Int'l Hod Carriers', Etc., Local Union No. 1140

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 1140, AFL-CIO and Platte Valley Pipeline Construction Company. Case No. 17-CB-299. November 27, 1961 DECISION AND ORDER On July 20,1961, Trial Examiner Earl S. Bellman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondents 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 McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' 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 Respondent, International Hod Carriers' Building and Common Laborers' Union of America, Local Union No. 1140, AFL-CIO, Bellevue, Nebraska, and their officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Physically assaulting employees of Platte Valley because of their exercise of rights guaranteed by Section 7 of the Act. (b) In any like or related manner restraining or coercing said employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post at its offices and meeting halls copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished ' Absent exceptions , Member Rodgers adopts pro forma the Trial Examiner's finding that the Respondent did not threaten the Employer with reprisals, as alleged in the complaint. 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 134 NLRB No. 78. INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 1140 723 by the Regional Director for the Seventeenth Region, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail duly signed additional copies of the above notice to the Regional Director for the Seventeenth Region for posting by Platte Valley, said employer being willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT iS FURTHER ORDERED that the allegation of the complaint that the Respondent violated Section 8(b) (2) and (1) (A) of the Act by threatening Platte Valley with reprisals if it did not rid itself of and replace its nonunion employees with members of the Respondent, be, and it hereby is, dismissed. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL UNION No. 1140, AFL-CIO, AND TO ALL EMPLOYEES OF PLATTE VALLEY PIPELINE CONSTRUCTION COMPANY 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, we hereby notify you that: WE WILL NOT physically assault employees of the above-named Company because of the exercise of rights guaranteed in Section 7 of the Act. WE WILL NOT in any like or related manner restrain or coerce said employees in the exercise of rights guaranteed in Section 7 of the Act. INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL UNION No. 1140, AFL-CIO, 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. '724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner Earl S. Bellman in Papillion, Nebraska, on February 14 and 15, 1961, upon complaint of the General Counsel, and answer of the above-captioned Respondent, herein also called Laborers. The issues litigated were whether (1) Laborers, on or about October 24, 25, and 26, 1960,1 "in concert with its joint venturer," Local No. 571, International Union of Operating Engineers, AFL-CIO, herein called Engineers, threatened the Charging Party, herein called Platte Valley, with reprisals if it did not rid itself of and replace its nonunion employees with members of Laborers,! in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, and (2) whether Laborers, in concert with its alleged joint venturer, physically assaulted three employees of Platte Valley about October 26, in violation of Section 8(b) (1) (A) of the Act. After oral argument was heard at the close of the General Counsel's case on a motion by the Respondent to dismiss the allegations of the complaint on 12 grounds, a third allegation of the complaint, that the alleged joint venturers threatened Platte Valley, in the presence of its employees, with reprisals if it did not sign a contract with, and hire members of, Laborers, was dismissed upon agreement by the General Counsel that the evidence did not sustain that allegation. In all other respects, the aforesaid motion was denied without prejudice to renewal. At the close of the hearing, the ungranted portion of said motion to dismiss was renewed, with an additional reason. I then reserved ruling thereon for this report. Said motion is disposed of in accordance with findings and conclusions hereinafter stated. Pursuant to extension of time for filing to April 3, 1961, counsel for the Respondent and for the General Counsel have filed able briefs which have been duly considered. Upon the entire record, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF PLATTE VALLEY Platte Valley Pipeline Construction Company, a Nebraska corporation having its principal office and place of business at Bellevue, Nebraska, is engaged in general pipeline construction work. In the operation of its business, Platte Valley admittedly performed, during the year prior to January 20, 1961, services valued in excess of $50,000 outside of the State of Nebraska. The Respondent's answer admits that Platte Valley is an employer engaged in commerce within the meaning of the Act, and I find that it will effectuate the policies thereof to assert jurisdiction. II. THE LABOR ORGANIZATION INVOLVED International Hod Carriers ', Building and Common Laborers' Union of America, Local Union No. 1140, AFL-CIO, admittedly is a labor organization. It admits to membership employees of Platte Valley. M. THE UNFAIR LABOR PRACTICES A. General setting and events in issue 1. Background and problems While the events specifically in issue cover a period of only 3 days, October 24, 25, and 26, 1960, the testimony pertaining thereto ranges from the summer of 1960 to January 1961. The setting and relationships are complicated, and the testimony of the nine witnesses, five called by the General Counsel and four by the Respondent, is involved, confused, and highly contradictory. Hence it will be helpful to present a general picture of the principal witnesses and their relative credibility, and to identify some of the places, relationships, and problems with which this report will be concerned. Platte Valley commenced operations in the Omaha area about April or May 1960. When it became incorporated on July 1 of that year, it was engaged in pipeline construction work on the Capehart housing project near Offutt Field, herein called Capehart. Upon incorporation, J. L. Thompson became the president of Platte Valley, and David A. Cox, the foreman in general charge of its work on the Capehart project, became its vice president. Cox and Thompson were, respectively, the General 'When the year is herein omitted, It will be understood to be 1960. INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 1140 725, Counsel's first and second witnesses . On the whole, Cox, who was at times reluctant and evasive, impressed me as among the least credible of the witnesses , while Thomp- son, who seemed more composed and objective, impressed me more favorably than Cox. On the Capehart project, Platte Valley had separate dealings, to which we will return later, with Laborers and Engineers, the two labor organizations which the General Counsel asserts were acting in concert as joint venturers the following October, but which the Respondent contends are separate entities, were not then acting in concert, and are not chargeable with the acts of each other's agents. Since the "joint venturer" contentions form essentially a third major issue, bearing on both of the above-stated allegations, it should be noted that the complaint refers to "officers, agents and representatives " of the respective joint venturers, and names three individuals, one for Laborers and two for Engineers. All three of said indi- viduals were called as witnesses by the Respondent. Said witnesses were Jack Harold Budd, Jr., of Laborers, and Orva Metzler and Harold Goebel, both of Engineers. Budd, who is 27 years old, has been a business agent of Local 1140 of Laborers for 1 year. Budd, the youngest of the three union agents, was on several occasions reluctant and evasive and impressed me least of the three union witnesses . Metzler, who is more mature than Budd and was somewhat more convincing as a witness, despite uncertainty and confusion on some matters, has been a business representa- tive of Local 571 of Engineers for the past year. Goebel, who impressed me as the most mature of the three agents and the most reliable witness among them, is Metzler's superior. Goebel has been the business manager of Engineers since 1951, and has full authority to "coordinate the work, settle disputes, negotiate agreements, and generally run the business" of Local 571 of Engineers. The remaining major witness, Billy Higgins, the superintendent for Decker Enter- prises, herein called Decker, was called by the General Counsel. Decker is the developer of the LaVista housing project, herein called LaVista, which is the site of the October events in issue. Decker, which had a written agreement with Engineers and an oral agreement with Laborers, was operating as a 100 percent union con- tractor, and all of its subcontractors were thus required to operate under union wages and conditions of employment . By contrast, Platte Valley, which was doing the pipeline work at LaVista, was not a subcontractor of Decker, but had its contract from Peoples Division of Northern Natural Gas Company, herein called the Gas Company, which Cox testified "is a nonunion outfit." Higgins, whose role as a go-between during the labor dispute between Platte Valley and the unions during the latter part of October will presently appear, impressed me as the most objective, impartial , and reliable of the witnesses. In addition to the foregoing credibility observations, it should be noted that there are so many ambiguities, inconsistencies, and flat contradictions in the testimony that it would greatly protract this report to attempt to discuss them all, or to explain why, after painstaking analysis, some of the conclusions reached herein partially credit and partially discredit the testimony of several conflicting witnesses. Throughout this report, the evidence relied upon usually will not be identified when essentially no material conflicts or inconsistencies appear to be involved or when the weight of the credible evidence considered as a whole seems reasonably clear to me. Moreover, no attempt will be made to include numerous details which the parties may feel shed some light on matters, but which do not impress me as having sufficient weight on crucial issues to justify presentation. However, I will usually discuss what appear to me, after careful consideration of all of the evidence, to be material con- flicts and inconsistencies on crucial points. And in any event, the parties may rest assured that all of the details and variations in the record, along with all of their contentions at the hearing and in the briefs, have been diligently considered in reaching the findings and conclusions which follow. Let us return to the relationships on Capehart between Platte Valley and the alleged joint venturers. While the Capehart project had been concluded before the October events at the LaVista project, I am convinced that the labor dispute at La Vista' had its roots in the earlier-established relationships at Capehart. The weight of the credible evidence shows that the following material conditions prevailed on the Capehart project. Platte Valley, through Cox, was dealing on Capehart with Metzler for its en- gineers and with Budd for its laborers. These dealings were not joint but separate ones, Cox testifying that he never met Budd and Metzler together at Capehart. In discussion with Metzler, Cox admittedly told Metzler that he would pay the union scale. Metzler gave Cox a copy of Engineers' agreement. While Cox did not agree to sign it, Platte Valley actually operated in accordance with it, and Metzler reasonably believed that he had essentially an oral agreement with Platte Valley 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it would follow its provisions, which included, as does Laborers' agreement, a nondiscriminatory hiring hall provision.2 And whether or not Cox actually used the hiring hall of Engineers during the Capehart project, Cox testified that the engineers employed on Capehart were all members of Engineers. As to the rela- tionship between Laborers and Platte Valley at Capehart, Cox admittedly telephoned Budd seven or eight times "to do business with him"; agreed to use employees fur- nished by Laborers; agreed to pay Laborers' wage scale at Capehart; called Laborers whenever he needed men; and telephoned Budd whenever they were going to shut down the following day because Platte Valley "was using his employees." I am also convinced that Budd, as he testified but Cox denied, did furnish Cox with a copy of Laborers' agreement, and I am also satisfied, as Budd testified, that all of the laborers employed by Platte Valley on Capehart were members of Laborers. Thus I am convinced and find that on its prior Capehart project, Platte Valley was a union operator with respect to Laborers and Engineers , even though it did not sign their respective agreements, and that Platte Valley was employing their respective members, was paying their respective rates, was essentially living up to their respec- tive conditions of employment, including using their respective hiring hall services as it may have needed them. Unimpeached and credibly given testimony of Budd and Goebel establishes that during the period preceding and including the October events in issue, both Laborers and Engineers were so short of available workers to refer that they were unable to meet the respective demands upon them for employees. Thus Budd testified that for several months, including October 1960, with construction on "the missile base going on," they were so in need of construction laborers that men were working very long hours; that their list of available laborers became exhausted; that they were advertising elsewhere for laborers to come into the area; and that they did not have men to send out during that period. Similarly, Goebel testified that throughout a period including the latter part of October, Engineers did not have men available; that during that period every day thei e were from three to five requests for operators in the metropolitan area which Engineers could not fill; and that they were still short of men even though they had called other locals and had "five to six hundred men" on permits. It was about October 1 that Platte Valley began pipeline work as a subcontractor for the Gas Company at Decker's LaVista 2 housing project, which involves over 300 residences. It is located some 10 or 12 miles from Omaha, in the open country near Ralston and Papillion , in Sarpy County, Nebraska . Platte Valley was employ- ing welders, operators, and laborers on the LaVista project to install the main lines of its gas distribution system. It would appear that at the time the respective repre- sentatives of Laborers and Engineers first contacted Platte Valley at LaVista during the latter part of October, operations had been going on for some weeks. I am con- vinced that no question as to majority representation or recognition was ever raised, during the subsequent discussions, by any representative of Platte Valley as to either labor organization, and it is noteworthy that President Thompson testified that he believed that his engineers at LaVista "were 50 percent union" and that the same thing probably was true with respect to the laborers employed there. More- over, as will presently appear more fully, the respective wage rates which Platte Valley was paying its laborers and its operating engineers at LaVista were quite sub- stantially lower than the respective rates which it had been paying those classifica- tions of employees at Capehart. We turn now to developments at the LaVista project involving representatives of Laborers, Engineers, and Platte Valley. 2. Developments shortly before October 26, 1960 During a short period before October 26, on which date three employees of Platte Valley unquestionably were physically assaulted about 8 o'clock in the morning, there were a number of conversations involving, among others, the six witnesses already identified. Among numerous problems as to these discussions are the order :'I credit the undisputed testimony of the three union representatives that the respec- tive hiring halls which Engineers and Laborers maintain actually are nondiscriminatory sources for supplying employees to contractors in the area. Further, I find no evidence to indicate that any hiring hall practices on the part of Engineers and Laborers were engaged in jointly, or that their hiring halls are joint ones, or that they jointly negotiate or sign any joint contracts, such positive testimony as the record contains being to the contrary. It should be noted that the complaint does not attack the hiring hall practices of either Laborers or Engineers and that the General Counsel essentially conceded that he was not questioning the nondiscriminatory nature of such practices. INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 1140 727 in which they occurred, when they occurred, who participated in each, and what was said during each one. As to what was said during some parts of some conversa- tions, the conflicts in the evidence are quite sharp. Some of this conflicting testimony will be discussed, but usually findings will be stated upon the basis of my analyiss of the testimony of all of the participants. The time and sequence which will be followed represents what I believe, after checking innumerable details, the most plausible order of developments, all aspects of all of the testimony considered, including many variations which I believe were due to honest confusion as to pre- cisely when these closely grouped discussions occurred. For the most part, I will not burden this report with detailed explanations as to why 1 have reached most of the resolutions of the foregoing types, being content rather to state the essence of what appears to have transpired. While there were no discussions involving any officers of Platte Valley with any agents of either of the alleged joint venturers at the LaVista project prior to Monday, October 24, I am satisfied that Metzler, as he testified during cross-examination, visited the project during the latter part of the preceding week, probably on Thurs- day, October 20; that on said occasion he talked with a foreman, Bowman, who may have been a member of Engineers; and that he then also had the first of two con- versations with an employee, Ray Noble.3 During their first conversation about October 20, Metzler, who was alone, intro- duced himself to Noble; told Noble that he was from Operating Engineers; and asked Noble if he "had an operator's card." When Noble replied that he did not, Metzler asked Noble if he knew that he "was supposed to have one." Noble said that he did not know that Metzler thereupon told Noble that if he was going to work theie, Noble was going to have to get a card, and he also told Noble "to get off the tractor." 4 About that time, Bowman drove up, and Metzler started talking with Bowman. Noble heard Metzler tell Bowman that "if we didn't join the union out there, we were going to be shut down," and he also heard Bowman tell Metzler that "he would have to talk with Mr. Cox." Noble did not hear anything else which Metzler and Bowman discussed, but I am convinced, as Metzler testified, that Metzler thereafter told Bowman to tell Cox that he wanted to talk with him and to have Cox telephone him. However, Metzler did not receive such a telephone call from Cox. On October 24, at the regular staff meeting of business agents held every Mon- day morning in the office of Engineers, Metzler reported that he had heard that Platte Valley "on the LaVista job was not paying our wages and conditions." Goebel asked Metzler, who had been responsible for the Capehart project, why he had not secured an agreement from Platte Valley. Metzler explained that they had agreed to recognize Engineers and to "pay the wages and conditions." As to the situation at LaVista, Metzler explained that Platte Valley wanted "to use a pipeline agree. ment." 5 Goebel thereupon told Metzler that after the meeting was over, they would go out to talk with Cox. Upon reaching the LaVista project on the morning of October 24, Metzler and Goebel found Noble, who operated various machines and also did hand shovel work and pipe doping, at a trenching machine. Metzler told Noble not to start up the machine, but Cox, who by then had joined the group, told Noble to go ahead and start it and to start digging. Noble followed the instructions which Cox had given 3 Noble placed one conversation with Metzler alone on October 24, and a second con- versation with Metzler, in the presence of Goebel, on October 25 While I accept Noble's testimony, which is not significantly at variance with Metzler' s, as being accurate as to the content of said conversations, I am convinced that Noble was in error as to the dates Metzler was not alone on Monday, October 24, but was with Goebel when he visited the project on that day 4 All quotations in the above paragraph are from Noble's testimony Bowman was not called as a witness. Metzler explained that he did tell Noble "to shut off one machine" because he could not hear what was being said 5 The quotations in the above paragraph are from credited testimony of Goebel. Without going into contractual details and figures , it should be noted that only the International can sign a pipeline contract; that locals such as Engineers negotiate only "build- ing trades and heavy highway agreements'!; that those types of agreements carry sub- stantially higher rates than pipeline agreements, that a similar and substantial differential exists with respect to wage rates under Laborers' agreements ; that it was the higher rates of Engineers and Laborers, respectively, not pipeline rates, which Platte Valley had paid on the Capehart project; and that the reasonable inference from all the evidence is that the rates at LaVista which Platte Valley was paying were only about two-thirds as much as the rates which it had paid on Capehart 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him, leaving Metzler, Goebel, and Cox to proceed with the first of several discus- sions at the La Vista project on October 24 and 25 .6 This is Cox's version of this first discussion at LaVista. Metzler asked Cox if he was "going to sign a contract with the union." Cox said no, and Metzler said that Decker Enterprises "was solid union" and that if he expected to work out there, he "would have to be union also." Cox, who was hiring both union and nonunion labor at the time, told Metzler that he was not working for Decker, but for the Gas Company, which was not union.? This is the gist of Goebel's version. When Cox was asked to sign the agreement with Engineers which he had operated under at Capehart, Cox informed Goebel that he was a pipeline contractor; that he should use pipeline rates; and that he "would not pay the building trade rates or the heavy high- way rates." Goebel told Cox that it was impossible to agree to pipeline rates because of established building trade rates in the area and because only the International could sign a pipeline contract. Cox insisted that he was not a building contractor and stated, "We might have paid it at Offutt Field, but we are not paying it on this job." Goebel told Cox that he would have to take the matter up with "Higgins and Don Decker." Metzler's testimony as to what occurred during the conversation of October 24 es- sentially corroborates Goebel's version as to the cleavage which developed between Goebel and Cox as to what rates and conditions should apply on LaVista, as well as Cox's version that he said that he was not a Decker subcontractor, when Metzler as- serted that Decker had a contract with Engineers and all subcontractors had to work under that agreement. I am persuaded that the seemingly inconsistent versions of Cox and Goebel are due to emphasis and that, as Metzler's testimony indicates, es- sentially what both Cox and Goebel testified took place at the first meeting did, in fact, occur during the discussion, leaving the next move up to Goebel and Metzler. On October 24, after the foregoing discussion, Goebel and Metzler talked with Higgins at Decker's construction office in its trailer at the jobsite. They told him that the "pipe crew installing the gas was not union." 8 Higgins asked if they had "talked to them," and received the reply, "We have talked to them. We didn't get any place." Higgins then explained that Platte Valley was not a subcontractor of Decker but of the Gas Company. Goebel stated that Platte Valley was "going to have to get out or this job will be picketed." Higgins said that he "certainly didn't want that to happen," that he would act as a go-between, and would talk to Cox to see if they could "get this thing squared away." Upon Higgins' assurances to Goebel that he would contact Platte Valley to see if he "could get the thing worked out without any trouble," Goebel agreed to meet Higgins again the following day. In the meantime, apparently later on October 24, it appears that Higgins entered upon his role as a go-between and talked with Cox. It further appears that when Cox "still hadn't reached Wilson Staley," the man at the Gas Company that Cox wanted to see so that Platte Valley "could get more money, so that they could go union," since they "couldn't afford to hire union help" on what they were getting from the Gas Company, Higgins said to Cox, "I know Wilson, and I will try to get in touch with him." Higgins thereafter also tried to get in touch with Staley, but the evidence does not indicate that he had any success in doing so. During the morning of October 25, Metzler and Jack Budd, the business agent of Laborers who had not previously participated in the discussions, drove together to 8It is noteworthy that the testimony of Noble, Metzler, and Cox is in agreement as to who were present and as to what was said about Noble operating the trenching machine, and that Cox placed this conversation on the morning of October 24 It is also note- worthy that the testimony of Cox and Goebel is consistent in asserting that Budd was not among those present during their discussion that first day. I am convinced that Budd was mistaken in his testimony that he was present on October 24 In fact, at one point in his testimony about the first discussion at which he was present, Budd referred to not understanding certain matters clearly because they were talking about what had been said the preceding day. Everything considered, I conclude that Budd first participated on October 25 7 After referring to the Gas Company as a "nonunion outfit," Cox testified that he "was concerned with my contract with Peoples Natural Gas" and that he "didn't want them people mad" if he signed up with Engineers or Laborers It should be noted that Decker's superintendent, Higgins, testified that he understood that "Nebraska is a right-to- work State." 8 Quotations and findings in the above paragraph are made on credited testimony of Higgins, who specifically testified that Budd was not present on October 24. To the extent that testimony of Goebel and Metzler differs materially from the above version based on Higgins' testimony, their testimony is not credited. INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 1140 729 the jobsite, where they met briefly with Cox. Metzler asked Cox if he had changed his mind and decided to sign a contract with Engineers. Budd asked Cox to sign a contract also with Laborers. Cox told Metzler and Budd that he would talk to the Gas Company to see if they would adjust his prices so that he could go union and sign their contracts .9 Shortly after noon on October 25, Cox and President Thompson of Platte Valley met at the jobsite with four union representatives, Goebel, Metzler, Budd, and Roy Hurly, who is associated with Engineers .10 In my considered opinion , the weight of the credible evidence shows that essentially the following took place at this meeting. At the outset, Goebel , pointing out that Platte Valley had been union on its prior job, asked if they were ready to sign a contract with Engineers. Also Budd asked that the oral understanding which had been followed at Capehart be replaced by a signed contract with Laborers. The officials of Platte Valley first indicated that they were not required to be union on the LaVista job, but then indicated that they would be willing to sign contracts with Laborers and with Engineers for that job only. However, no understanding was reached with Engineers as to what rates would apply. Further, Budd, who understood that the offer to sign a contract with Laborers for that job only referred to a pipeline agreement, which provides for much lower rates than had applied at Capehart, rejected the offer of a contract for that job only, stating that he had no authority to sign such a temporary agreement because all of the contracts which Laborers signed were for definite periods of time and covered all of the jobs being worked by the contractor covered by a given agreement." Cox then brought up the subject of hiring employees through the hiring hall provided in Laborers' agreement, stating essentially that if Platte Valley hired em- ployees through said hiring hall, Laborers would send out all colored men. Budd, who represents a local membership of approximately 5,000, about a fourth of whom are Negroes, insisted that Laborers' hiring hall operated in a nondiscriminatory way, regardless of race or any other such factors. At this point, the argument began to become heated, and Duana Anderson, who had come up to the group to make a payment of dues and fees to Engineers, heard Cox say in a loud voice to Budd, as Metzler was writing out a receipt , that he "wouldn't hire no God damn nigger," and that if he did hire any, he would "give them a job where they'd quit." 12 As the discussion ended, Budd, who understandably had become quite indignant, told 91 am convinced, from my analysis of the testimony of Cox, Metzler, and Budd, con- sidered in the light of the total circumstances then prevailing, and in view of denials and explanations by Metzler and Budd of certain additional remarks attributed by Cox to Budd at that time, with which I deem it unnecessary to burden this report, that the above is all that happened of significance during this first discussion on October 25 10 Higgins testified that he believed that Hurly "is a representative of the Operators" but that he did not think that Hurly "is with 571 " Thompson testified that he under- stood that Hurly "is more of a general organizer" with Operating Engineers than "a local man " n Cox testified that he conditioned his offer upon being able to "keep" the men he then employed, but that Budd told him that he "would have to run my hands off," that Platte Valley would "have to fire [its] hands " The aforesaid testimony of Cox was not con- vincingly given Nor was such corroboration thereof as was eventually given by Thompson on redirect examination after several suggestive questions , no mention having been made by Thompson of any such statements on either his direct or his cross-examination. Moreover, the flat denials of the union witnesses that Budd had made any such state- ment were convincingly given. In addition, it seems to me highly improbable that any such demand would have been made by a labor organization which was experiencing difficulty, as was Laborers, in supplying the demand for workmen. In any event, I am convinced that Budd did not make any such remark about firing employees as Cox attributed to him. 12 The above quotations are from credibly given testimony of Anderson, who was at that time working for Cornhusker Paving Company on the LaVista project. A receipt signed by Metzler for a payment of $30 to Engineers by Anderson on October 25 is in evidence. Anderson's testimony as to the above remark by Cox corroborates similar testimony by Budd, Metzler, and Goebel, which also was convincingly given. While Cox and Thompson denied that Cox had used such extreme language as the above, Cox ad- mittedly was the one who had raised the question of Negro employees, indicating that he did not want them on his work. Thompson testified that Cox stated that if Platte Valley hired through Laborers "they would send out all colored men and they wouldn't perform, produce, in that type of work." Everything considered, I ani convinced that Cox eventu- ally made a statement at least as inflammatory as that attributed to him in Anderson's testimony. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Platte Valley's officers, after they had, as Thompson phrased it , "flatly refused to sign the contract," essentially that there were ways of shutting them down and making them go umon,i3 Following the foregoing conversation, the four union representatives there present met with Superintendent Higgins at Decker's trailer office. Also present were Charlie McNeil, a representative of Steamfi.tters, and Doc McDonald, an assistant business agent of Carpenters, but they did not participate in the discussions now to be related. Goebel, referring to Cox, told Higgins that they had just talked with him but could not "get anything out of that guy." Hurly said something about not being able to figure out why Platte Valley was not union on the LaVista job, since they had been union at Capehart. Higgins said that he still thought things could be worked out to avoid a picket. Budd complained to Higgins of racial discrimination at LaVista, stating that Cox had told him that he "wouldn't hire any God damn nigger on this job." 14 Higgins was concerned about racial discrimination and told Budd that while "it was possible that Platte Valley had racial discrimination," there was none on the part of Decker Enterprises. Budd said that Platte Valley "had to go, they could not stay out there and work nonunion." Higgins stated that he needed time to talk with Staley of the Gas Company before any picket was set up in order to avoid a shutdown. Higgins also told Goebel that he would go to talk with Cox, if they "were definitely going to have a picket on the job," and that he would "ask Platte Valley to leave until such time" as he could contact Staley to see if he "could do any good." Higgins thereupon left to go to see Cox. In a brief talk with Cox, Higgins told Cox that the union people were down to see him and that "they were going to picket the job if he didn't leave." Cox replied, "Billy, you can't tell me to leave, I don't work for you." Higgins thereupon returned to the union group which was waiting at Decker's trailer. Higgins told the union representatives that Platte Valley was "not going to leave." Budd thereupon started walking off and said, "We are going to get them out." Higgins asked, "What are you going to do, are you going to take them off the job bodily or picket or what?" Budd replied, "We have ways." Higgins then said, "I certainly think the thing to do is to pursue what we were doing, get hold of Staley, and see if we couldn't get them in the union to avoid trouble." As to that suggestion by Higgins, Budd said, "They won't be here in the morning, that is all there is to it, I will have them out of here." The discussion thereupon broke up and the union representatives all left. 3. Events on and after October 26, 1960 About 8 a.m. on October 26, a group composed of approximately 20 to 25 colored men and 1 white man appeared on the LaVista project about a block and a half south of Joseph Street, at a point on Terry Drive where the only 3 employees of Platte Valley then on the job were at work. The following account of a physical assault upon those three employees, Fred Kimble, Ray Noble, and Eddie Thompson, is based upon my analysis of credibly given testimony of two of the three who were called as witnesses by the General Counsel, the earlier-identified Noble, who is 20 years old, and Thompson, an 18-year-old high school graduate who is a brother of President Thompson. As to who their assailants were, Noble and Thompson testi- fied essentially that they did not know and were unable to identify any of the colored men involved or the white man who accompanied them; that they did not recognize any of the colored men as being among the Negroes employed by Decker on the LaVista project; and that Budd, Goebel, and Metzler had not been among the group of men who assaulted them. About 7:55 that morning, Thompson, who had started working at 7 as the welder's helper, saw some Negro men come up to Kimble, the welder, and talk with him. 13 The italicized finding paraphrases convincingly given testimony of Thompson, which I credit, despite denials by witnesses for the Respondent It may be well to add that other statements attributed in the testimony of Coe, Thompson, Goebel, Metzler, and Budd to various participants in the discussion have been carefully weighed in reaching the above conclusions as to essentially what happened 14 While Platte Valley had employed one Negro at Capehart, it had no Negro in its employ at LaVista By contrast, Decker had "many colored people" in its employ at LaVista. The foregoing quotation, and all of those in the above paragraph and in the two paragraphs which follow it, are from credited testimony of Higgins, upon which the findings in said three paragraphs are bottomed To the considerable extent that the testimony of Budd, Goebel, and Metzler contains denials of said credited testimony of Higgins , such denials are discredited INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 1140 731 Thompson, who was picking up tools from a bellhole where they had been working mainly on connecting laterals into the houses from the gas main, did not hear this initial conversation. The Negroes left but came back in 2 or 3 minutes. In the mean- time, Noble, who also had started work at 7 that morning and was running a ditching machine a few lots further down the block, saw the "group of colored men" come up to Kimble a few minutes before 8, then leave, and a few minutes later come back .,all ganged around." So Noble went to see what was happening. Upon arriving, Noble found "one white man" with a group of some 20 to 25 colored men. Accord- ing to Thompson, "they asked us if we worked for Platte Valley"; Kimble said that they did; "they" told the three Platte Valley employees that "they were from the union and they were picketing and we couldn't work on this job"; but they did not say what union they came from and there was no picket sign displayed on the job. According to Noble, "they told us boys" something like "We are from a labor temple"; they stated that "we kept them from working on two or three different jobs"; and they "asked us if we were going to leave." The Platte Valley employees said that they were not. Thereupon, "one of the colored boys said if we didn't leave just now, we would when Mr. Budd got there." Thereafter, the "white man asked one of the colored boys" what time it was. Upon receiving the reply that it was 8:05, the white man told another colored man, who was standing next to Noble, "You take over now." Thereupon the colored man thus addressed slapped Noble, who was the first of the three employees assaulted. During the brief assault, various of the colored men, using their "fists and their feet," struck Noble, Thompson, and Kimble, and knocked down and stomped at least one of them, Noble.15 When the three Platte Valley employees said that they "were ready to leave," they were thrown into the welding truck, and Kimble, Thompson, and Noble were "dirt clodded" as Kimble drove them away. On the morning of October 26, apparently about the time the above assault was taking place, Superintendent Higgins left his construction office to go onto the LaVista 2 project, which lies west of Seventy-second, the major thoroughfare. As he was going west on Joseph Street, the main street off of Seventy-second into LaVista 2, which was also at that time the only way to get into and out of the Terry Drive area of the assault, Higgins met Budd, Goebel, and Metzler, who were in a car which Budd was driving. It was shortly after 8 when Higgins met the three union agents in the car, which admittedly was Budd's automobile, and which was heading east on Joseph Street. Budd told Higgins, "You better get over there, they are throwing those guys off the job." Higgins asked Budd if he meant the gas crew, and Budd replied in the affirmative. Higgins said, "Well, that is a hell of a way to do things," and turned away from Budd's car, which obviously had come from the general area of the assault. The three union agents then continued eastward on Joseph Street toward Seventy-second.is About a minute after Budd had driven his car away in an eastwardly direction, Higgins met Kimble, Noble, and Thompson coming from the west and traveling eastward on Joseph Street, just as Budd's car had previously done. The three em- ployees reported the assault to Higgins, who "could see that they had been beaten up" and who told them to get hold of Cox. Shortly thereafter, Higgins saw "several colored men" in a group, none of whom was from his own crew, which includ.s about 25 or 30 Negroes. Also, thereafter the three assaulted employees saw Cox and Thompson, arrangements were made to take care of their injuries, local authori- ties were contacted, and after a delay of a few days, as President Thompson testified, Platte Valley resumed work on the LaVista job, having "secured an injunction through civil courts" against Local Union No. 1140 of Laborers. On October 27, President Thompson filed the original charge in the instant matter, which was thereafter amended on November 2, but only as to the name of the Respondent and the name and address of the Charging Party. Said charge and amended charge both alleged that on October 25, the Respondent, "through Jack Budd and other officers and agents," threatened Platte Valley that if it "did not sign 15 Noble, who was the most severely beaten, was hospitalized for over a week, having received injuries to the side of his head, an ear, some ribs , his kidneys , his legs, and his back m The above findings are made on credited testimony of Higgins Budd, Goebel, and Metzler, while admitting to a conversation with Higgins at substantially the above time and place, testified essentially that it was Higgins who had told them of the assault, which they first learned about through him Not only was Higgins' testimony as to what was said more convincing, but from the general layout and the accessibility factors involved, it is obvious that at the time Higgins was going toward, and the three union officials were coming away from, the area where the assault had just taken place. '732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union agreement, they would use bodily force to throw said employer and employ- ees off the site," and that on October 26, the Respondent "proceeded to engage in violence" which injured employees Noble, Kimble, and Thompson. No charge was ever filed against Engineers , Goebel, or Metzler, none of whom is mentioned in either of the above charges. Nor did either of said charges make any reference to any demand that Platte Valley discharge any of its employees and hire members of Laborers to replace them. About January 19, 1961, almost 3 months after the assault of October 26 of the preceding year, Metzler and Cox had a conversation at the LaVista 2 project, signifi- cant parts of which took place in the presence of Superintendent Higgins. However, only Cox and Metzler, neither of whom impressed me as a particularly credible wit- ness, testified as to this conversation, and their testimony differs in material respects. After giving the testimony about this conversation painstaking consideration, 1 have decided that said conversation does not have the significance which the General Counsel attaches to it, even if Cox's version were fully accepted, a highly questionable procedure, when all credibility factors are considered. But let us assume that some 3 months after the assault of October 26, Metzler, an agent of Engineers, in connec- tion with a threat to picket during an argument about Platte Valley using a nonunion employee to operate its backhoe, told Cox: (1) that he (Metzler) had had nothing to do with what had occurred on October 26; (2) that he had told Budd that Budd "couldn't get by with stuff like that"; and (3) that he had been out there himself that morning only because he wanted to see them beat up Cox. Such a declaration by Metzler to Cox could well be nothing more than an attempt on Metzler's part long after the event, to disassociate himself and Engineers from any responsibility for what had happened on October 26. In any event, such a statement to Cox is not proof that Metzler had months earlier actually told Budd that Budd could not get by with what took place on October 26. Everything considered, I am convinced, particu- larly in view of findings which follow concerning the joint venturer theory, that no purpose would be served by attempting to determine what Metzler actually told Cox at that late date, since it can be neither be attributed to Laborers, the only Respondent in the instant matter, nor reasonably be said to illuminate reliably the events of October 26, 1960. Accordingly, no weight is given to the testimony as to the 1961 discussion between Cox and Metzler. B. Conclusions as to the basic issues 1. The joint venturer theory The position taken by the General Counsel at the hearing as to his joint venturer theory was essentially a twofold one. Primarily the General Counsel contended that Laborers, Engineers, and their respective representatives, were acting in concert as joint venturers in such ways and under such circumstances that "what one of them said and did is chargeable to the other." Failing that, the General Counsel contended, as I understood it, that the total pattern of conduct shown by the evi- dence must be appraised to fix the responsibility of the only respondent in the instant matter, Laborers. The General Counsel's brief concerning this issue stresses the above primary position, and concludes with the following paragraph, in connec- tion with which four cases are cited in a footnote: It is clear that the Engineers and Respondent were engaged in a joint venture in their common efforts to get Platte Valley to sign a contract and to hire union help, and failing that, to get them removed from the job. As there has been no charge filed against the Engineers, Complaint issued only against the Respondent. Any remedial order would only run against the Respondent. However, because they were engaged in this joint venture the acts and conduct of Representatives of the Engineers are chargeable to the Respondent and the Respondent is responsible for same. [Emphasis supplied.] I have carefully analyzed all of the arguments of the parties as to the joint ven- turer issue, beginning with their opening statements and continuing through their arguments at the close of the General Counsel's case and in their respective briefs. I have also appraised in detail all of the cases cited in the respective briefs, which pertain predominantly to situations involving Internationals and their respective locals, or to sister locals of the same International, or to similar combinations of structually interrelated labor organizations. In my opinion, all of the cases cited differ so basically in their facts from the instant matter that none is controlling, al- though the two cases cited in the Respondent's brief, in which joint responsibility was not found, impress me as being somewhat more nearly in point than the cases cited by the General Counsel. In any event, I have determined that rather than trying INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 1140 733 to analyze the various cases cited, or to summarize the various arguments, it will expedite matters for me to state my conclusions and the primary reasons I have reached them. To begin with, I am convinced that we do not have here the type of total situation which will sustain a finding along lines of the General Counsel's primary theory. We have no evidence in the record of any structural connection between Engineers and Laborers.17 In addition, Budd, an agent of Laborers, is not a mem- ber of and holds no position in Engineers. Similarly, Goebel and Metzler, agents of Engineers, hold neither membership in nor positions in Laborers. Moreover, the dealings of Engineers and of Laborers with Platte Valley on the Capehart project were separate dealings, and there is no evidence that Engineers and Laborers ever bargain jointly with, or sign joint agreements with, employers. In fact, to the extent that the General Counsel refers to Engineers and Laborers as trying to get Platte Valley to sign a contract during discussions on the LaVista project, I believe that the General Counsel erroneously interprets the evidence. For I am satisfied that on October 24 and 25, representatives of neither Engineers nor Laborers were discussing any kind of joint contract, but were rather talking about their own respective contracts. Further, it will be remembered that the initial LaVista contact was made by Metzler of Engineers the week prior to Monday, October 24; that on October 24, Goebel and Metzler of Engineers saw both Vice President Cox of Platte Valley and Superintendent Higgins of Decker; that discussions were under way before Budd first entered the picture on October 25; that on October 25, representatives of two other labor organizations, Carpenters and Steamfitters, also were present during discussion with Higgins; and that while Goebel, the principal representative of En- gineers, referred during the discussions in issue to putting a picket on the job, a not-uncommon maneuver in the building trades, it was Budd, after he had become infuriated on October 25 by Cox's inflammatory remark about not hiring Negroes as employees, who ambiguously alluded to more drastic ways of doing things. In short, not only does the pattern of events fail to show the sort of fully integrated activity from which a truly joint venture can reasonably be inferred, but the evidence itself fails to establish that any agents of Engineers and Laborers, prior to October 25, met together to hold any kind of discussions or to lay any plans with respect to any joint venture pertaining to Platte Valley. True, as the General Counsel cites in his brief, Metzler testified that he thought that Budd "had the same objective as we did," but that testimony was with respect to the fact that Platte Valley was working "a pipeline agreement" rather than follow- ing the building trades rates and conditions, which were substantially higher, as it had done at Capehart. In my opinion, the fact that two separate labor organ- izations, which have found their respective standards being jeopardized by the same employer which had just previously been following their higher standards, direct their activities toward like objectives, namely, the protection of those standards through signed contracts does not constitute a joint venture, at least not in the sense that the representatives of one organization become the agents of the other. In short, I am convinced and find, generally in line with basic contentions of the Respondent, that the Respondent herein is not chargeable with the acts of Goebel and Metzler on any theory which would make those two individuals its agents. The foregoing general conclusion, however, does not shut the door to the neces- sity of appraising the total pattern of events within the framework of which Laborers' agent, Budd, was functioning at the time of the crucial events of October 25 and 26. In fact, I am satisfied that it is only when such perspective is obtained that the true significance of any behavior for which the Respondent is justifiably chargeable can be ascertained. Thus using the behavior of others, such as Goebel and Metzler, to give background and context, we turn now to the specifically alleged unfair labor practices of the Respondent. 2. The alleged attempt by the Respondent to cause Platte Valley to discriminatorily discharge employees The section in the General Counsel's brief, on the issue now to be considered, opens with this assertion: The evidence is clear that the Respondent and the Engineers, through their representatives Budd, Metzler and Goebel, were trying to force Platte Valley to sign a collective bargaining contract, to discharge its employees and to hire exclusively through the union. [Emphasis supplied.] 17 For instance, the record does not show whether or not there is any kind of council in the Omaha area of which Engineers and Laborers are both members. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is followed by a statement that employees of Platte Valley were told that they "couldn't work out there unless they got union cards "; that they "could be shut down if they did not join the union"; and that they should not "start their machines." It is significant that the foregoing quotations as to what employees were told pertain to what Metzler had to say , before Budd entered the picture, when Metzler discovered that machines were being operated by an employee who was not a mem- ber of Engineers . But even with respect to this background , the evidence is not that Metzler asked that any employee be discharged, but rather that a nonunion employee get a card, or join Engineers, or be kept off of machines customarily operated by Engineers. Moreover, it will be recalled that it was not a contract which Engineers and Laborers were trying to get Platte Valley to sign , but two separate contracts, one with Engineers and the other with Laborers ; that each of those separate organizations had its own hiring hall procedure ; that said procedures were provided for in their respective written contracts ; that there is no reason to question but that those re- spective procedures were nondiscriminatory and complied with the Act; and that each .of these labor organizations at that time was so short of available workmen that it -was unable to meet demands upon it for employees. But the crucial factual basis relied upon by the General Counsel to establish this .allegation of the complaint is that when Cox, on October 25, conditioned his willing- ness to sign a contract with Laborers , for the LaVista job only, upon being permitted to keep the employees which he then had , Budd, as the General Counsel 's brief puts it, "flatly refused and insisted that Platte Valley would have to fire its help and hire only through the hiring hall." However, for reasons already explained,18 I have found that the foregoing did NOT take place at all. Moreover , it may be well to add that Goebel, the most credible generally of the three union agents , not only testified convincingly that there was no discussion of firing employees at the October 25 meet- ing, but that when an Engineers' agreement, which includes hiring hall provisions, is signed, the men already employed "stay on the job." Furthermore , there is no reason to suppose that the hiring hall provisions in Laborers ' agreements are intended to operate retroactively, and I believe that to infer that such retroactive operation was intended in the instant matter would be contrary to the evidence in this case, if not the general way in which such provisions operate, once a signed agreement has been entered into. In any event, I find that the cases cited In the General Counsel 's brief, two of which involve what is generally referred to as the Board's Mountain-Pacific standards,19 are factually too distinguishable to have any bearing on the case at bar. All aspects of the problem duly weighed , I find that the Respondent never overtly demanded that Platte Valley rid itself of its nonunion employees and replace them with members of the Respondent. I further find that the total frame of reference does not warrant an inference that the Respondent's conduct amounted to a tacit demand of that nature. Accordingly, it is recommended below that said allegation of the complaint be dismissed. 3. The assault on Platte Valley employees It is clear that about 8 a.m. on October 26, 1960, 3 employees of Platte Valley were physically assaulted by some 20 to 25 unidentified Negro men who were accom- panied by an unidentified white man. No purpose would be served by repeating de- tails here. The issue presented for resolution is whether the Respondent can reason- ably be held to be responsible for said assault. The Respondent strongly contends that the General Counsel has not sustained the burden of establishing such responsibility . The Respondent's brief stresses the fact that no witnesses identified any individual present at the time of the assault, other than the three employees who were assaulted , and that there is no showing of any agency relationship between any individuals who assaulted the three employees and either Laborers or Engineers . The Respondent also cites Board decisions, all of which are clearly distinguishable on their facts from the case at bar, in which alleged unfair labor practices were dismissed for reasons which included failure to establish agency. I have painstakingly considered the foregoing contentions of the Respondent, and several others which I deem it not necessary to recite , along with strongly advanced contentions of the General Counsel pointing to the contrary conclusion. This has not been an easy case to decide, but while the matter is not without elements of doubt, it is my carefully considered judgment that the scales tip in favor of the General ' See footnote 11, supra, and the text at that point. 19 See Mountain Pacific Chapter of the Associated General Contractors, Inc , et al , 119 NLRB 883, 897. INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 1140 735 Counsel's basic contention on this issue. My reasons for so deciding, to which we now turn, are similar to, although not identical with, the positions advanced by the General Counsel, and I believe that no purpose would be served by spelling out the positions of the General Counsel.20 From my appraisal of all of the facts which have hereinabove been found, I am convinced that before Cox made his inflammatory remark on October 25 to Budd about hiring Negroes, the core of the labor dispute between Platte Valley and the two unions, Laborers and Engineers, was whether Platte Valley, which was operating at approximately pipeline rates on LaVista, would sign contracts with Engineers and Laborers, respectively, for essentially the rates and conditions which it had operated under at Capehart. However, when Cox unfortunately injected the issue of racial discrimination into the picture by his crude remark to Budd during a discussion of Laborers' hiring hall practices, Budd, about a fourth of whose 5,000 members are Negroes, understandably became quite indignant. Thereafter, when Platte Valley flatly refused to sign a contract with Laborers, Budd ended that last conversation between Platte Valley and union representatives by stating essentially that there were ways of shutting them down and making them go union. It will be remembered that when the union representatives met shortly thereafter, on the afternoon of October 25, with Superintendent Higgins of Decker Enterprises, Budd complained to Higgins about racial discrimination; that Budd told Higgins that Cox had said that he "wouldn't hire any God damn nigger on this job"; and that Budd stated to Higgins that Platte Valley "had to go, they could not stay out there and work nonunion." Moreover, after Higgins had seen Cox and was reporting back to the union group that Platte Valley was not willing to leave the job, Budd stated that they were "going to get them out," that they had "ways." That meeting ended when Budd said to Higgins: They won't be here in the morning, that is all there is to it, I will have them out of here. [Emphasis supplied.] The next morning, in the context already described, Budd's promise was fulfilled by an anonymous group, predominantly Negroes, some of whom mentioned Budd by name, and some of whom identified themselves as being from a labor temple and from a union Just after the assault ended, and about a minute before the three assaulted employees themselves left the area of the assault by going east in their truck on Joseph Street, the only street which could then be used to get into and out of the area of the assault, Budd drove out of that area in his car, accompanied by Goebel and Metzler, going from west to east on Joseph Street toward Seventy-second, the principal thoroughfare. Moreover, as he was driving east just before the as- saulted employees came along Joseph Street, Budd met Higgins, who had not yet learned of the assault, and informed Higgins essentially that the gas crew was being thrown off the job. As earlier noted, the area of the assault is in open country, some 10 or 12 miles from the center of Omaha. I am satisfied, from the failure of superintendent Higgins and employees Noble and Thompson to recognize any of the 20 to 25 Negroes involved, that said individuals were not employed on the LaVista project. More- over, so many people do not assemble by mere coincidence in so out-of-the-way a place at 8 o'clock in the morning. All aspects of this complex problem duly con- sidered, and despite all of the repeated denials in the record by Budd, Goebel, and Metzler that they knew anything about or had anything whatsoever to do with this assault, I am convinced and find that the only reasonable inference which can be drawn from the evidence as a whole is that Budd, triggered by Cox's reprehensible display of racial bias on the afternoon of October 25, instigated and promoted the assault of October 26, which had the precise result of carrying out what Budd had ' said the preceding afternoon that he would accomplish the next morning. It is immaterial, in determining the Respondent's responsibility for the conduct of those engaged in the assault, whether said individuals be regarded as impersonal instruments utilized by Budd, as agents , or subagents of the Respond- "I deem it sufficient to note that the most significant way in which positions that I will subsequently state differ on this phase of the case from those taken in the General Counsel's brief is that the General Counsel contends that all doubt that Budd v.as re- sponsible "is dispelled by Dletzler's statement to Cox that 'I told Budd that he couldn't get by with stuff like that' " while, for reasons stated in the conciudin; paragraph of section III, A, 3, supra, I place no i ehonce on the conversation between Ketzler and Cox around January 19, 1961. It should be noted that aside from the foregoing conversation, the General Counsel's brief concerning the assault does not appear to rely on either Metzler or Goebel being an agent of the Respondent 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent in the technical legal sense, or as "agents" of the Respondent, within the meaning of Section 8(b) of the Act 21 Moreover, in making the above inference as to Budd's responsibility, I have been well aware that great care must be used, where circum- stantial evidence alone is relied upon, to be sure that the circumstances shown are consistent with the theory accepted and inconsistent with any other rational theory; I am satisfied that the above inference meets such evidentiary requirements 22 Further, the Board repeatedly has found unfair labor practices on circumstantial evidence 23 In view of all the foregoing, since Budd is clearly an agent of the Respondent, I find that the Respondent physically assaulted Platte Valley's employees, Kimble, Noble, and Thompson, while they were at work at the LaVista project on October 26, 1960, and that the Respondent, by so doing, violated Section 8(b)(1)(A) of the Act.24 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Platte Valley 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom, and that it take certain affirmative action, designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By physically assaulting employees of Platte Valley, the Respondent has re- strained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices, within the meaning of Section 8 (b) (1) (A) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Respondent has not violated Section 8(b)(2) and (1)(A) of the Act by threatening Platte Valley with reprisals if it did not rid itself of and replace its nonunion employees with members of the Respondent. [Recommendations omitted from publication.] 21 See Sunset Line and Twine Company, 79 NLRB 1487, 1511, footnote 49. 22 See Jones on Evidence , 5th ed., vol. 4, pp. 1859 and 1860. 23 See Riss & Company, Inc., 130 NLRB 943, the "Royce" Incident; Gimbel Brothers, Inc., 100 NLRB 870, 877, footnote 17; and Horn & Hardart Baking Company, 115 NLRB 1184, 1186. 24I have weighed the question of whether, under all of the circumstances, this assault is the type of isolated incident which does not warrant the Issuance of a cease-and-desist order, and have decided that it cannot be so considered. But cf. International Ladies Garment Workers Union, AFL-CIO (Twin-Kee Manufacturing Co., Inc.), 130 NLRB 614. Pacific Plywood Company and Local Union No. 3-436, Inter- national Woodworkers of America, AFL-CIO Independent Particle Board Employees, Inc. and Local Union No. 3-436, International Woodworkers of America, AFL-CIO. Cases Nos. 36-CA-1062 and 36-CB-262. November ^?7, 1961 DECISION AND ORDER On July 5, 1961, Trial Examiner Martin S. Bennett issued his In- termediate Report in the above-entitled proceeding, finding that the 134 NLRB No. 77.