Hermandad de Trabajadores de la Construction

900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 52 percent of the tools necessary for production were in operation, and all production divisions were occupied and at least in partial opera- tion. By December 15 it had 605 production and maintenance em- ployees, of whom half were trainees undergoing a 3-month training program. At the hearing on December 17 the Employer anticipated that by March 1, 1960, 80 percent of the machines necessary for pro- duction would be in operation and it would have 785 production and maintenance employees; it expects employment to increase at a rate of about 10 percent a month until a full complement of 1360 produc- tion and maintenance employees is reached at the end of 1960. In these circumstances, we see no reason for departing from our usual policy of directing an immediate election.' [Text of Direction of Elections omitted from publication.] MEMBER RODGERS took no part in the consideration of the above Decision and Direction of Elections. 6 Hussman Refrigerator Company, 125 NLRB 621 Hermandad de Trabajadores de la Construction (Puerto Rico District Council), United Brotherhood of Carpenters and Joiners of America, AFL-CIO; United Brotherhood of Car- penters and Joiners of America, AFL-CIO; Braulio Martinez and Jose M. Lebron, their agents and Levitt Corp. Cases Nos. 24-CC-621 and 24-CB-321. May 26, 1960 DECISION AND ORDER On January 5, 1960, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents 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 Fanning]. 1 Cases Nos. 24-CC-63 and 24-CB-322 involving the Teamsters Union were severed from this proceeding and thereafter a consent Board order and court decree was executed in those cases, which was approved by the Board on November 19, 1959. 127 NLRB No. 112. HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION 901 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 In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,2 conclusions, and rec- ommendations of the Trial Examiner, with the following corrections 2 and modifications. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents Hermandad de Trabajadores de la Construction (Puerto Rico District Council), United Brotherhood of Carpenters and Joiners of America, AFL- CIO; United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Braulio Martinez and Jose M. Lebron; and their officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in, or inducing or encouraging the employees of Sullivan and Commonwealth, or of any employers on the Campo Alegre project, except Levitt, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, proc- ess, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require any employer or other person to cease doing business with Levitt Corporation. (b) Engaging in or inducing mass picketing, assaults, or threats of assaults, against supervisors and employees, and the impeding of employees from entering or leaving their employer's premises, so as to restrain and coerce employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the offices and meeting halls of Respondents Inter- national Carpenters and District Council in Puerto Rico, copies of In adopting the Trial Examiner's finding that the Respondents violated Section 8(b) (4) (A), we rely solely on the failure of the Respondent Union to adhere to the standards set forth in the Moore Dry Dock case, 92 NLRB 547, for lawful primary picket- ing at a common situs . We do not adopt other statements of the Trial Examiner, or the possible inferences to be drawn therefrom, to the effect that the inducement of employees of suppliers of the primary employer, Levitt, at the situs of the dispute, is unlawful. This issue was not fully litigated as the General Counsel contended that his case involved primarily the inducement of employees of Sullivan and Commonwealth , secondary employers. 3 In discussing the testimony of Angel Santana Cruz, the Trial Examiner inadvertently referred to "forgery." This is corrected to read "perjury." In paragraph numbered 1(a) of the Trial Examiner 's recommended order, the phrase, "'to force or require said em- 11 ployees" is corrected to read "to force or requ.re said employers . . . . 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the , Regional Director for the Twenty- 'fourth Region 'in both the ,English and the Spanish language, shall, after being duly signed by all Respondents, be posted by them im- mediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by the said Respondents to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the twenty-fourth Region signed copies of the notice attached hereto marked "Appendix" for posting by Levitt, Sullivan, and Commonwealth, they being will- ing, at places where they customarily post notices to their employees. (c) Notify the Regional' Director. for- the Twenty-fourth Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. APPENDIX NOTICE To ALL EMPLOYEES AND TO ALL MEMBERS OF HERMANDAD DE TRABAJADORES DE LA CONSTUCCION (PITERTO Rico DISTRICT COUN- CIL), UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, as amended, you are notified that : WE WILL NOT engage in, or induce or encourage employees of John V. Sullivan d/b/a John V. Sullivan Construction Co., of Puerto Rico, Inc., Commonwealth Electrical Construction, Inc., or of any other employer on the Campo Alegre project, except Levitt Corp., to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require said John V. Sullivan d/b/a John V. Sullivan Construction Co., of Puerto Rico, Inc., Commonwealth Electrical Construction, Inc., or any other employer or person to cease doing business with Levitt Corp. WE WILL NOT restrain or coerce employees by engaging in, or inducing mass picketing, assaults, or threats to assault employees 4 In the event that this Order is enforced by a decree of a United States 'Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION 903 or their supervisors, or impede employees from entering or leav- ing their employer's premises, or in other manner, restrain or coerce employees in the exercise of the rights guaranteed in Sec- tion 7 of the National Labor Relations Act, as amended. HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION (PUERTO Rico DISTRICT COUNCIL), UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated----------------- By------------------------------------- (Representative ) (Title) UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) BRAULIO MARTINEZ, Respondent Agent. Dated---------------- By------------------------------------- Signature JOSE M. LEBRON, Respondent Agent. Dated---------------- By------------------------------------- Signature This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding 1 began with the filing of a charge on June 10, 1959, by Levitt Corp., amended on June 18, 1959, by Levitt Corp ., and with all parties represented was heard before the duly designated Trial Examiner in Santurce , Puerto Rico, on August 4, 5, 6, 7, 10, 11, 12, 13, and 14, 1959, on complaint of the General Counsel and answer of Respondents. The issues in the main are whether or not the General Counsel sustained the burden of proving by a preponderance of evidence that the Respondents either individually or together (a) caused an illegal secondary boycott in violation of Section 8('b) (4) (A) of the National Labor Relations Act, as amended , herein called the Act, and (b) illegally interfered with the rights of employees in violation of Section 8 (b) (1) (A) of the Act. At the close of the hearing, Mr. Miranda gave an excellent closing argument sum- marizing the evidence believed favorable to the General Counsel, and Mr. Weasler 1 Cases Nos. 24-CC-63 and 24-CB-322 involving the Teamsters were severed from this proceeding by order of the Trial Examiner on August 5, 1959, for the purpose of entering into a consent Board order and court decree Approved by the Board on November 19, 1959. See Trial Examiner 's Exhibit No . 2 for copy of stipulation. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outlined the points in favor of the Respondents with great clarity and ability. Although an opportunity was given the parties to file briefs none were filed. Upon motion made and no objection stated the pleadings were conformed to the proof in all minor particulars All dates in this report are 1959 unless indicated. Upon the entire record I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE FACTS AS TO INTERSTATE COMMERCE Levitt Corp. (herein called Levitt) is a corporation incorporated under the laws of the Commonwealth of Puerto Rico and maintains its principal office and place of business at Bayamon, Puerto Rico. It is engaged as a general contractor in the constructon of dwelling houses in Puerto Rico. Since November 1959 Levitt has been engaged as a general contractor in the construction of a housing project called Campo Alegre located at Bayamon, Puerto Rico. From on or about November 17, 1958, to on or about June or July of 1959, which period is representative of all times material herein, Levitt, for use on the Campo Alegre project, has purchased and caused to be shipped into the Commonwealth of Puerto Rico directly from points and places without said Commonwealth, goods and materials valued in excess of $50,000. Since on or about November 17, 1958, Levitt had certain alleged subcontractors performing various phases of construction work at said project? Sullivan is engaged in Puerto Rico in construction work involving heavy equipment with which it moves dirt and lays water pipe and sewer pipe. At the Campo Alegre project during the period November 17, 1958, to June 1959 the value in dollars of purchases made by Sullivan were in excess of $200,000, which purchases of equipment, goods, and materials for use on the Levitt project were made in the United States and shipped directly to Sullivan in Puerto Rico. Commonwealth is engaged in Puerto Rico in electrical contracting work and was doing the electrical installation gat the Campo Alegre project of Levitt. In the per- formance of that work, it caused to be shipped to it in Puerto Rico from the United States, goods and materials of $1,800,000 value during the 12-month period ending in April 1959. I find that the aforementioned business operations are in commerce and affect commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Hermandad de Trabajadores de la Construccion (Puerto Rico District Council), United Brotherhood of Carpenters and Joiners of America , AFL-CIO, herein called the District Council , and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the International Carpenters , are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The strike Respondents admit that since on or about June 1, 1959, Respondent International Carpenters and Respondent District Council, through their agents, including Braulio Martinez, herein called Martinez or Respondent Martinez, and Respondent Jose M. Lebron, herein called Lebron or Respondent Lebron, and others, have maintained, conducted, induced, and encouraged a strike and picketing activities at and near all of the several entrances to the Campo Alegre project utilized by the employees then working on the project employed by Levitt and also used by the employees of other employers on the project named in section I, above. This strike and picketing activities have been in furtherance of Respondent International Carpenters' and Respondent District Council's labor dispute involving the employees of Levitt and the other named employers engaged on the project with the exception of the em- ployees of Sullivan and Commonwealth. It is admitted further that at no time since 2 AS one of the defenses of Respondents Is that Commonwealth Electrical Construction, Incorporated, and John V. Sullivan d/b/a John V. Sullivan Construction Co, of Puerto Rico, Inc., herein respectively called Commonwealth and Sullivan, are not truly sub- contractors but are joint employers, no determination will be made at this point as to their status. No determination likewise will be made at this point with regard to the remaining 10 persons, also alleged to be subcontractors, herein called Floor Finishing, Delgado, Morrell, Diaz, Afanador, Caez, O'Farrill, Melendez, Sammons, and Kensean HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION 905 June 1, 1959, did the Respondent International Carpenters or Respondent District Council have a labor dispute involving the employees of Sullivan and/or Common- wealth .3 B. Status of Sullivan and Commonwealth The first question to be resolved is whether Sullivan and Commonwealth are in fact subcontractors or are, as alleged by Respondents, joint employers with Levitt. Both Sullivan and Commonwealth signed form agreements with Levitt in which they are called the "Subcontractor" and under which they agree to perform certain jobs for certain unit pay. The terms are identical under which they severally agree to submit to the contractor, Levitt, applications for payment, and to make all claims for extras, for extensions of time and for damages for delays to the contractor. The contractor agrees to give the subcontractor an opportunity to be present and to submit evidence in any arbitration involving his rights, and the parties agree to sub- mit any controversy to arbitration. In addition, the subcontractor has to furnish all tools and if he fails to perform to the needs of the owner his subcontract could be terminated upon notice without liability. The work performed must pass in- spection of the owner, the Federal Housing Administration, and any other Federal, Commonwealth, or municipal agency having intervention in the approval of the project. Any work deficiencies of the subcontractor are to be repaired at subcon- tractor's expense, and he agrees to clear off the premises all waste material. The subcontractor has to carry public liability, property damage, and workman's com- pensation insurance. And finally, the contractor may retain 5 percent of the total payments due under the contract to insure full compliance by the subcontractor of applicable laws regarding minimum wages, taxes, construction permits, licenses, and any other requirements applicable by any Federal, Commonwealth, or municipal laws. So much for the terms of the agreements. Joseph F. Kelly, vice president of Levitt, credibly testified that in addition to a project manager and a superintendent who check into the work of these "subcon- tractors" daily and render reports to him, Levitt has about eight inspectors who police the contracts and determine that work performed by "subcontractors" is satisfactory. If it is not satisfactory, a report is made to Levitt's superintendent who discusses it with the "subcontractor" and if it is not made satisfactory the latter is warned that it will not be paid for. The inspectors never instruct a man on the "subcontractor's" project as to how work is to be performed; rather, when they see it is being done improperly, they talk to the foreman of the "subcontractor." I have weighed the evidence relating to a system of identification and find that a badge system was put in use 2 or 3 weeks prior to the hearing under which anyone working on the project wore a badge for security identification. The first number of the badge was coded to identify the "subcontractor" for which the person worked. But at the time of the strike in June there was no means of identification worn by those working on the Levitt project. According to the credited testimony of John V. Sullivan for Sullivan, and that of Henrico Gorbea for Commonwealth, these "subcontractors" hire their own employ- ees, pay them, make necessary social security deductions and tax deductions for them, supervise them, and fire them when necessary. Sullivan has from 25 to 100 employees and Commonwealth-has an average of 15 employees. Felix Morales Diez, president of the Sindicato de Empleados de Equipo Pesado, Construccion y Ramas Anexas de Puerto Rico, Incorporated, Local 925, Affiliated to Sindicato de Traba- jadores Packing House, AFL-CIO, and Federacion del Trabajo de Puerto Rico, credibly testified, and without contradiction, that approximately eight members of his union were working for Sullivan on the project during June and July 1959. Accordingly, I find from the above testimony that Sullivan and Commonwealth are subcontractors and as such that they are not joint employers with Levitt but are themselves employers having employees within the meaning of the Act. s Although the agency of Martinez and Lebron is admitted, Respondent objected to their testifying under rule 43(b) of the Federal, Rules of Civil Procedure on the grounds that they do not qualify The rule states in the second sentence, "A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.. . ." The objection was overruled with permission to renew it at the close of the hearing At the close of the hearing a motion was made to strike the testimony of the witnesses received over the objection. This motion was reserved and is hereby denied. I find it unnecessary to go into the question of whether or not Martinez and Lebron qualify as an "officer, director, or managing agent" of the Union Respondents, because they do qualify as adverse parties and as such they can be cross-examined under the rules as to things they witnessed. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The picket signs .It is admitted that the picket signs at the entrances to the project did not specify that the dispute was with Levitt or, phrased another way, that there was no dispute with Sullivan and Commonwealth.4 The District Council and the International Carpenters took an active part in conducting the strike at least from the third day on following a telephone conversation (admitted) from Respondent Lebron to Respondent Martinez. Some of the picket signs were as follows: 5 (1) Upon the honor of your wife, mother and sister, cooperate with us. (2) We were suspended for belonging to the Union. (3) The needs of the Puerto Ricans are the same as those of the United States. (4) The strikebreaker is a man without a country. (5) We are fighting for our own and for yours-Cooperate. (6) Puerto Rico District Council of the United Brotherhood of Carpenters and Joiners of America (AFL-CIO). (7) Our children are also entitled to live. (8) I was laid off because I belonged to the Union. D. General picket-line conduct The testimony of Jorge Rasado, heavy equipment operator for Levitt, is a fair statement of the story of the strike insofar as the activities of the pickets were concerned: Q What did Mr. Lebron [one of the Respondents] do while at the main gate? What did you see him do? A. 'Re talked,to(the'guys at-the picket. When anybody tried to get in, he talked to the fellow to try to cooperate with them and didn't go in. 4 Respondent Martinez testified that when he went to the project on June 4 (the strike started on June 1 but Martinez was in Indianapolis until the 4th), he saw several picket signs on one of which the word "Levitt" was mentioned (The sign was in Spanish language so "Levitt" was spelled "Leby.") However, prior to the hearing he had given the Board agent an affidavit that " . it is my impression that neither the Levitt Corporation or any other company was mentioned by name in any other picket sign." (Ile had previously identified what was on the signs ) (See General Counsel's Exhibits Nos 8 and 11.) As an explanation of the apparent contradiction in testimony, he testified, "I'm glad to explain that to you I mentioned that that day because when I saw the name Levitt misspelled I was ashamed of myself and my people and I thought, `What's that"' So I told them to correct that name. Do you know what they did'? They took the sign and threw it on the floor and gave the orders to the signpainter to paint a new sign " I cannot credit this explanation. If "Leby," the correct spelling of "Levitt" in the Spanish language, were on the signs with other words in the same language, I can see nothing for Martinez to be ashamed of. The testimony at the hearing is obviously an afterthought Additionally, I consider the affidavit in which Martinez testified under oath to be an admission against interest and as such to be competent evidence to be considered in the case. Also Respondent Lebron made an admission against interest when he, like Martinez, gave an affidavit under oath in which he testified there were no signs identifying Levitt as the one with which there was a dispute As of the date of his affidavit, June 17, 1959, he swore, "None of our picket signs mention the fact that the strike is specifically against Levitt. No company is mentioned by name. We keep our pickets 24 hours a day." [Emphasis supplied.] (See General Counsel's Exhibit No 12.) Like Martinez, again, Lebron recanted at the hearing Interestingly, 'he testified at the hearing that one sign had the word "Levy" on it The spelling of the word was carefully repeated. This then makes two signs with identification on them neither of which either remembered at the time of their affidavits, and which no one else could remember at the hearing (Witness Elmer Dewing, Miguel Angel Valcarcel, Hector Luis Rivera, Jorge Rasado, Carlos de In Rosa, Casto Solla, and Jorge Samuel Cruz Rosario specifically and credibly testified that the naming of employers on picket signs came some 10 days to 3 weeks after strike began ) I find that (luring the early part of the strike (within the first 17 days) there were no signs identifying any employer in use by the pickets at any location of the project 5The signs are admitted See General Counsel's Exhibit No 11, and Trial Examiner's Exhibits Nos 1-A through 1-D. HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION 907 Q. This picket line, how was it organized ? Was it a, moving picket line, one that moved around or were the strikers grouped together ? How did they operate? A. Most of the time there was a group that was standing up on the street- in groups. Q. When these pepole would come in vehicles , different vehicles, different people trying to get into the project , what was the behavior of the picket line, this group? A. They stay on the street in a group , and then Mr. Lebron stop the car and talk to the guy to don't go in and to try to cooperate with, them. Sometime when the guy said no, he wants to go in, they tried to hold the car, and then the guy would go away. Q. Were the police there? A. Yes, Sir. Q. Did you see them intervene when these things happened? A. When the people or the guy tried to get into the project and they asked the police, you know, for protection, they want protection, because they want to go in , the cop, you know, called attention to the guys to get off the road and the car go in. The testimony of Carlos de la Rosa, purchasing agent for Levitt, ties in Respondent Martinez with Respondent Lebron and gives a good word picture and summary of the strike and picketing activities: Q. After Mr. Martinez' appearance on the picket line , what did you see him do, if anything? A. Mr. Martinez? Q. Yes. A. Well, he started directing with-Mr. Lebron the picket line, and the,same thing they had been doing. Q. Mr. Martinez joined Mr. Lebron in the activities that Mr. Lebron had started from the first day of the strike? A. Yes. Q. Did you at any time go through or were you stopped at any time trying to enter the project? A. I usually got in at first and had no trouble. Once the trucks bringing material started to come in-it seems that one morning there was an argument with one of the trucks and it was about ten days later, ten days after the srike had started, that when I tried to enter they stood in front of my car and told me that no one, no one was going to enter , and they said they were tired of letting people go in to work. * * * * * * * Q. What else happened that day? A. After they stopped me a truck arrived that was bringing in gravel. They stopped the truck and the truck driver said he was going in, and then the police helped the truck get into the project, and when they saw that the truck had been allowed to enter, they sort of got calmed down, and then I was allowed to go in, and they let me get inside the project. Q. How did this picket line operate in order to stop this truck? Please describe that. A. Well, at the beginning they only stopped the material from getting in and asked for cooperation. However, as they saw that they were given no coopera- tion, they got more excited, and it was then that there were some acts of violence. Sometimes they would throw stones, other times they would insult the drivers, and some of the times they just wouldn 't move aside. It was then that the police got-we had to ask for more policemen , and the police had to bring all the policemen around in order to control them , so we would be able to get in. Victor M. Sterling Berten , policeman, testified credibly and was in the main corroborated by other witnesses including second lieutenant of the police force, Rufo Rosa Gonzales: He [Respondent Martinez] incited the strikers , telling them not to let the cars enter; that the strike was one that they had to win. He asked the coopera- tion of the employees who were on strike and that in the event the car wanted to pass they had to turn it upside down ; that they would do so; and if there was need to shed blood , it would be done ; that they had to win the strike one way or another. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Alleged acts of intimidation The following incidents in connection with the strike are alleged by the General Counsel to have restrained and coerced the employees of employers on the project and of others, in the exercise of their rights guaranteed under Section 7 of the Act. 1. Mass picketing and threats and/or acts of physical violence, attempted to prevent trucks and/or cars driven by supervisory employees of Levitt and of other employers engaged on the project from entering said project, all in the presence of nonsupervisory employees of all or some of the employers engaged on the project. (a) Francisco Martinez, mason helper for Afanador, credibly testified that while riding with two other employees in a truck driven by Afanador they were prevented from entering the project at the main entrance on June 1 by some 50 strikers. The pickets threatened to smash the glass of the truck if they crossed the picket line. (b) Hector Luis Rivera, supervisor of Commonwealth, credibly testified that on June 8, six people stopped his car fom entering the project. One hundred people gathered in front of the car. They shook the car. He put the car in reverse and left the project. (c) Miguel Angel Valcarcel, foreman for Sullivan, credibly testified that he and two other Sullivan employees were stopped on June 8 by from 40 to 50 pickets. All three got out of the car when requested to do so, but he got back in and returned home. He did not see Respondent Lebron among the pickets on that day, but had seen 'him on other days. He also credibly testified that he witnessed a stoppage by the pickets of a Levitt truck, and saw the pickets stop Foreman Burke of Sullivan from entering the project. (d) Carlos de la Rosa, purchasing agent for Levitt, was stopped from entering the project on June 10 when pickets stood in front of his car. '(e) Jesse J. Meadows, assistant superintendent of Levitt, credibly testified that on June 10 the pickets stopped him from entering the project but the police opened the way for him to enter. On or about June 11 he was riding with Mr. Quinones, Levitt superintendent, in the latter's Ford Ranchero on their way back into the project when they were stopped by the pickets. One came over and talked to them. In the words of the witness, "Then, when we had finished talking and there was no trouble, we started to proceed into the job. Then the pickets also stormed around the truck and the Ranchero. At that time they beat on the car with their signs " Lieutenant Rufo Rosa Gonzales of the police corroborated the Quinones incident , but placed it on June 10. As it was the same day the policeman was hit by the picket sign and as the lieutenant was testifying from notes, I find the date to be June 10. (f) Miguel Angel Davila, project superintendent for Levitt, credibly testified that on June 10 he tried to come in through the main entrance driving his car. There were about 5 pickets with signs and about 15 witthout signs. He stopped his car when one picket walked in front of it. About 20 strikers gathered around and tried to turn it upside down, and 1 tried to open its door. He saw Respondents Lebron and Martinez in the area of the main entrance at the time. Jorge Rasado, heavy equipment operator for Levitt, corroborated Davila and saw Respondent Lebron talking to Davila when the group of strikers picked up his car and opened the door to get him out. Jesse J. Meadows, identified above, credibly testified: The incident that I did see was the incident concerning one Miguel Davila. He came into the job. He had a blue Ford, and they really mobbed the car to the point where even though I had a camera I couldn't even see the car. They were beating on the car. They were rocking the car back and forth violently. 2. Assault of supervisory employees of Levitt and of other employers engaged on the Campo Alegre project, as they drove or rode in cars near the entrances, all in the presence of nonsupervisory employees of all or some of the employers engaged on the project. (a) Lieutenant Rufo Rosa Gonzales of the Puerto Rico police force testified that on June 10 at 7:25 a.m. there were about 200 persons at the main entrance to the project. These were standing off the street. Ten or twelve of them had picket signs. Hugh Pat Kelly, son of the vice president of Levitt, and in charge of certain aspects of the project, drove up the street to the entrance .6 He was O The witness said Kelly drove slowly. Respondent Martinez testified that Kelly drove very fast and hit and injured a picket. Based upon testimony in corroboration of the police lieutenant and lack of substantial corroboration of Martinez, and upon the de- meanor of the witnesses, I find he was driving slowly. HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION 909 stopped by Respondents Lebron , Martinez, and others (Pascual Ramos, Julio Cruz Torres, and Cruz Santos ). Martinez told him, . . what you have to do is suspend, stop working until we settle this." Kelly wanted protection to go in. Julio Cruz Torres told him he couldn 't go in and at the same time tried to open the car door and hold the car back. Martinez shouted , "Invade the streets." "Don't let him enter. Turn his car upside down . Break it. Take him out of the car." The lieutenant grabbed Julio Cruz Torres from the back with both arms and pulled him away from Kelly's car and turned him over to Policeman Sterling.? (b) The strikers hit Meadows, assistant superintendent of Levitt, with their fists as he went through the picket line while attempting to lead in a truckful of marble chips for use on .the floors . This took place on June 10. (c) Augustin Golderos, light equipment operator for Levitt, saw the above Quinones incident and saw the pickets hit the car with picket signs. 3. Mass picketing to prevent employees of employers delivering supplies to Levitt and other employers engaged on the project from entering , all in the presence of nonsupervisory employees of all or some of the employers engaged on the project. (a) Juan Jimenez , driver for San Miguel Cia, transporting materials for Ulpiano Casa], Inc., for the project, was stopped from delivering materials on June 2 by about 20 persons who stood in front of the vehicle at the main entrance. He then tried to get in at the warehouse gate but was stopped again. He was permitted to unload the manhole and manhole frames after he had told them that what he was carrying did not affect them. (b) Abelardo Ramirez Rivera, driver for Metropolitan Iron Works , was pre- vented from delivering steel to Levitt on June 8. About 50 pickets were present and one stopped him and asked for his cooperation. He turned back, but returned that afternoon at which time Respondent Lebron spoke to him and asked for his cooperation. Twenty to thirty pickets surrounded his truck and told him that the day before they had broken the glass of a truck carrying cement and gravel. He left without making delivery. (c) Foreman Valcarcel saw the pickets keep out a truck with terrazzo as the first incident that happened . This incident is corroborated by Superintendent Meadows who placed the time as June 3. (d) Ramon Rivera Torre, driver for Antonio Borrell, credibly testified that around the middle of June he was delivering doors to the project when his truck was blocked by strikers who wouldn 't let him in. He got through with police aid-8 (e) Carlos de la Rosa saw pickets stop a truck from bringing in gravel on June 10, until the police could clear the way. (f) Elmer Dewing, Sullivan employee saw pickets stop trucks from coming in the project-trucks that brought in sand and stone. Forty to fifty pickets would crowd around the truck barring its entry. This was on or about June 7. 4. Attempts to damage trucks driven by employees of employers delivering sup- plies to Levitt and other employers engaged on the project, as they attempted to enter, all in the presence of employees of all or some of the employers engaged on the project. (a) Superintendent Meadows saw three sand and gravel trucks around June 5 or 6 being stopped and stoned but finally getting through . They were stopped when they left too. "One truckdriver was hurt because some one of the people who were in the mob around the truck threw a stone through a closed window and cut the driver." (b) Julio Cartagena , policeman, credibly testified that Cristobel Garcia Mendez, Julio Torre Garcia , Emilio de la Tone Lopez, and Juan Matos Cambrelin were in a picket line that stood in front of and stopped a Portelas truck carrying in materials to the project on June 11. Julio Torre Garcia picked up a picket sign to throw at ' Policeman Victor M Sterling Berten corroborated Rufo Rosa Gonzales on the Kelly incident and saw Respondents Martinez and Lebron there at the time . He testified that Martinez "incited the strikers , telling them not to let the car enter , that the strike was one that they had to win He asked the cooperation of the employees who were on strike and that in the event the car wanted to pass they had to turn it upside down; that they would do so , and if there was need to shed blood ; it would he done • that they had to win the strike one way or another " Augustin (:olderos, light equipment mechanic for Levitt , also saw the pickets stand in front of Kelly 's car and stop it , and saw Re- spondent Martinez talking to Kelly and saw someone grab Kelly by the shirt and saw the pickets try to turn over his car 8 It is unnecessary to rule on or consider testimony that seven or eight persons in a pink Plymouth stoned him away from the project, and it is not considered. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the driver and Cristobel Garcia Mendez and Emilio de la Torre Lopez were arrested for not allowing the truck in. (c) Lieutenant Rufo. Rosa Gonzales saw Juan Matos Cambrelin throw a stone at a truck coming out of the warehouse gate after unloading its material at 10 a.m. on June 15 by Angel Luis Rodriguez. The stone broke the glass and hit the driver. Juan Matos Cambrelin escaped through the crowd but a warrant was issued for him. Olimpio Aviles, policeman , corroborated this. 5. Threats of physical harm to employee drivers of employers delivering supplies to Levitt and other employers engaged on the project , as they attempted to enter, all in the presence of employees of all or some of employers engaged on the project. (a) Lieutenant Rufo Rosa Gonzales arrested Rafael Robles at 8 a .m. on June 17, because he was at the main entrance with a bottle which he had broken and was admiring its "nice edge ." Casto Solla, policeman , corroborates this. (b) The incident recited above, when Abelardo Ramirez Rivera was told that the day before the pickets had broken the glass of a truck carrying cement and gravel. At the time he was surrounded by from 20 to 30 pickets (6) Mass picketing and threats and acts of physical violence attempted to prevent employees of Levitt, Caez, Floor Finishing, Delgado, Morrell, Diaz, Afanador, O'Farrill, Melendez, Sammons, Kensean, Commonwealth , and Sullivan from entering the project. (a) Elmer Dewing, heavy equipment operator for Sullivan , was in the mechanic's truck going into the project on June 7, when a striker stopped him and told him they "were going to have a big picket line the next day and he didn't want us to cross and he said there would be a lot of trouble if we did cross it. He took out a knife and he said he would use it if we did cross it the next day." He also credibly testified that five or six operators of Sullivan were stopped from work for at least a week at the beginning of the strike. As he related above, 40 to 50 pickets would crowd around the truck and stop it (b) Jorge Samuel Cruz Rosario, carpenter helper installing panels for Sammons, credibly testified that he was prevented from entering by about six men and was threatened with trouble if he entered . This occurred in back of the warehouse on June 8 He turned and left. The same thing happened the next day. On June 10 he and his brother engaged in a fist fight for about 15 minutes with six people who they believed were going to attack them. One of the six had a pocketknife. He could identify three of the six as persons he had seen working on the project. The fight occurred after work between 5 and 6 o'clock in the afternoon about one-half mile from the project. (c) As Eladio Braccetti Barreto, home and street cleaning employee of Levitt, was coming to work on June 9 through the La Aldea 9 entrance at 6 o'clock, in the company of Ramon Molina, they approached a group of 15 to 20 persons, 2 of whom were identified as employees on the project. They were grabbed by the arms and questioned and told they should not work but should join the strikers. Others in the group "were carrying clubs or sticks ." Barreto said he was no striker, that he was head of a family and had to work in order to support his children. He was hit on the back and on the face with a club, from which injuries he spent a week in the ,hospital. (d) Augustin Golderos, light equipment mechanic for Levitt , credibly testified that at the beginning of the strike there was not much opposition to people entering in their cars , but that later on "we were not allowed to enter in our cars . Be- cause of the persuasive conversation we did not enter . . they [pickets] were standing in front of the cars." On June 10 he saw pickets stop Julio Delgado, Levitt employee, while driving a Levitt pickup truck. The pickets told Augustin Golderos that Julio Delgado could not go in by any means-that at other times they had allowed him to enter but on that day he was not going to enter. Delgado turned back and did not enter. (e) Another threat of violence is found in the incident of Rafael Robles set out above in the testimony of Lieutenant Rufo Rosa Gonzales, and Casto Solla. (f) Another incident of violence was testified to by Angel Santana Cruz, employee of Levitt He said that on June 16 he met strikers among whom were Julio Torres and Montanez . They asked him if he was going to work . He answered "yes" and was struck in the back, right shoulder, by a stone thrown by Torres. Policeman Sterling arrested Tones. However this witness is not credited . In his sworn 9 The main entrance and the warehouse entrance are the only two entrances by roadway to the project When the witness said he came to the project from La Aldea entrance he meant he came from the area as La Alden situated to the top left of General Counsel's Exhibit No 2 and approached the project on foot across field and stream. HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION 911 affidavit he said, "I don't know the name of the individual who threw the stones at me." At the hearing he was "positive it was Julio Tones that threw the stone." This is a clear case of perjury and I recommend referring the matter to the Depart- ment of Justice for proceedings along that line. The witness had also testified in a court proceeding but I do not know if a transcript of record was made of that testimony. That he lied at the hearing in this case is certain . Policeman Sterling could not have arrested Julio Tones for throwing the stone for two reasons: (1) Sterling's last day on the project was June 15 and this incident occurred the next day on June 16, and (2) Julio Torres' arrest took place on June 10 by Policeman Sterling on the order of Lieutenant Rufo Rosa Gonzales and related to the June 10 incident involving Hugh Kelly.10 7. Threats of physical harm to employees of employers who normally deliver supplies to Levitt, Caez, Floor Finishing, Delgado, Morrell, Diaz, Afanador, O'Far- rill, Melendez, Sammons, Kensean, Commonwealth, and Sullivan. (a) The incident related above in E3-(b) falls into this category. (b) The incident related above in E4 (c) also falls into this category. (c) The incident related above in E5(a) also falls into this category. F. Motive or object of Respondents Carlos de ]a Rosa, purchasing agent for Levitt, credibly testified that early in the morning of June 18 he saw Respondent Martinez at a restaurant at a table with a man identified as an agent for another union and a third man whom neither he nor Martinez could identify. Martinez invited him over and told him that they (Re- spondents) could hire more gangs than he could. Martinez then drew a circle on the tablecloth and said, "This circle represents the pickets we have established at your project, but we are drawing some sort of rays that entered into the circle. These lines represent the suppliers that supply materials to the project. We are going to try by contacting these persons to make them stop supplying you materials. That will not only involve these suppliers but also be reflected in the United States." ii G. Findings and conclusions 1. 8(b) (4 ) (A) inducement and object At the close of the case the General Counsel conceded that his case was "limited principally to the establishment of The secondary boycott affecting employees only of Sullivan and Commonwealth; that is, Sullivan and Commonwealth as employers on the project." However, he went on to say, "It is not to say the other employers' employees have not been secondarily affected." The General Counsel did stipulate that he "does not allege that the Respondents engaged in any secondary activities affecting employees of Floor Finish Company, Felipe Caez, Jose Delgado, Morrell Construction Corp., Cristino Diaz, and Alberto Afanador, Luis Felipe O'Farril, Solomon Melendez, Maynard Sammons, Inc., Kensean Corp." Respondents' counsel then moved to strike from the record any and all testimony which would go, as alleged, in any way to attempt to prove there was any secondary boycott action with respect to any other employers except Commonwealth' and 10 The Trial Examiner is indebted to Respondent's counsel, George L Weasler, for his searching efforts in impeaching the testimony of this witness 11 Respondent Martinez testified substantially along the same lines except lie said noth- ing about the circle on the tablecloth However as his testimony in other respects directly contradicts the testimony of previous witnesses as to what he said over the loudspeaker to the pickeit's and what he did on June 10 when the Kelly incident happened, it is necessary to comment on his credibility. The instance of his testifying that he did not know the third man at the table leads me to have doubt that his testimony was candid and that lie was giving me the "whole truth " The identity of the man is not necessarily pertinent, but the vagueness of Respondent Martinez is He said at first, "I believe it was one of the customers there at that place who happened to be there at the table " It hardly seems likely that this seasoned union agent would discuss strike business with another union agent and with a representative of the employer with whom they had a labor dispute in the presence of "one of the customers . . who happened to be there . . . Later on at the questioning of the Trial Examiner, he thought and was "very sure" the man was waiting for the other agent at the table who in turn was waiting for him. I believe Respondent Martinez was so involved in and interested in the dispute that it was not .possible for him to testify to anything that lie thought might be harmful to his case. Accordingly I credit Carlos de la Rosa in this instance and others , as above, when they are in conflict with Mr. Martinez. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sullivan. Ruling on this motion was reserved and is disposed of in accordance with the following findings and conclusions. Respondent Martinez admitted to Carlos de la Rosa and I find that an object of Respondents was to stop suppliers from supplying materials to Levitt. I further find that they admitted that the pickets did not carry signs at the beginning of the strike identifying that the strike was against Levitt or anybody else . I also find from the substantial evidence that the General Counsel has established by a perponderance of the evidence that there were no picket signs on which were names of employers for at least the first 17 days of the strike . As these signs were carried at both entrances to the project at which business was being carried on by Sullivan and Commonwealth who were secondary employers , it is necessary to see if "all reasonable precautions" had been taken by Respondents to insulate the impact of its picketing from the employees of secondary employers . The Board has established objective criteria to assure a fair balance in the area of common-situs picketing by which any Respondent can establish the reasonableness of his conduct. As it said in Local 660, International Brotherhood of Electrical Workers, AFL-CIO, and its agent, George Sabo ( Traffic Safety , Inc.), 125 NLRB 537, at page 539: The Board and the courts have held that Section 8(b)(4)(A ) was intended by Congress to forbid secondary , but not primary picketing. Where two or more employers occupy a joint business situs the Board has atempted to strike a balance between the right of the union to publicize its dispute with the primary employer and the right of neutral employers to be free from controversies not their own . In its search for an adequate formula to effectuate these purposes the Board , with judicial approval, has developed certain objective criteria to assist in determining the impact of picketing on employees of neutral employers and the intent of the picketing union. In Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547, the Board said that "picketing of the premises of a secondary employer is primary if it meets the following conditions : ( a) The picketing is strictly limited to times when the situs of the 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." The Board's decision has been specifically affirmed by the Court of Appeals for the Second Circuit in N.L.R.B. v. Service Trade Chauffeurs, etc. (Howland Dry Goods ), 191 F. 2d 65, 68. As I have found that the picketing in the instant matter did not disclose that the dispute was with Levitt, the primary employer, for the first 17 days of the strike, and since that requirement of the objective criteria is lacking, the Respondents herein violated Section 8(b) (4) (A ) of the Act, because its picketing induced or encouraged ,employees of Sullivan and Commonwealth to engage in a concerted work stoppage with an object of forcing Sullivan and Commonwealth to cease doing business with Levitt As the order restraining Respondents from the above violation of Section 8(b) .(4) (A) would be broad enough to cover other incidents of secondary boycotts, it is unnecessary to consider whether any of the above -listed incidents were likewise -violative of Section 8(b) (4) (A ), other than in the context of a Moore Dry Dock -situation. Respondents' legal position is that picket signs were put up identifying the primary employer as soon as they were able to determine there were employees of other .employers on the site or making deliveries thereto, and they should not be held to have violated the Act before acquiring knowledge of the existence of secondary employees on the premises . This position is rejected . There ,is nothing in the law nor in the criteria of Moore Dry Dock that would permit such a theory. As the Board stated in the Traffic Safety case, supra, . we do not believe that the Respondents took ",all reasonable precautions" to insulate the impact of Respondent Union 's picketing from the employees of secondary employers . If that were so there would be little need for objective criteria to assure a fair balance in the area of common-situs picketing. The Respondents could have established the reasonableness of their conduct by adhering to the long-established and widely accepted Moore Dry Dock standards. To interject yet another factor to be established by affirmative evidence , namely, that the General Counsel must show that the union charged with a secondary boycott violation knew that there were secondary employers (on the premises in situations .of common-situs picketing under the doctrine of Moore Dry Dock ) who would be affected or that it knew their names, would not follow the plain intendment of Con- HERMANDAD DE TRABAJADORES DE LA CONSTRUCCION 913 gress nor the wording of the section of the Act, which refers to any employer. It is clear that the reasonable consequences of the act of picketing is to keep employees of every employer from crossing the picket line, hence in the absence of language identifying the party to the dispute it must be assumed or presumed that the union using the picket sign meant it to apply to neutrals of all description. (See Local Union 789, International Hod Carriers et al. (H. E. Doyle and Jno. W. Russell d/b/a Doyle and Russell), 125 NLRB 571 and United Wholesale, etc. (Perfection Mattress & Spring Company), 125 NLRB 520.) Additionally, the General Counsel established, by the testimony of Carlos de la Rosa, that Respondent Martinez told him that they (meaning all Respondents) were going to stop all materials from entering the project. This, of course, would mean that neutrals, if any, were to be stopped from crossing the picket line, and the evidence adduced establishes this as a fact. 2. Responsibility of the District Council, the International Carpenters, Martinez, and Lebron The Respondents admit in their answer that Braulio Martinez is, and at all times material herein has been, an agent of Respondent International Carpenters and the District Council and the international representative of International Carpenters, and the director of organization of the District Council; and that Jose M. Lebron is, and at all times material herein has been, an agent of International Carpenters and the District Council, and the president of the District Council. Additionally, Re- spondent Martinez testified without contradiction that he is the link beween the International Carpenters and the District Council to see to it that the District Council acts within the framework of the International Carpenters' consitution. He also testified without contradiction that Respondent Lebron works with him but under him in authority. Also, as director of organization of the District Council, he is responsible for seeing that the District Council obeys the constitution of the Inter- national Carpenters.12 Accordingly, it is clear that both Martinez and Lebron in their speech and acts-there is no contention that they were not acting in their representative capacity as agents for the International Carpenters and the District Council-were representing the International Carpenters and the District Council Otherwise, it would be incumbent upon Martinez and Lebron to make clear, if such was the case, that they were speaking or acting as individuals and not in their repre- sentative capacities. Local Union No. 789, International Had Carriers', Building and Common Laborers' Union of America, AFL-CIO, et al. (H. E. Doyle and Jno. W. Russell d/b/a Doyle and Russell), 125 NLRB 571. As an agent can be found to have violated the Act as an individual when he caused his principal to violate it, I find that both Respondent Martinez and Respondent Lebron violated Section 8(b) (4) (A) of the Act when they caused their principals to violate it as set out above. 3. Independent 8(b)(1)(A) violations I find that the General Counsel proved by a preponderance of the evidence that Respondents International Carpenters and District Council, in the conduct and direction of the strike and picketing activities described above, through their agents, including Respondents Martinez and Lebron, engaged in conduct as testified to in the following sections of this report which violated the rights of employees to be free from restraint and coercion in the exercise of their rights guaranteed under Section 7 of the Act. The precise conduct I find to be violative of Section 8(b) (1) (A) of the Act is set forth above in the following designated paragraphs which require no discussion except as made in the few instances: El(a), (b), (c), (d), (e), (f); 2(a), (b), (c); 3(a), (b), (c), (d), (e); 4(a), (b), (c); 5(a) and (b) on the ground that there is an implied threat that the broken bottle would be used on drivers who crossed the picket line; 6(a) and (b) because the point of assault, although being about one-half mile from the project, is found to be an extension of the picket-line conduct, the fight occurring as it did on the employee's regular way home from the project the day after he had been threatened by pickets that he would have trouble if he entered the project, and participated in by known strikers. This conduct is very similar to much that took place at the very entrances themselves, (c), (d), (e); 7(a) and (b) on the ground that the throwing of -'The facts show that Lebron was in charge of the strike from the third day (he ad- mitted this ) and Martinez admitted lie was in charge of the strike from the time of his arrival on the fourth day 560940-61-vo1 '12759 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stone at the truckdriver is a threat of physical harm more certain to occur than an oral threat, and (c) as an effective implied threat. No violation is found as to the incident set forth in 6(f) as the General Counsel's witness is not credited, as set forth above. As the picket-line conduct took place under the direction of Martinez and Lebron (the latter working with and under the direct control of the former) and in certain instances was specifically urged by Martinez, I find that the General Counsel has established by a preponderance of the evidence that both Martinez and Lebron, individually, restrained and coerced employees of Levitt, and of others, in the exercise of their rights guaranteed under Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Companies involved herein , and their sup- pliers, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce . (See United Wholesale and Warehouse Employees, Local 261, Retail, Wholesale and Department Store Union, AFL-CIO (Perfection Mattress & Spring Company ), 125 NLRB 520, Conclusions of Law.) V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that the Board order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Companies involved herein are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Carpenters and District Council are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents Martinez and Lebron are agents of the respondent labor organizations. 4. The activities of the Respondents, as set forth above, have been found to constitute unfair labor practices in violation of Section 8(b) (4) (A) and 8(b) (1) (A) of the Act. [Recommendations omitted from publication.] Consolidated Brick Company, Inc. and United Electrical, Radio and Machine Workers of America (UE), Petitioner. Case No. 3-RC-2223. May 26, 1960 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Thomas H. Ramsey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 'The International Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Local 310, herein called the Intervenor, offered to prove that a contract between the Employer and the Intervenor was intended and interpreted by the contracting parties as being an agreement for a term of 2 years. The hearing officer rejected the offer of proof. For the reasons stated in paragraph numbered 3, infra, the hearing officer's ruling is affirmed. 127 NLRB No. 114.