Southeast Idaho Building and Construction Trades Council

SOUTHEAST IDAHO BLDG. AND CONSTR. TRADES COUNCIL Southeast Idaho Building And Construction Trades Council and its local members, including Plumbers And Pipefitters Local Union No. 648, Asbestos Workers Local Union No . 69, Brick Masons Local Union No. 7, Cement Masons Local Union No. 629, Laborers Local Union No. 934, Operating Engineers Local Union No. 370, Carpenters Local Union No. 609, Laborers Local Union No. 1227, Electrical Workers Local Union No. 449, Ironworkers Local Union No. 732 , Painters Local Union No. 764, and Sheet Metal Workers Local Union No. 60 and Westinghouse Electric Corporation. Case 19-CC-300. May 19, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On September 1, 1966, Trial Examiner Allen Sinsheimer, Jr., issued his Decision in the above- entitled proceeding, finding that the Respondent, Plumbers and Pipefitters Local Union No. 648, had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the other named Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the General Counsel, the Charging Party, and one of the Respondents, Plumbers and Pipefitters Local Union No. 648, filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent, Southeast Idaho Building and Construction Trades Council, thereafter filed a reply brief and counsel representing most of the individual local unions filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel.' 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the 773 Recommended Order of the Trial Examiner and hereby orders that the Respondent, Plumbers and Pipefitters Local Union No. 648, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. I The request of the Respondent Plumbers Local 648 for oral argument in this case is hereby denied as the record, exhibits, and briefs adequately present the issues and positions of the parties herein ' While the matter is not free from doubt, we agree with the Trial Examiner's conclusion that the record does not establish the alleged violations by the other named Respondents TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner. This proceeding was heard before me in Pocatello, Idaho, on April 5, 6, 7, 8, and 9, 1966. The complaint, dated December 23, 1965, and based on a third amended charge' alleges that Respondent, Plumbers Local 648, by picketing at the main gate entrance to Westinghouse Electric Company and at a separate gate used by Hartwell Excavating Company, a subcontractor of Westinghouse, caused employees of Westinghouse and various other employers to refuse to perform services for their employers, an object being to require Westinghouse and others to cease doing business, etc., with Hartwell in violation of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended. The complaint further alleges that the other named Respondents, as a consequence of said picketing and a plan and policy, caused a like violation of said Section 8(b)(4)(i) and (ii)(B). Respondents' answers2 (except that of Asbestos Workers Local No. 69)3 admit the jurisdictional allegations as to Westinghouse, but deny them as to Hartwell. They admit the allegations as to each being a labor organization, but deny they had a labor dispute with Hartwell. Except for Asbestos Workers they admit that Plumbers and Pipefitters Local Union No. 648 (herein also referred to as Plumbers) picketed certain entrances to the premises or contract work compound of Westinghouse but deny the illegality of such picketing. They further deny any plan or course of conduct to cause employees to cease work as alleged and deny any violations of the Act. Upon the record, including consideration of briefs filed by the parties and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED The answers of all present Respondents admit and testimony establishes that Westinghouse Electric Corporation (herein referred to as Westinghouse) is a national corporation involved in the manufacture and Charges were filed on December 1, 3, 6, and 20, 1966 2 Separate answers were filed for Plumbers Local Union No 648, Southeast Idaho Building and Construction Trades Council, Asbestos Workers Local Union No 69, and one for the remaining Respondents as a group ' Asbestos Workers Local Union No 69 was subsequently, at the close of the hearing on motion of General Counsel, dismissed as a Respondent 164 NLRB No. 104 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distribution of electrical products throughout the United States. During the past year in the course and conduct of its business operations, Westinghouse purchased, for use at its Naval Reactor Facility, herein called NRF, at the National Reactor Testing Station (herein called NRTS) in the State of Idaho, goods and materials valued in excess of $50,000 from suppliers located outside the State of Idaho. Hartwell Excavating Company, a corporation (herein called Hartwell), was let a contract valued at or about $10,000 to install sewer pipe at said Naval Reactor Facility. During the past year, Hartwell purchased and received materials and supplies shipped to it from outside the State of Idaho valued in excess of $50,000. I find that it will effectuate the policies of the Act to assert jurisdiction herein and that Westinghouse Electric Corporation and Hartwell Excavating Company are employers engaged in commerce or in operations affecting commerce within the meaning of the Act. It. THE LABOR ORGANIZATIONS INVOLVED Each of the named Respondents , aforesaid , is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The picketing by Plumbers Local 648 Westinghouse Electric Corporation operates the Naval Reactor Facility, above referred to, located on the aforesaid NRTS, an area in excess of 25-by-25 miles square in Idaho. The Testing Station is under the control of the Atomic Energy Commission which has contracts with several operating companies, including Westinghouse, and with a number of construction companies including Fluor Corporation, M. W. Kellogg, and Howard S. Wright & Associates. It is located in "The Desert," about 47 miles from the town of Idaho Falls, 59 miles from Pocatello, and substantial distances from other towns. Security is maintained at the entrances to the various facilities on the base including the Naval Reactor Facility which is located well within its confines. Westinghouse needed a replacement of a 900-foot sewer pipeline and contracted the work to the lowest bidder, Hartwell Excavating Company, a nonunion contractor. On November 29, 1965, Hartwell's men brought out equipment which they took into the Westinghouse area through a gate separately established for Hartwell's use which had been in existence but appears to have been used before only to allow large long loads on trucks to enter. About 7:15 to 7:30 a.m. on November 30, Business Agent Floyd Snoderly of Plumbers Local 648, placed two pickets at the main gate entrance of NRF used by Westinghouse and its contractors other than ' Testimony indicated the distance from 400 to 600 feet Measurement of G C Exh 5, based on scale, reflects about 500 feet ' About the same time Jones was also informed of the separate Hartwell gate by Zane Hall, supervisor of security for Westinghouse " Snoderly testified that Raisbeck told him "I've got you trapped," or words to that effect which it is claimed would support the Union's version that it didn't know or couldn't have known of the Hartwell gate before picketing commenced Hartwell-located about 500 feet4 from the Hartwell gate. The picket signs read "Hartwell Excavating Company for your information does not comply with union standards. Plumbers and Pipe Fitters Local 648." Shortly after the picketing commenced, one of the pickets, Murphy Jones, was informed by Frank Raisbeck , the manager of administrative services of NRF working for Westinghouse, that they should move over to the Hartwell gate as there was no quarrel with Westinghouse.5 Subsequently, about 8:30 a.m., Raisbeck told Merlin Grayson, an assistant to Snoderly, the same thing. Later that evening he repeated this to Snoderly and asked him to remove the pickets. Snoderly was noncommittal and asked why they hired a nonunion contractor.6 About 9 a.m. on November 30, Hartwell employees arrived at the separate gate and shortly thereafter a sign was put up entitled "Hartwell Construction Entrance." There was no sign at the main gate entrance.' Snoderly testified that at the time he instituted the picketing he was unaware of the "Hartwell" gate's existence. He had, on either the Wednesday or Friday prior to November 30, informed Rodney Shoen, chief of industrial relations branch of A.E.C. Idaho operations, that he was going to post pickets in connection with this Hartwell job-so that necessary security clearances could be obtained for the pickets. Those Westinghouse employees who were members of a bargaining unit involving the Eastern Idaho Metal Trades Council,8 except for a small number, either did not come in to work through the pickets that day or left soon after and did not work until the Hartwell job was completed. Some 300 employees at Electric Boat, Division of General Dynamics, where a separate entrance had been set up the day before about 300 feet in the opposite direction from the main gate, began work before picketing commenced. Soon after over 90 percent left and did not return until after December 17. Within 1 to 2 hours, with a few exceptions, all of the 93 construction employees of Howard S. Wright & Associates, the 168 construction employees of the Fluor Corporation, and the 93 construction employees of M. W. Kellogg had left their NRTS worksites-located some miles away from the Naval Reactor Facility. These men, except for a couple of instances of special work, did not return until all picketing ceased. The foregoing three employers who had cost, plus fixed-fee contracts with the A.E.C., together with Hunter-Saucerman, who had a lump sum or "fixed price" contract with A.E.C., were the major construction contractors on the base. Hunter-Saucerman's plumbers and pipefitters (employed by a subcontractor- Bingham Plumbing & Heating) walked off on November 30 but returned to work the next day. After being informed of the separate Hartwell gate, the pickets proceeded to picket both there and at the main gate by walking back and forth between them until early morning on Friday, December 3, when they ceased ' Guards had been instructed on November 29 to tell Hartwell and his people to use the separate entrance ' Not a party hereto although 8 of its 12 local constituents are-these 8 are also members of Southeast Idaho Building and Construction Trades Council which includes all of the named local Respondents among its members Those four-named Respondents not members of Metal Trades Council are Asbestos Local 69, Brick Masons Local 7, Cement Masons Local 629, and Laborers Local 934 SOUTHEAST IDAHO BLDG. AND CONSTR. TRADES COUNCIL picketing at the main gate but continued at the Hartwell gate and along the fence up to a turnstile halfway between the main gate and the Hartwell gate. Picketing continued 24 hours a day from November 30 to sometime on December 14, the day before a Federal court injunction hearing commenced. Hartwell employees and only Hartwell employees used the Hartwell entrance. There is evidence that on or about December 1, Hartwell entered the main guardhouse entrance to Westinghouse and did not leave until about 2 hours later, although records do not show him entering the premises there. The record indicates that Westinghouse had, on occasion, repaired relatively small sections of pipe and had maintenance people capable of laying such pipe. It also reflects that it did not have, but could have conceivably obtained, the equipment necessary for the job. However, it is clear that it did not normally do construction work of this nature, that it was not staffed or equipped to do so, and further if it were to undertake such work it would have to comply with the Davis-Bacon Act requirements for construction work including different pay scales and benefits from those paid to existing maintenance people. I find contrary to contentions of the Plumbers that the work involved was not a kind ordinarily performed by Westinghouse or its personnel. The record also establishes that the work would not have interfered with the normal operations of Westinghouse. Hartwell at times usually commenced work later than when day shifts commenced on the base and several times worked after 5 p.m., well beyond the regular day shifts. On one occasion his crews continued to work until about 3 a.m. There is no evidence that Hartwell worked on Saturday or Sunday. At the time picketing occurred, Westinghouse at NRF operated three shifts, 7 days a week. With respect to the signs carried by the pickets, they were visible but not readable from a public road a half mile away. Only a few members of the public (other than workers on the base) would pass by or see the signs. It was admitted by Snoderly that he had not inquired of Hartwell what -ates or benefits Hartwell paid for work on the job at NRF. Both law and contract required that Hartwell, while working on a construction job on the base, must comply with the Davis-Bacon Act provisions as to prevailing wages and benefits in the area (which were obtained from union scales therein) and there is no evidence that he did not on this job. It was contended that he did not elsewhere but no direct evidence thereof was submitted. Substantial testimony was adduced that Hartwell was known throughout the area as nonunion or antiunion. It was intimated at ore point by Respondents that Hartwell was using laborers at labor rates to perform pipefitter work but a disavowal of any alleged jurisdictional dispute was immediately made. The General Counsel contends that the foregoing together with certain events occurring before November 29 and certain conduct after that time establish not only a violation of Section 8(b)(4)(i) and (ii)(B) by the Plumbers picketing but the responsibility of all of the other Respondents for the men leaving work on November 30 and not returning to their jobs until after December 17 when the Hartwell job was completed. 775 2. The September 16 discussion On September 16 a nonunion contractor named Holder Machine had commenced a job on the base. Although no pickets were posted practically all of the same categories of construction employees left their jobs. A meeting to discuss that matter was called by Willard J. Berry, administrator of labor relations for Fluor Corporation who also had the position of NRTS labor coordinator. At this meeting held in the Labor Temple at Idaho Falls were James Howard from the A.E.C.; Harleigh Farwell, project manager for Howard S. Wright & Associates; James Fortner, secretary and business manager of Southeast Idaho Building and Construction Trades Council and among others the following persons holding official positions with the various named Local Respondents (except for Laborers Local 1227 and Ironworkers Local 732); Merlin Grayson of Plumbers Local 648, assistant to the business agent of Plumbers Local 648; Dewey Myler, financial secretary and business manager for Cement Masons Local No. 629; Henry Smith, financial secretary and business representative for Laborers Local No. 934; Robert Kinghorn, business representative for Operating Engineers Local 370; Glenn Hook, business representative and financial secretary for Carpenters Local 609, Gerald Geddes, financial secretary and business manager for I.B.E.W. Local 449; Henry Smith , financial secretary and business representative for Laborers Local No. 934. Apparently also present was Mylo Hansen , at the time business agent and financial secretary for Sheet Metal Workers Local 60, since replaced by Terry Lish. Fortner, beside his position with the Council, had been, until September 7, secretary of Brick Masons Local Union No. 7 and was acting secretary about November or December 1965 to February 1966. Although he was not secretary on September 16, he was one of its two delegates to the Council. Also at the meeting was Earl Stoddard, secreatry-treasurer of the Oil, Chemical and Atomic Workers which had an agreement with the Phillips Petroleum Company. This meeting was called in an effort to get the men back to work at that time. There is a substantial amount of testimony to the effect that there was no chairman, that it was an informal discussion, and that views expressed were as individual views and not in representative capacities. It is contended by Respondents that accordingly no organizations could be held responsible for what was expressed by persons who were admittedly officials of such organizations. While the meeting or discussion may not have been chaired by Berry in the same way as other meetings he had called, there is no question its purpose was to resolve a labor dispute arising out of a walkout by members of these organizations because of the presence of a nonunion contractor, Holder. Further there is no doubt that these persons were present because they were representatives of said organizations . This was not a social meeting unrelated to their union employment. Accordingly, I find that the statements made by them, whether or not couched in individual terms, were also made in their representative capacities. The next matter to resolve is what was or was not said by whom at that meeting which is pertinent to the allegations herein. The General Counsel contends that Fortner, on behalf of the Council and the various Respondent unions, asserted that 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if any nonunion contractor performed work at NRTS, all members of affiliated unions of the Council employed at NRTS would stop work until such nonunion contractor left; the General Counsel further claims that all of Respondents are responsible for such assertion either by way of failure to disavow what was said in their presence or by statements indicating concurrence. Fortner denies making such a statement. The record reflects that Farwell testified that Fortner said "that they were quite tired of union contractors being-doing work on the site, and that in the future they-if non-union contractors were present on the site, the site would not be manned." Farwell then added that later in the discussion Fortner said "that they were unable to control their men under these circumstances and they could not be responsible for their actions." After further questioning, Farwell, on cross-examination, said "I never did say I was quoting Mr. Fortner exactly ... I don't recall exactly what was said on September 16th." While he did not testify, it appears that Howard of A.E.C. at one point may have also construed or understood Fortner's remarks to the same effect as Farwell's first statement above. Howard was quoted by Kinghorn, as asking Fortner "if he was stating the position of the Council." According to Kinghorn, Fortner replied: "No this is not the official position of the Council. I am merely expressing to you the feelings of our members as to what they are telling us, that they do not want to work, with non-union people." Howard is then quoted as stating, "I am very glad to hear that this is not the official position of the union-or of the Council because if it is we [might] just as well start litigation now." Fortner denies making the statements as attributed to him by Farwell. According to Fortner he never stated that if a nonunion contractor performed work at NRTS that all members of affiliated local unions would cease work and not return until the nonunion contractor was gone. He admits asserting a position that "if employers placed nonunion men to work on the NRTS along-to work alongside union men some union men resent it and some union men might even resent it to the point, might exercise their individual convictions and walk off in protest of a threat to their working standards and future security." Fortner added that he never asserted a position as to strikes or walkouts as Building Trades representative because the Council's constitution and bylaws express the procedure to be followed before such policy could be adopted. Fortner's version to the effect that he was only asserting how individual members might react is supported in the record by five other witnesses including Berry of Fluor, a management representative who took notes of what was said, and Stoddard, a union representative but not of a respondent herein or member of the Building Trades Council. While the number of witnesses alone is not decisive, it is a matter to be considered, particularly when the witnesses' testimony appears to be forthright and "These telegrams in essence stated that an unwarranted walkout had occurred and either requested that men be directed to return to their jobs immediately or that immediate action be consistent. In addition, as stated, one of the witnesses, a management representative, Berry testified "to the best of my recollection his answer was that it would be difficult for the business agents making up the Southeast Idaho Building and Construction Trades Council to hold their members on the National Reactor Testing Station whenever a non-union contractor was employed." Stoddard testified "well he said they would have trouble trying to keep their men on the job if these non-union contractors came on the project." Stoddard added that Howard asked if this was an official position of the Council to which Fortner replied it was his opinion and not a position of the Council. The testimony of Kinghorn as to this discussion with Howard is quoted above. I refer to this particularly not as to the issue of official position but as bearing on what Fortner said. The complaint also alleges that Respondent Council and the other named Respondents, by local news media and other means, imparted to membership and to other employees at NRTS a plan or policy not to work at NRTS when a nonunion contractor was performing services there. The only "evidence" in this connection consists of a question to Fortner whether or not he was correctly quoted by the Idaho Falls Post-Register of September 16, 1965, re the Holder matter as follows: . the men have left because the constitution forbids them working with non- union people." Fortner denied making such statement or a similar quote purportedly from the following day's paper. Neither day's newspaper was offered in evidence. I find no probative evidence to support the above allegations insofar as it relates to use of local news media. The General Counsel also alleges use of other means to carry out this plan or policy. He appears to rely on the alleged statement of Fortner which, made in the form as found, will be further considered post, on the "news media" which I have rejected, supra, and on the fact that almost all of the workers at Westinghouse, Electric Boat, Fluor, Wright, and Kellogg ceased work shortly after the picketing commenced and with a few exceptions remained off work until the Hartwell job was completed. He stresses the size of the base, and the miles of distance between where Hartwell was working at NRF and where Kellogg and others were working. He also points out that almost all of the construction workers were covered by no-strike agreements as were employees of Westinghouse at NRF. Additionally, he asserts that construction employers Fluor, Kellogg, and Wright and the affilates immediately on November 30, 1965, sent the Unions involved varying telegrams requesting that the jobs be manned but to no avail." On November 30, Westinghouse at NRF sent its employees telegrams, stating their failure to report was in violation of contract, they would be on disciplinary furlough the following day and they were to report for work on December 2. When the men did not return a subsequent letter was sent on December 6 explaining why Westinghouse gave the contract to Hartwell and referring taken to man the jobs or that replacements be made within 48 hours In most instances, the telegrams were apparently delivered or received that day SOUTHEAST IDAHO BLDG. AND CONSTR. TRADES COUNCIL 777 to their obligations under the contract, etc. 1l The General Counsel further claims that since no disciplinary action was taken by the Unions with respect to members who failed to work, this is additional evidence of their sponsoring or supporting the walkout by their members. The General Counsel also relies on the distribution by Southeast Idaho Building Council of an unfair list containing Hartwell's name to its members about July 1964. He further contends that responsibility is to be found because Respondents could discipline persons who worked on a job with a nonunion man There is some evidence of possible violation of union rules for such in some instances on the same "job" but even this was not shown to be applicable to a site or location such as NRTS. Respondent Counsel and Unions contend that the walkout was a spontaneous reaction by their members acting as individuals in response to the presence of a nonunion contractor. They point to an incident about the end of 1964 when a walkout occurred'' and to the Holder machine occurrence in September 1965 where the walkout took place without any picketing. With respect to the wires for help sent on November 30, 1965, the General Counsel contends that none of the Respondents made reasonable efforts to send men to the contractors within a 48-hour period normally allowed to provide help. He asserts that only two or three persons testified to making any efforts to send men and that many admitted making no efforts from November 30 to December 2. I do not concur in these contentions or assertions for reasons detailed below.'' While it may be possible to infer (as the General Counsel apparently does) that Respondents' asserted efforts to get men back were not sincere or real, I do not draw such a conclusion from the record. Local Union Respondents asserted either they had no one to send, or the time was too short, or they made efforts but they were futile (see footnote 12,supra, or they were subsequently told not to send men. From the uncontradicted testimony of Respondents' witnesses as set forth herein (see footnote 12, supra) unavailing efforts were made by almost all of them in varying degrees to get men to work. The cancellation of work requests either was verbal by phone call from Berry late in the afternoon of December 2 or by wire sent on December 2 or 3.'•1 The Unions contend that employment from December 3 to 18 was precluded by this wire and a subsequent one dated December 13,14 which requested help but imposed (1) conditions of "a balanced work force permitting work to progress in an economic manner," and (2) conditions relative to future discharge or discipline for workers subsequently participating in unsanctioned work 10 The record reflects that on December 1, 1965, Eastern Idaho Metal Trades Council held a regular meeting The minutes reflected first that Chief Steward McDonald "reported that picket lines put at the front gate or any entrance at Westinghouse Corporation was not approved by this Metal Trades Council " Then, under heading, Report of Officers , appears, " . This Council has not now or at any time advise their membership to honor picket lines when it means a work stoppage with the company that has a labor contract with this Council `You men are obligated by this contract to go back to work. Each man will be responsible for his decision ."' (This last quote from within the minutes is of Dee Maynard, secretary of the Council.) The minutes then state, "Vice President Tex Haynie said the Council membership are working under the Metal Trades contract and not the Building Trades agreements No one is blaming you men the right to defend the Union Contractors ." Maynard subsequently, on December 3, made a public announcement via a radio and TV station that the Metal Trades Council did not sanction the picket lines and that the members affiliated through the Metal Trades Council were free and should go back to work (Raisbeck of Westinghouse joined in this public effort to get the men back.) Subsequently, at a special meeting of the Metal Trades Council held on December 3, according to the minutes , it was announced that neither the officers or the chief steward had sanctioned the walkoff. Maynard said they had a work agreement with Westinghouse and " . . the council wants you back on the job ... Gerald Geedes (financial secretary and business agent of Respondent I.B.E.W . Local 449) repeated, this is right We tell you to be on your job at Westinghouse . I speak for all the other business agents in this Council." I Involving a scrap metal dealer, Allied Pepper Metals, which was picketed by Ironworkers 732, one of Respondents , with the result that all construction crafts observed the picket line for 10 days to 2 weeks 12 The record reflects the following Floyd Snoderly, business agent of Plumbers 648 , did not send men because all his available men had walked off and would not return although told to go back but no threat by him of disciplinary action Glenn Hook, business representative of Carpenters Local No 609, sent reply telegrams to the Fluor, Wright, and Kellogg Companies that his Union would endeavor to man the jobs in accordance with agreements Hook contacted workers to try to get them to go back and told men about being placed on the bottom of the list if they did not return but at the time this was ineffective (In Hook's case he interpreted the wires to him as requesting the same men back ) The foregoing efforts in his case as well as other representatives were subsequently altered by notices of cancellation on December 2 or 3 as set forth post. T B Smith, business representative of Painters Local 764, told some members to return but they declined Robert Kinghorn , business representative for Operating Engineers Local 370, told certain members to return to work and asked a field representative to contact others to request that they return Dewey Myler, business representative of Cement Masons Local 629 said he and other cement masons left on November 30 because other crafts left and there was no work for them, that the two cement masons who had been working at Kellogg and Fluor were contacted but refused to return because no one else was working and a nonunion contractor was on the site Gerald Geddes, business manager of I B E W Local 449, who was also chairman of Respondent Southeast Idaho Building and Construction Trades Council, made phone calls on November 30 to try to get men back and then called a meeting for 10 a in on December 1, at which 40 attended He told them to return in accordance with agreements but was unsuccessful He had no other available people. The men objected to working with a nonunion contractor Ross Jensen, business manager of Iron- workers Local 732, was in Boise, Idaho , out of the immediate area until December 2 Henry Smith , business representative of Laborers Local 394, tried but did not succeed in sending men back Terry Lish, business agent of Sheet Metal Workers Local 60, talked to members by phone but they refused to return Respondents Laborers Local 1227 and Brick Masons Local No 7 did not have any members working on construction work on the site at the time of the walkoff Laborers Local 1227 had members working who were employed at Westinghouse contacted through Dee Maynard, secretary-treasurer of the Eastern Idaho Metal Trades Council (see footnote 10, supra) " This wire, sent in slightly different form by the various construction contractors and their affiliates to local Unions , stated in substance that, pursuant to instructions from the Atomic Energy Commission , orders for men were cancelled until such time as assurance could be obtained from responsible labor representatives that in the future such walkouts would be eliminated and the job would be manned to progress the work in an economic manner 14 Also sent by construction companies and affiliates to various Unions 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppages or walkoffs,' which had not been part of current contracts. In addition Respondent locals (except Plumbers Local 648) denied any knowledge of the picketing until after it had commenced, or of men leaving until afterward. "' Respondents, moreover, offered considerable evidence that Hartwell was well known throughout the area as an antiunion contractor who at one time in 1964 had been placed on the "unfair list" by the Respondent Southeast Idaho Building and Construction Trades Council. Also either Hartwell or an affiliated company, Kennedy Paving Co., had been picketed recently and for some time in Idaho Falls. Snoderly at first testified that at no time had he discussed with or informed other individual union representatives of his intention to picket Hartwell. Later he testified he thought he called Fortner before November 30 and told him he was putting an informational picket on Hartwell. Snoderly also said the signs had been in his office in the Labor Temple for a week or two before they were used during which time other union representatives in the building could have seen them. About 2 weeks before November 30, Westinghouse Administrative Manager Raisbeck had discussed with Dee Maynard, secretary-treasurer of Eastern Idaho Metal Trades Council, what would happen if a nonunion contractor got the pipelaying job. Maynard said he was afraid a local union would put up a picket Raisbeck said that shouldn't affect them. Maynard replied it shouldn't but he was afraid he might have trouble getting his people to cross a picket line. On December 15 and 16, 1965, hearing was held before a Federal district judge on a petition for a temporary injunction filed by the General Counsel. The judge reserved ruling since Hartwell was then completing his work. The job finished and Hartwell left about December 17. On December 18 wires to return to work were sent out and practically all workers returned on December 20. B. Discussion of the Issues and Concluding Findings 1. Re Plumbers and Pipefitters Local 648 From the foregoing and the record it is found that after being informed on the morning of November 30 that Hartwell employees were only using a separate gate and no other, Plumbers Local 648 continued to picket until December 3 at both the main Westinghouse gate and the Hartwell gate." Whether viewed as a reverse of the reserved gate doctrine (here picketing the main contractor to compel him to stop dealing with a subcontractor) or simply a violation of the standards of Moore Dry Dock's as to proper common situs picketing, it is evident that after learning of the separate Hartwell gate, Plumbers Local 648 violated the Moore Dry Dock standards as to picketing and Section 8(b)(4)(i) and (n)(B). Obviously, such picketing was not conducted so as to minimize its impact on neutrals.'"i Nor although along the line of the trench being dug by Hartwell, was it as reasonably close to the situs of the primary dispute with Hartwell as it should have been-by confining picketing to the Hartwell gate, Respondent Plumbers could have effectively reached the primary employer Hartwell without involving others. Respondent Plumbers further violated the Moore Dry Dock standards by maintaining a continuous picket 7 days a week, 24 hours a day both before and after it ceased picketing at the Westinghouse gate on December 3 While it can certainly support picketing after 4 p.m because Hartwell worked later on a number of occasions, it is questionable whether it can justify all-night picketing because he worked late one night and there appears to be no valid basis for picketing on Saturday or Sunday except to affect neutral employers. I accordingly find that by such continuous picketing, Plumbers Local 648 further violated the Moore Dry Dock standards and Section 8(b)(4)(i) and (ii)(B). 11 While a union may legitimately engage in picketing for informational purposes, it is to be determined from all of the facts and circumstances whether that was the purpose or whether its true objective was to picket as a signal to cause employees of neutral employers to cease work in violation of Section 8(b)(4)(i) and (ii)(B). As set forth, Plumbers picketed at a gate used by employees other than that used by the primary employer, Hartwell, and at times when Hartwell employees did not work. They also carried signs stating that Hartwell did "not comply with union standards." These signs, while visible, were not readable on the public road a half mile away. While possibly applicable to his work elsewhere, there is no record evidence as to what Hartwell's standards or working conditions were at other places except that he did not have union contracts and was considered to be nonunion. He was required on the job on the base by contract and the Davis-Bacon Act to meet area standards determined here from union area standards. There is no evidence he did not. Plumbers Business Agent Snoderly, after establishing the pickets, claimed to be so busy that for between 2 and 3 days he did not take any action after notification that picketing at the Westinghouse gate was improper Snoderly admitted that he expected some workers would leave but claimed the number was a surprise. In view of all of the foregoing, I conclude that the picketing was not informational but designed to enmesh neutral employers into its dispute with Hartwell, and was intended to and did act as a signal to workers on the base to leave their jobs, and accordingly as such also in violation of Section 8(b)(4)(i) and (ii)(B).21 " According to the Unions the conditions imposed by the December 2 or 3 wires and subsequently the December 13 wires made it impossible for them to man the jobs in any event after December 3 Further they contended that the employers on November 30 failed to follow a usual practice (where there was a dispute), of asking Internationals to intervene to direct locals to have their members return to work but instead merely asked the International representatives to meet with them on December 7 Respondents claim the reason for the alleged variance in procedures was to aid the instant boycott case I do not consider it necessary to resolve the disputed testimony as to whether there was such a change in procedure or what may have motivated it " Testimony of each of representatives named in footnote 12, supra " I do not consider the incident of Hartwell himself entering the guardhouse on one occasion as affecting the foregoing " 92 NLRB 547,549 "Dobson Heavy Haul, Inc, 155 NLRB 1305, Freeman Construction Company, et al , 120 NLRB 753, 761 "' Edgewood Contracting Company, 153 NLRB 797, 800-801, citing cases " Dobson Heavy Haul, supra, and see Interstate Employers Association, et al , 159 NLRB 563 SOUTHEAST IDAHO BLDG. AND CONSTR. TRADES COUNCIL 2. Re other Respondents As for the allegations of a policy or plan on the part of Respondent Southeast Idaho Building and Construction Trades Council and the various named local Union Respondents to violate Section 8(b)(4)(i) and (ii)(B), the evidence does establish that there was a concerted walkout and cessation of work at several employers by about 600 workers following the picketing. It does establish that workers who left their jobs were in some cases located miles apart; that these Respondents generally did not succeed in getting men back to work until Hartwell had left although they made efforts to do so," that no strike clauses generally existed in the contracts involved: that no disciplinary actions were taken by Respondents against persons who left work. While there may be situations where such discipline could practically be effected, there is no showing here in what manner or to what extent such might, as a practical matter, have been applied. Some 600 persons were involved representing a substantial number and in some instances all of the available craftsmen. There is evidence that officials and stewards of various Respondents left work, but none to show their direct inducement of other workers nor does the record establish that their presence was a prerequisite before other employees could work. It also appears that James Fortner, an official of Respondent Southeast Idaho Building and Trades Council, had (as found herein) said in the discussion of September 16, that the men might not feel like working if a nonunion contractor were on the base This statement was made at a meeting of management and union representatives over 2 months before the November 30 walkout. There is no evidence of its subsequent repetition to either management representatives or to the Respondent Unions' members. The evidence also reflects two prior walkouts over the presence of nonunion contractors, but does not establish Respondent Unions' responsibility therefor. The foregoing indicates concerted action and union expectation that it might occur. No doubt such a walkout of the numbers and extent involved covering areas as much as 15 miles apart is 22 There are instances of where men were sent to work on special jobs for Kellogg, also employees of subcontractors of Hunter-Saucerman , a fixed-fee contractor , returned to work While the walkout occurred during the morning following the picketing, it was not instantaneous with the picketing which generally preceded workers leaving jobs by some time Neither does it appear to have been simultaneous throughout the area There is auto transportation and telephone communication on the base Although the record contains little detail as to how the "word" spread, the testimony of Kenneth Jordon at Kellogg-15 miles from Westinghouse-may illustrate one way Jordon testified he was told some Kellogg employees came by the roan going into the Westinghouse area and spoke with some employees who were leaving that area '' That per se rules are not favored, see Local 357, Teamsters (Los Angeles-Seattle Motor Express), 365 1J S 667 2` A number of cases were cited by General Counsel and the Charging Party where respondents were held responsible without proof of direct authorization or ratification However, these cases in one way or another contain evidence, not shown here, upon which such responsibility could be predicated For instance in f L Manta, Inc , et at , 154 NLRB 671, the union business agent five times warned employers there would be strikes or walkoffs if they employed one Ross And when three hired him, each time a strike occurred immediately Several times members turned to the union hall for guidance, during the work stoppages On one of 779 motivated, triggered, or caused by some catalytic or other force,'-' but unless there is a presumption or per se rule comparable to res tpsa loquttur that the Respondent Unions are to be responsible unless they prove otherwise (which I do not find) the burden remains on the General Counsel to come forth with additional evidence. 4 Although it is not necessary to prove direct instigation or authorization or specific ratification, it is incumbent on the General Counsel to present evidence from which it may be fairly inferred that Respondents (other than Plumbers) were responsible for the walkouts. I do not consider that he has done so.'' While there is evidence that the Unions did not succeed in getting men back to work until Hartwell left, the record indicates that before December 3 when orders were cancelled, they either had no one to send or did not have time or made unavailing efforts."' With respect to the "unfair list" circulated in July 1964, it appears that to the extent it was distributed and posted that it became concealed by subsequent postings and thus ignored. I do not consider it necessary to determine whether or not under Section 10(b) of the Act this could be the basis of a finding of an unfair labor practice in November 1965,2' because in any event I find it too remote in time or effect to have any substantial causal relationship to November 30, 1965. Moreover, the Board has held that such a list is a traditional primary weapon aimed at the public as distinct from an "unfair" statement addressed directly to secondary union employees.2' Further, in the face of denials by every representative of Respondents (except Fortner) of knowledge of the picketing before it occurred and of denials of all Respondent representatives (except Plumbers) of any part in bringing about the walkout, the General Counsel offered no testimony from anyone to the contrary. In addition, there was substantial evidence that Hartwell was well known throughout the area as being nonunion or antiunion and that the union men did not want to work where there was a nonunion contractor. I find that the General Counsel has not established a violation on the part of Southeast Idaho Building and Construction Trades Council or any of named them the steward, when he walked off told others Ross had been "suspended" from the union In Local 349, IBEW (Dade Sound and Controls), 149 NLRB 430, evidence established responsibility of respondent's job steward to report encroachment of its jurisdiction, to enforce compliance with its work rules, and to straighten out problems on the jobsite Hence a steward 's stating there would be a work stoppage or a steward's threats to lead a walkout were held attributable to respondent union In the well- known Roane-Anderson case, 82 NLRB 696, appears the following "A formal strike call was unnecessary for the Respondent's purpose A like effect was achieved by making it known to at least certain of the employees, through the union stewards and the assistant business manager , that union members were quitting and that the union 's business manager wanted them to quit , and by having that information generally circulated by word of mouth The transmission through union officials of such information to disciplined union members in an organization such as the Respondent's, where substantial authority is vested in its business manager, must be viewed realistically as carrying the import of a strike call or order 2" See footnote 12 '7 Section 10(b) provides in part "That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge "District Council of Painters #48 (Hamilton Materials, Inc), 144 NLRB 1523 at 1524-citing cases 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents except Plumbers Local 648, and will recommend dismissal of the complaint against them.2" As set forth, I have found and hereby find that the picketing of Plumbers Local 648 had the purpose and effect of inducing employees of Westinghouse and certain neutral employers to refuse to perform their work, thereby coercing and restraining Westinghouse and neutral employers all for an object of forcing or requiring Westinghouse to cease doing business with Hartwell. Accordingly, I conclude that Respondent Plumbers Local 648 violated Section 8(b)(4)(i) and Qi)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRCCTICES UPON COMMERCE The activities of the Respondent Plumbers and Pipefitters Union No. 648 set forth in section III, above, occurring in connection with the operations of the employers named 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. Upon the basis of the above findings of facts, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Westinghouse Electrical Corporation and Hartwell Excavating Company are each employers within the meaning of Section 2(2) of the Act and have been at all material times engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) or Section 8(b)(4) of the Act. 2. Plumbers and Pipefitters Local Union No. 648 is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. Brick Masons Local Union No. 7, Cement Masons Local Union No. 629, Laborers Local Union No. 934, Operating Engineers Local Union No. 370, Carpenters Local Union No. 609, Laborers Local Union No. 1227, Electrical Workers Local Union No. 449, Ironworkers Local Union No. 732, Painters Local Union No. 764, Sheet Metal Workers Local Union No. 60, and Southeast Idaho Building and Construction Trades Council are each labor organizations within the meaning of Section 2(5) of the Act. 4. By the picketing and conduct described in section III A of this Decision with an object of forcing or requiring Westinghouse to cease doing business with Hartwell, Respondent Plumbers and Pipefitters Local No. 648 has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondents Brick Masons Local Union No. 7, Cement Masons Local Union No. 629, Laborers Local Union No. 934, Operating Engineers Local Union No. 370, Carpenters Local Union No. 609, Laborers Local Union No. 1227, Electrical Workers Local Union No. 449, 2" An additional reason for dismissal as to Brick Masons Local 7 is that it had no employees working on the base on November 30, so could not be held responsible for any employees leaving, unless clearly shown to be part of a conspiracy "' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for Ironworkers Local Union No. 732, Painters Local Union No. 764, Sheet Metal Workers Local Union No. 60, and Southeast Idaho Building and Construction Trades Council have not engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. THE REMEDY Having found that the Respondent , Plumbers and Pipefitters Local Union No. 648, has engaged in unfair labor practices violative of Section 8(b)(4)(B) of the Act, I shall recommend below that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is hereby recommended that Respondent Plumbers and Pipefitters Local Union No. 648, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in or inducing or encouraging individuals employed by Westinghouse Electric Corporation or any other employer engaged in commerce or in any industry affecting commerce, other than Hartwell Excavating Company, to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; and from threatening, coercing, or restraining the aforesaid employer or persons other than Hartwell where an object in either case is to force or require Westinghouse to cease doing business with Hartwell. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its offices, meeting halls, and at all places where Respondent Plumbers customarily posts notices to members, copies of the attached notice marked "Appendix."30 Copies of said notice, to furnished by the Regional Director for Region 19, after being duly signed by an authorized representative, shall 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 members are customarily posted. Reasonable steps shall be taken by the Plumbers Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail copies of the said notice to the said Regional Director of the National Labor Relations Board in Seattle, Washington, after such copies have been signed as provided above, for posting by Westinghouse Electric Corporation, Fluor Corporation Ltd., M.W. Kellogg, Bingham Plumbing and Heating Corporation, Electric Boat Division of General Dynamics Corporation, Howard S. Wright & Associates, and Hunter-Saucerman, these Companies willing, at all locations where notices to their respective employees are customarily posted. the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " SOUTHEAST IDAHO BLDG. AND CONSTR. TRADES COUNCIL (c) Notify the Regional Director for Region 19, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.31 It is further recommended that so much of the complaint in this proceeding as alleges unlawful conduct by Brick Masons Local Union No. 7, Cement Masons Local Union No. 629, Laborers Local Union No. 934, Operating Engineers Local Union No. 370, Carpenters Local Union No. 609, Laborers Local Union No. 1227, Electrical Workers Local Union No. 449, Ironworkers Local Union No. 732, Painters Local Union No. 764, Sheet Metal Workers Local Union No. 60, and Southeast Idaho Building and Construction Trades Council be dismissed. 31 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF PLUMBERS AND PIPEFITTERS LOCAL UNION No. 648 Pursuant to the Recommended Order of a Trial Examiner 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: 781 WE WILL NOT engage in or induce or encourage individuals employed by Westinghouse Electric Corporation or any other employer engaged in commerce or in an industry affecting commerce, other than Hartwell Excavating Company, to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, or materials or commodities, or to perform any services; or threaten, coerce, or restrain the aforesaid employers or persons other than Hartwell where an object in either case is to force or require Westinghouse to cease doing business with Hartwell. PLUMBERS AND PIPEFITTERS LOCAL UNION No. 648 (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583.