Intl. Un. of Operating Engineers, Loc. No. 18 & 18C

396 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD International Union of Operating Engineers, Local No. 18 and 18C, AFL-CIO and The Wagner-Smith Company. Case 9-CD-131 February 10, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On August 15, 1968, the Employer, The Wagner-Smith Company, filed an amended charge, pursuant to Section 10(k) of the Act, with the Regional Director for Region 9, alleging, in substance, that the Respondent, International "Union of Operating Engineers, Local No. 18 and 18C, AFL-CIO, and its agents, in violation of Section 8(b)(4)(D), threatened and coerced employees of the Employer to engage in a work stoppage at the Employer's electrical transmission tower construction project, also known as Tower No. 1, at the Dayton Power and Light Company's James M. Stuart 'Generating Station, Route 52, Adams County, Ohio, with the object of forcing or requiring the Employer to assign the loading, removal, transportation, and operation of a crane or cranes, telecrane, backhoe, bulldozer, cherrypicker, and endloader to members of the Respondent, International Union of Operating Engineers, Local No. 18 and 18C, AFL-CIO, rather than to members of the Party to the Dispute, International Brotherhood of Electrical Workers, Local 71, AFL-CIO, with whom the Employer has a valid and subsisting contract covering such work.' Thereafter, pursuant to Section 10(k) of the Act and Sections 102.79 and 102.80 of the Board's Rules and Regulations, Series 7, the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to the parties.' A hearing was held before Hearing Officer John R. McGill, between August 14 and September 30, 1968. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Employer, the Operating Engineers, and the Electricians filed briefs, which have been duly considered by the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 'Section 10(k) of the Act provides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(D) of Section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.. " The Notice of Hearing describes the work in dispute as covering only the loading, removal, transportation, and operation of a single crane at the project site. At the hearing, however, the parties stipulated that the work in dispute covers the crane and any other equipment the Board deems to be involved in the erection of Tower No 1 on the project site. 174 NLRB No. 65 National Labor Relations Board has delegated its powers in connection with this , case to a three-member panel. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Employer, an Ohio corporation with principal offices at Dayton, Ohio, is engaged in the construction of high voltage transmission lines for public utilities. The Employer annually performs services valued in excess of $50,000 for such public utilities as Cincinnati Gas & Electric Company, Dayton Power & Light Company, and Columbus & Southern Ohio Electric Company, each of whom annually purchases electricity and other commodities and services valued in excess of $50,000 which are transported to locations within the State of Ohio directly from points outside that State. We find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED We find , in accord with the stipulation of the parties, that the Respondent and the Party to the Dispute are labor organizations as defined in Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The Employer has a prime contract with Dayton Power & Light Company for the construction of a power line, including the erection of transmission towers, from Dayton's James M. Stuart Generating Station in Adams County, Ohio, near Aberdeen, Ohio, to Trebein, in Greene County, Ohio. This work, which covers some 80 miles and involves approximately 432 towers is known as the Greene-Stuart line. The instant work dispute involves solely the erection of Tower No. I on this line, situated approximately 200 feet from a substation in the process of construction, which is near the Stuart generating station. B. The Basic Facts In late November or early December 1967, the Employer moved a Bucyrus Erie 30-B crane onto the parking lot of the Stuart Power Plant, with the intent of moving it to the Tower No. 1 site, for construction thereof, if weather permitted. On or about January 18, 1968, the Employer's and the Respondent's representatives met to consider the Respondent's demand for the assignment of the operation of all equipment to be used by the INTL. UN. OF OPERATING ENGINEERS. LOC. NO. 18 & 18C Employer on and off the construction site of the Stuart Power Plant. The Employer advised the Respondent that this work had been assigned to its employees who were members of the Party to the Dispute, in accord with its traditional practice and its current labor contract with the latter. The Respondent's representative stated that they claimed the work and intended to do it. The meeting, described as amicable, broke up without a resolution of Respondent's demand. From the time of its arrival at the Stuart parking lot in the fall of 1967 until May 1968, the Bucyrus crane remained idle. On May 8, 1968, the Employer sent its mechanic, Dick Bradford, to check it out, preparatory to moving it While working on the crane, Bradford was approached by two of the Respondent's members, one of whom was Herbert Otworth, a chief mechanic for another employer not herein involved; the other individual was not identified. Otworth approached Bradford and told him not to start the Bucyrus crane without a member of the Respondent. Bradford thereupon left the site. On May 10, 1968, 2 days later, the Employer sent a full crew, including nine workmen and one foreman, to prepare the crane for removal from the Stuart Power Plant construction site to a location 8 miles distant on the Greene-Stuart Line. While they were so engaged Otworth and another of the Respondent's members approached the crew and told them they could not operate the equipment without the Respondent's members. Hueston Turner, a business representative of Local 71 of the Party to the Dispute, who was in the crane crew, advised Otworth to call the Respondent's hall for further instructions. Otworth thereupon left the site and did so, but according to his testimony was unable to contact any of the Respondent's representatives at the hall. When he had finished calling, he advised some 50 to 60 employees, including members of the Respondent, the Teamsters, and another local of the Party to the Dispute, as to what he had done, and followed them back to the crane site about a half-hour after he had left it. After an exchange of words between the crane crew and this latter group, which included several individuals wearing the Respondent's decals on their clothing, Otworth swung at Turner, and another of the Respondent's members knocked him unconscious. Following this incident, the crane crew retired from the scene. The crane remained idle until June 14, 1968, when it was moved several miles up the Greene-Stuart line, pursuant to a State Court injunction. Clifford Lee Farwell, a business representative for the Respondent, who was in Cincinnati, Ohio, at the time of the above described incident, visited the jobsite on the following Monday, May 13, to insure the return to work of the men in Otworth's group, who he had heard had walked off the job following the incident. Farwell testified without contradiction 397 that he never advised any member of the Respondent to engage in a work stoppage, mass picketing, or violence. C. Contentions of the Parties The Respondent moves, first, that the instant Notice of Hearing, pursuant to Section 10(k) of the Act, should be quashed, absent evidence that it engaged in unlawful threats and coercion in violation of Section 8(b)(4)(D) of the Act, in support of its demand for the work in dispute. Alternatively, the Respondent contends that, should the Board resolve the work dispute issue on its merits, it should award the work to the Respondent. The Employer and the Party to the Dispute contend that the Board should find reasonable cause to believe that the Respondent was in violation of Section 8(b)(4)(D) of the Act by reason of its allegedly illegal conduct in support of its demand for the disputed work, and that therefore, the Board should determine the work dispute herein be assigning the disputed work to the Party to the Dispute. D. Applicability of the Statute Before the Board may proceed under Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. For Section 10(k) to be applicable in this case, the record must establish reasonable cause to find responsibility of the Respondent for the conduct complained about. We find, for reasons set forth below, that this requirement has not been met. It is clear that at the January 24 meeting, the Respondent made a legal demand for the work in dispute, without threats or coercion; that Otworth was not a steward for the Respondent nor possessed any other indicia of agency status in its behalf;' that the Respondent's representatives were unaware of the work stoppage incident until after its occurrence; and that Farwell, the Respondent's representative, when apprised of the incident, took prompt steps to assure the return of the Respondent's members involved in the dispute back to their jobs. In these circumstances, we do not believe that the record as a whole warrants holding the Respondent responsible therefor. There is no indication that the conduct was instigated or directed by the Respondent or engaged in by agents, officers, or representatives of the Respondent, or that it can be attributed to the Respondent on any theory of 'Turner testified that when Otworth approached him on the jobsite on May 8, he identified himself as the chief steward for the Respondent Otworth and Farwell denied that Otworth was the Respondent's steward. Assuming the truth of Turner's testimony, Otworth's alleged identification of himself as steward is without probative significance as to his representative status, in view of the self-declaratory nature of his statement. Highway Truck Drivers and Helpers , Local 107 (Food Producers Council. Inc ), 126 NLRB 928, 931, fn 2 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ratification thereof. Inasmuch as an element indispensable to our proceeding under Section 10(k) is therefore lacking, we shall grant the Respondent's motion to quash the Notice of Hearing issued in this proceeding.4 'Highway Truck Drivers and Helpers, Local 107 (Food Producers Council, Inc.). supra. In view of our decision herein , it becomes unnecessary to consider the work dispute on its merits ORDER On the basis of the foregoing findings of fact and conclusions of law, and on the entire record in this case, the Board hereby orders that the Notice of Hearing heretofore issued in this proceeding be, and it hereby is, quashed. J