Local 825, Operating Engineers

LOCAL 825, OPERATING ENGINEERS 193 Local 825, International Union of Operating En- gineers, AFL-CIO, and Peter Weber, Business Representative and American Dredging Com- pany. Case 4-CC-386 November 14, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On June 22, 1967, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that Respondent Local 825 had engaged in and was engaging 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. He further found that Respondent Peter Weber had not engaged in any unfair labor practices and that Respondent Local 825 had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and Respondent Local 825 filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Charging Party filed cross-exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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, the cross-exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the following modifications: In October 1966, Gates Construction Company, and American Dredging Company2 were engaged in the erection of a nuclear power plant in Oyster Creek, New Jersey. Gates was the general contrac- tor on the project and had subcontracted the dredging work to American. Respondent Local 825 represented the operating engineers who worked on the construction site. A sister local, Local 25, was the certified representative of American's dredge operation and maintenance crews. The violations alleged herein arose out of Respondent's efforts to place three of its members, two engineers and a maintenance man, aboard each shift of American's dragline dredge, Delaware Valley. The sequence of events with which we are immediately concerned touches upon American's attempt to have a dredging bucket, intended for use on the Delaware Valley, placed by crane on a barge and towed out to the dredge. The Delaware Valley appeared at the worksite on October 10, 1966. On the morning of October 11, Respondent Local 825's shop steward, William Bonatz, accompanied by master mechanics or "lead engineers" Henry Behrend and Burnett Boyce, visited John Morgan, Gates' job superintendent. According to Morgan's credited testimony, Behrend said: ... Peter Weber told [us] to inform ... Gates that unless [three members of Local 825, two engineers and a maintenance man, were hired for the "Delaware Valley" Respondent would] shut down [the] operation.... Morgan replied that he would not force American into an agreement with Respondent, Behrend, Bonatz, and Boyce remained silent. Morgan re- ported the incident to his superiors. The following day Respondent's business agent, Ray Schinn, told Morgan that "there would be no shut-down ... but that the union was considering the possibility of a civil suit for damages for allowing ... non-union conditions to exist." American arranged with laconelli Crane3 to furnish a crane and operator to lift the bucket from the shoreline to the barge on October 11. When the crane arrived, Boyce showed up to check the union books of the crane's operator and oiler. Before ceii- tifying that Iaconelli's employees were in good standing, Boyce left with the oiler to make a telephone call. When he returned, Boyce told Berzina, American's job superintendent, that the books were in order. Shortly thereafter, Boyce returned with steward Bonatz. The former said to Berzina that they had just spoken with Weber and Weber told them to tell Berzina that he "wanted two engineers and a maintenance man on each shift on the Delaware Valley." Bonatz then informed Berzina that the laconelli men would not be per- mitted to operate the crane because laconelli was delinquent in its welfare and pension payments to the Union. As the Iaconelli personnel left the site, Bonatz said to Berzina: "We don't have anything against you personally but you are working for a crappy outfit and I don't know why I should help American Dredging Company." Bonatz also al- luded to past difficulties between Respondent and American, difficulties which led to unfair labor practice charges filed with the Board by American. Hereinafter referred to as Gates 2 Hereinafter referred to as American Hereinafter referred to as laconelh 168 NLRB No. 34 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the laconelli crane left, American arranged with McCormick Construction Company4 to supply a crane. McCormick called the Union and requested that an operator and an oiler be sent to operate the crane. The operator arrived, but not an oiler. American's job superintendent, Berzina, left Boyce with the crane operator while Berzina sought Gates' permission to borrow an oiler for the crane. Upon Berzina's return, he informed Boyce that Gates had given him permission to use one of its oilers and Boyce arranged for the oiler's services. A little later the crane operator asked Boyce whether Respondent would operate the bucket. When Boyce told him that Local 25 men manned the dredges, the operator declared "that's operating engineers' work. I'm not going to unload [the bucket]." Boyce ordered him to do it. The operator replied: "To hell with it. I'm going home." Which he did. The next day, Russell Demark, another Mc- Cormick crane operator, arrived. He told Berzina that he could not unload the bucket because "his name would be mud around the union hall." The McCormick crane left. Eventually the bucket reached the Delaware Valley by other means. The Trial Examiner found that Respondent Union had violated Section 8(b)(4)(ii)(B) and (C) of the Act by the threats of Union Agents Bonatz, Behrend,5 and Boyce that the Union would shut down the Gates' operation unless American hired members of the Union for the Delaware Valley. He also found that the Union had violated Section 8(b)(4)(i) and (ii)(B) and (C) in inducing the first en- gineer sent by the Union at the request of McCor- mick not to operate that company's crane. We agree that the conduct found unlawful by the Trial Ex- aminer violated Section 8(b)(4)(i) and (ii)(B) of the Act. However, as the remedy for a subsection (C) violation would be the same as for the (B) violation, we find it unnecessary to decide whether this con- duct also violated subsection (C) of Section 8(b)(4). The Trial Examiner recommended dismissal of the complaint as to Respondent Weber, and as to the laconelli and the second McCormick incidents. We find merit in the General Counsel's and Amer- ican's exceptions to these recommended dismissals. 1. Peter Weber did not testify at the hearing. Much of the evidence set forth below is taken from a deposition given by Weber on January48, 1967, in connection with an action brought by American against Respondent in the Federal District Court for the District of New Jersey, and included in the present record. Peter Weber has been Respondent Union's pre- sident and business manager since 1953. Whenever disputes arise over the meaning of collective-bar- gaining agreements to which Respondent is a party, Weber has the authority to handle them. It is beyond peradventure that Weber is an agent of Respondent. Respondent admitted this in its answer and, in an earlier case, the Board found Weber an agents As to Weber's responsibility for the conduct of Behrend, Bonatz, and Boyce, the record reveals the following. In October 1966, Weber spoke with Bob Gates of Gates Construction concerning the opera- tion of the Delaware Valley. At this time Weber told Gates that the dredge could be brought to the project only if Respondent was able to place two of its engineers and a maintenance man per shift on the vessel. Shortly after this conversation, Gates con- tacted Weber and related American's difficulty in getting a bucket for the Delaware Valley put on a barge and towed out to the dredge. Weber told Gates that Gates' employees should be performing the work which he had subcontracted to American and that American brought Respondent Union nothing but trouble. Because of this Weber wanted nothing more to do with the matter. At the same time, however, Weber informed Gates that he had directed his "key men on the job ... to see that the best of qualified help is brought in on the work." Weber identified Bonatz, Behrend, and Boyce as the "key men." For this purpose they became Weber's agents as well as Respondent's subagents. As between Weber and his "key men," the former's admission to Gates that he had told them to see to the employment of "the best qualified help" aboard the Delaware Valley is sufficient evidence of their actual authority to represent Weber in the general area within which they acted at the worksite. Con- sequently, when Behrend, in the presence of the other "key men" Bonatz and Boyce, informed Mor- gan that Weber had told them to tell Morgan that "unless [three members of Local 825 were hired for the Delaware Valley Respondent would] shut down [Gates' operation] . . ." he was pursuing an objec- tive previously authorized by Weber. Thus, Weber's participation in the acts of his agents, described above and infra, renders him, as well as Respondent, legally responsible for their conduct. Accordingly, we find that by the foregoing conduct, and the other violations found herein, Peter Weber, as well as Respondent Union, violated Section 8(b)(4)(i) and (ii)(B) of the Act. 2. We also find Respondent Weber and Respond- ent Union responsible for the two incidents in- volving the laconelli crane and McCormick crane and McCormick crane operator Russell Demark. With respect to the laconelli affair, we do not find persuasive the Trial Examiner's conclusion that, Hereinafter referred to as McCormick Behrend was found to be an agent of Respondent in another unfair labor practice case arising out of a dispute at this project See Local No 825, Operating Engineers (Burns & Roe, Inc ), 162 NLRB 1617 His du- ties have not changed since that case " United Engineers & Constructors , Inc , 138 NLRB 279, enfd 322 F 2d 478 (C.A 3) Recently, the same circuit enforced a Board consent order against Weber See N L R B v Weber, 382 F 2d 387 (C A 3) LOCAL 825, OPERATING ENGINEERS 195 although Respondents "were doubtless delighted to find an excuse for banishing laconelli from the site," the record shows no more than a delinquency in welfare and pension payments as the real reason for Respondents ' action. In so ruling , the Trial Ex- aminer treats in too isolated a fashion events in- separably bound together by Respondents ' effort to thwart American 's ability to operate the Delaware Valley, unless American complied with Respond- ents' demand that Local 825 members be em- ployed on the dredge. There is much significance in Boyce 's statement to Berzina , prior to the denial of work to laconelli , that Peter Weber had just told Boyce and Bonatz to tell Berzina that Weber "wanted two engineers and a maintenance man on each shift on the Delaware Valley," and in Bonatz' observation to Berzina , after the laconelli em- ployees left the site, "we don 't have anything against you personally but you are working for a crappy outfit and I don't know why I should help American Dredging Company ." Bonatz also added that Respondent Union had experienced difficulty with American , a reference to charges filed by the latter with the Board. In a real sense , therefore, Bonatz was telling Berzina that, because of Respondent Union's displeasure with American, it was using laconelli 's delinquency to prevent its members from operating the laconelli crane. It is readily apparent from the above occurrences, and Respondents ' other unfair labor practices, that Respondent Union 's stated reason for refusing to permit operation of the laconelli crane was a pre- text. The real reason was American 's refusal to comply with Respondents' demand that its members be employed on the Delaware Valley. Accordingly, we find that , by their conduct in the Iaconelli affair, Respondent Weber and Respondent Union violated Section 8 (b)(4)(i) and (ii)(B) of the Act. We turn now to operator Demark 's refusal to man the McCormick crane. This was the culmina- tion of the events encompassed by the present com- plaint. By the time Demark refused to work, the im- plementation of Respondents ' plan had already led to four instances of unlawful conduct in 2 days. Although Demark 's belief that "his name would be mud at the union hall " if he performed his assign- ment was based upon views expressed to him by rank-and-file members of Respondent Union, the rank and filers were no more than conduits , convey- ing a policy which was developed at the highest levels of the Union and had borne fruit several times within a brief period of time. In view of the violations outlined above , and those found by the Trial Examiner and adopted by us, we find that De- mark's refusal to operate the McCormick crane was not merely the result of possible ostracism by ordi- nary union members, but implied that performing the work would incur the displeasure of union offi- cials. In a real sense , therefore, Demark's response was the direct outgrowth of Respondents' con- scious and unlawful efforts to compel American to employ Respondent 's members on the Delaware Valley. Accordingly , we find that Respondent Weber and Respondent Union caused Russell De- mark to refuse to operate the McCormick crane and that the Respondents thereby violated Section 8(b)(4)(i) and (ii)(B) of the Act. _ CONCLUSIONS OF LAW Delete paragraphs 1 and 2 of the Trial Ex- aminer's Conclusions of Law and substitute the fol- lowing: 1. Peter Weber and the Union, by the acts of their agents in threatening Gates with an object of forcing or requiring Gates to cease doing business with American, have engaged in unfair labor prac- tices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 2. Peter Weber and the Union, by the acts of their agents in inducing or encouraging employees of laconelli and McCormick to refuse to perform services for American with an object of forcing or requiring laconelli and McCormick to cease doing business with American, have engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Local 825, International Union of Operating En- gineers, AFL-CIO, its officers , agents, and representatives , and the Respondent, Peter Weber, and his agents, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraph 1(a) and substitute the fol- lowing: "(a) Threatening, coercing , or restraining Gates Construction Company, laconelli Crane , and Mc- Cormick Construction Company , or any other per- son engaged in commerce or in an industry affecting commerce , and inducing or encouraging employees of laconelli Crane and McCormick Construction Company or of any other employer engaged in com- merce or in an industry affecting commerce to en- gage in a strike or a refusal in the course of his em- ployment to use, manufacture , process , transport, or otherwise handle or work on any goods , articles, materials , or commodities , or to perform any ser- vices, where in either case an object thereof is to force or require Gates Construction Company, laconelli Crane , McCormick Construction Com- pany , or any other person, to cease doing business with American Dredging Company." 336-845 0 - 70 - 14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Add Iaconelli Crane to the Employers specifi- cally named in paragraph 2(b) and substitute Mc- Cormick Construction Company for "McCormick Crane Service" appearing therein. 3. Delete the first and second indented para- graphs of the section entitled "Appendix" and sub- stitute the following: WE WILL NOT threaten, coerce, or restrain Gates Construction Company, Iaconelli Crane, and McCormick Construction Com- pany, or any other person engaged in com- merce or in an industry affecting commerce, and induce or encourage employees of Iaconel- li Crane and McCormick Construction Com- pany or of any other employer engaged in com- merce or in an industry affecting commerce to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where in either case an object thereof is to force or require Gates Construction Company, laconelli Crane, Mc- Cormick Construction Company, or any other person, to cease doing business with American Dredging Company. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner. This case, heard at Philadelphia, Pennsylvania, on April 12, 1967, pur- suant to a charge filed the preceding October 14 and a complaint issued March 8, presents questions whether Respondents violated Section 8(b)(4)(i) and (ii)(B) and (C) of the National Labor Relations Act, as amended, in connection with their demand that members of their or- ganization be employed to perform certain dredging operations at the construction of a nuclear power plant at Oyster Creek, New Jersey. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by each of the parties hereto, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTY, AND THE LABOR ORGANIZATIONS INVOLVED The Charging Party, herein called American, a Pennsylvania corporation engaged in dredging and re- lated services, annually performs services valued in ex- cess of $50,000 in other States, and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Respondent Local 825, herein called the Union, is a labor organization within the meaning of Section 2(5) of Including the agreement for consent election and the notice of election in Case 4-RC-4154, offered in evidence by stipulation after the close of the hearing, and hereby received as G C Exhs 8(a) and 8(b), respective- ly the Act, and Respondent Weber is its agent within the meaning of Section 2(13) of the Act. A sister local, No. 25, of the same International, is likewise a labor organiza- tion. If. THE ALLEGED UNFAIR LABOR PRACTICES A. The Dredging Operation In the summer and fall of 1966 the New Jersey Power and Light Company was engaged in the erection of a nuclear power plant at Oyster Creek, New Jersey. The plant was located close to Barnegat Bay, and the project required the dredging of water intake and discharge chan- nels between the Bay and the plant. The channels to be dredged were Oyster Creek and the South Branch of Forked River. Gates Construction Company, herein called Gates, which was the general contractor on this aspect of the project, subcontracted the dredging opera- tions to American, which in turn subcontracted some of the diking work to Gates and other contractors. American commenced dredging operations with a hydraulic suction dredge, but to expedite the work and because of certain physical obstacles which could be better handled by a dragline dredge, such a dredge, the Delaware Valley, was sent to the project on October 10, 1966. Both dredges were manned by employees who were members of Local 25 of the Operating Engineers (a sister local of the Union in this proceeding), which had been certified in 1960 as the bargaining representative of all American's employees "employed in connection with the operation and maintenance of dredges," and which had executed a valid union-security agreement with American. The Respondent, Local 825, apparently represented the operating engineers employed at the con- struction site and took the position that the dredging was part of the construction job. The dredging operations of the Delaware Valley required the use of a bucket which was not with the dredge when it arrived, but was brought by road to the shore where Oyster Creek flows into Barnegat Bay. The dredge was I mile out in the Bay, unable to proceed toward land without further dredging American intended to get the bucket out to the dredge by placing it on a barge and towing it out, but a crane was required to lift the bucket onto the barge. Certain of the alleged violations with which we are here concerned arose in connection with American's efforts to obtain a crane to hoist the bucket onto the barge, an operation requiring from 5 to 15 minutes of work. B. The Threat to Gates On the morning of October 11, 1966, the day after the Delaware Valley arrived, John Morgan, Gates' superin- tendent on the job, received a visit in his office from Henry Behrend, William Bonatz, and Burnett Boyce. Bonatz was the shop steward at the construction site, and Behrend and Boyce were master mechanics or "lead en- gineers" employed at the job. Behrend acted as spokesman and delivered to Morgan, according to the latter's testimony, a demand that American hire three members of Local 825, two engineers and a maintenance man, on the Delaware Valley. To quote Morgan: Well, they told me they were in touch with their of- fice and Pete Weber told them to inform me as Gates LOCAL 825, OPERATING ENGINEERS 197 that unless those stated conditions were met, they were going to shut down our operation and that I better inform my office. The reference to "Pete Weber" was to Peter Weber, a Respondent here, whose status as business manager of the Union is conceded. Morgan replied, according to his testimony, that he could not force American to sign a con- tract with the Union as he had no control over Amer- ican's operations, a comment to which, so far as the record shows, the union men made no reply. Morgan re- ported this conversation to his superior. The next day Ray Schinn, a union business agent and superior in the union hierarchy to Behrend, Boyce, and Bonatz, told Morgan that "there would be no shut-down on the job but that the union was considering the possibility of a civil suit for damages for allowing these non-union conditions to exist." Bonatz and Behrend contradicted Morgan's testimony, stating that Weber's name was not mentioned at the meet- ing on October 11, although admitting that they urged on Morgan their claim that men from their union be used on the Delaware Valley. I was very favorably impressed with Morgan as he testified, and I regard him as a credi- ble, disinterested witness. I credit his testimony where it conflicts with that of Bonatz and Behrend. C. The laconelli Crane American arranged with one laconelli to furnish a crane to lift the bucket onto the barge for transportation to the Delaware Valley. About noon on October I I the crane, accompanied by two laconelli employees , an oiler and a crane operator, arrived at the job and the men prepared to go to work . While they were assembling the crane, Boyce approached them for the purpose of "checking their books"; i.e., ascertaining that they were union members in good standing. Boyce left with the oiler to make a telephone call, and when they returned, Boyce advised Pete Berzina, American 's superintendent, that the books were in order. Boyce then left , but a little later he returned, accom- panied by Union Steward Bonatz. On this occasion Boyce told Berzina that "they had just been talking to Pete Weber," who told them to tell Berzina that Weber "wanted two engineers and a maintenance man on each shift on the Delaware Valley.2 Bonatz then told Berzina that the laconelli men would not be permitted to use their crane to put the bucket on the barge because laconelli was not current with welfare and pension payments to the Union. Berzina suggested to the laconelli operator that the operator "get hold of the crane owner and let him call the union and see if they couldn 't straighten it out by telephone ," but the operator did not know where to reach the owner. The Iaconelli men departed with their crane. Bonatz commented to Berzina that "we don't have anything against you personally but you are working for a crappy outfit and I don 't know why I should help Amer- ican Dredging Company." Bonatz also referred to the fact that the Union had had trouble with the Company be- fore and the Company "hollered cop," apparently a reference to charges the Company had filed with the Board against the Union.3 Bonatz testified that whenever a new contractor ap- pears on the job he calls the union welfare and pension of- fice to ascertain whether the contractor is delinquent in his payments. He ascertained on the day in question that laconelli was delinquent. His testimony continues: Q. Now, after speaking to the union welfare of- fice, what, if anything, did you do with respect to the employees of Iaconelli who were at the site? A. I went down and I told the employees that were working for laconelli that laconelli was behind in it and they shouldn't be working for him because that's a breach of contract. Q. Now, what you told these employees of laconelli, is that in any way any different from what you tell employees of any other employer who is be- hind in welfare fund payments? A. No, sir. Approximately 3 months before the hearing in this proceeding, Bonatz' deposition was taken in a civil action brought by American against the Union. On this occa- sion, Bonatz testified about the laconelli (there called lanconelli) crane as follows: Q. Do you remember any discussions with Boyce about the lanconelli crane? A. Not anything that stands out. Q. What do you remember? A. I don't remember anything that was of prime interest with lanconelli. Q. Don't you judge what the prime interest is, you just tell me what you remember. Mr. Durkin: If anything. A. lanconelli, I think, had trouble with iron- workers or something; they came in, they were going to go to work, and then the next thing I know they didn't go to work. Q. Is that all you know about it? A. That is all t can remember now. He further testified at that time with respect to Berzina: Q. Did you have any conversation with him about the lanconelli crane or the operator or oiler on it? A. I might have, yes. Q. What was the conversation? A. I can't, I can't remember any particular con- versation with him. I probably did talk to the man, you know, I talked to the man all the time. Q. I am talking about this particular lanconelli crane. A. I can't remember anything specific what was said, if anything. Q. At the time that the lanconelli crane arrived, how long did that crane remain there on that occa- sion, if you can remember? A. I can't remember exactly, but it was a short period of time. Q. By that you mean one day, or two days, or three days? A. It might have been one, two, three days, in that area. Q. What did the lanconelli crane do while it was there, if it did anything? A. I don't think it did anything. " According to Berzina's testimony, Bonatz agreed with Boyce, Boyce did not testify , and Bonatz was not asked to, and did not, contradict Berzina's testimony 4 One of these charges was withdrawn without prejudice, apparently upon amicable resolution of the matter (see G C Exh 6), and another became the subject of a Consent Board Order now pending on petition for enforcement in the United States Court of Appeals for the Third Circuit (Board Case 4-CC-292-1) 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Just came there, stayed for a short period of time, one, two or three days, and then left? A. I assume, I can't answer that, I don't know. Q. You know it came, don't you? A. I know it came. I went to check the operator and the oiler's books. I went back on my job and what happened to the lanconelli crane I don't know, I cannot say. Q. You know if it went away? A. It is not there now. Q. It went away shortly after its arrival? A. Yes, sir. D. The McCormick Crane The morning after the laconelli crane had left, another crane - this one owned by the McCormick Construction Company, herein called McCormick, a Delaware em- ployer - appeared at the construction site. McCormick arranged with the Union to send an operator and an oiler to the premises to operate the crane. The operator ar- rived, but was not accompanied by an oiler. Berzina, American's superintendent, went to ask Morgan, Gates' superintendent, if Gates would furnish an oiler. While Berzina was looking for Gates, the operator stayed at the crane with Boyce, the master mechanic or lead engineer. Berzina obtained permisssion to use a Gates' oiler and returned to the crane. Berzina's description of the episode continues: A. Then Boyce went and got an oiler. And the operator that was sent out- I don't remember his name-said, "Who is going to operate this bucket, operating engineers?" And he4 said, "No, all we do is put it in the barge, take it out to Delaware Valley, and it will be operated by the dredge men, Local 25." And he said, "Well, that's operating engineers' work," and he said, "I'm not going to unload it." And Boyce spoke up and said, "I order you to unload it." And the operator said, "To hell with it, I'm going home." So he turned around and walked away. A. Well, the next day an operator arrived that I knew quite well - Russ Demark - Russell Demark. I had worked on it with him on another job. And I talked to him and he said he had been talking to some of the fellows and he said, "I can't unload that bucket." He said, "I've been talking to some of the men" - MR. ARONSON: Mr. Trial Examiner, I am going to have to object to anything that Mr. Demark said-that he spoke to some of the men, what they told him. This is purely hearsay. MR. KAPLAN: I think it is part of the whole res gestae of the situation. TRIAL EXAMINER: Mr. Kaplan , it isn't going to help you very much to have this man testify as to what Demark told him some unidentified people told Demark. If you want to put Demark on the stand as to what he was told, that might be a different matter. I'll permit you to go ahead if you want to for the sake of getting a complete narrative, but you'll have to do something more than this. MR. KAPLAN: I'm not very concerned about what other men told Mr. Demark. TRIAL EXAMINER: For the sake of the continuity of the witness's story I'll take it, but not in terms of establishing any violation the part of Local 825. Q. (By Mr. Kaplan) Would you continue? A Yes. He told me that he couldn't unload the bucket. He said if he did his name would be mud around the union hall. He said he just wouldn't do it. He said he couldn't afford to do it. Then he walked away and I walked away. That just about ended it for the third day. The McCormick crane left the next day.5 Sometime later American had the bucket hauled away; it was loaded onto a barge elsewhere, and eventually reached the Delaware Valley. E. Concluding Findings As found above, I credit Morgan's testimony that on October 11, 1966, Bonatz, Behrend, and Boyce told him that the Union would shut down the Gates operation un- less American hired members of the Union for the Delaware Valley. This conduct was a threat to Gates with the object of forcing Gates to stop doing business with American unless American yielded to the Union, and of forcing American to recognize or bargain with the Union, although another labor organization, Local 25, and not the Union, was the certified representative of American's employees. The threat therefore violated Section 8(b)(4)(ii)(B) and (C) of the Act. The Union seeks to escape liability by arguing that it is not responsible for the statements of Behrend, and that American and Gates are a single employer for purposes of the Act. The latter argument rests on some evidence that American's supervisors occasionally directed the work of a Gates employee, and also on some evidence that the relationship between Gates and American was such that in some aspects of the work Gates served as a subcontractor under American. I find, however, that Gates and American are separate employers, that Gates subcontracted the dredging operation to American, that American in turn subcontracted some of the dike work in connection with the dredging to Gates, that the super- visors of the two companies worked in close harmony as necessitated by the interrelationship of the work each was doing, but that for purposes of the Act they were separate companies with no common source of control or common direction of labor relations. As to the Union's responsi- bility for Behrend's threat, he was accompanied by Union Steward Bonatz, who by his presence acquiesced in and endorsed Behrend's remarks. I note also that Behrend was held to be an agent of the Union in another Board proceeding arising out of labor trouble at this project " General Counsel argues that "he" refers to Boyce, and the Union argues that "he" is an error, and should read "I", i e , Berzina This version derives some support from the later expression , "And Boyce spoke up.. " General Counsel's version is supported by the phrase "all we do " I accept General Counsel's version, and the record as transcribed. 5 On the evening of the day the McCormick crane arrived at the site, Arthur Chappell, another American superintendent, gave the man who had driven the crane to the site a ride part way to his home Chappell testified "He told me on the way home that he had offered to Mr Boyce to run the crane if he would let him unload the bucket, that he was capable of doing it Boyce wouldn't let him unload it " This is not probative evidence as to what Boyce told the dnver , and I base no finding on it, par- ticularly as Berzma testified that the same driver had told him that he(the driver) "couldn't operate the machinery " LOCAL 825, OPERATING ENGINEERS 199 (Local No. 825, Operating Engineers (Burns & Roe, Inc.), 162 NLRB 1617), and he testified that his duties have not changed since the events covered by that case. The Union argues that it did not violate Section 8(b)(4)(C) asserting that it made no demand for recogni- tion or bargaining but at most only a demand that Amer- ican hire certain of its members. But the record is clear (see particularly Weber's deposition) that the Union as- serted a jurisdictional claim over the work because, in the Union's view , it was construction work , and not marine work. Hence its demand that American hire its members was in essence a demand that American recognize the Union's right to the work , which would have entailed sub- stitution of the Union for Local 25 as the bargaining representative of the men doing the work . Morgan so un- derstood the demand when he told the union delegation that he could not force American into a contract with Local 825, and as I read Morgan 's testimony , the union representatives did not disavow this intention . On these circumstances the absence of a demand for recognition in haec verba is not controlling . See N .L.R.B. v. Local 182, Teamsters , 314 F.2d 53, 58 (C.A. 2); I.B.T., Local 41 (Union Chevrolet), 96 NLRB 957, 958, 962. I find no probative evidence sufficient to justify a find- ing that Peter Weber violated the Act on this occasion. Behrend 's respresentations as to what Weber said bind the Union , but are not binding upon Weber , and the deposition of Weber (who was not a witness in this proceeding but whose deposition was taken immediately after that of Bonatz in the civil action referred to above) establishes that Weber discussed the Delaware Valley matter with a representative of Gates, and indicated the Union's views and desires, but did not threaten , restrain, or coerce.6 I find no violation with respect to the Iaconelli crane. Although the union representatives were doubtless delighted to find an excuse for not permitting the crane to be used in furtherance of American's dredging work, and may well have been searching for such an excuse, so far as the proof shows on this record the ostensible reason was laconelli's delinquency in welfare and pension pay- ments. As the Union was following its usual practice, I cannot find on this record that this reason was not the real reason , even if the result furthered the Union 's other il- legal objectives . Manifestly the Union without violating Section 8(b)(4) could insist on laconelli 's compliance with his welfare payment obligations. As to the McCormick crane, however, the sole reason that the operators refused to use it to put the bucket on the barge was their knowledge of the Union 's protest over the fact that the bucket would ultimately be operated by members of another local. The first to voice objection on this ground was the operator on the first day, who did not raise the issue until after he had spent some time alone in the company of Boyce Under the circumstances, I infer that Boyce advised the operator of the situation, and I view as empty theatrics Boyce's "official" order that the man perform the work . The second operator refused because he had been talking to the men and learned that if he did the job "his name would be mud around the union hall." Under these circumstances it is clear that each operator was carrying out the Union 's objective of not getting the bucket to the dredge because American was not employing union members but was employing members of Local 25, which was the certified bargaining representative of American's employees. In the second case, however, there is no showing that any officer or agent of the Union conveyed this policy to the operator, who so far as this record shows learned from ordinary union members that "his name would be mud at the union hall" if he performed the assigned work. The statute im- poses liability only for the conduct of a union or its agents. The fact that rank-and-file union members pass on to others their ideas, however accurate, of the Union's objectives, is not sufficient to establish union liability under the Act. But in the first episode, the operator spoke and acted after private conversation with Boyce, who was a member of the deputation that presented the Union's il- legal threat to Gates the day before. Also in Weber's deposition, referred to above, he stated that he regarded Boyce, Behrend, and Bonatz as "the key men on the job," and that he would give them directions as to union policy. See G.C. Exh. 2, pp. 47, 49-50, 58, and 66. Finally, Bonatz testified that Boyce had the authority, from the Union, to give orders to a rank-and-file operating en- gineer. I therefore find that the Union, acting through its agent Boyce, induced or encouraged this operator, an employee of McCormick, to refuse to perform services with an ob- ject of forcing McCormick to stop doing business with American and with an object of forcing American to recognize or bargain with the Union although another labor organization has been certified as representative of American's employees. In short, I find that in the first McCormick episode the Union violated Section 8(b)(4)(i) and (ii)(B) and (C). CONCLUSIONS OF LAW 1. The Union, by the acts of its agents in threatening Gates with an object of forcing American to recognize or bargain with the Union although another labor organiza- tion had been certified as the representative of Amer- ican's employees, engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(b)(4)(ii)(B) and (C) and Section 2(6) and (7) of the Act. 2. The Union, by the act of its agent in inducing or en- couraging an employee of McCormick to refuse to per- form services, with an object of forcing McCormick to stop doing business with American, and with an object of forcing American to recognize or bargain with the Union although another labor organization has been certified as the representative of American's employees, engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and (C) and Sec- tion 2(6) and (7) of the Act. THE REMEDY I shall recommend that the Union cease and desist from its unfair labor practices , and that it post appropriate notices. In the light of the Board's decision in a related case (Local No. 825, Operating Engineers (Burns & Roe, Inc.), 162 NLRB 1617, 1622), I shall phrase the order in broad terms. I noted, further , that an unreported Board Order , entered on consent in Case 4-CC-292-1, is 6 The Charging Party in its brief urges that Weber's failure to disavow any of the conduct here involved establishes his liability But the opportu- nity to "disavow" came several days after the strike threat had been repu- diated The Charging Party also urges that Weber brought secondary pres- sure on General Electric, but this is outside the scope of the complaint 200 DECISIONS OF NATIONAL now before the Third Circuit on petition for enforcement, and if the Board prevails in that proceeding , the parties may be able to obviate further proceedings herein. Upon the foregoing findings and conclusions and upon the entire record in the case, I recommend issuance of the following: ORDER Respondent , Local 825 , International Union of Operating Engineers , AFL-CIO, its officers , agents, and representatives , shall: 1. Cease and desist from: (a) Threatening, coercing , or restraining Gates Con- struction Company or any other person engaged in com- merce or in an industry affecting commerce , and (b) in- ducing or encouraging employees of McCormick Con- struction Company or of any other employer engaged in commerce or in an industry affecting commerce to engage in a strike or a refusal in the course of his employment to use, manufacture , process, transport , or otherwise handle or work on any goods , articles, materials, or commodities, or to perform any services , where in either case an object thereof is ( 1) to force or require American Dredging Company to recognize or bargain with said Local 825 as the representative of any of the employees of American Dredging Company in the unit for which Local 25, Marine Division , International Union of Operating En- gineers, AFL-CIO , has been certified as the representa- tive under the provisions of Section 9 of the Act, or (2) to force or require any person to cease doing business with American Dredging Company. 2. Take the following affirmative action to effectuate the policies of the National Labor Relations Act: (a) Post in conspicuous places in Respondent Local 825's meeting halls and other places where it customarily posts notices to its members copies of the attached notice marked "Appendix."7 Copies of said notice, to be furnished by the Regional Director for Region 4, after being duly signed by the authorized representative of Respondent Local 825, shall be posted by said Respond- ent, immediately upon receipt thereof , and be main- tained for 60 consecutive days thereafter . Reasonable steps shall be taken by said Respondent to insure that said notices are not altered , defaced , or covered by any other material. (b) Mail to the Regional Director for Region 4 suffi- cient signed copies of the said notice for posting at the premises of American Dredging Company, Gates Con- struction Company, and McCormick Crane Service, these employers or persons being willing. Copies of said notice to be furnished by the Regional Director for Re- gion 4 , after having been signed by Respondent Local 825's representative , shall be forthwith returned to the Regional Director. ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 4 , in writ- ing, within 20 days from the receipt of this Decision, what steps said Respondent has taken to comply herewith." 8 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 LOCAL 825 , INTERNA- TIONAL UNION OF OPERATING ENGINEERS , AFL-CIO Pursuant to the Recommended Order of a Trial Ex- aminer 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, in any manner or by any means, threaten , restrain, or coerce Gates Construction Company or any other person engaged in commerce or in an industry affecting commerce, where an ob- ject thereof is to force or require American Dredging Company to recognize or bargain with Local 825, In- ternational Union of Operating Engineers, AFL-CIO, or any other labor organization, as the representative of any of the employees of American Dredging Company in the unit for which Local 25, Marine Division, International Union of Operating Engineers , AFL-CIO , has been certified as the representative under the provisions of Section 9 of the Act. WE WILL NOT induce or encourage any individual employed by McCormick Crane Service or any other employer, to engage in a strike or a refusal in the course of his employment to perform any service, where an object thereof is to force or require McCor- mick Crane Service or any other employer to cease doing business with American Dredging Company, or to force or require American Dredging Company to recognize or bargain with Local 825, international Union of Operating Engineers , AFL-CIO, or any other labor organization, as the representative of any of the employees of American Dredging Company in the unit for which Local 25, Marine Division , Inter- national Union of Operating Engineers , AFL-CIO, has been certified as the representative under the provisions of Section 9 of the Act. LOCAL 825 , INTERNA- TIONAL UNION OF OPERAT- ING ENGINEERS , AFL-CIO (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, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadel- phia, Pennsylvania 19107, Telephone 597-7601.