Bldg Material & Dump Truck Drivers

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Building Material and Dump Truck Drivers , Local No. 36, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America (The Griffith Company ) and Associated Independent Owner -Operators , Inc. Case 21 -CC-963 October 28, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On June 22, 1967, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled pro- ceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Deci- sion and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisi -ins of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner, with the following addition. The complaint alleged that Respondent had viola- ted Section 8(b)(4)(ii) of the Act by threatening, coercing, or restraining The Griffith Company with objects of (1) forcing certain self-employed truck- owner-operators to become members of Respondent Union; and (2) requiring Griffith to cease doing business with said persons. We agree with the Trial Examiner's finding that Respondent did not coerce Griffith and therefore that no violation of Section 8(b)(4)(ii) occurred, whatever the ultimate objects of Respondent's conduct. On the issue of coercion of Griffith, we note particularly (in addition to the findings and decision of the Trial Examiner on that issue) the following testimony of Griffith's project superintendent Koon given on cross- examination by Respondent's counsel: Q. Isn't it a fact then, that on October 18 when McDonald pointed out to you or when McDonald declared that some of the men would have to come down to the union office to be cleared, that you asked him whether the union was going to shut down the job? A. Yes, in effect, yes, uh-huh. Q. Well, isn't that what you were asking? A. Yes, uh-huh. Q. And did he not tell you in response to that question, that no, they were not going to shut down the job, they just wanted to get the men properly cleared, isn't that correct? A. Uh-huh. Q. Will you answer audibly for the Reporter? A. I did, yes. This testimony indicates clearly that Respondent did not threaten or coerce Griffith. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting-' Contrary to the majority's view, the real issue is whether Griffith, the Employer here, was "threat- ened, coerced or restrained" by thinly veiled threats of trouble if three nonunion owner-drivers were not pulled off the job and required to get "clearance" from the Union's San Diego office, and not whether they were going to shutdown the job while they were getting "clearance." This is especially true where all "union" drivers were cleared at the jobsite, but owner-drivers Post, Schlager, and Oldham, nonunion drivers or drivers not currently members of the Union, were required to seek clearance in San Diego, where by some coincidence they were cleared for the job after agreeing to join or to reinstate their union membership. Griffith had previously been involved in a dispute with the Union and the owner-drivers Association, both of whom were competing to represent owner- drivers. There was undisputed testimony that Wright, Griffith's concrete superintendent, told a nonunion owner-driver that he was going to have to cut him off the job because he [Wright] did not want to have the job shutdown or get a picket line thrown up. Moreover, Koons, project superintendent testified that at one point in this dispute he told McDonald, the Teamsters representative that "if they [owner- drivers] was going to be laid off he'd [McDonald] have to lay them off, I wasn't going to because I thought this had been settled in a prior case." 1 In adopting the Trial Examiner 's conclusions on the 8(b)(4)(u) upon a neutral employer's operations necessarily precludes a finding of issue, we disavow any implication that absence of an economic impact an 8(b)(4)(u) violation on some other basis. 173 NLRB No. 62 BLDG MATERIAL & DUMP TRUCK DRIVERS On October 18, the date of the dispute, Rollston, project manager questioned McDonald as to what would be the consequences if the Employer refused to send the men in question down to the Union office and McDonald's response was "that will be it "2 Consequently, with such a background and in such a context Rollston's conclusion that the job would be shut down if these men were not required to be "cleared" by the Union was reasonable and logical Even if the possible consequences were overstated, it is clear that McDonald's remark was a thinly veiled threat that coerced or at least restrained Rollston (and therefore Griffith) into pulling these owner- dnvers off the job and requiring them to journey into San Diego for clearance at the Union hall. In the past, the Board has found similar veiled threats to consti- tute threats, coercion, or restraint within the meaning of Section 8(b)(4)(u) of the Act.' It is clear, therefore, and I would find that Griffith was threat- ened, coerced, or restrained with an object of getting them to cease doing business with certain owner- drivers who were not Union members There remains for resolution whether the Union did engage in such coercion or restraint for an alternative objective, namely, that of getting these nonunion owner-drivers into the Union. A careful review of the record establishes that the Union used a so-called "clearance" clause as a means of securing union membership before permitting owner-dnvers to continue working on the job. Herschell Wright, Griffith's concrete superintendent, whose testimony was undisputed, stated that McDonald, business agent of Respondent Union told him that owner-drivers on this project would not be required to transfer into the Union's San Diego local if they had a "paid up card" or clearance. This necessarily infers union membership, if not in Local 36, in one of the other Teamster locals. William Peters, a truck foreman who represented the broker supplying the owner-drivers, stated that when re- cruiting owner-drivers for the job he informed them that they were required to be union members, in accord with instructions from Mr. Wright. On October 18, when McDonald visited the jobsite, he approached all owner-drivers and asked for their union cards. Of approximately 21 owner-drivers on the job, 5 were not members of the Teamsters Union.' With the approval of Griffith Company representatives they were pulled off the job and told 2 Transcript, p. 80. 3IBEW, Local 5 (Jonel Construction Co.), 164 NLRB No. 58; Southern Construction Co., 132 NLRB 673 at 680, National Symphony Association, 157 NLRB 735 at 742. 4 Two other drivers, Kermit and Donald Chick, who were also not Teamsters members, testified they were similarly confronted by McDonald and requested to show their union cards. Because of conflicts 349 they could not continue until cleared by the Union. One owner-driver, Schwarz, immediately made application to the Union and was permitted to continue working. Flowers, a former Teamsters mem- ber who had been suspended, reinstated his member- ship and was also permitted to resume working. Three other owner-dnvers, Post, Schlager, and Oldham, who were not members of the Union were also pulled off the job and told to report to the Union's San Diego office for "clearance." It seems obvious that when owner-dnvers are told with the approval of manage- ment that they cannot continue working until cleared by the Union, such conduct is coercive and encour- ages immediate union membership. The only question is whether this coercion is "lawful" because it is in compliance with a clearance clause in an existing contract between the Teamsters and Griffith or unlawful in that union membership is required before clearance is granted. It is the testimony of what occurred at the Union office that the Trial Examiner found unnecessary to consider because he found no "coercion" at the jobsite. This ignores, of course, the fact that what occurred at the Union office may well be determinative in ascertaining whether in fact the Union's "clearance" procedures were valid and based on nondiscriminatory considerations or were merely a pretext for requiring union membership as a condi- tion of clearance or referral The testimony of owner-driver Post concerning events at the Union hall which the Trial Examiner found unnecessary to consider went as follows: Q. You were speaking to the group of them [Teamster representative] or were you directing your questions to anyone in particular? A. [Mr. Post] I believe I was directing my questions to Mr. McDonald, and he told me that I-he said "You already know what we want, you've been through this before" Q. Are these his exact words? To the best of your recollection? A. To the best of my recollection. Q. Did Mr. Lyons [president of the local] say anything to you then? A Yes, he did, he said that they wanted us to be members of that local. Q. That is Teamsters Local 36? A. Yes, sir. (Record, p. 199) After agreeing to join the Local if the Union was successful in getting a withdrawal card from another with other testimony that only "three " truckdrivers were involved in a clearance problem and because of certain other minor contradictions in their testimony , the Trial Examiner concluded their testimony was not reliable or probative As the record is replete with other evidence, no purpose would be served in taking issue with the Trial Examiner's disposition as to these two men 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD local, Post was referred back to the job with a clearance slips with the notation if we can get this man a W/C [withdrawal card] will be up Thursday and let you know, o.k. to work until then. The clearance slip (an undisputed and objective piece of evidence) rather obviously can only be interpreted to mean that his clearance is dependent on getting a withdrawal card ... ergo ... his clear- ance is dependent on the status of his union member- ship. It is also clear that joining the Union was a requirement for referral and not merely a fulfillment of Post's request.' The two other drivers who went to the Union hall testified similarly and they either joined the Union or acquiesced in the Union's attempts to get withdrawal cards from other locals before they were cleared for return to work at the Griffith jobsite. It seems clear that McDonald's only interest was in making sure that all owner-drivers on the job were Teamsters members in good standing and proof of ownership of the truck involved was in fact, immate- rial.' Peters testified that McDonald had personally cleared him for the job after he had produced his Teamsters card and paid up receipt indicating he had paid his dues and that McDonald did not check or request his truck registration. This substantiates the testimony of Post who testified in a similar vein.8 Furthermore, Grago, business manager for the Association, testified that he offered to get the truck registration for the three drivers and present them to McDonald there on the job in order to get them back to work and that McDonald responded "You know there's more to it than that and they'll have to go to San Diego." McDonald not only did not dispute this testimony but admitted that he did not give a response to repeated questions about what clearance meant 9 In sum, we have the testimony of Wright, Peters, Post, Oldham, Schlager establishing that union membership in good standing was required as a prerequisite to "clearance" for a job with Griffith. Moreover, McDonald admitted that when he ap- proached owner-drivers on the jobsite, his first re- quest was for their Teamsters card and that when queried by Grago as to what clearance meant, he did not respond except to state that the drivers involved had to go to the Union hall for clearance. In addition, we have the testimony of what occurred at the San Diego Union hall substantiated by the referral slip given to Post that subject to securing a withdrawal card it was O.K. to work "until then." Thus, when the record is considered as a whole, the finding that union membership was not a prerequisite for referral or "clearance" is incredible on its face. Consequently, I find the record more than adequa- tely supports a finding that an alternative objective of the threats directed to Griffith was to force nonunion owner-dnvers into the Union , an objective prohibited by Section 8(b)(4)(ii)(A) of the Act. In view of certain record evidence previously cited and not considered by either the Trial Examiner or my colleagues , and the failure to decide the legal issue of whether these owner-drivers are employees or independent contractors , I cannot join in dismissing this complaint. 5 G.C. Exh. 7A. 6 Post testified at page 226 of the record as follows "Q. In other words did they [McDonald or Lyons , union president] demand from you that you get a withdrawal card from Local 235" or words to that effect'? A. In words to that effect , yes, I had to get a withdrawal card before I was issued a permanent clearance to work that job." Post had not been a union member for some years. 7 The record establishes that only owner-drivers were on the job at the time of this controversy , and that Griffith's regular truckdriver employees were not being used 8 In view of corroborating testimony by Peters, Wright, Schlager, Oldham, and admissions by McDonald and the referral slip issued to Post subsequently at the Union hall, the crediting of McDonald's testimony over that of Post concerning events occurring at the jobsite is not sustainable as it is not supported by the record as a whole. 9 The fact that Grago asked for clarification of what "clearance" encompassed was corroborated by the testimony of Mr. Koons at p. 96 of the record DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE MAURICE M. MILLER, Trial Examiner. Upon a charge and amended charge, filed and duly served, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing to be issued and served upon the parties herein. (Associated Independent Owner-Operators, Inc., designated as Complainant Association within this deci- sion , had filed its original and first amended charges on October 19th and December 19, 1966, respectively. General Counsel's Complaint issued January 5, 1967. All dates cited within this Decision refer to 1966, unless otherwise noted.) Therein, Building Material and Dump Truck Drivers, Local No. 36, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, designated the Respondent Union herein, was charged with the commission of certain unfair labor practices affecting commerce, within the meaning of Section 8(b)(4)(ii)(A) and (B) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519 Copies of the Complaint and Notice of Hearing were served upon the respondent labor organization. Within Respondent Union's duly filed answer, certain factual matters set forth in General Counsel's Complaint are conceded; Respondent Union, how- ever, has denied the commission of any unfair labor practice Pursuant to notice, a hearing with respect to the issues was held at San Diego, California, between February 2 and 6, 1967, before me. The General Counsel and Respondent Union were represented by counsel, Complainant Association was represented by its business manager. Each party was afforded a full opportunity to be heard, to examine and cross-exarrune witnesses, and to introduce evidence pertinent to the issues. Since the hearing's close, briefs have been received from both counsel for the General Counsel and Respondent Union, these have been duly considered. BLDG MATERIAL & DUMP TRUCK DRIVERS 351 Upon the entire testimonial record, documentary evidence received, and my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER The Griffith Company, designated as Griffith within this Decision, maintains its principal office at Los Angeles, Cali- fornia, there it functions as a general contractor within the budding and construction mdustry. Throughout the period with which this case is concerned, and since then, Griffith was engaged, and continues to be engaged, in the construction of a 9 5 mile stretch of U.S. 101 (Interstate Highway 5) approxi- mately 5 miles north of Oceanside, California, this highway project is 91 52 percent federally financed, and forms part of the interstate highway system. Griffith's construction work is being performed pursuant to a State of California, Division of Highways, contract valued in excess of $8,300,000. In connec- tion with project work, Griffith has purchased and received, or will purchase and receive, goods, materials, and supplies originating outside the State of California, valued at a substantial amount. Upon these facts, which are conceded to be correct, I find that Griffith is now, and has been throughout the period with which this case is concerned, a person within the meaning of Section 2(1) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the statute. (This determination rests, partially, upon Respondent Union's pleaded concession that Griffith functions as a general contractor in the building and construction industry. I take official notice that the "building and construction industry causes the flow of large quantities of goods" in interstate commerce. N.L.R.B. v International Union of Operating Engineers, Local 571, 317 F 2d 638 (C.A. 8), N.L.R.B v. Plumbers Union, 299 F 2d 497, 500 (C A 2), Sheet Metal Workers International Association, Local 299, 131 NLRB 1196, 1198-1200. So far as I can determine-though this matter was not specifically pleaded by General Counsel, nor conceded in Respondent Union's answer-counsel for Respondent Union would not contest this determination.) With due regard for the jurisdictional standards which the Board presently applies, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. 11. THE LABOR ORGANIZATION INVOLVED Building Material and Dump Truck Drivers, Local No. 36, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, designated as Respondent Union within this decision, is, concededly, a labor organization within the meaning of Section 2(5) of the Act, as amended. Throughout the period with which this case is directly concerned, and since then, Business Agent Hugh McDonald has represented Respondent Union, and has functioned as its agent within the meaning of Section 2(13) of the Act, as amended. III. THE UNFAIR LABOR PRACTICES A. Issues This case derives from certain developments in connection with Griffith's highway project operations near Oceanside, California, purportedly, such developments reflected Respon- dent Union's effort to make sure that all truckdrivers working on Griffith's project maintained membership in good standing with Respondent Union, or some other Teamster Union local Substantially, General Counsel charges that some truckdrivers on Griffith's project were really independent contractors, who both owned and drove their own trucks, and that Respondent Union's effort to require their union membership should be considered subject to statutory proscription because Respon- dent Union's representatives "threatened, coerced and restrain- ed" general contractor Griffith, for the dual purpose of forcing or requiring such self-employed truckdrivers to join Respon- dent Union or some other Teamster Union local and, further, forcing or requiring Griffith to cease doing business with such self-employed owner-operators, or with other self-employed owner-operators who did not maintain Teamsters Union membership, contrary to Section 8(b)(4)(u)(A) and (B) of the statute. Respondent Union contends that the course of conduct with which it stands charged reflects nothing more than its legitimate try to enforce lawful provisions within a collective-bargaining contract, pursuant to which Griffith was bound. Further, Respondent Union suggests-so far as I can determine its position-that, since those truckdrivers with whom this case is concerned were performing services for Griffith within the geographical limits of their particular highway construction jobsite, representatives of the designated organization were contractually and legally privileged to treat such drivers as Griffith employees, thus, so Respondent Union's contention seemingly goes, conduct presumptively calculated to compel their reinstatement or maintenance of Teamster Union membership cannot properly be considered to fall within Section 8(b)(4)'s proscription. Finally, Respondent Union contends that representatives functioning in its behalf did not, in any event, threaten, coerce, or restrain Griffith's management, within the meaning of the statute. B. Facts 1. Background a. The Relevant Contractual Provision Throughout the period with which this case is concerned-so all parties concede-work on Griffith's Oceanside highway construction project, within the Respondent Union's trade jurisdiction, was governed by the terms of the so-called "Master Labor Agreement For San Diego County" previously negotiated between Associated General Contractors of America, San Diego Chapter, and two more contractors associations, on the one hand, and, on the other, various AFL-CIO Building and Construction Trade Unions, plus Respondent Union herein The contract in question had been negotiated-with a May 1, 1965, effective date-for a term scheduled to conclude April 30, 1970 It contains union recognition, union security and hiring hall provisions (article II, article III) conventionally found in construction work contracts, together with conventional "no strike-no lockout" provisions. Within a further segment (article XV) which purports, inter alia, to set forth "Special Craft Working Rules" for teamsters, the contract contains one provision which reads as follows B. Owner-Operator-THE EMPLOYER may obtain trucks or equipment from any source, however the opera- 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tors on such trucks or equipment will be properly cleared. The owner-operators of such trucks or equipment must furnish proof of legal or registered ownership (subject to predetermination of legality by National Labor Relations Board) Respondent Union's secretary-treasurer, when queried with regard to the significance of the contractual phrase in parentheses, testified that-when the provision now under consideration was being negotiated-the parties wished to say "something" confirming the right of contractually-bound contractors to engage trucks driven by owner-operators, but lacked complete certainty regarding the legality of the pro- vision they were prepared to draft. The parenthetical phrase- so Secretary-Treasurer Lyons testified-was therefore designed, purportedly to show that though the contractual provision would stand as negotiated-questions regarding its possible non-enforceability would be reserved, pending a future Board determination. b Griffith 's Pre/ob Conference The highway project with which this case is concerned- located slightly north of Oceanside, California, some 46 miles from San Diego measured on the present coastal route-was, so the record shows, scheduled to start December 20, 1965, approximately. The construction work had a projected Decem- ber, 1967, completion date. On December 23, 1965, various building and construction trade union representatives, together with two or more Teamster Union representatives, met with spokesmen for Griffith's management, for the purpose of determining that contractor's manpower requirements, and for the purpose of settling the terms and conditions under which the contractor's work would be performed. Present for Griffith were A. Ray Koons, the contractor's project superintendent designated to supervise Oceanside operations specifically, and Henry Rollston, project manager generally in charge of the firm's current operations wherever located (Rollston was, thus, Koons' superior. There may have been other contractor representatives at the conference, the present record, however, provides no basis for determinations in that regard.) Among the subjects discussed were such matters as Griffith's work- week and work schedules, subcontractors, payroll procedures, safety, and insurance protection Griffith's spokesmen, further, designated the various crafts which would be required to supply workmen for the project, and the presumptive "peak" work crews which the contractor would require within each craft, with respect to teamsters, the representation was made that a peak crew numbering 25 would be needed. (The record, taken by and large, will warrant a determination that Griffith proposed to supply required concrete for pouring operations; that it planned to supply such concrete in "wet batch" form from a so-called moveable batch plant, which would be set up within the geographical lirmts of the contractual jobsite, and which would be removed periodically so as to maintain relatively close proximity to those particular locations where pouring was currently being done; and that it proposed to procure dump trucks and truckdrivers for the purpose of transporting such "wet batch" concrete from the batch plant to pour locations. Throughout the period with which this case is concerned, this procedure was being followed.) Nothing in the present record would justify a determination that Respon- dent Union's representatives were specifically told, during the conference now under consideration, whether Griffith pro- posed to hire 25 teamsters directly for the project, procure their services through trucking subcontractors, or procure the services of self-employed owner-operators driving their own trucks There seems to have been some consensual understand- ing, however, that part of Griffith's teamster work crew would consist of self-employed truck owner-operators, since the question of their clearance for project work was, so the record shows, discussed briefly by Project Superintendent Koons and Business Representative Lyons of Respondent Union before the conference convened Griffith's superinten- dent was told that, since his Oceanside jobsite would be considered a so-called "remote" protect, because of its distance from Respondent Union's San Diego hall, truck owner- operators retained as "wet batch" concrete haulers would not be required to visit Respondent Union's hall for clearance prior to beginning service, Lyons promised-purportedly to accommodate the highway contractor-that Respondent Union would be willing to dispatch a business representative to Griffith's jobsite, so that concrete truck drivers could be cleared there. c. Developments at Oceanside Concrete pours connected with Griffith's project were, thereafter, conducted sporadically. Such pours were, neces- sarily, preceded by periods of grade and roadbed preparation, they were followed by periods during which the poured concrete would be permitted to "cure" sufficiently to meet requisite highway standards. Between December 20, 1965, and October 13, 1966, several segments of Griffith's project-their number of total length never specified for the record-were thus completed. By October 13, 1966, Griffith was prepared to begin concrete pour work for another highway segment. Sometime before the date designated, Griffith's concrete superintendent for the Oceanside project, Herschel Wright, communicated with a representative of Howard Elam Aggre- gate Haulers of Gilroy, California, a truck broker, Elam's representative was requested to procure a number of dump trucks and truckdrivers for service on Griffith's project. (Gilroy, Calffronia, where Elam presently maintains his prin- cipal office and place of business, is a Northern California community located some 20 miles south of San Jose; Wright, therefore, communicated with William Peters, Elam's Southern California representative. Peters, himself a self-employed truck owner-operator, was requested to procure, for Griffith's highway project, whatever number of trucks the contractor aught deem necessary for concrete pour work, day-by-day.) Pursuant to Wright's request, Elam's representative procured the services of several trucks and drivers, ready to perform concrete hauling work. Some drivers, I find, were self- employed owner-operators; however, there was one person contacted while pour operations were being conducted, Hastings by name, who, was-so the record shows-doing business as a trucking contractor, supplying several trucks manned by drivers in his direct hire. The group of truckdrivers thus procured, for work on Griffith's project, included Robert Oldham, Raymond Post, Robert Schlager, W. Allen Schwarz, Donald Chick, and Kermit Chick, these were all self-employed dump truck owner- operators. There may have been more owner-operators pro- cured for service on Griffith's project; with respect to their total number, however, the record is silent. (Each of the designated owner-operators had-prior to, or concurrently BLDG. MATERIAL & DUMP TRUCK DRIVERS with, their procurement for work on Griffith's project-signed a so-called "Subhauling Contract" with Elam; pursuant thereto, these signatory subhaulers-purportedly functioning as independent contractors-had retained Elam's so-called "brokerage" service to procure work for them transporting "rock, sand, gravel, readymixed concrete, earth, asphalt concrete, and other similar materials" while functioning as "for-hire" carriers.) On Thursday, October 13, pursuant to Peters' call, Schwarz and Donald Chick, plus a number of other dump truck drivers-possibly seventeen-commenced "wet batch" concrete hauling work for Griffith's Oceanside highway project. When their work commenced, Griffith's portable batch plant was located closely proximate to the highway contractor's then current "point of pour" but some 150-200 feet from the projected highway's right-of-way. On Monday, October 17, Post, Oldham, Schlager and Kermit Chick, inter aka, were retained to haul "wet batch" concrete. They performed such work, throughout the date designated, without delays or difficulty, so far as the record shows. By the day's close, Griffith's pour-so I find-had progressed to such a degree that the current "point of pour" was located some 2'h miles from the contractor's batch plant 2. Threats, Restraint, and Coercion a. October 18, 1966 Some time within the week before the highway contractor's October 13th pour started, Business Agent McDonald of Respondent Union visited the project, there he spoke with Herschel Wright, Griffith's concrete superintendent. The latter was told-regarding truck owner-operators procured for con- crete haul work-that "so long as they had proof of ownership and clearance" from Respondent Union, there would be no problem. McDonald declared, further, that owner-operators possessed of such documentation would not be required to "transfer" into Respondent Union herem. (During cross- examination by Respondent Union's counsel, Wright testified, further, that McDonald had said owner-operators would not be required to transfer into Respondent Union if they had a "paid-up card or clearance" or something of the sort. Upon the record, taken as a whole, this testimony may not be rejected, I consider it more likely than not that McDonald may have, inter alia , referred to paid-up Teamster Union card holders as relieved from transfer requirements, under the circumstances prevailing on Griffith's project.) Wright, subsequently-so he testified-communicated this information to Peters, the latter was, further, requested to furnish a list of owner-operators procured for the project to Respondent Union's business representative, so that their "status" could be checked. I so find. During the morning of October 18, Business Agent McDonald visited Griffith's highway project; there, I find, he undertook to check both the Teamsters Union membership and registered owner-operator status of currently retained dump truck drivers. The record warrants a determination that, while stationed near Griffith's batch plant, McDonald hailed successive drivers when they brought their trucks back for new loads, that he first displayed his Teamsters Union identi- fication; and that he requested various drivers, whose Team- sters Union membership status had not previously been made known to him, to show their union cards. Those drivers who could not produce proof of Teamsters Union membership were 353 requested to produce truck registration certificates which would prove their legal ownership of whatever vehicles they drove. (The record shows, for example, that-when McDonald "approached" Peters, and was shown the latter's union membership card plus a current dues receipt-he did not request Peters to produce his truck registration certificate. Such documentation was never-so I find-required from Elam's Southern California truck boss.) The drivers then working on Griffith's project-somewhere between 21 and 24 in number-did, save in four cases, display documentation satisfactory to Respondent Union's business representative. McDonald's contacts with these four drivers-plus his claimed contacts with two more-generated the situation with which this case is concerned. When McDonald, some time shortly after he reached the project, hailed Schwarz, who had then reached the batch plant, he first displayed his credentials. Then he asked Schwarz whether he had proof of Teamsters Union membership. When Schwarz replied negatively He asked me if this was my truck and I told him it was, he then asked me if I had a registration. At this particular time up to this date I did not have a regular truck registration, I had lost the regular truck registration and sent for a new one to Sacramento. I just had a suspense receipt, showing that I had paid my quarterly license fee. Respondent Union's business representative, however, declared that such a receipt would not demonstrate Schwarz' ownership of his truck; he requested Schwarz to pull over and park his vehicle, while he (McDonald) and Peters conferred. (McDonald recalled-so he testified-that Schwarz had, during their conversation, referred to his "ITOOU" membership when queried regarding his truck ownership status; the record shows that these initials had designated Independent Truck Owner- Operator Union, Complainant Association's predecessor. McDonald professed lack of knowledge regarding that organization, but declared that it was not recognized since Respondent Union had a contract with Griffith within the area.) Schwarz, so his testimony shows, concluded that, to continue work on the project, he would have to join Respondent Union. He sought out McDonald; requested information regarding "what he had to do" to become a Teamsters Union member; and signed a membership applica- tion which Respondent Union's business representative then and there prepared. Following the document's execution, Schwarz "got back in line" with his truck, and-so he testified-resumed "wet batch" concrete hauling. (While a witness, McDonald conceded that he had given Schwarz verbal "clearance" with respect to continuing work, though the latter had not yet provided satisfactory proof of registered owner- ship relative to his truck. During direct examination, Respon- dent Union's business representative testified-in this connec- tion-that Schwarz had been told his membership application would be accepted "[subject] to proof of registered owner- ship" later; despite this testimony, however, McDonald dec- lared, further, that he did not see or talk with Schwarz after October 18, whether at Oceanside or any other j obsite. During cross-examination McDonald reconsidered; he recalled that sometime later, but during the Oceanside pour, Schwarz had come to see him on Griffith's project, and had then displayed a truck registration certificate, which he had just received by mail. Schwarz, summoned to testify previously, had not been questioned regarding any subsequent jobsite contact with Respondent Union's business representative. The latter's re- 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vised testimony, therefore, stands without contradiction or corroboration. Though McDonald's refreshed recollection regarding their subsequent contact concededly reflects a retraction of his claimed recollection on direct examination, rejection of his final recital hardly seems warranted; I find that Schwarz did, during a brief contact, subsequently display his registration certificate.) Concurrently with Schwarz' verbal clearance, McDonald had a number of further contacts with drivers. Some, he recognized from previous projects; these, generally, do not seem to have been challenged or confronted. The record shows, however, that he conferred with one driver, Flowers, who turned out to be a suspended Teamsters Union member, Flowers reinstated his membership, and was there- upon, like Schwarz, given verbal clearance. (Within his brief, General Counsel characterizes Flowers as a truck owner- operator "who apparently had no problem with his registration certificate" but the record provides no testimonial justification for such a determination, pro or con.) When queried, during cross-examination, regarding conversations with two more drivers, John and Gus Pastro, Respondent Union's business representative categorically testified-without challenge or contradiction-that they received verbal clearances when, pursuant to request, they showed proof of registered truck ownership. I so find. Shortly following his conversation with Schwarz, McDonald sought to communicate with Post, Oldham and Schlager. Consistently with his routine practice, he hailed them while they were standing in line, waiting for their next "wet batch" concrete load at Griffith's plant. Showing his credentials, Respondent Union's business representative requested these drivers to produce their respective identifications. These requests, however, were refused. Item When McDonald "approached" Post, the latter-so the record shows-knew who he was, since they had met previous- ly, while Post was performing work on another contractor's project. While a witness, Post conceded that-when hailed-he had told McDonald, forthwith, that he would not talk with him. McDonald's recollection with respect to their conversa- tion, however, was more detailed; the business representative testified as follows. ... I believe I first stopped Mr. Post and approached his truck and asked to see his identification. He said then he did not belong to the Teamsters; he'd seen my identifica- tion; he said he was an owner-operator. I asked to see his registration slip ... his vehicle registration, and he told me where to go in no uncertain terms ... told me to go to ... and " ... . I don't have to show it." ... I told him to pull over because he had not been properly cleared. I credit this version with respect to their conversation Post, so the record shows, complied with McDonald's request Item- Respondent Union's representative next encountered Schlager. The latter was, likewise, requested to display his Teamsters Union card. Schlager declared that he did not have one, he said he was a truck owner-operator. McDonald then requested him, I find, to produce his truck registration certificate. (Schlager, while a witness, could not recall such a request. His denials with respect thereto, however, cannot be considered positive. When queried whether McDonald had requested his truck registration, he first said that he did not "believe" so, when the question was repeated, Schlager merely reported that "to [his] knowledge" no such request was made. With matters in this posture, my observation of the witnes- ses-coupled with due regard for the logic of probability- convinces me that McDonald's positive recollection merits credence ) Schlager, however, refused to show his registration, concurrently, I find, he demanded McDonald's name and proceeded to make various entries upon some letterhead document bearing Complainant Association's designation Respondent Union's representative requested him to pull off to the side because he, too, had not been properly cleared. When Schlager questioned McDonald's right to give such orders, Peters-who, presumably, had been nearby-requested him to comply. Schlager did as requested Item. Next, somewhere within the revolving sequence of dump truck drivers, McDonald encountered Oldham; the latter was, like his predecessors, requested to show his Teamsters Union card. Oldham declared that he did not have one, he reported his "ITOOU" membership. McDonald was, further, told that he was a truck owner-operator. Respondent Union's business representative then asked him to display his registra- tion, this request was refused. McDonald thereupon I find, requested him to "pull off the side of the road" which he did. (Oldham testified that he was directed to "pull over" promptly when he told Respondent Union's business representative that he was a member of Complainant Association, he further testified that he refused, initially, to comply with McDonald's directive, but that he did "pull over" when Peters and Concrete Superintendent Wright, within his view, concurrently "waved" him over. Oldham was asked whether "at this time" McDonald had requested him to show his truck registration, this he denied. Whether his denial was intended to cover his entire conversation with Respondent Union's business repre- sentative, or whether it was based upon his recollection that no such request was made after he pulled out of the contractor's truck line cannot be determined, however, from the record. McDonald's version of their conversation is credited.) Follow- ing his conversation with Oldham, McDonald sought out Peters, who had, himself, just returned with his truck for a new "wet batch" load. The truck boss was told that Post, Schlager, and Oldham were "improperly" working, since they had not been properly cleared, further, Peters was told-so I find-that the drivers in question would have to be cleared or replaced. Peters suggested that he (McDonald) should notify Concrete Superintendent Wright, or some other representative of Griffith's management. b. Further (Claimed) Developments With matters in this posture-before McDonald's contact with Griffith's management can properly be reviewed-some digression would seem to be warranted. Consistently with his complaint, General Counsel proffered testimony calculated to support a determination that Respond- ent Union's business representative, during his October 18 visit to Griffith's project, demanded that Kermit Chick and his son, Donald Chick, both self-employed truck owner-operators, become Teamsters Union members. Failing that, so General Counsel contends, McDonald demanded that Griffith termi- nate their services. General Counsel's presentation with respect to these contentions, however, reveals some significant testi- monial conflict; serious credibility questions are presented. While a witness, Kermit Chick testified-without contra- diction-that he and his son, functioning as full partners, own four trucks, of these, three are dump trucks. All four trucks are registered, however, in Kermit Chick's name; the registra- tions, first procured while Donald Chick was a minor, have BLDG. MATERIAL & DUMP TRUCK DRIVERS 355 never been changed. The Chicks drive their own trucks, no dnvers are hired. Pursuant to Peters' call, previously noted, Donald Chick had commenced service on Griffith's project October 13, Kermit Chick had reported for "wet batch" work on Monday, the 17th. Late on the morning of October 18, so Ken-nit Chick recalled, Respondent Union's business representative "ap- proached" him, displayed his credentials, and requested him (Chick) to display his Teamsters Union card. Chick, who had seated himself within his truck's cab-so he testified-said "How would you like to go to Hell?" and drove off. When he reached the waiting truck line at Griffith's batch plant, however, the batch plant operator told him that he could not be loaded, and that he would have to pull out his truck. Chick queued the reason for this directive, he was told that it was because he did not hold Union membership. The batch plant operator purportedly declared, further, that "they" would shut the plant down, should he continue to give Chick loads. Kermit Chick, so he testified, refused to pull his truck out from under Griffith's batch plant, declaring that, "If they want to shut it down" they would just have to do so According to his purported recollection, he worked the rest of the day. That evening, so he recalled, Peters told both him and his son that their trucks could not be used the next day, Elam's truck boss said that they would have to get clearance from the union. When asked what he meant by clearance, Peters reportedly said that "plain speaking" they would have to procure Teamsters Union membership. Both Chicks, so they testified, then held Teamsters Union withdrawal cards There was some discussion regarding what reinstatement would cost them; Kermit Chick finally declared that he and his son would "think . over" whether to rejoin. They did not return to work on Griffith's project. With respect to these developments, Donald Chick testified as follows That he is one of Complainant Association's charter members, that Peters had called him to proffer work on Griffith's project, that he had started "wet batch" hauling on October 13, that, on October 18, McDonald spoke to him on Griffith's project "sometime around 9 o'clock" after display- ing Union credentials; that he was requested to show his Teamsters card, that he then told Respondent Union's business representative he belonged to Complainant Association herein; that McDonald said this was not good enough; that, when he declared he had no Teamsters card, McDonald directed him to park his truck; that he told McDonald he was "very sorry" but that he did not wish to lose his place in Griffith's batch plant line; and that McDonald then merely turned around and left, saying, "There's another one" to some unidentified person. Donald Chick first declared that he continued to haul. He then volunteered a statement, however, that Griffith's batch plant "seemed to break down" while he was waiting for his next load. During cross-examination, he amplified this testimony as follows: Well, there was quite a delay in the trucks, loaded out two or three trucks then, one or two, then there was another delay ... I don't know exactly it broke down or just exactly what happened, whether they was waiting on material of some sort or just what it was; I know there was a delay and there was two trucks setting underneath waiting for a load. The plant wasn't running for a few minutes, for a little bit. Then, when asked whether it was not a fact that he had waited in line for the rest of the day for the batch plant to be fixed, Chick conceded his cross-examiner's correctness, saying that he "never did" get another load, because the plant closed down. Regarding these purported recollections of Kermit and Donald Chick, the following testimonial tidbits should be noted While a witness, Respondent Union's business represen- tative categorically denied any confrontation or conversation with the Chicks, during his October 18 project visit. Project Superintendent Koons, while testifying as General Counsel's witness, did purportedly recall some supposed statements by McDonald that "five" truckdnvers had not been properly cleared, such recollections, should they be deemed credible, would seemingly tend to buttress the testimony which Kermit and Donald Chick proffered, and would thus presumably provide some support for a determination that McDonald was mistaken, when he claimed no October 18 contact with the drivers designated. None of General Counsel's further witnes- ses, however, could recall a reference by Respondent Union's business representative to any drivers other than Post, Oldham, and Schlager; these were the sole group whom he described as not properly cleared. The failure of General Counsel's witnes- ses to recall any contemporaneous reference to Kermit or Donald Chick, certainly, would seemingly vitiate the probative worth of their recitals. Regarding a most significant matter, further, the Chicks proffered mutually contradictory testi- mony Donald Chick declared, without qualification, that, following his 9 o'clock conversation with Respondent Union's business representative, Griffith's batch plant functioned brief- ly with interruptions, finally closing down. Kermit Chick, however, reported that he worked until "close to 11 o'clock"; that he then had his confrontation with McDonald, and that he worked the rest of the day. None of the further witnesses presented-whether in General Counsel's or Respondent Union's behalf-recalled any batch plant breakdown. With matters in this posture, no definitive factual conclu- sions bottomed upon the purported recollections proffered by Kermit and Donald Chick would, within my view, be warran- ted. Their recitals, which I find partially self-contradictory with respect to significant matters, stand without corrobora- tion in further material respects. Though, taken by and large, such testimony may not "carry its own death wound" this trier of fact cannot consider it reliable, probative or substantial testimony, warranting any factual conclusion whatsoever. c. Threats, coercion, or restraint During McDonald's late morning conversation with Peters, previously noted, Elam's representative was told-so I find- that there were three men on Griffith's project who had not been properly cleared, and that they had refused to show Respondent Union's business representative their proof of registered truck ownership. When he was asked what could be done about it, McDonald's testimony shows I told him that due to the fact [Post, Oldham, and Schlager] had been so abusive and flatly refused to show me proof of registered ownership, I told him he'd have to send them to the hall, get properly cleared. McDonald conceded, while a witness, that he was then "irritated" because the dnvers designated had treated him so roughly. Thus motivated, he took the position that "field" clearance on Griffith's project-so far as Post, Oldham, and Schlager were concerned-could not be completed; that they would have to come to Respondent Union's San Diego hall. Under circumstances not clearly developed, within the 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present record, McDonald's position was thereupon com- municated to Project Superintendent Koons and Griffith's project manager, Henry Rollston; both men-presumably reached by radio telephone-met shortly thereafter with Respondent Union's business representative at Griffith's pro- ject site. McDonald-so Project Manager Rollston testified-reported that "three or four drivers" had not been properly cleared, and that he expected Griffith's management representative to do "something" calculated to correct the situation. More parti- cularly, Respondent Union's business representative-so Griffith's project manager recalled-declared his expectation that the contractor would see the men properly cleared; when queried whether they could be cleared at the Oceanside jobsite, however, he replied that they would have to go to Respondent Union's hall. According to Project Manager Rollston, McDonald stated no reason for this requirement. The project manager's further testimony, in relevant part, reads as follows Q. Did Mr McDonald tell you what would happen if the men were not properly cleared? A. That's vague in my mind, I don't believe he said by statement but only by indication that they would shut us down... . Q. (By Trial Examiner) [Do] you have any recollection at all as to how he put that? A. Well, possibly, probably, or as I recall, "that will be it," or something like that, now, what that meant I wouldn't know. [Emphasis supplied ] Rollston, while a witness, conceded his lack of recollection regarding McDonald's exact words, or the substance of his statement. And-when proffered a copy of his prior Board statement for the purpose of refreshing his recollection,-the project manager could merely repeat McDonald's comment that the men would have to be properly cleared, he testified, further, that "there was confusion" within his mind regarding how McDonald had put the matter, though he recalled that "he [McDonald] indicated" the job would be shut down. During cross-examination, Rollston repeated his testimony that McDonald had merely said "That will be it" when queried regarding the consequence of Griffith's possible refusal to send Post, Oldham, and Schlager to Respondent Union's hall. Thus, so Griffith's project manager conceded, his present testimonial conclusion-that McDonald was really saying the job would be shut down-reflects nothing more than his "conjecture" that such a possible consequence might follow. The business representative's remark now under considera- tion was made-so the record shows-during a general discus- sion, with several persons present. Project Superintendent Koons, who was likewise there, corroboratively recalled McDonald's statement that those drivers who could not be cleared in the field would have to come to Respondent Union's office for proper clearance. When queried by General Counsel, regarding his comment in response, Koons declared that A. Why, I indicated that would be, in effect, shut me down or curtailing the operation, if we had to shut the men off right then and send them down to San Diego to get them properly cleared. I again reiterated, I asked him then if he couldn't possibly clear them out here in the field .... Q. Did he tell you why he would require these five [9] to go down to San Diego to be cleared at the office? A. Well, in the course of the conversation he indicated that he wasn't getting cooperation from these particular people ... that he had reached a stalemate and that he would like for them to come down to the office and be cleared .... Q. Did he say anything in response to your comment that he would be shutting you down, shutting the operation down? A. As I recall, I think he said that he didn't want to shut us down but these people had to be properly cleared. [Emphasis supplied.] According to Koons, Respondent Union's business represen- tative never did specify, during their conversation, what proper clearance would require. G. Ralph Grago, business manager of Complainant Association, one of those present during the discussion now under consideration, did request such a specification, further-so I find-he requested Griffith's project superintendent to ask McDonald what Post, Oldham, and Schlager should bring with them when they visited Respondent Union's hall, so that required clearance procedures could be expedited. McDonald, I find, declared merely that, if the men would "come down" to Respondent Union's San Diego office, he would see that they were properly cleared, or try to clear them. (While a witness, Grago purportedly recalled that McDonald, responding to a query whether clearance would merely require documentation sufficient to demonstrate a particular driver's registered ownership of his vehicle, did say that "more . . . than that" would be required. None of General Counsel's further witnesses, however, corroborated this testi- mony. With due regard for the record considered in totality- coupled with my observation of the witnesses-Grago's testi- mony, with respect to McDonald's supposed remark, fails to persuade.) While a witness, Koons detailed his "personal interpretation" with respect to what proper clearance for truck owner-operators would require, he testified that he understood the "No. 1 requirement" for truck owner-operators, though not the sole requirement, would be proof relative to their vehicle's ownership. Griffith's project superintendent was queried, during re- direct examination, regarding the degree to which his firm's operations would be affected, with three men sent to Respondent Union's office pursuant to McDonald's demand. He declared that production rates in highway construction depend upon the number of trucks utilized, and the continuity of their operations. If those trucks or the number of trucks is cut down any way ... the cost would run so high we couldn't very well afford to run with it ... I mean if we didn't have the proper amount of trucks production wouldn't be such ... our costs would be up substantially and if there was enough of the people that were taken off we couldn't go ahead and operate in any kind of economic form. We probably would have to shut down, because we couldn't afford to run with a losing operation. When Koons was then asked, specifically, whether the tempo- rary loss of three trucks would substantially impair Griffith's project operations, he responded affirmatively, declaring that their absence would break the firm's desired "wet batch" hauling sequence. Production of readymixed concrete within Griffith's batch plant-so the project superintendent testi- fied-requires a mere 44 second cycle within a mixing drum, should no truck then be ready promptly to receive the mixture, the batch plant operator would have to retain it within the drum until a truck reached the plant. Koons declared, further, that his firm functioned subject to a time BLDG. MATERIAL & DUMP TRUCK DRIVERS 357 limit, since readymixed concrete is required to be both on the grade and in place within 1 hour-sometimes 45 minutes- following water's addition to the mixture. With a truck sequence disrupted-so he testified-the possibility would exist that available trucks could not deliver concrete to the firm's pour site within the requisite time limit. Such "old" concrete could not be poured, and would have to be wasted For these reasons, Griffith's project superintendent declared, his firm tries to have sufficient trucks on hand so that one truck will be standing by, ready to go underneath the batch plant drum, promptly when its predecessor has received a load and departed. When, however, Koons was asked whether Griffith's opera- tion had really sustained some loss of production on October 18, he declared that the principle "loss" suffered had derived from the fact that some drivers had been required to cease work-or had themselves determined to do so-while McDonald's request for the temporary release of Post, Oldham, and Schlager was under consideration by management representatives. The project superintendent conceded that-so far as he knew-no "wet batch" had been wasted that afternoon, though Griffith had lost "a great deal of time" while the controversy generated by McDonald's demand was being settled. Koons conceded, further, that the drivers whose trucks had been parked-while the discussion now under consideration proceeded-were those who had felt directly concerned therewith; those drivers who were not con- cerned-so I find-had continued to receive and transport loads, for delivery to Griffith's pour site d. Subsequent developments With matters this posture, Griffith's management represen- tatives-so the record shows-finally concurred with McDonald's request. Post, Oldham, and Schlager were directed to leave the project, and to procure "clearances" through Respondent Union's San Diego headquarters. Shortly before noon, I find, they left the project for this purpose C. Conclusions With Respect To Threats, Coercion, Or Restraint With matters in this posture, the record-considered with- out regard for subsequent developments within Respondent Union's San Diego headquarters-presents a threshold ques- tion. Section 8(b)(4)(u)(A) and (B), with respect to which General Counsel has charged violations, provides, inter alia, that It shall be an unfair labor practice for a labor organization or its agents . to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting com- merce ... for certain statutorily-proscribed purposes Within his com- plaint, General Counsel charges that Respondent Union, through its business representative, was demanding that Post, Oldham and Schlager become Teamsters Union members, or that Griffith terminate its reliance upon their services in connection with that firm's Oceanside highway project In furtherance of these demands, General Counsel contends, Respondent Union herein-through Business Agent Mc- Donald's statements and conduct-threatened Griffith with pulling all dump truck drivers off the highway project, thereby shutting down concrete hauling operations By such statements and conduct, General Counsel charges, Respondent Union "threatened, coerced and restrained" the highway contractor specifically. Reference has been made, previously within this decision, to Respondent Union's contention, inter alia, that Business Agent McDonald's conduct merits no such character- ization. With respect to this portion of General Counsel's case, Respondent Union's defensive position-within my view- merits Board concurrence. McDonald's course of conduct, challenged herein, really presents two related factual and legal questions, with respect to both, I find, General Counsel's presentation deserves rejection First General Counsel contends that Respondent Union's business representative "threatened" Griffith with a project shutdown Well-settled decisional doctrine, true, does teach that specific threats of work stoppage will normally be considered Section 8(b)(4)(ii) violations Construction and General Laborers Union Local 270, International Hod Carriers, Building and Common Laborers Union of America (Howard J. White, Inc.), 161 NLRB 1313; International Brotherhood of Electrical Workers, Local Union No. 11, AFL-CIO (General Telephone Company), 151 NLRB 1490, 1493, 1495, Local 349, International Brotherhood of Electrical Workers, AFL- CIO (Dade Sound and Controls), 149 NLRB 430 f; Local 150, International Brotherhood of Operating Engineers, AFL-CIO (Frisch Contracting Service Co ), 149 NLRB 29, 31-34, General Counsel's presentation with respect to Mc- Donald's purportedly coercive remark, however, can hardly be considered sufficient to sustain his contention that a clear-cut threat was proffered. Griffith's project manager-presented as General Counsel's sole witness with respect to McDonald's supposed verbal threat-professed a recollection, merely, that Respondent Union's business representative had said, "that will be it," when their discussion turned to possible conse- quences should Griffith fail to release Post, Oldham and Schlager for whatever time they might require to procure "clearances" from Respondent Union's hall Rollston's testi- mony with respect to McDonald's purported statement, further, was significantly qualified He prefaced his recol- lection with a speculative declaration that McDonald had "possibly, probably" made the comment noted; his response, then, was capped with a voluntary statement that "what [McDonald's remark] meant" he (Rollston) would not know On its face, the business representative's purported remark seems equivocal, to say the least; conceivably, it could have been proffered as a statement of fact. Project Manager Rollston, himself, conceded-while a witness-that his personal construction of McDonald's rather ambiguous language derived from nothing more concrete than conjecture. With matters in this posture, determination can hardly be considered warran- ted that General Counsel has sustained his burden of proof with respect to McDonald's purported threat. United Associa- tion Pipe Fitters Local Union No. 538, etc. (American Boiler Manufacturers Association), 154 NLRB 314, 317-319; Local 38, International Brotherhood of Electrical Workers, AFL- CIO (Edwin A. Wells), 148 NLRB 757, 759-760, General Teamsters Local No 162, IBTCWHA (B. P John Furniture Corporation), 144 NLRB 536, 543-545; Electrical Workers Union Local 38, International Brotherhood of Electrical Workers, AFL-CIO (Hoertz Electric Maintenance Co.), 138 NLRB 160, 161-162. Cf. Construction, Building Material and Miscellaneous Drivers Local Union No 83, IBT (Marshall & Haas), 133 NLRB 1144, 1145-46. Bureaucratic "expertise" 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to labor-management relations may, possibly, warrant some generalization that trade union spokesmen frequently cloak their calculated threats with so-called "Aesopian" language, euphemisms or circumlocution, such generalized knowledge or belief, however, will not-without more-support a determination that particular language charge- able to some respondent union's representative was, really, purposefully used to convey a statutorily proscribed threat Second General Counsel further contends that Respondent Union's business representative did, really, cause a curtailment or partial shutdown of Griffith's highway project. This, General Counsel would suggest, subjected the highway contrac- tor to statutorily-prohibited pressures. Within his beef, Gen- eral Counsel puts the matter thus The Board and the courts have uniformly held that successful inducement or encouragement of workmen to cease performance or services necessarily restrains and coerces their employer. (Cases cited.) Likewise, here, the requirement that Griffith's owner-operators leave their jobs and travel to San Diego threatened, coerced, and restrained Griffith within the meaning of Section 8(b)(4)(u) of the statute. The contention, however, fails to persuade. Item Nothing within the present record will support a determination that Griffith's project was really curtailed-save, possibly within some de minimis degree never specified for the record-when Post, Oldham, and Schlager departed for their San Diego rendezvous with Respondent Union's representative. Griffith's project superintendent-despite his professed fear that tempo- rary releases for three drivers, pursuant to McDonald's de- mand, would seriously hamper his firm's concrete pours-never did direct a cessation of work. No readymixed "wet batch" concrete was dumped, so far as the record shows, because of delays or dislocation within the contractor's truck haul sequence. (The record does show that Griffith maintained a few standby trucks, somewhere within the vicinity, which were customarily pressed into service whenever some owner- operator's truck broke down. Such contractor-held trucks, when put into service, were manned by Griffith drivers. Nothing in the present record even suggests that these trucks and drivers may not have been currently available for replacement purposes, when Post, Oldham, and Schlager departed.) For all we can tell, Griffith may have replaced some or all of the missing drivers. Item: The record clearly warrants a determination that Respondent Union's business representa tive-when he requested Griffith's management to release three drivers-based that request upon Respondent Union's contrac- tually-defined right to require their clearance for project work as self-employed truck owner-operators. General Counsel has not, herein, challenged the propriety of Respondent Union's contractual clearance requirement, so far as such self-employed owner-operators may be concerned. (Previously, within this decision, passing reference has been made to conventional union security and dispatch provisions, found within the master San Diego County contract concededly deemed rele- vant with respect to matters with which we are presently concerned. Those provisions, clearly, govern the relationship between signatory contractors, subcontractors on jobsites, and their "workmen" dispatched through some signatory union's hall. Since a further provision, however, clearly gives contrac- tors the right to procure trucks or equipment "from any source" without regard to preferential "hiring hall" referrals, contractually-defined procedures reasonably calculated to re- assure Respondent Union that trucks thus procured were really being manned by their registered owners, rather than by some contractor's or subcontractor's hired drivers, could hardly be considered statutorily proscribed.) The language in question, concededly, gives Respondent Union the right to police signatory contractors, with respect to their procurement of trucks manned by owner-operators without recourse to hiring hall referrals. So construed, the provision creates primary rights and obligations, directly binding upon signatory contrac- tors Business Agent McDonald was, clearly, relying on this nonchallenged contractual provision, when he demanded that Post, Oldham, and Schlager be directed to procure requisite "clearances" within Respondent Union's hall, his course of conduct, theiefore, cannot, legitimately, be considered "coercion or restraint" directed against some neutral contrac- tor, with respect to disputes not his (the contractor's) own. Since I have, thus, found that Respondent Union did not-while seeking to resolve the situation with which this case is concerned-rely upon statutorily proscribed pressures, I conclude that General Counsel's complaint, herein, merits dismissal, and will so recommend. Postscript Having reached this conclusion, I find it unnecessary to consider certain further questions which the record presents. These questions, primarily, derive from certain relevant statu- tory provisions which, because of my disposition with respect to this case, need not be reached. The statute, previously quoted in relevant part, proscribes certain conduct. .. where an object thereof is. (A) forcing or requiring any employer or self-employed person to join any labor organization . (B) forcing or requiring any person to cease doing business with any other person ... With respect to Section 8(b)(4)(u)(A), General Counsel has contended, herein, that Post, Oldham and Schlager, together with other truck owner-operators similarly situated, are "self- employed persons" within the meaning of the statute, and that Respondent Union's course of conduct, considered in totality, clearly reveals its purpose to require that such persons procure Teamsters Union membership. Respondent's counsel has, how- ever, proffered a highly sophisticated suggestion-bottomed presumably, upon a subsidiary contention that these truck- drivers performed their work, subject to Griffith's right of control, within the geographical limits of a single jobsite-that they should be considered "employees" subject to conven- tional hiring hall referral, rather than independent contractors Further, Respondent contends that Post, Oldham and Schlager were never really required to reinstate or procure membership in some Teamsters Union local as a condition precedent for clearances on Griffith's highway project. With respect to Section 8(b)(4)(ii)(B), General Counsel contends that McDonald's demand was reasonably calculated to force or require Griffith to "cease doing business" with Post, Oldham and Schlager as dump truck drivers-temporarily at least- because they lacked current Teamsters Union membership. Respondent Union has traversed this contention, suggesting that-since Post, Oldham and Schlager lacked requisite clear- ances-their temporary debarment was contracturally warran- ted and statutorily privileged. With matters in their present posture, however, these questions-which have been thorough- ly litigated and briefed by counsel-need not be resolved herein BLDG. MATERIAL & DUMP TRUCK DRIVERS 359 CONCLUSIONS OF LAW 1. The Griffith Company is a person within the meaning of Section 2(1) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Building Material and Dump Truck Drivers, Local No. 36, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended. 3. Respondent Union has not-through statements or con- duct chargeable to its business representative-engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(u)(A) or (B) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, my recommendation is that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, dismiss the present complaint in its entirety.