the whole record. These essential elements are lacking herein. In passing, the Trial Examiner desires to point out that Jim Davis was present at the hearing herein, and was positively identified by Snodgrass in the course of his testimony as to the events that occurred on September 4, 1957. Even so none 7 See supra regarding the Trial Examiner's previous comment and findings as to Eichel- berger's account of the fight. 854 " '. DECISIONS .OF NATIONAL LABOR RELATIONS BOARD. of the parties called :him as a witness in their behalf . When Snodgrass , Straughan, and Koen returned to the job site after their conference . regarding the situation that had arisen as a result of the fight, Snodgrass proceeded to select the crew to operate the dirt-moving equipment. According to the testimony of Eichelberger, Snodgrass, Straughan, and Whitmer, the selection was left up to Snodgrass by mutual agreement.8 In other words, it was a sort of compromise as Eichelberger described it. The record shows that a majority of those selected by Snodgrass to operate the earth-moving equipment were members of Local 513. The record further shows that this was the situation prior to September 3 and 4, 1957. To be sure, some of the operators were nonmembers. of Local 513 before the "flare-up" on September 4, 1957, but the record shows that -though the Respondent Union was well aware of this situation, there is no evidence in this record that either any responsible officer of the Respondent Union or any of the members thereof who were working on the job took any action in the situation. The only persons, according to the record, who vociferously objected to the situation were Davis and Estes, neither of whom was an officer or agent of the Respondent Union. As indicated above, the complaint alleges in substance , inter alias. in paragraphs VI, VII, and VIII, that the Respondent Union required the discharge or other dis- criminatory treatment of Charles Ragan, Billy Joe Lee, Troy Lee, Charles E. Eichelberger, and William Cryts in violation of Section 8(a)(3) of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. Let us now look at the record. The record shows that Charles Ragan, the Charging Party, was a member of the Teamsters Union at all times material herein. He did not appear and testify at the hearing herein, even though he was subpenaed by the General Counsel to do so. Consequently, the record contains little information as to his qualifications as an operator of dirt-moving equipment . All that the record shows as to Ragan is the fact that Snodgrass assigned him to operate one of the machines on September 3, 1957. As indicated above, his assignment to this particular job by Snodgrass on September 3, 1957, was to help the Employer in an emergency that had arisen as a result of the failure of the regular operators of the dirt-moving equipment to report back to work at 10 a.m. on September 3, 1957. What happened to him after September 4, 1957, is not shown in the record. When the case as to Ragan is considered in' the light of the record considered as a whole, the Trial Examiner is convinced that it does not support the General Counsel's allegation in the com- plaint that he was discriminatorily treated in violation of Section 8(b)(2) of the Act, and he so finds. In the circumstances, the Trial Examiner will recommend that the complaint be dismissed in its entirety as to him. The Trial Examiner has set forth above the testimony as to Charles Eichelberger. Since the record clearly shows that he was selected by Snodgrass to operate one of the machines on September 4, 1957, the Trial Examiner is convinced and finds that he, too, was not discriminated against by the Respondent Union or • anybody else on September 4, 1957. True he suffered a severe beating by Jim Davis at the job site before he went to work, but since Davis was not an agent of the Respondent Union, it will be recommended below that the complaint as to him be dismissed. Now as to Billy Joe Lee and Troy Lee. The record is most hazy as to what happened to them when Snodgrass assigned the employees to work on September 4, 1957. Neither was a member of the Respondent Union but had been working without any interference from any source for quite some time before the incident of September 4, 1957. Neither of the Lees testified at the hearing herein, nor was any statement made to the record by the General Counsel that they were unavailable as witnesses. In the circumstances , the Trial Examiner accepts Snodgrass ' credible testimony that neither of the Lees was present at the job site when he assigned the employees to their machines. In such circumstances , the Trial Examiner will recommend below that the complaint be dismissed as to them also. We now come to the case of William Cryts. Like the Lees, he, too, was not called as a witness by the General Counsel , nor was any showing made to the record that he was unavailable as such. All that the record shows is that he was not a member of Local 513 but had been operating a machine prior to September 4, 1957, and was not selected by Snodgrass for work on September 4, 1957. What happened to him after September 4, 1957 , insofar as his job with Harrison is con= cerned is not shown in the record . In view of the vagueness of the record as to him, the Trial Examiner will also recommend below that the complaint be dismissed as to him. 8 See supra. THE CESSNA AIRCRAFT COMPANY 855 We still have one other allegation in the complaint to dispose of and that is that Fritz Whitmer, steward for Local 513, on or about September 15, 1957, threatened to inflict' bodily injury to certain of the employees of Harrison and Snodgrass in furtherance of. the Respondent Union's illegal conduct.9 The only testimony in the, record that could possibly apply to this allegation in the complaint is Eichel= berger's testimony to the effect that Whitmer told him that Davis told him that "if .you wasn't satisfied with the whipping that he'd come back and give you an- other." Whitmer's version of the conversation was that Eichelberger started the conversation and told him that he had a permit to carry a gun and that "if he had to he.was going to. use it." To which he replied, "Well, now I will tell you, Charlie, if you don't like the way the boy did it [meaning Davis] I believe he'd be glad to come back and do it over." Whitmer's testimony stands uncontradicted and un- denied in the record. Eichelberger was present in the hearing room at the time Whitmer testified but was not called to rebut this important testimony. Whitmer impressed the Trial Examiner as an honest witness. On the other hand, Eichelberger impressed the Trial Examiner as loquacious and inclined to exaggerate at times, and a bit impressed with his own self-importance, as evidenced by his conduct at the time the fight started. In the circumstances the Trial Examiner is inclined to and does credit Whitmer's version of the above incident. As the Trial Examiner sees it, the shoe is on the other foot, so to speak, insofar as the allegation in the complaint as to the activities of Whitmer. In the circumstances the Trial Examiner will recommend below that this allegation in the complaint be likewise dismissed. The complaint also alleges that one Charlie Estes engaged in certain illegal con- duct as an agent of the Respondent Union. The only reference in the record as to Estes is found in the testimony of Snodgrass. He testified that Estes threatened to "teach" him some of the union rules. Though the Trial Examiner credits Snodgrass' testimony in this regard, he is unable to find any substantial evidence in the record that Estes was ever designated an agent of the Respondent Union. Nor is there any evidence in the record that Estes at times material herein held any office in the Union. In the circumstances the Trial Examiner will recommend that the allegation in the complaint as to his misconduct on behalf of the Respondent Union be also dismissed in its entirety. Conclusions After long and careful consideration of the entire record , the General Counsel's brief, and the above findings, the Trial Examiner concludes that the Respondent Union did not violate Section 8 (b)(1)(A) and ( 2) of the Act as alleged in the complaint. [Recommendations omitted from publication.] 4 See supra. The Cessna Aircraft Company and International Association of Machinists, District Lodge No. 70, AFL-CIO, Petitioner. Case No. 17-RC-627892. April 22, 1959 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 William J. Cassidy, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 employees of the Employer. 123 NLRB No. 103.