Local 139, International Union of Operating Engineers

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 139, International Union of Operating Engineers, AFL-CIO and Fox Valley Construction Material Supple ers Association, Inc Cases 30-CC-116 and 30-CC-117 April21, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On December 30, 1969, Trial Examiner Joseph I Nachman issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision Thereafter, the General Counsel and the Charg- ing Party filed exceptions to the Trial Examiner's Deci- sion and supporting briefs and the Respondent filed a brief ir} support of the Trial Examiner's Decision 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 con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner i ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint be and it hereby is, dismissed in its entirety ' The General Counsel did not allege that the August 5-7 picketing at the Northland Shopping Center violated the Act Rather he introduced evidence regarding this picketing merely as background for the August 27 picketing which followed and which was alleged to be violative of the Act Although the Charging Party urged that the August 5-7 picketing did in fact violate the Act the Trial Examiner citing Fnto Co v N L R B 330 F 2d 458 (C A 9) found that this picketing was not an issue in the case inasmuch as it had not been pleaded and had not been the subject of an amendment to the complaint by the General Counsel Without necessarily agreeing with the Trial Examin er s interpretation of the Frito case we find the picketing involved not to be violative of the Act because Landwehr and Calmn both primary employers were working and had equipment on the site In these circumstances we find that Respondent was engaged in lawful prim try picketing during this period TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I NACHMAN, Trial Examiner These cases tried before me at Appleton, Wisconsin on October 20,1 involve two complaints ,2 issued pursuant to Section 10(b) of the National Labor Relations Act as amended (herein the Act), which I ordered consolidated for hearing and decision , alleging that Local 139 , International Union of Operating Engineers , AFL-CIO (herein Union or Respondent), violated Section 8(b) (4) (i ) (it) (B) of the Acton three separate construction projects, hereafter more particularly detailed , in aid of a primary dispute with the employer members of Fox Valley Construction Material Suppliers Association , Inc (herein Association), and particularly its members Courtney & Plummer, Inc , Landwehr , Inc , and Calnin & Goss, Inc (herein C & P, Landwehr and Colvin , respectively) For reasons hereafter stated , I find and conclude that the General Counsel failed to establish by a preponderance of the evidence any violation of the Act, and recommend that both complaints be dismissed At the trial all parties appeared by counsel who were afforded full opportunity to introduce relevant evidence, to examine and cross -examine witnesses , and to argue orally on the record Oral argument was waived Briefs submitted by the respective parties have been duly con- sidered Upon the entire record in the case , including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT3 As the facts with respect to the three projects involved are different, such facts will be stated separately for each job A Ponderosa Job In mid 1969, Henry R Marohl, Inc (herein Marohl), a general contractor, was engaged in the construction of a Ponderosa Steak House on a site in or near Oshkosh, Wisconsin For the performance of this contract Marohl employed some carpenters directly, but also subcontract- ed other carpenter work to Herbert W Jaeger & Associ- ates (herein Jaeger) In addition Marohl awarded a con- tract to C & P for site preparation and asphalt work On or about July 15, Shaw, an admitted agent of Respondent, came to the jobsite and talked with three carpenters employed by Jaeger Shaw told the three carpenters that Respondent was having trouble with C & P whom he would like to get off the job, and All dates herein are 1969 unless otherwise indicated ' In Case 30-CC-116 complaint issued October 7 on a charge filed August 7 In Case 30-CC-117 complaint issued September 11 on a charge filed August 29 3 No issue of commerce or labor organization is presented The facts with respect to Respondents status as a labor organization is alleged in the complaints and admitted by the answers Likewise Respondent stipulated that if the General Counsel called witnesses they would testify in accordance with the facts pleaded in paragraph 2 of each complaint Accordingly I find such facts to be as pleaded Moreover in a prior case to which Respondent was a party the Board found that Association and its members are engaged in commerce See Fox Valle) Material Suppliers Association Inc 176 NLRB No 51 where the Board gave consideration to whether other activity by Respondent was violative of Section 8(b) (4) (B) 182 NLRB No 12 LOCAL 139 , INTERNATIONAL UNION OF OPERATING ENGINEERS asked the three carpenters if they would leave the job if he (Shaw) so requested , in order to put pressure on persons dealing with C & P One of the men who was president of a Carpenters local in Oshkosh, told Shaw that when his local had a problem of that nature they put up a picket Shaw replied that he would prefer not to picket , but would consider that as an alternative There is no evidence that any picketing occurred at this job, or that any carpenter employed by Jaeger or Marohl engaged in a work stoppage Following the aforementioned conversation between Shaw and the three carpenters , Smith telephoned Henry R Marohl advising him of what Shaw had told the carpenters and that Shaw would be in communication with him 5 B The Northland Shopping Center Job M S A Construction Co , Inc (herein MSA), a general contractor in the building and construction indus- try, has a contract for the construction of the Northland Shopping Center at Appleton , Wisconsin MSA contract- ed with Landwehr to remove top soil and to excavate for footings and footing walls In addition , MSA awarded Calvin a contract to supply sand and related construction materials for this job In early August both Landwehr and Calnin were engaged in the performance of their respective contracts and maintained equipment for that purpose at the jobsite On August 5, counsel for the Charging Party sent a telegram to Union Agent Shaw , which the latter admit- tedly received , stating that neither Landwehr nor Calvin was scheduled to work , nor would they work at this job on August 6, and requested that the Union refrain from picketing the job on that day Shaw, however, went to the jobsite On or about August 6 , and according to his uncontradicted testimony observing Landwehr " Based on the credited testimony of Thomas F Smith Shaw admitted that he visited the Ponderosa job on the occasion referred to and that he spoke to the carpenters explained that he had a dispute with C & P and asked if he could count on their support if the need therefor arose Shaw also admitted that the carpenters told him if he established a picket line they would honor it To the extent that Shaw s testimony may be regarded as in conflict with that of Smith I credit the latter The General Counsel also contends that in a telephone conversation later the same day with Henry R Marohl Shaw threatened Marohl with picketing of the Ponderosa job unless Marohl got rid of C & P claiming that the only way the Union could put pressure on C & P was through the contractors who did business with it Shaw though admitting that he had a conversation with Marohl denied that he made such a statement claiming that all he told Marohl was that in his conversation earlier that day with the carpenters on the job the latter had suggested the placing of pickets but that he had refused because it would not help Respondent and would only injure the carpen ters who recently experienced long periods of unemployment In his direct testimony under examination by the General Counsel Marohl made no reference to any threat by Shaw to picket the job his testimony in that regard developing on the examination by counsel for the Charging Party It also appears that on July 31 about 2 weeks after his conversation with Shaw Marohl gave an affidavit to counsel for the Charging Party which he said correctly reflects the facts as he then recalled them which affidavit makes no mention of any threat by Shaw to picket the Ponderosa job Under the circumstances I find and conclude that there is insufficient credible evidence to establish that Shaw threatened Marohl with picketing of the Ponderosa job 73 equipment in operation ,' placed a,picket at the entrance to the jobsite ,7 with a sign reading "Employees of Members of Fox Valley Material Suppliers Association are on Strike Local 139 International Union of Operat mg Engineers "" Later in the day MSA Construction Manager Badala came to the job and inquired of his job superintendent, Buzanowski the reason for the picketing Buzanowski, unaware of the picketing , said he would go to the project entrance and check Badala then told Buzanowski to ask Shaw whom he had observed at the job entrance, to come in and talk to him At the job entrance , Buzanow ski asked $haw the reason for the picketing , and the latter replied , "You've got a non-union contractor " Buzanowski then asked Shaw to come into the project and talk with Badala , which Shaw did 9 Although the record does not disclose the discussion between Shaw and Badala , it does appear that following their discussion, Badala directed Buzanowski to tell Landwehr to remove his equipment from the job Buzanowski carried out Badala's instructions , and then left a message at Shaw's office that he had directed Landwehr to remove his equipment In the meantime further telegrams were sent Shaw by counsel for the Charging Party Thus, one telegram sent August 6 protested that the job was being picketed notwithstanding that neither Landwehr nor Calnin was working or scheduled to work there , and requested that the picketing terminate at once Another telegram sent August 6 stated that neither Landwehr nor Calvin would work at the project on August 7, nor thereafter until the Union was first notified , and again requested that the picketing cease A further telegram on August 7 stated that the equipment heretofore mentioned would be removed from the job between 10 30 a in and noon of that day and would not be returned to the project without advance notice to the Union The equipment was removed on August 7, about the hour indicated, and thereupon the picketing ceased 10 I A photograph taken by Shaw on August 6 at this jobsite which is in evidence shows a piece of equipment in operation and Shaw identified the operator as John Landwehr This testimony is not contro verted According to Shaw s uncontradicted testimony this was not the first time that he had been advised that a member of Association would not be working at a particular location at a specified time and he subsequently found the information inaccurate ' There is some confusion in the record as to whether this picketing began on August 5 or 6 but I deem this irrelevant to a decision a My findings as to the language on the sign is based on the credited and uncontradicted testimony of Shaw that this language w is on all signs used by Local 139 in its picketing at this site 4 Before going into the project a little by play occurred which the Charging Party and the General Counsel emphasize but which I regard as of no significance When Buzanowski asked Shaw onto the project to talk with Badala Shaw protested that he could not cross his own picket line After some discussion Shaw asked the picket for permission to cross the picket line which the picket granted and Shaw went in 10 The complaint does not allege nor does the General Counsel contend that the aforementioned picketing was violative of the Act it being the General Counsels contention that the evidence is merely background to establish that alleged subsequent picketing on August 27 was violative The Charging Party however contends the picketing between August 5 and 7 was also violative urging that as the General Counsel has issued a complaint and introduced the evidence he has 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel alleges, but Respondent denies that this job was again picketed on August 27. To support his contention, the General Counsel relies upon the evidence given by MSA job superintendent Buzanow- ski who testified that on the day in question truckers were hauling fill from the Landwehr quarry to the jobsite and that employees of O'Keefe Construction Company (herein O'Keefe) were spreading the fill as required; that Shaw came to the job and protested that, a "non- union contractor was hauling in," and that he would have to put up a picket; that he argued with Shaw that the fill was being hauled by "independent truckers," and "union operators" were spreading it; that shortly thereafter picketing began which he reported to Badala who stated that he would'call Landwehr and stop the fill from coming in; that in about an hour the truckers ceased hauling the fill to the jobsite and'the picketing ended. Although Buzanowski referred to the haulers as "independent truckers," and the employees spreading the fill as "union operators," no testimony was intro- duced to establish that the truckers were in fact "inde- pendent contractors," and if not, who their employer was. For all the evidence shows the truckers might have been employees of Landwehr, whom the latter or Buzanowski regarded as "independent contractors." Whether O'Keefe is a member of Association or not, was not developed in the record, nor does the record show whether O'Keefe was working at the project pur- suant to a contractual arrangement with MSA, or with Landwehr or some other member of Association. Shaw denied that the Union picketed this site on August 27, claiming that the Union was engaged ' that day in picketing at the Schultz quarry, as set forth with respect to the "interchange job." Although I find Buzanowski's testimony somewhat confusing, and have some doubt that it is sufficient to establish by a preponderance of the evidence that this job was picketed on August 27, I shall for the purposes of decision so assume." C. The Interchange Job Boulanger Construction Company (herein Boulanger), which is engaged in highway construction, was awarded a contract by the State of Wisconsin to build an overpass on Highway U.S. 41 in Neenah, Wisconsin. Boulanger contracted with C & P to supply a large quantity of fill for this project. The fill was to come from Schultz' quarry located about 2 miles from the highway project The quarry is operated by C & P under a long term lease , and C & P delivered fill from the quarry to the construction site in its own trucks manned by its own employees. Calnin also hauled fill from the quarry to the highway project in its trucks manned by its standing to urge a different theory of violation without infringing upon the General Counsel's authority under Section 3(d) of the Act, with respect to the issuance and prosecution of complaints The issue is hereafter discussed 11 In the course of their testimony, both Shaw and Buzanowski referred to picketing of this job on September 17, but as such is not alleged in the complaint , and neither the General Counsel nor the Charging Party argue in their briefs that this picketing violated the Act, I do not consider that question employees, but the arrangement pursuant to which this was done was not developed in the record. Apparently because C & P and Calnin did not have sufficient equip- ment to haul all the fill Boulanger required, the latter, using its own trucks operated by its employees, also hauled fill from the quarry to the jobsite. All of these trucks shuttled back and forth between the quarry and the jobsite all through the workday. At the quarry', power equipment owned by C & P, Calnin, and one identified in the record only as Foster,t2 loaded the fill onto the trucks. The trucks when going into the quarry did not confine themselves to a particular loader, but went to the loader that happened to be open' for loading at the time. Beginning on August 27, and continuing for 3 business days, Respondent picketed the several entrances to Schultz quarry. The picket signs read, on one side, "Employees of Calnin and Goss, Incorporated, on Strike. Local 139 Operating Engineers," and on the other side, "Our only dispute with Calnin & Goss."13 The evidence is uncontradicted that as Boulanger 's driv- ers approached an entrance to the quarry, the pickets orally appealed to them not to enter, and in some instances threatened said drivers with a fine if they did so.14 Contentions and Conclusions The Ponderosa Job The sole issue with respect to this branch of the case is whether Shaw's inquiry of the, three carpenters employed by Jaeger if they would leave the job if asked to do so, in order to pressure contractors doing business with C & P, constituted the "inducement and encouragement " proscribed by Section 8(b) (4) (i) of the Act. Upon the entire record I find and conclude that the evidence fails to establish that Shaw induced or encouraged Jaeger's carpenters to refuse to perform services. Shaw's inquiry of these carpenters if they would leave the job if he asked them to do so was purely exploratory, and may not be regarded as a request or even as a suggestion that the carpenters, leave the job, and the response of the carpenters that the appropriate way to get them to leave the job was by means of a picket line, is at least some indication that the carpenters did not regard Shaw's inquiry as an inducement to them to leave the job. That Shaw may have pursued the matter further had he gotten a favorable 2 The record does not reflect Foster's status , nor the arrangement pursuant to which it worked at the quarry Thus, the record does not show whether Foster extracted fill for its own purposes, or solely on behalf of C & P 13 Why the picketing was not directed at C & P, which operates the quarry and had the contract to supply the fill, and with whom the Union's dispute was then current, the record does not show 14 Boulanger drivers Kasten and Kratz both credibly testified that after having been appealed to by the pickets not to enter the quarry, they nonetheless picked up their loads of fill, delivered them to the jobsite, and returned to the quarry for another load, and at the quarry entrance were asked by the pickets if they were prepared to pay a $50 fine for crossing the picket line LOCAL 139, INTERNATIONAL UNION OF OPERATING ENGINEERS response from the carpenters is, of course, beside the point. On the entire record, I find and conclude that the General Counsel has failed to prove by a preponder- ance of the evidence that Respondent induced or encour- aged Jaeger's employees to engage in a work stoppage in violation of Section 8(b) (4) (i) (B), as alleged in the complaint, and it will be recommended that such allegation be dismissed.'' Northland Shopping Center Job As pointed out supra, fn. 10, General Counsel not only did not allege that Respondent's picketing at this job between August 5 and 7 was violative of the Act, but conceded on the record that no violation resulted therefrom. His contention on this branch of the case is that only the alleged picketing on August 27, was violative. The Charging Party, however, contends that both the August 5-7 and the August 27 picketing was violative, and relies upon Frito Co. v. N.L.R.B., 330 F.2d 458 (C.A. 9), for the proposition that the Charging Party has standing to make such contention notwithstand- ing the General Counsel's failure-indeed here his refusal to so frame the complaint. In my view the Frito case, supra, does not support the Charging Party's position. As I read Frito, its holding is that until a complaint is amended on motion of the General Counsel, or by the Board on its own motion, a charging party may not urge as a violation facts or events not pleaded, although he may urge that pleaded facts constitute a violation on a theory different from that urged by the General Counsel. Applicable Board decisions so hold. See Tyson's Foods, Inc., 172 NLRB No. 244, fn. 7, and the cases there cited. Accordingly, I find and coti-' dude that the validity of the August 5-7 picketing is not an issue before me, and I make no legal conclusions with respect to the same. Regarding the picketing on August 27, which I have assumed arguendo did occur,. I find the evidence insuf- ficient to establish-a burden which the General Counsel bears-that the picketing on that day was anything other than lawful common situs picketing. The evidence is not controverted that at the time of this picketing, fill was being hauled to the jobsite from the Landwehr quarry. If it was in fact being hauled by an employer neutral in the dispute, the General Counsel should have, but did not adduce evidence to establish that fact."' " Having found that in Shaw's telephone conversation with Marohl, the former did not threaten Marohl with picketing of the Ponderosa job, it follows that the General Counsel failed to prove that Respondent violated Section 8(b)(4)(u)(B) of the Act, with respect to this project, and I shall recommend that the allegations of the complaint in that regard be dismissed for lack of proof '" As heretofore stated the MSA job superintendent , Buzanowski, referred to the truckers hauling the fill as "independent contractors," but no testimony was offered to establish that they were in fact "inde- pendent contractors," or if they were "employees," the identity of their employer Buzanowski's conclusionary statement with respect to the status of the truckers, I do not regard as having any evidentiary significance Moreover, the record fails to show the contractual arrange- ment pursuant to which the fill was being hauled to the job If Landwehr had that contract and arranged with "independent truckers" to haul the fill, the latter would appear to be performing struck work," and 75 No contention is made that the picketing was not reason- ably close to the location where the fill was being delivered; or that there was any ambiguity or legal defect in the language on the picket sign." I further find and conclude that Shaw's statement to Job Superintendent Buzanowski on August 27 that he would have to put up a picket because fill was being hauled to the job from the Landwehr quarry, was not a threat proscribed by Section 8(b) (4) (ii) of the Act, because it was not a threat to picket MSA, but rather a statement of intention to exercise the Union's right to engage in lawful common situs picketing. General Drivers etc., Local 886 (The Stephens Company), 133 NLRB 1393, 1395-96 Accordingly, I find and conclude that Respondent's picketing of this job on August 27, assuming that it occurred, was lawful common situs picketing not pro- scribed by Section 8(b) (4) (i) or (ii) (B) of the Act, and that the allegations of the complaint in that regard should be dismissed. The Schultz Quarry Incident The Schultz quarry being under a long term lease to, and so far as this record shows operated solely by C & P, the primary employer, that operation must be regarded as a primary, not as a common situs, and I so find and conclude Although there is reference in the testimony to the fact that C & P as well as Foster operated loaders at the quarry, I do not regard ihis' testimony sufficient to establish that a neutral employer was engaged in his business operations at the quarry. Both C & P and C & G are members of Association and as such primary disputants with the Union. There is no evidence to establish the arrange- ment- pursuant to which Foster worked at the quarry, or indeed that its employees were engaged at that location. For all that appears Foster may have simply leased a loader to C & P or C & G, to be operated by their employees, or may have performed this work with its own employees under contract with C & P or C & G, to assist them in the performance of their contracts for delivery of the fill. In any event the burden rested upon the General Counsel to establish Foster's Respondent could picket the "independent truckers " in a lawful manner N L R B v Business Machine and Office Appliance Mechanics Confer- ence Board, 228 F 2d 553 (C A 2) In this regard it is relevant to note that the MSA job superintendent, Buzanowski, testified that he was told by MSA construction manager, Badala, that the latter would call Landwehr and stop the fill from coming in, and that shortly thereafter the hauling of the fill stopped and the picketing ceased " The General Counsel argues in his brief that the August 27 picketing was violative because it was an "effort by the Respondent to enmesh neutrals in its primary dispute " This argument overlooks the fact that all common situs picketing enmeshes neutrals to some extent, but only that common situs picketing is unlawful which is conducted in a manner which fails to meet the cnteria established in Moore Dry Dock Co , 92 NLRB 547, 553, and the burden of proving that such picketing did not meet the established cnteria rests with the General Counsel The Charging Party argues in its brief that this picketing was unlawful because only Landwehr's product, and "independent truckers," as distinguished from Landwehr's employees, were on the site As heretofore stated, if such was the fact, it has not been proven in this record 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status as a neutral employer at these premises, and that Boulanger 's employees were entering the premises only to do business with that neutral if the quarry is to be regarded as a common situs This he failed to do Having found the Schultz quarry to be a primary situs, it follows that Respondent's picketing of that situs, and its oral appeals to and inducement of Boulan- ger's drivers not to enter that situs, was lawful primary activity not proscribed by Section 8(b) (4) (B) Interna tional Rice Milling Co v N L R B 341 U S 665, and cf Newspaper and Mail Deliveries Union (Interbor- ough News), 90 NLRB 2135 I so find and conclude Upon the foregoing findings of fact and the entire record in the case, I make the following CONCLUSIONS OF LAW I C & P C & G, Landwehr , and Marohl are each employers and persons within the meaning of Sections 2(1) and (2) and 8(b)(4), of the Act, and are engaged in commerce and an industry affecting commerce, within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act 2 The Union is a labor organization within the mean- ing of Sections 2(5) and 8(b) of the Act 3 The General Counsel has failed to establish that Respondent engaged in any unfair labor practice alleged in the complaints, and it will be recommended that said complaints be dismissed in their entirety RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, it is recommended that the National Labor Relations Board order that the complaints herein be dismissed in their entirety