Excavating & Building Material, Etc., Local 379

EXCAVATING & BUILDING MATERIAL, ETC., LOCAL 379 827 The customary formula set forth in F. W. Woolworth Company, 90 NLRB 289, should be followed in computing the amount of backpay due. I shall also recom- mend that Respondent preserve and make available to the Board or its agents, upon request, all records, reports, lists, and other documents and information necessary for analysis and computation of the amount of backpay and refunds due under the terms hereof. On the basis of the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Association and its members, including Tri-County Painting Company, and Stratford, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining, enforcing, and giving effect to provisions of existing agreements with the above-named Association and its members, and Stratford and other non- Association employers , as well as oral arrangements, practices, and understandings with said employers, which unlawfully condition the hire of applicants for employ- ment, and the retention of employees in employment by employers, upon member- ship in, registration with, or referral, clearance, or approval by, Respondent Union, and otherwise discriminate against employees in violation of Section 8(a)(3) of the Act, and by requiring employees and applicants for employment to pay initiation fees, dues, assessments, working fees, permit fees, and other moneys to Respondent Union in order to obtain or retain employment , Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 4. By causing Tri-County Painting Company and other members of the Association aforesaid, and Stratford and other non-Association employers , to discriminate against employees and applicants for employment in regard to hire and tenure of employ- ment and terms and conditions of employment in violation of Section 8(a)(3) of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b)(2) of the Act. 5. By the above conduct , and by refusing to refer applicants for employment to jobs and otherwise coercing and restraining employees and applicants for employ- ment in the exercise of rights guaranteed to them by Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent Union has not violated the Act by discrimination against Rocco Milano as alleged in the amended complaint. [Recommendations omitted from publication.] Excavating and Building Material Chauffeurs and Helpers Local Union No. 379, International Brotherhood of Teamsters', Chauffeurs, Warehousemen and Helpers of America ; its secre- tary treasurer, Charles A. Burns, and its business agent, John J. Garvey and Consalvo Trucking, Inc. Case No. 1-CC-245. August 10, 1961 DECISION AND ORDER On September 15, 1960, Trial Examiner A. Bruce Hunt issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union and its Secretary-Treasurer Burns had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, 132 NLRB No. 64. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices as alleged in the complaint, and recommended that these particular allegations be dismissed. There- after, the General Counsel and the Respondents filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, as modified herein. In concluding, as the Trial Examiner did, that Section 8(b) (4) (i) (B) was not violated in this case, we rely on the fact that none of the secondary employers' representatives approached on the occasions in issue was an "individual" within the meaning of Section 8(b) (4) (i).1 We therefore need not pass upon the Trial Examiner's views as to the interrelationship between Sections 8(b) (4) and 8(e) of the Act. ORDER Upon the basis of the entire record in this case, and pursuant to Sec- tion 10(c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that the Respondents, Excavating and Building Material Chauffeurs and Helpers Local Union No. 379, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents, successors, and assigns, including its secretary-treasurer, Charles A. Burns, shall : 1. Cease and desist from threatening, coercing, or restraining Foun- dation Company of New York, Jeremiah Sullivan Sons, Inc., Ox-Bow, Inc., or any other person engaged in commerce or in an industry affect- ing commerce, with the object of forcing or requiring (1) Ox-Bow, Inc., or any other employer or person engaged at the East Boston Tunnel and Boston Common Garage projects to cease doing business with Consalvo Trucking, Inc., or (2) said Consalvo to recognize or bargain with Local Union No. 379 as the representative of its em- ployees unless said Local Union shall have been certified by the Board as such representative. I See Carolina Lumber Company, 130 NLRB 1438, Local 324, International Union or Operating Engineers, AFL-CIO (Brewer's City Coal Dock ), 131 NLRB 228. EXCAVATING & BUILDING MATERIAL, ETC., LOCAL 379 829 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in Local Union No. 379's business offices, meeting halls, and all places where notices to members are customarily posted, signed copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall be signed and posted by Respond- ents Local Union No. 379 and Burns immediately upon receipt thereof and maintained by them for at least 60 consecutive days thereafter. Reasonable steps shall be taken by said Respondents to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of such notice to said Regional Director for posting, the employer willing, at all locations within the territorial jurisdiction of Local Union No. 379 where notices to em- ployees of Consalvo Trucking, Inc., are customarily posted. (c) Mail signed copies of such notice to Foundation Company of New York, Jeremiah Sullivan Sons, Inc., and Ox-Bow, Inc. (d) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps said Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that (1) the Respondent Garvey has en- gaged in unfair labor practices and (2) that any Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) and Section 8(b) (4) (i) and (ii) (A) of the Act. 2 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." APPENDIX NOTICE TO ALL OUR OFFICERS, AGENTS, REPRESENTATIVES AND MEMBERS, TO ALL EMPLOYEES OF CONSALVO TRUCKING, INC., AND TO FOUNDATION COMPANY OF NEW YORK, JEREMIAH SULLIVAN SONS, INC. AND Ox-Bow, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, you are hereby notified that : WE WILL NOT threaten, coerce, or restrain Foundation Com- pany of New York, Jeremiah Sullivan Sons, Inc., Ox-Bow, Inc., or any other person engaged in commerce or in an industry affect- ing commerce, with the'object of forcing or requiring (1) Ox- Bow, Inc., or any other employer or person engaged at the East Boston Tunnel and Boston Common Garage projects to cease doing business with Consalvo Trucking, Inc. or (2) Consalvo 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trucking, Inc., to recognize or bargain with Local Union No. 379 as the representative of employees of Consalvo Trucking, Inc., un- less Local Union No. 379 shall have been certified by the National Labor Relations Board as such representative. `CHARLES A. BURNS, EXCAVATING AND BUILDING MATERIAL Secretary-Treasurer, CHAUFFEURS AND HELPERS LOCAL Local Union No. 379. UNION No. 379, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, (CEARLes A. BURNS ) CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. _ RECOMMENDED DECISION This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, involves allegations that the three Re- spondents, the above-named Local Union No. 379 and its secretary-treasurer and business agent, Charles A. Burns and John J. Garvey, respectively, violated Section 8(b) (4) (i) and (ii ) (A) and (B) of the Act . On July 7, 1960, a hearing was con- ducted by Trial Examiner A. Bruce Hunt at Boston , Massachusetts, at which all parties were represented. Witnesses were not called , however. Instead, by stipulation the parties placed in evidence a transcript of testimony before Judge Charles E. Wyzan- ski, Jr., of the United States District Court, District of Massachusetts, in Civil Action No. 60-287-W, which was a proceeding instituted under Section 10(1) of the Act. Briefs have been received from the General Counsel and the Respondents. In addition, I have studied the opinion of Judge Wyzanski in the civil action , Alpert, etc. v. Excavating and Building Material, etc., 184 F. Supp. 558 (D.C. Mass.). The Respondents' motions to dismiss the complaint are disposed of in accordance with the determinations below. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE SEVERAL EMPLOYERS Perini Corporation (herein called Perini ) is engaged in general contracting in the construction industry in Massachusetts and elsewhere. At times material, Perini has been the general contractor in the construction of the East Boston Tunnel at Boston, Massachusetts, the approximate cost of which is $30,000,000. Foundation Company of New York (herein called Foundation ) is also engaged in general contracting in the construction industry . At times material, Foundation has been the general contractor in the construction of a parking garage under the Boston Common in the city of Boston at an estimated cost of more than $7,000,000. Jeremiah Sullivan Sons, Inc. (herein called Sullivan), is an excavator in the construction industry. Pursuant to a subcontract with Foundation, Sullivan has engaged in excavation at the site of the Boston Common Garage to the extent of over $200,000. Ox-Bow, Inc. (herein called Ox-Bow), is engaged in the removal and sale of fill dirt. Pursuant to a subcontract with Sullivan, Ox-Bow has removed dirt from the garage project and has sold it. Ox-Bow's services are valued in excess of $50,000. The Charging Party, Consalvo Trucking, Inc. (herein called Consalvo, Inc.), is a Massachusetts corporation which is engaged in the rental of trucks and in the hauling and sale of fill dirt. During the 12 months preceding May 1960, Con- salvo, Inc., furnished services valued in excess of $50 ,000 to persons or firms in Massachusetts which annually receive from outside that State goods valued in excess of $50,000 or which annually ship products to, or perform services of such value at, points outside Massachusetts . In particular, with respect to the garage EXCAVATING & BUILDING MATERIAL, ETC., LOCAL 379 831 project, Consalvo, Inc., contracted with Ox-Bow for the purchase and removal of dirt. With respect to the tunnel project, Consalvo, Inc., has leased trucks with drivers to Perini. There is no dispute, and I find, that each of the above-named Employers is en- gaged in commerce within the meaning of the Act. II. THE RESPONDENTS The Respondent Union is a labor organization within the meaning of the Act. Charles A. Burns and John J. Garvey are its secretary-treasurer and business agent, respectively. III. THE UNFAIR LABOR PRACTICES A. The issues At times material, a labor dispute has existed between the Union and Consalvo, Inc. A number of Consalvo, Inc.'s truckdrivers are suspended members of the Union and Consalvo, Inc., has refused to sign a contract with the Union which has not been certified by the Board as the representative of Consalvo, Inc., employees. The issue is whether the Respondents violated Section 8(b) (4) (i) and (ii) (B) of the Act by their conduct concerning Consalvo, Inc., at the East Boston Tunnel and the Boston Common Garage projects. According to the General Counsel's com- plaint, during April 1960 the Respondents (1) "ordered, instructed, requested, and appealed to individuals employed by Sullivan, Ox-Bow, and Perini not to load or use Consalvo's trucks," and (2) "threatened, coerced, and restrained Ox-Bow, Sul- livan, Perini, and Foundation" with the objects of (a) forcing or requiring "OxBow, Sullivan, Perini, and other persons to cease . . . doing business with Consalvo," and (b) forcing or requiring Consalvo, Inc., to recognize or bargain with the Union although the latter has not been certified as the representative of Consalvo, Inc., employees. The pertinent portions of the Act are: SEC. 8. (b) It shall be an unfair labor practice for a labor organization or its agents- (4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: * * * * * * * (B) forcing or requiring any person to cease . . . doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9....1 The first proviso to Section 8(e) of the Act is advanced by the Respondents in defense. That section makes it an unfair labor practice for a labor organization and an employer to enter into contractual provisions, express or implied, of the sort which are commonly called "hot cargo" agreements. The section's first proviso, however, is That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the con- tracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work ... . 'In addition to the above allegations, the complaint contains a conclusory allegation that the Respondents violated Section 8(b) (4) (i) (11) ('A) where the proscribed object is "(A) forcing or requiring any employer or self-employed person to join any labor organi- zation or to enter into any agreement which is prohibited by section 8(e) " The Re- spondents' motion to dismiss this allegation is granted because (1) the quoted proscribed objective is not recited in the complaint as an objective of the Respondents' conduct, (2) no factual allegations appear in the complaint upon which to base the conclusory allegation that subsection (A) was violated, and (3) counsel for the General Counsel appears not to object to the motion to dismiss this allegation because, in her brief, she says that the "sole issue" is whether the Respondents violated subsection (B). 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Events at the East Boston Tunnel project Perini is the general contractor for construction of the tunnel. As a member of an employer association, Perini is a party to the Massachusetts Heavy Construc- tion Agreement of May 1, 1959, to which the Union also is a party. Pursuant to that agreement, as applied to the tunnel project, Perini recognized the Union as the exclusive representative of certain of Perini's employees and agreed to a union- security provision, specified wage rates, hours of work, and other conditions of em- ployment. That agreement also provides in article XIV, E, that If an individual employer [such as Perini] shall subcontract work as herein defined, provision shall be made in such sub-contract for the observance by said sub-contractor of the terms of this agreement. At an undisclosed date, Perini contracted with Consalvo, Inc., whereby the latter rented trucks with drivers to Perini. At that time, according to the testimony of William A. Consalvo, the treasurer of Consalvo, Inc., given in the proceeding before Judge Wyzanski, Perini's representative made it clear to William Consalvo that each truckdriver on the project "had to carry a [union] book." Although Perini, in thus making a point clear to William Consalvo, was seeking to abide by its contract with the Union, Consalvo, Inc., was not candid with Perini. This is so because the truck- drivers of Consalvo, Inc., if they were in good standing in the Union when Consalvo, Inc., and Perini entered into the contract, they lost their good standing later, and no one representing Consalvo, Inc., ever volunteered to Perini that those truck- drivers had become ineligible under Perini's standards to work on the tunnel project. At the north end of the project, Perini's highest representative is Superintendent John F. Dunn .2 His immediate superior is Irving Huie, project manager whose office is at the opposite end of the project. Huie's superior is one Richardson, a vice president of Perini, but the record does not disclose the extent to which Richardson spends any time at the project. On April 15, 1960, the Respondent Garvey went to the north end of the project where he inspected the union books of truckdrivers. In the instance of each driver employed by Consalvo, Inc., whose book Garvey examined, Garvey found that the driver had been suspended by the Union. Garvey learned from a truckdriver em- ployed by Perini that Dunn was the superintendent and, together with that driver, Garvey went to Dunn. Garvey informed Dunn that Consalvo, Inc., did not have a contract with the Union, that Consalvo, Inc., drivers were delinquent in their dues, that their books "had lapsed," and that they should not be at work on the project. On the same day, Dunn was told also that Consalvo, Inc., had been paying its drivers a rate less than the union rate.3 Dunn, who testified that Perini operates "a union job," told Garvey that he would keep Consalvo, Inc., trucks off the project but that he would contact Consalvo, Inc. In about 1 hour, William Consalvo arrived at the project in response to a call from Dunn. He was told by Dunn that he had "better get squared away" with the Union because, as far as Dunn was concerned, "this con- dition . . . just can't exist." At that point Garvey and William Consalvo talked privately. Their testimony concerning Garvey's remarks to William Consalvo is con- flicting, but the conflicts need not be recited and resolved. It suffices to say that Garvey acknowledged having told William Consalvo that he had "better go up to the union and get himself straightened out." The two men returned to Dunn and, so Dunn testified, told Dunn that they would meet later that day in an effort "to get the thing squared away." Consalvo, Inc., truckdrivers apparently worked for the re- mainder of the day, which was a Friday, but there was no further excavation until the middle of the next week and thus no need by Perini for Consalvo, Inc., services until then. On Monday, April 18, Garvey returned to the project and told Dunn that Con- salvo, Inc., had not signed a contract with the Union. On or about the same day, Garvey talked with Richardson, identified above as a vice president of Perini, and Garvey told Richardson that Consalvo, Inc., was not paying its truckdrivers the rate set out in the contract between Perini and the Union, that Perini therefore was vio- lating the contract, and that Garvey would summon Perini "to the Sate House for violation" of the contract. Richardson replied that he had been unaware of the situ- ation and that he would cancel his subcontract with Consalvo, Inc. 2 Spelled "Dunn" in the transcript and in the Respondents' brief, but spelled "Dunne" in Judge Wyzanski's opinion and in the General Counsel's brief. 8 Dunn testified for the General Counsel that he was so told but that his recollection was unclear as to the circumstances. Garvey testified that he so informed Dunn in their conversation. EXCAVATING & BUILDING MATERIAL, ETC., LOCAL 379 833 On April 20, Perini resumed excavation on a limited scale and had need for only two of Consalvo, Inc., trucks and drivers. Dunn arranged with Consalvo for them. That afternoon Garvey went to the project, told Dunn that he had talked with Rich- ardson, and asked if Dunn had heard from Richardson. Dunn answered in the nega- tive. The next day Huie, the project manager for Perini, who had been kept advised of developments by Dunn, told Dunn to cease using Consalvo, Inc., trucks and drivers. Dunn did so. C. Conclusions with respect to events at the East Boston Tunnel project It is too clear for argument that Garvey's remarks to Dunn and Richardson were for the objectives proscribed in subsection (B) of Section 8(b) (4) (i) (ii) of the Act, above quoted. But the question remains whether Garvey's remarks come within the means set forth within clauses (i) and (ii). As to the latter, (ii), which covers threats, coercion, and restraint, counsel for the General Counsel does not contend in her brief that Garvey violated the Act by threatening to summon Perini to the State House for violation of the contract. Counsel for the General Counsel does contend, however, that the "substance and plain effect" of Garvey's remarks to Dunn was "a threat to shut the job down unless Consalvo was removed." I disagree. I find nothing in those remarks which may be construed reasonably as a threat and, indeed, Dunn testified for the General Counsel that Garvey did not threaten him .4 We turn to the question whether Garvey's remarks to Richardson and Dunn consti- tuted inducement or encouragement of an individual within the meaning of clause (i). The General Counsel answers the question in the negative with respect to the re- marks to Richardson but in the affirmative concerning the remarks to Dunn. The contention, in part, is: To preserve the dichotomy between clause (i) and clause(ii), we submit that the proper construction of the phrase "individual employed by" is that, by clause (i), Congress intended to proscribe the inducement or encouragement of an employed person, regardless of status or position, which is designed to bring about a refusal in the course of his employment to perform services. If, on the other hand, it is clear from all the facts that the Union's appeal is to one at the policy-making level of management, and that the appeal is designed only to bring about a policy decision which will be effectuated by management through sub- ordinates, such appeals are within the area which Congress intended to reserve to a Union, namely to appeal to a person not to do business with another person who is in disfavor with the Union. . . In the latter situation the Union's appeal is a violation of Section 8(b)(4) only if it constitutes a threat, coercion or re- straint proscribed by clause (ii) of that Section. [Emphasis supplied.] On the other hand, the Respondents, pointing to the Union's contract with Perini and to Dunn's testimony that Perini operates "a union job" only, assert that "the policy decision had already been made, and it . . . is certainly more appropriate to deal with those individuals on the site who are charged by their employer with carrying out the company's established policy" than to have "repeated contacts" at the "level of policy making." In addition, the Respondents point to the opinion of Judge Wyzanski wherein he said at 46 LRRM 2321: § 8(b)(4)(i) is concerned with appeals addressed to those who perform services manually or clerically, or who manually use goods, or who have minor supervisory functions. It does not cover appeals to those who on behalf of their employer have power lawfully to terminate, cease, or otherwise control business relations with the so-called primary employer. In addition to Judge Wyzanski's interpretation of the phrase "any individual em- ployed by . . .", certain Trial Examiners of the Board have reached varying inter- pretations in cases which now are pending before the Board but which do not involve covenants by contractors in the construction industry that they will not subcontract with nonunion employers.5 * Judge Wyzanski, who heard the witnesses and who issued an opinion in the injunction case, said with respect to events at the tunnel project that "There is not the slightest basis for finding that any respondent attempted 'to threaten, coerce, or restrain' in vio- lation of § 8(b ) (4) (ii)." Alpert etc. v . Excavating and Building Material, etc., supra, p. 2321. " Three cases are cited in the General Counsel's and the Respondents' briefs . They are Minneapolis House Furnishing Company, 132 NLRB 40; Jack M. Lohman, d/b/a Lohman Sales Company, 132 NLRB 901; and Peyton Packing Company, Inc., 131 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not believe that I must endeavor to interpret the phrase so definitively as have my colleagues. This is so because of the provision in the contract between Perini and the Union which obligated Perini to require of subcontractors that they observe the terms of the contract. In the injunction proceeding before Judge Wyzanski, the General Counsel conceded the validity of the contract. Alpert etc. v. Excavating and Building Material, etc., supra, p. 2321. In her brief to me, counsel for the General Counsel assumes the applicability of the contract to the facts herein and concedes that Section 8(e) quoted above authorizes such an agreement, but she argues that "Section 8(e) does not permit, and Section 8(b)(4) prohibits, a union from enforcing such an agreement by inducing or encouraging employed individuals to engage in work stoppages...." I hold that there is inherent in the first proviso of Section 8(e) the right of a labor organization (1) to call to the attention of an employer in the construction industry the nonobservance by the employer of a contractual provision of the sort which the proviso permits and (2) to request, noncoercively, that the employer abide by his valid agreement. An analogy may be found in the proviso to Section 8(a) (3) which permits union-security agreements of a specific nature. Inherent in that proviso is the right of a labor organization to request an employer to comply with a valid union-security agreement by discharging a non-dues-paying member. By clauses (i) and (ii) in Section 8(b) (4), the Congress sought to free employers from-and from nothing more than-specified coercive conduct which is designed to compel the results or objects set out in subsections (A) through (D). Insofar as I can determine, the Congress did not intend by those clauses to free employers from simple requests, as distinguished from coercive conduct, that they abide by their valid "hot cargo" contracts in the construction industry. An analogy is the fact that the Congress did not intend by Section 8(b)(2) to free employers from union requests that ,they abide by their valid union-security contracts .6 I hold, too, that Dunn was an appropriate representative of Perini to whom the Union could call attention to the breach of contract and of whom the Union could request that Perini comply with the contract. This is so because Dunn was empow- ered by Perini to act upon such request. I agree with Judge Wyzanski wherein he said, as quoted above, that Section 8(b)(4)(i) "does not cover appeals to those who on behalf of their employer have power lawfully to terminate, cease, or otherwise control business relations with the so-called primary employer." 7 The breach of the contract occurred at the north end of the tunnel project where Consalvo, Inc., trucks and drivers were being used and where Dunn, a superintendent, is the highest representative of management. One of Dunn's duties as such representative, so he testified, is to adjust grievances with representatives of labor organizations in "prac- tically all of the building trades." Although Dunn does not have authority to exe- cute subcontracts and although a superior gives to him a list of persons whose trucks may be used on the project, from which list Dunn may not deviate, he is authorized to select from among the persons on the list those whom he wishes to supply trucks. There is no reason to conclude that Dunn was not acting within his authority when he told William Consalvo that Consalvo had "better get squared away" with the Union because, as far as Dunn was concerned, "this condition . . . just can't exist." 8 We have seen that Garvey's initial conversation with Dunn took place in the presence of a truckdriver employed by Perini . The General Counsel asserts that Garvey, by speaking to Dunn in the truckdriver's presence on that occasion, induced and encouraged the truckdriver to cease working for Perini. I see no reasonable basis for such assertion. Nothing which was said by Garvey to Dunn may be construed as a suggestion that the truckdriver, a member of the Union, cease work. Insofar as appears, the truckdriver continued at work. NLRB 406. Three additional cases, more recently decided, are Van Transport Lines, Inc., 131 NLRB 242; Carolina Lumber Company, 130 NLRB 1438; Brewer's City Coal Dock, 131 NLRB 228 9 Section 8(b) (2) provides that it shall be an unfair labor practice for a labor organiza- tion "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (8). . . . 7In reaching this conclusion, I reject the contention of the General Counsel that N. R.B v Bangor Building Trades Council (Davison Const. Co ), 278 F 2d 287, 200 ('CA 1), should be applied here in support of a determination that Garvey's remarks to Dunn were violative of Section 8(b) (4) (1) (B). That case dealt with coercive conduct in the form of picketing. 8 The fact that Dunn did not comply with Garvey's request until Dunn received a direction from Project Manager Huie does not undermine the finding that Dunn was em- powered by Perini to comply with it. EXCAVATING & BUILDING MATERIAL, ETC., LOCAL 379 835, For the reasons given , I find that none of the Respondents violated the Act with respect to events at the East Boston Tunnel project. Since the Respondent Garvey is. not involved in the alleged unfair labor practices at the Boston Common Garage- project, discussed below, I shall recommend that the complaint be dismissed as to him. D. Events at the Boston Common Garage project As recited, Foundation is the general contractor for construction of the garaged Sullivan has a subcontract with Foundation to excavate ; Ox-Bow has a subcontract with Sullivan to furnish trucks with drivers to remove the dirt which Sullivan's em- ployees dig and load onto trucks ; and Consalvo, Inc., subcontracted with Ox-Bow for the purchase and removal of dirt. Various other truckowners , unidentified in the record, also contracted with Ox-Bow to furnish trucks and drivers for removal of the dirt. The Union does not have a written contract with any employer identified in the paragraph next above . After Foundation was awarded the contract for construction, of the garage, however, its representatives went to Boston and conferred with repre- sentatives of the building trades unions. They agreed orally that the garage project. would be "100 percent union." In addition, Sullivan's general manager, one Moroney, orally agreed with the Union to observe the terms of the Massachusetts Heavy Construction Agreement mentioned above, and Thomas E. Ryan , president of Ox-Bow, testified for the General Counsel that his practice "right along" has been to use trucks which are driven only by union members. Ox-Bow, which appears not. to own and operate trucks but to lease the trucks of other persons , has only one employee and one representative on the garage project and does not have a contract,. written or oral, with the Union. At this point certain additional persons will be identified . Edward J. Ryan is em- ployed by Sullivan as an engineer . He is the highest representative of Sullivan em- ployed fulltime on the project and he works under the supervision of Sullivan 's general manager, Moroney. Louis R. Flagg is the only employee of Ox-Bow who works on the project . He is classified as a checker and dispatcher , and certain of his duties are recited hereinafter. Steven Hathaway is a commission agent who , at times ma- terial, acted as a representative of Ox-Bow . He is not an employee of Ox-Bow, however, and he described himself as a self -employed, freelance dirt mover who is compensated by Ox-Bow and other dirt movers primarily for what he knows, namely, places at which dirt may be sold or dumped. Hathaway does not work at the garage project fulltime but he goes there several times a day. According to the testimony of Edward Ryan of Sullivan , a witness for the General Counsel, when Hathaway first appeared at the garage project as a representative of - Ox-Bow ' Sullivan instructed Hathaway that Sullivan would "run a union job" and that Hathaway had ".to hire union trucks" only. According to the testimony of Thomas Ryan, Ox-Bow's president, also a witness for the General Counsel, Ryan's longstanding instructions to his only employee on the jobsite, Flagg , have been that only trucks approved by the Union may be loaded . Thus, the General Counsel's testimony is that these secondary employers on the project were opposed to doing business with "nonunion" employers. We turn now to events at the project which involved Consalvo , Inc. The contract between Consalvo, Inc., and Ox-Bow was for the sale of dirt to Consalvo , Inc. The quantity of dirt which Consalvo, Inc., bought was greater than could be hauled by its. five trucks, however, so the excess was hauled by trucks which Ox-Bow leased from unidentified persons. The conduct of the Union described below was aimed only to, Consalvo, Inc., trucks, however, and not at the arrangement between Consalvo, Inc., and Ox-Bow for the hauling of the excess dirt in other trucks. Frank J . McMorrow is president of the Union . On April 18, 1960, he and Re- spondent Burns conferred with a representative of Foundation, one Thompson, and with Edward Ryan and Thomas Ryan. McMorrow told the three employer-repre- sentatives that the project was "a union job , and it was to remain a union job," and that no truck would operate unless all were driven by union members .9 9 This finding is based upon the testimony of Thomas Ryan, who is referred to in Judge Wyzanski's written opinion and in the General Counsel's brief as Donald Ryan McMorrow was not a witness Burns, who was a witness , did not testify concerning McMorrow 's remarks . Although Edward Ryan testified that there was no threat by the Union of any interruption of work on the project , he was not asked about the con- ference in which McMorrow participated . Judge Wyzanski , who heard the witnesses, credited the testimony of Thomas Ryan. I 614913-62-vol. 132-54 .836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 20, Respondent Burns went to the garage project. There he talked first with Sullivan's engineer, Edward Ryan. Burns told Ryan that Consalvo, Inc., was not in good standing and that Burns was going to "straighten out" with Consalvo, Inc., before Consalvo, Inc., trucks could be used on the project. Ryan replied ,that Burns should take the matter up with Hathaway, Ox-Bow's representative.lo Bums went to Hathaway, to whom he said that Consalvo, Inc's trucks were not "union trucks," that those trucks would have to be removed from the job, and that .the Union would remove its members from the job unless all trucks on the project were "union trucks."" Burns next talked to Flagg, telling Flagg that Consalvo, Inc., trucks could not be loaded.12 Hathaway also told Flagg not to let Consalvo, Inc., trucks enter the jobsite. Flagg, who, as recited above, had been told by his ,employer, Thomas Ryan, president of Ox-Bow, not to permit a truck to be loaded in any instance when a representative of the Union objected, told William Consalvo that Consalvo, Inc., trucks could not be loaded "at Mr. Burns' orders." William Consalvo replied that since Consalvo, Inc., trucks could not be loaded, Consalvo, Inc., would cease purchasing dirt which was being hauled in other trucks. Since most, if not all, of about 25 trucks on the project were being used to haul dirt purchased by Consalvo, Inc., Edward Ryan rented trucks at Sullivan's expense to haul dirt to a stockpile for the remainder of the afternoon. Ryan also told Hathaway, as a repre- sentative of Ox-Bow, to arrange by the next morning for Ox-Bow to resume its sub- -contract to dispose of the dirt. At the time of the hearing, Consalvo, Inc., trucks had not returned to the project. One factual dispute remains to be discussed. It involves a conflict in the testimony of William Consalvo and the Respondent Burns. According to the testimony of the former, during lunchtime on April 20, Burns spoke to a group of 20 to 30 truck- drivers, saying in vulgar language that William Consalvo was "no ____ good" and telling the truckdrivers "not to do business with" William Consalvo or "the likes of" him. On the other hand, Bums acknowledged having spoken to the truckdrivers but denied that he had mentioned Consalvo. The truckdrivers who were there fall into three categories: (1) employees of Consalvo, Inc.; (2) drivers who operated their own trucks and who had contracted with Ox-Bow to haul dirt; and (3) employees of various unidentified concerns which had similar contracts with Ox-Bow. With the exception of Consalvo, Inc., employees, all of the truckdrivers were members in good standing of the Union. Assuming arguendo that the remarks attributed to Burns by William Consalvo were such as to constitute encouragement of the truckdrivers to -cease hauling dirt for Ox-Bow,13 and assuming also that the subject is embraced within the allegations of the complaint 14 I cannot find a violation of Section "These findings are based upon the testimony of Edward Ryan. Burns' testimony ,concerning the conversation is different, but Judge Wyzanski credited Ryan "These findings are based upon the testimony of Hathaway, which Judge Wyzanski credited. Burns' testimony, which Judge Wyzanski discredited, contains an admission that Burns asked Hathaway to cease using Consalvo, Inc, trucks but a denial that Burns threatened to remove union members from the project. 12 Flagg so testified for the General Counsel. On the other hand, Burns denied having told Flagg that Flagg could not load Consalvo, Inc., trucks, testifying that instead he told Flagg that Consalvo, Inc, trucks should not be let onto the project. At this point I must note my respectful disagreement with certain findings of Judge Wyzanski, but I note too that the disagreement does not affect the scope of the Recommended Order below. Judge Wyzanski found that "To all these men [Edward Ryan, Hathaway and Flagg] Burns made it plain that Local 379 men would not work for Sullivan or Ox-Bow or their sub-contractors if Consalvo, while it had no contract with Local 379, was allowed to use his [Consalvo, Inc ] trucks and employees to transport earth from the garage site." Alpert etc. v. Excavating and Building Material, etc, supra, p. 2322. I agree, as I have found, that such was made plain by Burns to Hathaway, but I cannot find that a like threat was made by Burns to Flagg or Edward Ryan. Burns' and Flagg's testimony will not support such a finding. Ryan testified that his conversation with Burns was very brief, that he did not recall Burns having said anything about what Burns might do, and that Burns did not threaten him. Hathaway's testimony is in- consistent. He first testified that he thought that he and Burns were alone when they talked. He next testified that he believed that Edward Ryan and Flagg had been present, but he quickly changed the latter testimony by saying that he did not remember whether anyone was present in addition to Burns and himself. Upon being asked to pause and reflect, he answered that no one else had been present. 18 This assumption is made in the face of clear evidence that the Union's conduct de- -scribed herein was aimed at Ox-Bow's use of Consalvo, Inc., trucks, not at Ox-Bow's use -of trucks belonging to other persons. 14 The complaint does not identify any of the owner-operators nor any of the concerns EXCAVATING & BUILDING MATERIAL, ETC., LOCAL 379 837 ;8(b) (4) (i) and (ii) (B) in this testimony of William Consalvo. In his written opinion in the injunction case, Judge Wyzanski, who had observed Bums and William Con- salvo as witnesses, did not discuss this conflict in their testimony. He held, however, that the Union had not violated Section 8(b)-(4)(i)-(B) in any respect, and his conclusion that the Union violated Section 8(b) (4) (ii) (B) was based upon his find- ings that McMorrow threatened representatives of Foundation, Sullivan, and Ox-Bow, as described above, and that Burns threatened Edward Ryan, Hathaway, and Flagg, as described in footnote 12. One may infer that Judge Wyzanski did not credit the testimony of William Consalvo in the face of Burns' contrary testimony although Burns was discredited in another instance. Since the record does not preclude such inference, and since the General Counsel did not call as a witness any of the group of 20 to 30 truckdrivers whose testimony might have made clear whether Burns or William Consalvo testified accurately, I conclude that the General Counsel has not sustained his burden of proof that Bums made the remarks attributed to him by William Consalvo. E. Conclusions with respect to events at the Boston Common Garage project Upon these facts, the issues to be decided are whether the Union and the Respond- ent Burns violated (1) Section 8(b) (4) (i) (B) by Burns' nonthreatening remarks to Edward Ryan, Hathaway, and Flagg; and (2) Section 8(b) (4) (ii) (B) by McMorrow's threat to Thompson and the two Ryans and by Burns' threat to Hathaway. 1. Was there invalid inducement or encouragement of Edward Ryan, Hathaway, or Flagg within the meaning of clause (i)? The General Counsel and the Respondents take the same respective positions con- cerning the Union's oral contracts with Foundation and Sullivan as they took con- cerning the Union's written contract with Perini.15 I reiterate my opinion that there is inherent within the first proviso to Section 8(e) the right of a labor organization, which is a party to a contract which the proviso permits, to call to the attention of the employer-party the nonobservance of the contract by the latter and to request, noncoercively, that the latter abide by the contract. The questions are whether Edward Ryan, Hathaway, and Flagg were appropriate representatives of manage- ment to whom to call such attention and of whom to make such requests. Ryan, as Sullivan's engineer and highest representative on the project, works in close cooperation with Sullivan' s general manager, Moroney, who visits the project once or more a day. Ryan is authorized to decide what equipment to use and, in any instance in which he is disatisfied with the operation of pieces of equipment, to make changes. As we have seen, on April 20 Ryan put various trucks and drivers on Sullivan's payroll for the remainder of that afternoon. We have seen, too, that Ryan told Hathaway, Ox-Bow's representative, that Hathaway would have to be prepared to move the dirt the following morning in accordance with Ox-Bow's subcontract. In each of these instances, insofar as appears, Ryan was acting within his authority. Hathaway, the freelance dirt mover, is the person who agreed with Edward Ryan or someone else who acted for Sullivan, that Ox-Bow would use only trucks driven by union members.16 Flag, the checker and dispatcher for Ox-Bow, has various duties and he has the authority to sell dirt and to hire trucks and drivers. As found above, he had been told by Ox-Bow's president not to allow nonunion trucks on the job. In short, Ryan was Sullivan's representative in dealing with Sullivan's subcontractor, Ox-Bow, in matters arising on the job. Hathaway, having had authority to bind Ox-Bow to an agreement with Sullivan to use union trucks only, was a proper person with whom the Union could take up its grievance. Flagg had been charged by Ox- Bow's president with responsibility for keeping nonunion trucks off the job. I find that Ryan, Hathaway, and Flagg were appropriate representatives of management to whom union representatives could lawfully call attention to the nonobservance by Sullivan of its oral agreement with the Union and the nonobservance by Ox-Bow of a condition of its subcontract with Sullivan, and of whom the union representatives could request, noncoercively, that there be compliance . For the reasons given, I (other than Consalvo, Inc.) which had contracts with Ox-Bow to haul the dirt Too, counsel for the General Counsel does not argue in her brief that the remarks attributed to Burns constituted a violation of Section 8(b) (4) (1) and (ii) (B) '5The pertinent proviso to Section 8 (e) does not limit the validity of a "hot cargo" contract in the construction industry to contracts which are in writing. '$ Edward Ryan's testimony is that "we had previously instructed Hathaway we were going to run a union job and he had to hire union trucks, to which he was agreeable." 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that the Union and Respondent Burns have not violated Section 8 (b) (4) (i) (B), by acts at the garage project. 2. Did the threats by McMorrow and Burns violate Section 8(b),(4) (ii) (B) ? We have seen that McMorrow and Burns made threats to certain persons that the. truckdrivers on the project who were members of the Union would be removed from the project by the Union unless Ox-Bow ceased using nonunion drivers. Such threats are clearly of a type which the Congress proscribed by clause (ii) of Section 8(b) (4), and the Respondents do not appear to argue the contrary . Instead, the defense is that there is insufficient evidence that the threats were made to anyone, and, with respect to Hathaway , that he "is an independent contractor or commission man, admittedly not engaged in commerce ." The first defense has been disposed of adversely to the Union and Respondent Burns by the factual findings above. The second defense, relating to Hathaway, must also fall. Although Hathaway testified that he was "not engaged in commerce in the normal sense of the word" as of the date he gave his testimony, he was a representative of'Ox-Bow upon the occasion of Burns' threat to him . The Respondents concede that Ox-Bow was engaged in commerce. It would be wholly unrealistic and contrary to congressional intent to, hold that Hathaway was not a "person engaged in commerce or in an industry affect- ing commerce" as that phrase is used in clause (ii). For the reasons given, I find that the Union and Respondent Burns violated Section 8(b)(4)(ii)(B). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Union and the Respondent Burns set forth in section III, above, occurring in connection with the operations of Foundation, Sullivan, and Ox-Bow described in section I, above, have a close, intimate, and substantial relation, to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union and Burns have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they 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. Perini, Foundation, Sullivan, Ox-Bow, and Consalvo, Inc., are engaged in com- merce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By McMorrow 's threat to Foundation, Sullivan, and Ox-Bow, and by the Re- spondent Burns' threat to Ox-Bow, with the objects of forcing or requiring ( 1) Ox-Bow to cease doing business with Consalvo, Inc., and (2) Consalvo, Inc., to recognize or bargain with the Union which had not been certified by the Board, the Union and Burns have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii ) (B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Union and the Respondent Burns have not engaged in unfair labor prac- tices within the meaning of Section 8(b) (4) (i ) (B) or Section 8(b) (4) (i ) and (ii) (A) of the Act, and the Respondent Garvey has not engaged in unfair labor practices in any respect. [Recommendations omitted from publication.]