Local No. 716 (Norman Contractors, Inc.)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 716, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Joe R. Norman Contractors, Inc. Case 25-CC-152 January 15, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 21, 1967, Trial Examiner William Seagle issued his Decision in the above-entitled proceed- ing, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. The Respondent filed a brief in answer to the General Counsel's excep- tions. 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 and the entire record in the case, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner. FINDINGS OF FACT 1. THE EMPLOYERS INVOLVED Joe R. Norman Contractors, Inc. (hereinafter referred to as Norman), is an Indiana corporation whose principal office is located at 2045 West 60th Street, Indianapolis, Indiana. Norman is engaged in business as a contractor in street and highway construction. During the year 1966, Norman had gross receipts in excess of $500,000, and purchased clay pipe of a value in excess of $50,000, the said pipe being shipped to its place of business in Indi- anapolis, Indiana, from points in the State of Ohio. The Hunt Paving Co., Inc. (hereinafter referred to as Hunt), is also an Indiana corporation whose principal of- fice and place of business is at 3421 West Kelly Street, Indianapolis, Indiana. Hunt, which is a wholly owned subsidiary of Huber, Hunt & Nichols Company, is also engaged in business as a contractor, in street and highway construction. In the course of a year, the total volume of Hunt's business exceeds $500,000. Hunt's purchase of materials directly from outside the State of Indiana ex- ceeds $50,000 a year. Hunt also performs work on Federal highways financed with Federal funds, and for the performance of this work receives in excess of $50,000 a year. Arthur Williams is an individual who is a gasoline ser- vice station operator and who is engaged in contract haul- ing under the name of A. E. Williams Trucking. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent, Local No. 716, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as Local 716 or as the Teamsters), is a labor organization within the meaning of Section 2(5) of the Act. Local 103, International Union of Operating En- gineers, AFL-CIO (hereinafter referred to as the Operat- ing Engineers), is a labor organization within the meaning of Section 2(5) 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 and hereby or- ders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION WILLIAM SEAGLE, Trial Examiner: Upon a charge filed on March 31, 1967, an amended charge filed on April 20, 1967, and a complaint and an amended complaint issued, respectively, on April 26, 1967, and May 9, 1967, I heard this case at Indianapolis, Indiana, on May 17 and 18, 1967. It was alleged in the complaint, as amended, that the Respondent Union had violated Section 8(b)(4)(i) and (ii)(B) of the Act. Subsequent to the hearing counsel for the General Counsel and for the Respondent filed briefs with me. Upon the record so made, and in view of my observa- tion of the demeanor of the witnesses, I hereby make the following: III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Nature of the Dispute Hunt had a contract with the city of Indianapolis, Indi- ana, which was dated June 23, 1966, and which provided for the reconstruction of West Morris Street from Shef- field to Harding Street in that city (the work under the contract will be referred to hereinafter as the Morris Street job). The work to be performed under the contract included the removal of the old street pavement, the rebuilding of the underground structures, such as the sewers, the relaying of a new subbase, and the putting in of the new concrete. Hunt chose to subcontract to Norman what is known in the trade as the "roughout" - the tearing out of the old street and the removal of the concrete. This contract was dated January 16, 1967, and for performing the work under it Norman was to receive $29,242.50. Norman also had other jobs in the Indianapolis area which were active at the time. One job was at Lafeyette Square, and another was at U.S. Highway 52 and 38th Street, the latter in- volving the construction of a shopping center. Norman began work on the Morris Street job on March 2, 1967. Norman's heavy equipment consisting of bull- 169 NLRB No. 48 LOCAL NO. 716 (NORMAN CONTRACTORS, INC.) 157 dozers, graders, earth movers, and cranes were moved from its yard to the Morris Street job by means of a low- boy tractor and trailer especially designed for moving heavy machinery, and after the equipment had been moved to the jobsite, the lowboy was returned to the Nor- man yard. When it was necessary to move equipment with the lowboy, it was operated by one Charles Hines, who is a member of Local 103 of the Operating En- gineers. The rest of Hines' time was spent in his ordinary duties as an operating engineer. Norman was a party to two agreements with the Operating Engineers, and, ap- parently, also had a contract with the Laborers Union.' Norman did not have any contract with the Respondent, Local 716 of the Teamsters, but it appears that about 4 years ago Norman worked out an informal understanding with a representative of the Teamsters that his lowboy could be handled by a member of the Operating En- gineers. The removal of the pavement on the Morris Street job required, of course, the use of dump trucks. As Norman had no dump trucks of his own, it hired a number of them from Williams. Williams' dump trucks, which did not number more than six, are stationed at the gasoline ser- vice station owned by him, and at least one of his drivers, Claude F. Coy, also worked at this gasoline service sta- tion. Norman testified that he paid Williams by the hour for the use of his trucks, and that the dri vers were paid by the hour by Williams for driving the trucks. Williams sent one truck to the Morris Street job, however, which was driven by one Cordell George, an owner-driver, who was paid $8.50 an hour by Norman for the use of his truck. In addition, Norman itself hired another truck from one Al- bert Summers, another owner-driver, who was also paid $8.50 an hour by Norman for the use of his truck. All the trucks, whether supplied by Williams, Cordell George, or Albert Summers, while operating on the Morris Street job, were under the direct supervision of Delbert Soots, Norman's superintendent on the Morris Street job. Hunt had a contract with Local 716 of the Teamsters. Article VI of the contract provided as follows: Section 1. This Agreement shall bind all subcon- tractors while working for the Employer who is a party to this Agreement. Any Employer who sublets any of his work on any project he has in the territory covered by this Agreement must let same subject to this Agreement. Section 2. Should any employee of any sub-con- tractor be paid less than the rates provided herein, then the signatory Employer shall be required to reimburse such employees for any deficiencies in rate which accrue. It is these provisions of the contract between Hunt and Local 716 that precipitated the controversy in the present case. On or about March 20, James R. Roberts, a busi- ness agent of Local 716, was at a location known as the Shumaker dumps and he checked some of the trucks which were coming in to dump broken concrete. In the course of his doing so, he received complaints from a number of the Williams dump truck drivers, who included Allan Danehy, ' Claude F. Coy, and Harry James, that they were being paid only at the rate of $2.70 an hour. Roberts told the drivers that they were not receiving proper pay, since the union scale was $3.34 an hour. The union scale also required owner-drivers to be paid $9.14 an hour. In addition, union employers were required to make payments into the Union's health and welfare fund. Although the truckdrivers supplied by Williams were members of Local 716, Williams made no payments into the Union's health and welfare fund. Roberts reported what he had learned from the truckdrivers to Harry E. Poling, who was not only a busi- ness agent but also secretary-treasurer of the Union. On Friday, March 24, Poling and Roberts went to see Gil- bert Staley, the vice president and general manager of Hunt, but Staley was not in his office, being on another Hunt job in western Indiana. Staley's assistant and office manager, whose name was Robert Lutz, was in the office, however, and Poling told Lutz that there were some problems on the Morris Street job about which they wanted to talk to Staley. Lutz suggested that the business agents come in the following Monday and discuss the problem with Staley. Poling and Roberts assured Lutz that they would wait until Monday, since the Union had good relations with Hunt. Immediately after the business agents left Lutz telephoned Staley at the job in western Indiana, and told him about the visit of the Teamsters business agents. On Monday morning, March 27, Poling telephoned to Staley and told him that the truckdrivers on the Morris Street job were not receiving union wages and were not working under union conditions. Staley declared that he had not been aware of any such problem on the job but promised to look into the situation. That same morning Roberts also paid a brief visit to Staley's office during which he called the latter's attention to the violation of the provisions of article VI of the contract between Hunt and the Union, and told Staley that either Hunt, Norman or Williams - "one of the three," as he put it - would have to pay the difference between what the truckdrivers were being paid and what the union scale required. Staley promised to contact Norman and Williams, and to give Roberts an answer. After leaving Staley's office, Roberts went to Williams' gasoline service station, and told the latter practically what he had just told Staley. Williams asked Roberts for the names of the truckdrivers who were complaining but Roberts declined to comply with this request, in order to protect them, and remarked to Roberts that he knew he was not paying the union scale. Williams assured Roberts that he would pay the union scale, and the latter left. Roberts returned to his office, and telephoned Norman three or four times, in order to call the attention of the latter also to the failure to pay the truckdrivers in ac- cordance with the union scale. Roberts was, however, unable to reach Norman that day. In the afternoon of that day, Roberts and Poling went to the Morris Street job to check with the drivers whether they were being paid in accordance with the union scale. Roberts and Poling walked in different directions over the jobsite. Poling did not see anybody, but Roberts encountered Claude Coy, one of the truckdrivers. Although Roberts told Coy that he would shut the job down, Coy worked the remainder of that day. The next day, which was Tuesday, March 28, it rained and very little, if any, work was done on the Morris Street job. That day Norman finally returned Roberts' telephone calls of the previous day but the conversation t Although Norman produced at the hearing his agreements with the Operating Engineers, he did not produce any agreement with the Laborers Union He referred to the Laborers agreement which the Union was at- tempting to negotiate as "the one they were trying to tie me down with." 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was rather acrimonious. When Roberts told Norman that the truckdrivers were not being paid in accordance with the union scale, the latter remarked that "he could not care less." Roberts then declared that the Morris Street job would be shut down until the truckdrivers were paid in accordance with the contract between Hunt and the Union. But Norman's response was to remark: "Well, I heard by the grapevine that you were after the lowboy driver." Roberts' rejoinder to this was an echo of Nor- man's previous remark: "I couldn't care less whether you ever sign an agreement with me or not, with our union." On Wednesday, March 29, both Poling and Roberts went out to the Morris Street job, and this time they found a number of the truckdrivers there, including Claude Coy and Albert Summers. They talked to them and pulled them off the job, although not without some difficulty at least insofar as Claude Coy was concerned. Coy already had a load in his dump truck, and a bulldozer was going full blast. Roberts had to jump on the running board of Coy's truck to tell him that the job was shut down. Coy dumped his load, but also made a telephone call to tell Art Williams that the job was shut down and that Norman had lied to him the night before. Albert Summers also called Norman to tell him that he had wasted his gas to go out to the job. Thereupon Norman asked to talk to Roberts, and when the latter got on the telephone asked "What the hell is the matter?" When Roberts replied that the truckdrivers were not getting what the contract called for, Norman said to Roberts: "I'll see you S.O.B.'s in court." While Roberts was en- gaged in shutting the job down, he was approached by Delbert Soots, Norman's superintendent, who asked Roberts why he was shutting the job down. Roberts ex- plained that the drivers were not being paid in accordance with the union scale, and that his efforts with Staley, Nor- man, and Williams to get the matter corrected had been without success. When Roberts took the truckdrivers off the job on March 29, their work was almost completed. Indeed, the next day Norman's equipment was removed from the job. There is nothing to show, however, that Roberts knew how close to completion the job was. Under the date of April 4, four of the truckdrivers, Harvey James Lawson, Allen Ray Danehy, Claude F. Coy, and Albert Summers signed a grievance against Hunt. It was prepared by Poling and taken down to Wil- liams' garage by Roberts in order to secure the signatures of the truckdrivers. The grievance, which was addressed to Hunt as the employer, read as follows: You have sub-contracted certain work on your job at Morris and Harding Streets, and the sub-contrac- tors have not paid employees per the contract that you signed; so we are holding you responsible for any differences as paid by this sub-contractor and that required to be paid under the contract with you, all per Article V I. After Staley received the grievance, he called Norman about it insofar as it concerned Albert Summers. Ap- parently, Norman conceded that Summers had been paid less than the union scale required, and on April 10 Staley issued a check in the amount of $56.64 to Summers. Staley also asked Norman to check with Williams as to whether his truckdrivers had been paid in accordance with the union scale. Williams then called Staley and told the latter that the three truckdrivers concerned had been paid in accordance with the union scale and that "they did not know what they were signing when they signed the grievance." Staley thereupon demanded a written state- ment from the drivers to this effect. As Staley testified, he told Williams, he did not want "a bunch of verbal guff." The three drivers, Lawson, Danehy, and Coy complied with this suggestion by signing a letter to Hunt under date of April 10, 1967, in which they certified as follows: We the undersigned have worked as truck drivers for A. E. Williams Trucking on the West Morris Street project. We further state that we have been paid at the rate of $3.34 per hour for all hours which we worked on this project. Local 716 was not satisfied with the recantation of the three truckdrivers, and pursued the grievance further. Ed- ward T. Carlson, the president of Local 716, wrote to Staley under date of April 19, requesting that he obtain from Williams and Norman photocopies of checks and payroll records relating to the truckdrivers. Staley for- warded this letter to Norman, but Carlson also wrote similar letters directly to Williams and Norman. These letters were ignored by the recipients. Williams paid his drivers, apparently partly in cash and partly by check. Consequently, the production of his checks would not have been conclusive. But neither Williams nor Norman ever produced any of their payroll records, and Staley pursued the matter no further. Consequently, Local 716 filed an unfair labor practice charge against Hunt on May 12. The charge was based upon the failure of Hunt to process the Union's grievance properly. It is the contention of the General Counsel that Poling and Roberts were not merely seeking to force Norman and Williams to pay the truckdrivers in accordance with the requirements of the union contract. Counsel for the General Counsel submits that Poling and Roberts were after Norman's lowboy operator, who was a member of the Operating Engineers rather than of the Teamsters. "All of the General Counsel's witnesses, a driver, an en- trepreneur, a foreman and two businessmen testified that Roberts gave the lowboy as the bone of contention between the Respondent and Norman," he declares. Presumably, the driver is Coy, the entreprenuer is Wil- liams, the foreman is Soots, and the two businessmen are Staley and Norman. It is not quite true, however, that all of these witnesses made the lowboy the bone of contention between the Union and Norman. In fact, Coy never so much as men- tioned the lowboy in his testimony. Coy testified that when he asked Roberts why he was shutting down the job, the latter replied it was "on account of something that they wouldn't sign a contract with 716, this Joe Norman wouldn't." Coy did not specify, therefore, that the con- tract was to cover the lowboy; he could have been refer- ring just as well to a contract that would cover truckdrivers. Norman, too, did not testify that either Pol- ing or Roberts demanded from him directly that he put a teamster on his lowboy; Norman testified rather to what Staley reported to him about the Union's objectives in conversations that he had with the latter. In these conver- sations Staley did mention that Poling and Roberts were after his lowboy operator. But when Norman was testify- ing as to what either Poling or Roberts said to him directly he failed to mention the lowboy specifically, and gave testimony that was highly ambiguous. When testimony was adduced to the effect that Poling and Roberts were after the lowboy operator, it seemed to come only in subsequent stages of the witnesses' testimony, and to be the result of at least some prompting. LOCAL NO. 716 (NORMAN CONTRACTORS, INC.) 159 Thus, when Williams was first asked to relate what Roberts told him in reply to his question as to what the source of the trouble was, he testified that Roberts replied: "Well, Art, Joe Norman isn't right with Local 716, and we can't perform work for him until he gets right with them.'"' But, after being invited to be more specific, Norman further testified that when he pointed out to Roberts that the truckdrivers were already union people, Roberts observed: "Joe had a lowboy that he operates and that should be operated by one of our members." This plainly is the statement of an argument rather than the statement of a demand. Similarly, Norman, when he was testifying concerning what Staley told him about Roberts' visit to him, merely testified that Staley related to him that Roberts had said that "I was going to have to sign a Teamsters agreement for the trucks hauling on that job," and that he then pointed out to Staley that his trucks were rental trucks, and that he could see no reason, there- fore, for dealing with the Teamsters. Staley, too, worked up only gradually to the lowboy operator, and even when he reached this point left it in a considerable degree of ambiguity. Staley, when first asked to relate his conversa- tion with Roberts during the latter's visit to him, testified that in the lengthy discussion that ensued the theme was that "Norman had never worked with them and was not signatory to their agreement and they questioned if he was abiding by the agreement with us." It was only when Staley was invited to recall anything else that Roberts had said on this occasion that he testified that later on in the conversation Roberts said that "if Norman did not get right and sign up an agreement with him and work some of their people when necessary on this lowboy and so forth that he was going to have to shut the job down" [emphasis supplied]. This seems to make the lowboy an afterthought rather than "the bone of contention." Specifically asked to state whether Roberts had requested him to do anything, Staley testified only that Roberts had said that "they would like to see Norman get right with the Teamsters Union." Moreover, when Staley later called Norman to tell him about Roberts' visit, Staley merely told Norman in general terms that "they (the union business agents) were complaining about his relationship out there." The need for prompting usually betokens a laggard memory, and there can be little doubt that the principal witnesses for the General Counsel possessed wretched memories, so far as the contents of conversations, the sequence of events, and the fixing of dates are concerned. This obviously detracts from the reliability of their testimony. The uncertainty of their memories was dis- played, moreover, in their testimony concerning the cru- cial issues, particularly those involving the lowboy. Staley, for instance, prefaced his testimony relating to what Roberts said to him during the visit to his office by remarking that "It's hard to remember exact wording..." Asked whether Williams was mentioned in this conver- sation, Staley prefaced his testimony by declaring: "It's hard for me to recall." As for Norman, he also revealed not only an infirmity of memory but a marked degree of incoherence in testifying about the events in which he had been involved. Norman could not remember, for in- stance, whether in, a particular telephone conversation he had spoken to Poling or Roberts, and, although he could remember that in this conversation he had said "something that wasn't too nice," he could not remember just what it was. Poor memories are, to be sure, a common testimonial phenomenon. All of the General Counsel's witnesses are more seriously discredited by the way they handled the Union's complaint that the truckdrivers were not being paid in accordance with contract requirements. Except in the case of Albert Summers, Staley evaded the issue, and to the very end Williams and Norman failed to produce any payroll records which could have settled the con- troversy. Moreover, Norman, Staley, and the individual truckdrivers, lent themselves to a maneuver which calls the truthfulness of their testimony into question. Coy cer- tainly did not inspire confidence in his credibility as a witness when he signed the grievance that he had not been paid in accordance with the union scale and then at the request of Staley certified to the contrary. It is ap- parent that he was not telling the truth either on the first or the second occasion. Moreover, the fact that Staley overlooked the contradiction, and regarded the retraction as a satisfactory disposition of the controversy, because it was not mere "verbal guff," betokens a certain disin- genuousness that also detracts from his credit as a wit- ness. There are, moreover, other aspects of Staley's testimony which are disquieting. I find it rather difficult to believe his testimony that he did not know or even suspect before Roberts told him that Art Williams' trucks were being used on the Morris Street job. although he knew that Norman was resorting to contract rentals. As for Williams, Coy, and Soots, their credibility as wit- nesses is not enhanced by some items of their testimony. Williams admitted that he was not paying any social security taxes, nor withholding any income taxes from what he was paying his employees. Coy, in addition to contradicting himself in the matter of his pay, con- tradicted himself about the dumping of his,load after Roberts appeared on the jobsite on Wednesday, March 29. After testifying that he dumped his load after Williams told him over the telephone to do so, he admitted that he had already dumped his load before he had even spoken to Williams. Soots did not directly contradict himself in testifying that he overheard Roberts tell Coy to dump his load because Norman's lowboy was not covered by a Teamsters contract. But Soots admitted that he was 10 to 20 feet away at the time, and, considering that a bulldozer was going full blast while Roberts was talking to Coy, it is hard to believe that Soots could overhear anything. Despite the fact that the General Counsel's witnesses outnumber those of the Respondent by 5 to 2, I accept the testimony of Poling and Roberts, who seem to me to be more credible witnesses. After all, the concept of mathematical proofs is not embodied in the modern law of evidence, and the testimony of Poling and Roberts is more consonant with reason. While I do not agree with counsel for the Respondent that it is inconceivable that Roberts was bent on getting Norman to sign a contract with the Union that would cover the lowboy - after all, al- most anything is conceivable, and Roberts could have de- manded a contract out of pique or a spirit of vengefulness when he discovered that he could not obtain enforcement of the contract which the Union had with Hunt - I do agree that it is not very likely that the union business agents would have made the extreme demands that are at- tributed to them. Since the lowboy was used so in- frequently, it represented a trivial issue. Moreover, the issue had been satisfactorily settled 4 years previously, and the Union had made no trouble for Norman on any of his other jobs. Since Williams' truckdrivers were already members of the Union, there would also be small point in the Union demanding recognition and a contract covering them. I find, therefore, that Poling and Roberts did no more than attempt to persuade Staley to secure enforce- 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of the wage scale provisions of the Union's contract with Hunt. B. Concluding Findings The present case would seem to fall in that class of secondary boycott cases in which the union seeks to justi- fy its actions by asserting that it was only seeking to en- force a contract right against the alleged secondary em- ployer or employers. It is a characteristic of this class of cases that they not infrequently involve also the issue whether the union's conduct was primary or secondary, and that the decisions with respect to this issue have often been marked by difficulties leading to dissent, for the at- tempt to enforce a contract right carries with it at least an aura of primary activity. The Board has held, with court approval , to be sure, that in its attempt to enforce a con- tract right against an employer a union may not take ac- tion that would violate the positive prohibitions of Sec- tion 8(a)(4)(i) or (ii)(B).2 The question is, therefore, whether this occurred in the present case. To establish a violation of Section 8(a)(4)(i)(B), it must be shown that the labor organization involved caused a strike or work stoppage or induced or encouraged em- ployees to strike or refrain from working with the object of compelling one employer to cease doing business with another, and to establish a violation of 8(b)(4)(ii)(B) it must be shown that a labor organization threatened, coerced, or restrained an employer with the same object. There is no doubt that a work stoppage occurred in the present case when Roberts pulled the truckdrivers off the Morris Street job. But for this conduct to be unlawful, it must be also shown that it was not primary activity, for the proviso to Section 8(b)(4) provides that it shall not be construed to make unlawful, where not otherwise unlaw- ful, any primary strike. The theory upon which the com- plaint is based is that the Respondent caused the em- ployees of Williams to stop work until and unless Norman awarded the operation of the lowboy to members of the Respondent, and that the Respondent threatened, restrained, and coerced Hunt and/or Williams with the object of securing either the assignment of the lowboy operation to the Respondent or of inducing Hunt to can- cel his contract with Norman or of forcing Norman to recognize the Respondent and bargain with it , although it had not been certified as the representative of Norman's employees. It is upon this theory that counsel for the General Counsel has predicated his assumption that the quarrel of the Respondent was with Norman , who would thus be the primary employer. The theory of the complaint is not supported by the credited evidence. The object pursued by the Respond- ent's representatives was neither to effect a change of work assignment, so far as the lowboy was concerned, nor to obtain recognition or a contract for the Teamsters. Their object was rather to secure the payment of the truckdrivers in accordance with the union wage scale, and there was, nothing unlawful in itself in this objective, nor did the pursuit of this objective, as is often the case, necessarily involve either a partial or complete cessation of doing business , either conditionally or alternatively. Article VI of the contract between the Respondent and Hunt did encompass a good many more objectives than 2 See Local 1976, Carpenters (Sand Door & Plywood Co.) v. N.L.R.B., 357 U.S. 93; N.L.R.B. v. Bangor Building Trades Council, AFL-CIO, 278 F.2d 287,290 (C. A. 1). were pursued in the present case but the dispute was con- fined by the union representatives to the failure to ob- serve the union wage scale. Although the issue of the fringe benefits was mentioned by the union representa -tives in their contacts with Staley and Sots, the grievance that they actually filed made no mention of them. There are no "hot cargo" or union preference ele- ments involved in a dispute about union wages, and such a dispute does not necessarily involve the cessation of doing business between the disputants. Such a dispute is amenable to settlement by litigation in the courts, or by the filing of a grievance where the contract between the parties contains a grievance procedure. In the present case, the Respondent actually invoked the grievance procedure, after it discovered that the work had been completed, and that the work stoppage had, therefore, proven ineffectual. I do not find, moreover, that any threats were made by the Respondent's representatives in pursuing their objec- tive of enforcing the union wage scale. The only remark made by Roberts to Hunt and Williams was to the effect that "one of the three, Hunt, Williams, or Norman, would have to pay the difference between what the union scale required and what the truckdrivers were actually being paid." This was not a threat within the meaning of Section 8(b)(4)(ii)(B), since, as already indicated, the objective could readily be attained without ceasing to do business with any of the disputants. A threat to sue is never a threat in the legal sense. It has been specifically held that bringing a lawsuit is not coercion within the meaning of Section 8(b)(4).3 Equally vague and uncoercive was the talk about Norman getting right with the Teamsters Union, or straightening out his relationship with them. Since there were no threats within the meaning of Section 8(b)(4)(ii)(B), I cannot find a violation of this provision. The most puzzling question in the present case, once the issue of the lowboys is eliminated, is who is really to be regarded as the primary employer. This question seems to trouble also counsel for the General Counsel, notwithstanding his acceptance of the lowboy theory and of Norman in the role of primary employer. Disregarding the procedural problem which it would involve, he argues the alternative positions that "if the Respondent claims his dispute was with Hunt, he induced Williams' em- ployees, whereas if Respondent claims the dispute was with Williams, he induced Coy, in Roberts' own words, to cease work on the `Hunt Paving' job. Anyway he wants it, Roberts, an admitted agent of the Respondent, violated the Act." But Coy was an employee of Williams, and if Williams was the primary employer, Section 8(b)(4)(i)(B) would not have been violated, since the work stoppage would have been privileged as primary activity. Indeed, counsel for the General Counsel argues that the truckdrivers were all employees of Williams, and, if this. were so, Williams would be the primary employer. Ac- tually, it is clear from the record as a whole that the drivers of the leased trucks, as well as the owner-drivers, worked under the direction and control of Soots, Nor- man's superintendent, and the question arises whether Williams acted only as a front for Norman. This is a question which I do not deem it necessary to decide, how- ever, for this would make Norman the employer of the truckdrivers, and the primary employer in the con- 3 Local Union No. 48, Sheet Metal Workers v. Hardy Corporation, 332 F.2d 682 (C.A. 5). LOCAL NO. 716 (NORMAN CONTRACTORS, INC.) troversy, which would concern the wages of the truckdrivers rather than the operation of the lowboy. If Norman were the primary employer in this controversy, the work stoppage would be, of course, primary activity, and so, again privileged. CONCLUSIONS OF LAW 1. The Respondent, Local No. 716 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. Local 103, International Union of Operating En- gineers , AFL-CIO, is also a labor organization within the meaning of Section 2(5) of the Act. 161 3. The Hunt Paving Company, Inc., Joe R. Norman Contractors, Inc., and Arthur Williams, an individual, are employees engaged in commerce or in an industry affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 4. By engaging in the activities described in section III of this decision, the Respondent has not engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. RECOMMENDED ORDER In view of my findings of fact and conclusions of law, I recommend that an order be entered dismissing the complaint.