Loc. No. 272, Iron Workers

LOC. NO. 272, IRON WORKERS Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Prestress Erectors, Inc. Cases 12-CC-401, 12-CD-52, 12-CD-79, 12-CD-95, and 12-CD-97 June 25, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On August 8, 1966, Trial Examiner Robert Cohn issued his Decision in Cases 12-CC-401, 12-CD-52, and 12-CD-79, finding that the Respondent, herein also called the Iron Workers, had not engaged in the unfair labor practices al- leged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief and the Respondent filed cross-exceptions and a supporting brief. While these cases (12-CD-52, 12-CD-79, and 12-CC-401) were pending before the National Labor Relations Board, the Charging Party filed additional charges in Cases 12-CD-95 and 12-CD-97. The Board, by Orders dated March 21 and April 14, 1967, respectively, granted the General Counsel's motions to amend the con- solidated complaint to include the allegations of the new charges and remanded the proceedings for further hearing on the allegations set forth in the consolidated complaint, as amended. It further directed the Trial Examiner to prepare and serve on the parties a supplemental decision containing revised or additional findings of fact, conclusions of law, and recommendations, if necessary, based upon any new evidence received. On January 19, 1968, the Trial Examiner issued his Supplemental Decision in the above-entitled proceeding, finding on the entire record that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Supplemental Deci- sion. The Trial Examiner also found that the Respondent had not engaged in certain other al- leged unfair labor practices and recommended dismissal of those allegations of the complaint. Thereafter, the General Counsel and the Respon- ' 152 NLRB 269. 207 dent filed exceptions and supporting briefs and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Trial Examiner 's Decision and Supplemental Deci- sion, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer , with the following additions and modifica- tions. 1. Respondent and the Carpenters ' District Council of Miami, Florida , and Vicinity, AFL-CIO (Carpenters Union), have been in dispute for many years in the South Florida area over the installation of certain precast concrete items used in construc- tion . In 1964 a jurisdictional dispute arose as the result of the Respondent 's demand on Prestress for the assignment of this work . Prestress filed an 8(b)(4)(D) charge in Case 12-CD-52 alleging that Respondent had posted pickets at four different local jobsites where Prestress was installing precast concrete items and that this picketing had as its ob- ject forcing Prestress to assign this work to mem- bers of the Respondent rather than to Prestress' own employees who were represented by the Car- penters Union. Following a hearing held under Sec- tion 10(k) of the Act , the Board, on April 29, 1965, issued its Decision and Determination of Dispute' in which it found that although the picket- ing was ostensibly in protest against alleged sub- standard wages there was reasonable cause to be- lieve that its object was to compel an assignment of the precast installation work , and awarded the disputed work within Dade and Broward Counties, Florida, to the employees represented by the Car- penters Union . Following the Board's Determina- tion, the Respondent by letter dated May 13, 1965, notified the Regional Director for Region 12 that it would abide by the Board 's determination and on June 2 , 1965, the Regional Director approved the withdrawal of the charges in Case 12-CD-52. In October 1965 members of Respondent en- gaged in a work stoppage on the jobsite at the South Campus project at Miami-Dade County Ju- nior College ( South Campus ) when carpenters on the job told them that the precast work had been assigned to the Prestress carpenters . Prestress 172 NLRB No. 19 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereupon filed charges in Cases 12-CD-79 and 12-CC-401 alleging that the Respondent induced its members to engage in the work stoppage with an object of forcing an assignment of the precast concrete installation work to its members in viola- tion of Section 8(b)(4)(i) and (ii)(D) of the Act, and that the Respondent in pursuit of that object had also engaged in conduct violative of Section 8(b)(4)(i) and (ii)(B) of the Act. The Regional Director found merit to the charges, reopened Case 12-CD-52, and issued an order consolidating the cases and a complaint and notice of hearing in the consolidated proceeding. On the charges before him, the Trial Examiner found that the Respondent's conduct at the four projects in 1964 which led to the filing of charges in Case 12-CD-52 was in furtherance of an object proscribed by Section 8(b)(4)(D) of the Act, but, as indicated, he concluded, for reasons hereinafter considered, that the Respondent was not responsi- ble for the work stoppage at the Miami-Dade Coun- ty Junior College South Campus project (South Campus), nor did evidence of an isolated threat to picket the project warrant the issuance of an order.2 The Trial Examiner therefore concluded that the Respondent had not acted inconsistently with its commitment to comply with the Board's Decision and Determination in the 10(k) proceedings and no order was warranted.3 After charges in Cases 12-CD-95 and 12-CD-97 were filed, and after remand, the Trial Examiner found in effect that Respondent had never aban- doned its attempt to secure for its members the work which was the subject of the 10(k) proceed- ing in Case 12-CD-52 and the Board's Determina- tion of Dispute in that case, and that the Respon- dent had violated Section 8(b)(4)(i) and (ii)(D) of the Act by its conduct in picketing the Sunland Training Center project in December with an ob- ject of forcing an assignment of the disputed work of installing precast items to its members. The Trial Examiner also found on the record then before him that the Respondent had exerted pressure on the general contractor, Volpe, a neutral employer, in r The Trial Examiner found Respondent's Business Agent Wells had threatened the general contractor's project superintendent, Shackelford, with picketing at South Campus if Respondent failed to get an assignment of the disputed work. ' Before reaching the substantive issues , the Trial Examiner considered and rejected as without merit procedural objections raised by the Respon- dent which, if sustained, would have barred consideration of the substan- tive issues. In essence , it was the Respondent 's contention that a new I0(k) hearing should have been held in Cases 12-CD-95 and 12-CD-97. It ar- gued that as the National Joint Board for Settlement of Jurisdictional Disputes, in a jurisdictional dispute brought before it , had made an award in favor of the Respondent , circumstances had changed to warrant the Board reexamining the issue We note that neither Prestress nor the general contractors involved herein were party to the proceeding before the Joint Board , and that the Joint Board based its award on a 1923 decision of an effort to force an assignment of the disputed work, and concluded that by such conduct, and by its threats to Shackelford back in October 1965 in pursuit of a similar object, the Respondent had also engaged in conduct violative of Section 8(b)(4)(i) and (ii)(B) of the Act. As to the charges relating to the Triton Towers project, the Trial Examiner con- cluded that the General Counsel had failed to show that the Respondent had induced the walkoff of ironworkers which followed when Prestress carpen- ters proceeded to install the precast items, and therefore recommended dismissal of those allega- tions of the complaint. We agree with the Trial Examiner to the extent that he found on the evidence detailed in his Deci- sion that Respondent's picketing at the four jobsites in 1964, which led to the filing of the charge in Case 12-CD-52, was in furtherance of its object to compel the Employer to assign the precast installa- tion work at the various projects to employees who were members of the Respondent rather than to those who were represented by the Carpenters Union. It follows, in view of his further finding, with which we agree, that the Respondent violated Sec- tion 8(b)(4)(i) and (ii)(D) of the Act by its picket- ing at Sunland , that Respondent did not comply with its commitment to the Regional Director to abide by the Board's Decision and Determination of Dispute, and that the Regional Director was cor- rect in reinstating the charge in Case 12-CD-52. While we also agree that the Respondent had en- gaged in conduct violative of Section 8(b)(4)(i) and (ii)(B) of the Act, we predicate our finding only on the fact, as found by the Trial Examiner, that Business Agent Wells threatened Howland's project superintendent, Shackelford, on the South Campus job in October 1965.4 We reach a different conclusion, however, with respect to the other in- cidents described in the Trial Examiner's original and supplemental decisions. 2. Miami-Dade County Junior College, South Campus: As indicated, the Trial Examiner found that the Respondent was not responsible for the walkoff at the South Campus project and that the record but did not otherwise give any consideration to the relevant factors we normally consider in making our determinations in jurisdictional dispute cases. (See Local 132, International Union of Operating Engineers, AFL-CIO (Pritchard Electric Co., Inc.), 168 NLRB 374.) But apart from such considerations we find no compelling equity in Respondent 's claim to the disputed work so as to justify a reconsideration of the issue. 4 We do not adopt the Trial Examiner's finding of an 8(b )(4)(i) and (ii)(B) violation based on his finding that the Respondent threatened and exerted pressure on secondary employers such as Volpe at the Sunland project for the purpose of having them cease doing business with Prestress. We do so because of the absence of any allegation in the complaint charg- ing the conduct to be in violation of that section of the Act, and because of Respondent's claim that it was for that reason unprepared to litigate that is- sue. LOC. NO. 272, IRON WORKERS 209 allegations of the complaint failed for that reason. We believe, however, that the Trial Examiner did not accord the weight to the General Counsel's evidence that it deserved. It is evident that Respondent, notwithstanding the Board's award of the work to the carpenters and its agreement to comply therewith , had not, despite a temporary period of compliance, aban- doned its claim to the work nor its efforts to secure its at the South Campus project; its business agent threatened Howland's project superintendent, Shackelford, with "labor troubles" if Respondent did not get this work ; Respondent's members em- ployed by Bay Steel Products Company walked off the job when they learned that the Prestress car- penters had been awarded the work; and within a matter of 2 days members of Respondent on one occasion proposed to Superintendent Shackelford that Howland sign a contract which was then ten- dered to him, and on another occasion reiterating their demand that Howland sign a contract with Respondent, warned Howland's vice president, Lit- tle, that the men would not return to work until Howland signed a contract.6 The Trial Examiner was of the opinion that the action taken by Bay Steel's ironworkers was not attributable to Respon- dent even though concerted. However it is incon- ceivable to us in view of the long history of fueding between Respondent and the Carpenters over the assignment of precast installation work that Respondent's members were not aware that it was Respondent's fixed policy to lay claim to the work. Ironworkers had picketed Prestress in 1964 at the University of Miami Student Union Building, the Miami-Dade County Junior College, North Cam- pus, the Pompano Beach Incinerator No. 2, and the Family Finance Building in Dade and Broward Counties, Florida, in what was clearly an effort to force assignment of the work of installing precast items to ironworkers, and, as the record herein also shows, walkoffs and threats of picketing were not uncommonly associated with failure of the Respon- dent to secure the assignment of such work. Thus we believe that, when on October 19, 1965, Bay Steel's ironworkers walked off the job on learning of the assignment of the work of installing precast items to Carpenters, it is more reasonable to infer that they were induced as much by Respondent's known policy of claiming such work and opposing its assignment to other than its own members, as they were by the alleged taunts of the carpenters. Indeed, the circumstances, in which Bay Steel's striking ironworkers presented to Howland for signature copies of Respondent 's contract, emanat- ing from Respondent's business office, which obligated Howland to assign all installation of precast items to Respondent 's members and the comment of another member of Respondent to one of Howland 's officials while making a similar de- mand that they (the ironworkers) would not return to work until Howland signed the contract are more persuasive of an inference that this action was being dictated by Respondent than that it was the voluntary act and initiative of, as the Trial Ex- aminer himself observed, "an uneducated, inarticu- late person such as Beverly Light." We find, con- trary to the Trial Examiner, on these facts and the record as a whole that the General Counsel fully sustained his burden of establishing Respondent's liability for the unlawful conduct of its agents and members. In light of the foregoing, we find that the absence of any direct evidence that any official or agent specifically directed the ironworkers to engage in a work stoppage is not determinative of Respondent's responsibility. Circumstantial as well as direct evidence may be considered by the Board,7 as a realistic analysis of Respondent's conduct is all that is required. If, after such analysis, the Board is per- suaded of Respondent's illegal involvement, it is not foreclosed from finding a violation because of the absence of direct evidence. To contend here that the ironworkers were acting independently in the exercise of their own free will and initiative rather than carrying out Respondent's policy, as clearly and repeatedly shown by the 1964 picketing and other incidents which the Trial Examiner found to be in furtherance of an object proscribed by Sec- tion 8(b)(4)(D), is to overlook the basic and fun- damental realities of industrial life. .Accordingly, we find that on the entire record herein there is sufficient evidence that, despite Respondent's careful avoidance of any overt action in support of the walkoff of October 19, 1965, Respondent actually did direct and/or support its members in the work stoppage in an illegal attempt to compel assignment of the disputed work. As this work stoppage was directed at employers and em- ployees not parties to the dispute between Respon- dent and Prestress, we find that Respondent thereby violated Section 8(b)(4)(i ) and (ii)(B) as well as Section 8(b)(4)(i) and (ii)(D) of the Act. 3. The Triton Towers: The Trial Examiner also found that there was insufficient proof that Respon- Apparently the Joint Board 's award at the VA Hospital led the Respon- dent to undertake to challenge the Board's determination. 4 The contract provided that members of Respondent would perform the precast work throughout the South Florida area, including the counties of Dade and Broward , and that Howland would require its subcontractors to conform to this provision. 'Local 25, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 162 NLRB 703. 354-126 O-LT - 73 - pt. I - 15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent was responsible for the work stoppages at the Trition Towers project on February 1, 1967. We do not agree . The facts here closely parallel those at South Campus. Thus, during the week before the work stoppage occurred the Respondent 's steward, Andy Zakutney, an employee of Bay Steel, protested the assignment of the precast installation to the Carpenters to Howland 's vice president, Robert Little, and at that time told Little that he did not believe that his ironworkers would work on the job where the carpenters were doing work claimed by the ironworkers . When the Prestress carpenters commenced the installation of the precast stairways, several of the Bay Steel 's iron- workers reported to Zakutney that they were sick and walked off the job. Howland's construction su- perintendent, Hill, approached Zakutney about the stoppage; Zakutney merely replied that he could not help it if the men went home sick. They did not return to work until after the Respondent was able to negotiate with Howland to provide that part of the precast installation work would be assigned to the ironworkers. Considered in the light of the Respondent's past unlawful conduct , it is clear that the action taken by Zakutney and the ironworkers was in furtherance of Respondent's policy to insist on the assignment of such work to members of the Respondent. We can no longer find this conduct to be isolated but view it as part of a pattern of unlaw- ful conduct designed to achieve an unlawful object. Accordingly, we find that the work stoppages at the Triton Towers on February 1 and 2, 1967, were caused by the Respondent and that Respondent thereby violated Section 8(b)(4)(i) and (ii)(D) of the Act. 4. While we agree with the Trial Examiner that unfair labor practices found herein indicate that the Respondent's failure, or refusal as we see it, to comply with its commitment to the Regional Director to abide by the Board's Determination of Dispute has pervaded the membership, we nonethe- less do not believe that effectuation of the policies of the Act requires Respondent to read copies of the Board's notice in regularly scheduled meetings of the membership. We think that the Trial Ex- aminer's recommendation, which we adopt, that the Respondent mail copies of our notice to each member will be sufficient to effectuate the Act's policies. Accordingly, we shall delete from the Trial Examiner's Recommended Order the requirement that copies of the notice be read by Respondent to its membership. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order as set forth in the Trial Examiner's Supplemental Decision and Recommended Order and orders that Respondent, Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its officers, agents, and representatives , shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Delete the following party from paragraph 1(b) of the Recommended Order and from the Appen- dix: John A. Volpe Construction Co., Inc. Delete the following from paragraph 2(c) of the Recommended Order: ", by reading such docu- ments in regularly scheduled meetings of the mem- bership, and." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner : This proceeding, heard before me at Miami, Florida, on April 5 through 8 , 1966, involves primarily the question of whether Local Union No. 272, International As- sociation of Bridge , Structural and Ornamental Iron Workers, AFL-CIO (herein the Respondent), vio- lated the so-called "jurisdictional dispute" section of the National Labor Relations Act, as amended (herein called the Act),' by engaging in certain acts and conduct more fully detailed herein. The original charge in Case 12-CD-52 was filed on July 31, 1964, amended August 31, 1964, by Prestress Erectors , Inc. (herein called Prestress or the Employer). This charge alleged, in substance, that Respondent had, since June 30, 1964, illegally pressured employees employed by the Employer, and other individuals, to cease performing services, and threatened, coerced, and restrained certain named employers , with an object of forcing or requiring the employer to assign the work of haul- ing and erecting precast concrete members or panels on construction jobs in the Miami area to ' Section 8(b)(4)(i) and (ii)(D). This section states in relevant part: (b) It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage any individual em- ployed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his em- ployment to use, manufacture , process, transport, or otherwise handle or work on any goods, articles, materials, or commodoties or to per- form any services, or (ii ) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object there of is• (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor or- ganization or in another trade , craft, or class, unless such em- ployer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work. LOC. NO. 272, IRON WORKERS employees who are members of Respondent rather than to employees who are members of the Carpen- ters' District Council of Miami, Florida, and Vicini- ty (herein the Carpenters Union). Shortly thereafter, pursuant to the direction contained in Section 10(k) of the Act,2 the National Labor Rela- tions Board (herein the Board), through the Acting Regional Director for Region 12, issued a notice of hearing for the purpose of taking testimony and resolving the dispute, such hearing being held dur- ing the months of September and October 1964. After a hearing in which all interested parties par- ticipated, the Board, on or about April 29, 1965, is- sued its Decision and Determination of Dispute in that case (152 NLRB 269) in which it found and determined that employees represented by the Car- penters Union rather than those represented by Respondent were entitled to the work in dispute. Thereafter, on or about May 13, 1965, Respon- dent notified the Regional Director for Region 12, in writing, that it would abide by the Board s deter- mination. Accordingly, on June 2, 1965, the Re- gional Director approved the withdrawal of the charges in 12-CD-52. Subsequently, however, in October 1965, mem- bers of Respondent engaged in a work stoppage on a construction project known as the South Campus of Miami-Dade County Junior College, which resulted in the charge in Cases 12-CD-79 and 12-CC-401. This charge claimed, in substance, that by engaging in such conduct the Respondent had again violated Section 8(b)(4)(D) of the Act.3 The Regional Director, finding merit to the charges, withdrew his approval of the withdrawal in Case 12-CD-52, and issued an order consolidating all cases, along with the instant complaint and notice of hearing. At the hearing all parties with the exception of the Carpenters Union were present and represented by counsel, were given full opportunity to present evidence, examine and cross-examine witnesses, to offer oral argument, and to file briefs. Oral argu- ment was waived by all parties. Subsequent to the close of the hearing, helpful briefs were filed with me by counsel for the Employer and the Respon- dent. Upon the entire record in the case,4 including my observation of the demeanor of the witnesses while testifying, and a consideration of the arguments of counsel, I make the following: That section states: 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, un- less, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted , or agreed upon methods for the voluntary adjust- ment of, the dispute . Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed. FINDINGS OF FACT I. THE JURISDICTIONAL FACTS 211 The complaint alleges and the answer admits that the Employer is a Florida corporation with its prin- cipal office in North Miami, Florida, where it is en- gaged in the business of providing crews for the delivery, erection, and installation of precast concrete building material. It normally performs its services as a subcontractor for precast concrete manufacturers. (For purposes of this case, the prin- cipal one is a firm known as Concrete Structures, Inc., of North Miami.) It is alleged herein that dur- ing the 12 months preceding the filing of the charges, the Employer performed services valued in excess of $50,000 for Concrete Structures, Inc., which annually purchases and receives goods, sup- plies, and materials valued in excess of $50,000 directly from locations outside the State of Florida. On this basis, the Board found in the Section 10(k) proceedings "that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein." Since the record in that proceeding becomes part of the record in the instant proceeding ( see Section 102.92 of the Board's Rules and Regulations, Series 8), such finding is probably sufficient and adequate for the purpose of asserting jurisdiction herein. However, since Respondent, in its answer, raises the issue, certain additional findings are made as follows: The complaint alleges, the answer admits, and I find that the following named contractors and sub- contractors were present and performed services at various jobsites involved herein, and were, at all times material, persons engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act: Gust K. Newberg Construction Company, Gulf States Steel Company, International Builders of Florida, Inc., Sheffield Steel Products, Inc., Erectors of Florida, Inc., McDonald Air Condition- ing Company, Eldridge Electric, Inc., Edward M. Fleming Company, Inc., Wylo Steel of Florida, Inc.,5 Otis Elevator Company, Millman Construc- tion Company, Biscayne Metal Fabricators, Frank D. Lapp, Gresham Electric Company, United Sheet Metal Company, Inc., Fred Howland, Inc., Poole & ' The same conduct formed the basis for a later charge in Case 12-CC-401 , filed January 3, 1966. 4 Subsequent to the hearing, counsel for the General Counsel filed with me a motion to correct the record, which was duly served on the other parties. No objections having been filed, the motion is granted. In addition to the corrections therein noted, I make the following additional cor- rections: p. 36,1. 18, change "I" to "you"; p. 85,1. 1, change "Gopman" to "Jeffers"; p. 212, 1. 2, change "you" to "they"; and p. 221, 1 7, change "tangible" to "tangential " ' The complaint was amended at the hearing to reflect the correct spelling of the name of this firm. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kent, Snapp, Inc., Marks Brothers Company, Poston Bridge and Iron Company, and Bay Steel Products Company. The evidence further establishes and I find that the contract between Fred Howland, Inc., and the Dade County Board of Public Instruction for the construction of the Miami-Dade County Junior College addition is valued in excess of $5 million of which Concrete Structures ' subcontract is valued in excess of $300,000, and the Employer's subcon- tract is valued in an amount in excess of $46,000. It is reasonable to assume that a construction project of that magnitude would cause the flow of large quantities of goods across state lines, affecting com- merce.6 On the basis of all the foregoing, I find , as did the Board in the 10(k) proceeding, that the Employer is engaged in commerce within the meaning of Sec- tions 2(6) and (7) and 8(b)(4) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that the Respondent and the Carpenters Union are labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Summarizing the Board 's findings in the 10(k) proceeding for the purpose of giving context and meaning to the issues in the instant case, the Iron Workers Union and the Carpenters Union have been in dispute for many years concerning the as- signment of work involving the installation of precast' concrete. The Board found specifically that: "In the late 1950's and 1960 's representatives of the Iron Workers and Carpenters attempted on several occasions to reach an agreement on precast installation work in southern Florida. But no lasting settlement has ever been consummated." Ac- cordingly , the two Unions have "continued to press their competing claims in Southern Florida to the present time." The Board further found that the Employer com- menced operations in early 1961 and at first as- signed the job of erecting precast material to em- ployees represented by the Respondent . However, in 1963, the Employer commenced hiring em- ployees represented by the Carpenters Union exclu- sively for such work- and during that year signed an agreement with such Union recognizing it as the exclusive bargaining representative of carpenters • Sheet Metal Workers International Association, Local 299 (S M. Kisner and Sons), 131 NLRB 1196, 1199. ' "Precast" is a broad term denoting any concrete item cast at a place other than its final position in the building structure With particular appli- cation to the instant matter, the record shows that Concrete Structures, engaged in the work of the Employer , and stipulat- ing that "the work of erecting , rigging and/or weld- ing on the site of any construction job of any precast shape used or handled by the Employer shall be assigned to qualified carpenters." B. The 1964 disputes As detailed by the Board in its Decision in the 10(k) proceeding there were four instances of picketing by the Respondent at jobsites in the Dade-Broward County area during the summer of 1964 involving the Employer. These four jobs were the University of Miami Student Union Building, the Miami-Dade County Junior College, North Campus,8 Pompano Beach Incinerator No. 2, and the Family Finance Building. Incinerator No. 2 is located in Broward County, the other three jobs are in Dade County. The record shows that in each in- stance Respondent commenced picketing at the respective jobsite very shortly after the Employer's carpenters began installation and erection of precast concrete, and that as a result employees who were members of Respondent and who worked for other employers on the job, as well as em- ployees of other contractors and subcontractors, walked off their jobs. The picketing at each construction site lasted for varying amounts of time, and in each case the legend on the picket signs read: "Pretress Erectors pays substandard wages to employees. Iron Wor- kers Local 272." The Board found in the prior proceeding that by engaging in the picketing hereinabove described, "there is reasonable cause to believe the Iron Work- ers was engaging in conduct violative of Section 8(b)(4)(D) . . ." I am convinced and therefore find that there is substantial evidence in the record herein to conclude that an object of Respondent's picketing at the four jobsites in 1964 was in furtherance of its purpose to compel the Employer to assign the precast installation work at the various projects to employees who were members of Respondent rather than to those who were mem- bers of the Carpenters Union. Thus, shortly after picketing commenced on the University of Miami ,lobsite about July 1, 1964, a meeting was arranged among representatives of the general contractor, the Employer, and the International representatives of the interested unions (the Ironworkers, Carpen- ters, and Brick Masons ) to discuss the dispute. Although there were three such meetings, the representative of the Carpenters Union did not ap- pear until the last one. It is clear that at these meetings the representatives of Respondent claimed that the erection of the precast material belonged to its members rather than members of Inc., normally manufactured the precast items and subcontracted the haul- ing, erection , and installation of such items to the Employer ' To be distinguished from the South Campus job which was involved in the 1965 work stoppage , described in more detail, infra. LOC. NO. 272, IRON WORKERS the Carpenters Union and that, indeed, at the last meeting when the representative of the Carpenters Union did appear, Respondent's representative, Walsh, accused him of reneging on an agreement of a year ago that the work "should be the Iron Wor- kers'." Further evidence as to the object of the picketing was furnished by the undenied testimony of the general contractor on the Pompano Beach In- cinerator job who testified that, after the Respon- dent's picketing commenced at that jobsite, he in- terrogated the Respondent's assistant business agent as to the purpose thereof. The response was that the picketing was the general contractor 's fault because it allowed the employer to do the work that was "awarded" to the Respondent. Respondent contended that the purpose of the picketing was to advise the public of the substan- dard wages being paid the employees performing the disputed work, as evidenced by the legend on the picket signs.9 However, there is absolutely no evidence in the record respecting any conversation between representatives of Respondent and representatives of any of the general contractors or subcontractors or the Employer regarding wage rates. Rather all of the conversations were con- cerned with who was to perform the work consider- ing such factors as area practice, tradition, qualifi- cations, etc. Accordingly, and in the light of the timing of the picketing, the conversations hereinabove adverted to respecting the object of the picketing, and the absence of any substantial evidence to support the contention that the purpose of the picketing was to protest substandard wages, I find and conclude that the picketing on the four projects in 1964 was in furtherance of an object proscribed by Section 8(b)(4)(D).19 C. Events in 1965 1. The Board's Decision and Determination of Dispute , and Respondent's compliance therewith As stated above, the hearing in the 10(k) proceedings commenced in September and ended in October 1964. There was an apparent agreement that from that time until the Board reached its deci- sion, Respondent would not engage in any picket- ing in furtherance of its dispute with the Carpenters relative to the matter of the erection and installa- tion of precast materials . As previously noted, the Board on or about April 29, 1965,11 rendered its Decision and Determination of Dispute, finding, inter alia, as follows: ' The record shows that the carpenters performing the disputed work were, in fact, paid substantially less than the prevailing wage being paid ironworkers. 'gin making this finding I have also taken into consideration the admis- sion against interest made by counsel for Respondent at the hearing in Case 12-CD-42, at pp. 1494-95 of the transcript of that proceeding , in a col- loquy with counsel for the Carpenters Union as follows: Mr Kaplan (counsel for Carpenters ): Then you are saying that the 213 1. Employees of Prestress Erectors, Inc., currently represented by the Carpenters' Dis- trict Council of Miami, Florida and Vicinity, AFL-CIO, are entitled to perform the follow- ing work: Erecting and installing all precast concrete items performed by Prestress Erectors, Inc., in its building construction work within Dade and Broward Counties, Florida. 2. Local Union No. 227, International As- sociation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the above work to ironworkers who are represented by it. It is alleged in the instant complaint , admitted by answer, and I find that on May 13, 1965, Respon- dent notified the Regional Director for Region 12 of the Board, in writing, that it would abide by the Board's Decision and Determination of Dispute hereinabove set forth, and thereafter, on June 2, the Regional Director approved the withdrawal of the charges in Case 12-CD-52. 2. The issues The remaining issues in this case are: (1) whether a work stoppage engaged in by members of Respondent in October at the Miami-Dade Junior College, South Campus, jobsite was the responsi- bility of Respondent; and (2) if so, was such stop- page in furtherance of an object proscribed by Sec- tion 8(b)(4)(D), and therefore inconsistent with Respondent's commitment to the Regional Director. 3. The facts leading up to the walkout On July 23 Fred Howland, Inc. (herein called Howland), a general contractor in the Miami area, was awarded a contract by the Dade County Board of Public Instruction to build five edifices at the Miami-Dade Junior College, South Campus. On July 26 Howland notified Concrete Structures, Inc., of its intention to award the latter a subcontract covering the furnishing and installation of certain precast concrete materials.12 On July 28 Concrete Structures, Inc., advised the Employer by letter that inasmuch as it had received a letter of intent from Howland, it was its (Concrete Structures) intention to enter into a contract with the Employer utilizing the latter to perform the hauling and erection of all precast wall panels and loggia units in the specifica- picketing [at the Dade County Junior College site] was only for the purpose of forcing an assignment of that material? Mr. Gopman (counsel for the Iron Workers ): That is correct. " All dates hereinafter refer to the year 1965 unless otherwise indicated 's The actual contract between Howland and Concrete Structures, Inc., detailing the above-stated agreement was not actually signed until December 13, but was predated July 23. It was explained that the delay was caused, in part, by one of the parties losing some of the original papers. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. Howland commenced actual construction on this project in August. Henry Shackelford, a superintendent on the job for Howland, credibly testified that he first met Kenton Wells, business agent for the Respondent, on the jobsite around September 1. At that time there was only a matter of introduction, and no conversation was had concerning precast work. However, around the middle of September he had a second conversation with Wells in which the erection of precast paneling was mentioned. This developed in connection with the construction of a Veterans Administration Hospital in the Miami area. Wells advised that there had been a fight over who was to get that work, and that he (Wells) had gone through a lot of effort in an attempt to secure the work for his members and that he hoped he would be successful." A third conversation was had between Shackel- ford and Wells on the jobsite about October 1. On that occasion, Wells advised that the Iron Workers had received an award from the National Joint Board for Settlement of Jurisdictional Disputes (hereinafter called the Joint Board) to perform the work of erecting precast concrete wall panels at the Veterans Administration Hospital, and showed Shackelford a copy of the award."' According to Shackelford, Wells advised that Howland would have the same dispute on that job and that Wells wanted the precast work. Shackelford explained that Howland was a reputable union contractor and would abide by any legal agreement that the Union was able to obtain, and would also have any of its subcontractors abide by any such agreement. Wells asked who had been awarded the precast work on this job and Shackelford replied that all he had was a file folder with "Concrete Structures" on it. He advised Wells that as far as he knew Concrete Structures had been awarded the work, but that he (Shackelford) did not have an executed copy of the contract. Wells replied that an unnamed contractor always performed the erection of these panels and that such contractor only used carpenters.ts Shackelford further testified that during this con- " Neither Howland nor the Employer were participants , as far as the record shows, in the Veterans Hospital job, although Concrete Structures, In, apparently furnished the precast concrete. " See G C. Exh. 6. " Shackelford's testimony at this point was quite cryptic. A reasonable inference from the testimony is that Wells , upon being advised that Concrete Structures , Inc , had been awarded the precast work , commented that that firm always used the Employer to perform the erection work and that the Employer only used Carpenters and never used Iron Workers in carrying out this function. The evidence shows that in most instances Concrete Structures did subcontract the hauling and erection of precast items to the Employer, but not always. 14 The foregoing findings are based upon the credited testimony of Shackelford who impressed me as being a candid and forthright witness Wells testified that he saw Shackelford on two occasions at the jobsite prior to October 19. He testified that on each occasion he carried with him a proposed contract (which is a form consisting of two pages-see G.C. Exh. 5) which, in essence, binds the signatory employer to award the erection of precast concrete items to the Iron Workers Union . When he first asked Shadelford to execute the contract, the latter replied that Howland would abide by all Joint Board rulings. Wells said that he left the jobsite but came back later in the day and brought the decision on the Veterans Hospital and versation he was informed that if the Iron Workers did not get the award of the precast work on his job, that there would probably be union difficulties such as a picket line.16 4. The work stoppage On Tuesday, October 19, a work stoppage occurred at the Howland jobsite involving ap- proximately 11 ironworkers then employed by Bay Steel Products Company who had at that time, as previously noted, commenced work on the project. Beverly Light, a Bay Steel employee (and brother to job steward, Gordon Light), testified that when he arrived at work on that day at approximately 7:15 a.m., the carpenters on the job employed by Howland were "riding," taunting, and harassing the ironworkers claiming that they (the carpenters) had secured the contract to perform the erection of the precast wall paneling. Light testified that this conduct on the part of the carpen- ters continued until all of the ironworkers em- ployed by Bay Steel left the project. None of the ironworkers worked that day although there was work scheduled for them to perform. Sam Rogers , an official of Bay Steel Products Company, testified that he arrived at the jobsite about 7:50 a.m. and did not find any of his em- ployees working although there were supposed to be about 11 on the job. Rogers attempted to con- tact Kenton Wells, the business agent of Respon- dent, by telephone at the union hall, but was unable to do so. He further testified that he left word to have Mr. Wells contact him but that Wells did not call him that day. Shackelford testified that he arrived at the jobsite about 8 o'clock and was informed that no ironwor- kers were on the job. However, shortly thereafter, as Shackelford started toward his office, a car ap- proached containing one Joe Heilrigel, the iron- workers "pusher" (foreman for Bay Steel Products Company), who handed Shackelford a blank copy of the proposed contract (G.C. Exh. 5).17 Attached to the contract, according to the testimony of showed it to Shackelford He thought he left his card on the contract which he left with Shackelford On a second occasion when Wells visited Shackelford he asked him to sign the contract again and the latter said that he would "take care of it," and Wells thought that he would not have any problems in getting him to sign it because Shackelford seemed very willing Wells further testified that on both occasions when he went to the jobsite and spoke with Shackelford, Gordon Light, job steward for Bay Steel Products Company (who was al- ready working at the jobsite at that time since they were a subcontractor responsible for the erection of structural steel ), accompanied him. Light, who was present at the hearing on at least one occasion , was not called as a witness by Respondent even though there were conflicts in the testimony as between Shackelford and Wells. ( Shackelford did not testify that anyone accompanied Wells at the time of his conversations with Wells ) Wells was not impressive as a witness, being quite vague, indefinite, and hesitant in his answers to many questions, and, considering his demeanor and the failure to call Light as a corroborating witness , I credit Shackelford in his testimony to the extent that it varies from that of Wells. 17 This was identified as the same blank proposed contract form which Wells testified that he handed Shackelford in earlier meetings (see fn. 16, supra.) LOC. NO. 272, IRON WORKERS 215 Shackelford, was the business card of Kenneth Wells.t9 On Wednesday, October 20, about 8:30 a.m., 2 employees of Bay Steel Products Company who were members of Respondent and participated in the work stoppage came to the jobsite . They were Beverly Light, a brother of job steward Gordon Light, and one Meadows. They approached Su- perintendent Shackelford and Sam Rogers, an offi- cial of Bay Seel, outside of the General Contrac- tor's field office and presented Shackelford with a proposed contract, an exact replica of the docu- ment which Shackelford testified Heilrigel gave him the previous day. Shackelford said that he could not do anything about it, so the group went down to the coffee stand to converse with Mr. Robert Little, an executive officer of Howland. Light proffered the contract to Little and stated that if it was signed the men would come back to work but that they would not do so until that time. Little responded that Howland did not negotiate with the Iron Work- ers directly but carried on their labor negotiations through the Associated General Contractors. 19 Little testified that he had made previous ar- rangements to meet with Rogers , Kenton Wells, and Shackelford at the ,jobsite on Wednesday morn- ing but that the meeting was already in progress when he arrived. He asked where Mr. Wells was, since he had been told that he would be at the meeting, but Beverly Light said that Wells could not make it and sent him (Light) instead. Little further testified that during the conversation he asked Light if he (Little) could talk to Wells to which the latter said if he (Little) had any question to call him-that his card was on the contract. I do not credit Little's testimony on these aspects of the conversation for several reasons: (1) There was no testimony by any of the other participants that the meeting had been prearranged. (2) There was no testimony by any of the other participants that Wells' name was mentioned in the conversation. (3) The testimony is contradictory to that of Shackelford (a witness for General Counsel whom I have credited) who testified that Kenton Wells' card had been attached to the contract which had been proffered him the previous day by Heilrigel, and no other participant in the Wednesday conver- sation testified that Wells' card was attached to the contract which Beverly Light proffered. (4) Little did not testify as to who advised him that Wells would be present at the meeting and it is difficult to comprehend upon what basis Little testified, since both Shackelford and Rogers stated that they had attempted to reach Wells on several occasions during the previous day and had been unable to do so; indeed, Little himself testified that he telephoned Wells several times on Tuesday and Wednesday but was unable to contact him. In sum, Little's testimony, to the extent that it varies from that of the other participants to the discussion, is not credited. Wells testified that he had been in Fort Lau- derdale, Florida, on Tuesday, October 19, and in Key West, Florida, on Wednesday, October 20, returning home late Wednesday afternoon. It was at that time that he first learned of the work stoppage by talking with Sam Rogers of Bay Steel Products Company and Gordon Light, the job steward, although he did not recall to whom he talked first. Rogers testified that Wells returned his telephone call late Wednesday afternoon and Rogers asked when the men would return to work; Wells responded that he would "see if he couldn't put the men back on the job the next morning." According to Rogers, there was no discussion as to why the men were off the job, but rather when they could be expected to return to work. Wells testified that he talked to job steward Gordon Light on Wed- nesday night and on the following day he (Wells) went to the homes of the employees in an effort to get them to return to work. Apparently, all the em- ployees who had participated in the walkout returned to work by Friday morning. On Friday, Rogers had a conversation with Wells at the jobsite . The discussion centered around whether all the men were back in their positions and whether there was a possibility that the stop- page would reoccur. According to Rogers, Wells said no, that he ". . . [did not] think this thing will happen again." The question of the reason for the work stoppage was not discussed in that conversa- tion either. D. Analysis and Concluding Findings 1. The procedural issues At the threshold, the Respondent raises two procedural questions which it contends, if answered in its favor, would bar the instant proceedings. They may be stated as follows: (a) The Regional Director lacked the authority to reopen Case 12-CD-52 after the Respondent 19 An objection to the testimony of Shackelford as to what Heilrigel stated as be handed Shackelford the proposed contract was sustained by the Trial Examiner on the grounds of hearsay, it not being shown that Heil- ngel was an agent or official of Respondent who was in any way authorized to bind Respondent respecting the subject matter at issue As above noted, Heilrigel was merely a member of Respondent who also happened to be a foreman for the Bay Steel Products Company . He was not called as a wit- ness by either party although not shown to be unavailable 19 The foregoing finding is based upon the testimony of Light, Shackel- ford, Rogers, and Little which is, to the extent set forth, essentially mu- tually corroborative. Rogers testified , in addition, that he asked Beverly why his brother Gordon had not brought out the contract to which Beverly replied that "I am bringing it out for him. He asked me to deliver it for him." None of the other persons present were interrogated as to that par- ticular aspect of the conversation . However, Beverly Light testified that the contract was given him by Heilrigel-not by Gordon Light-to be delivered by Shackelford Under all the circumstances , and in view of my ultimate disposition of the issue , I do not deem it necessary to resolve this particular credibility point since even if Rogers is credited my decision would be the same. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had agreed in writing to comply with the Board's Decision and Determination of Dispute, and the Charging Party withdrew its charges which the Re- gional Director approved; and (b) The Regional Director had no authority to issue a complaint on the new charges since no Sec- tion 10(k) proceeding had been held on these charges. I find these contentions to be without merit. The essence of Respondent's argument is that since the statutory language requires that the charge be dismissed upon compliance by the parties to the dispute with the decision of the Board, the Regional Director lacked authority to reinstitute it in the event of subsequent noncompliance. There is authority to the effect that once a charge is effectively withdrawn, it cannot serve to support allegations in a complaint referring to events occurring more than 6 months before the fil- ing of a second charge.20 On the other hand, to ac- cept Respondent's contention could lead to an en- tirely absurd and incongruous result. For example, a Respondent Union could on one day agree to comply with a 10(k) determination resulting in a dismissal of charges and then the next day go out and engage in the same conduct. This would, under Respondent's theory, necessitate the filing of a new charge , a new 10(k) hearing, and a new 8(b)(4)(D) proceeding, on a continuous merry- go-round. Certainly, Congress intended no such result. Accordinly , at the hearing, I, in denying Respondents motion, analogized the situation to that where a Respondent enters into an informal settlement agreement with a Regional Director in which, in return for the latter 's not proceeding to formal litigation , Respondent agrees to cease and desist from engaging in certain conduct. Should the Respondent continue its illegal conduct, there is no doubt that the Regional Director could withdraw his approval of the settlement agreement and proceed as he would have done had Respondent not made its commitment. Respondent argues that the instant situation is different because the dismissal is directed by statute and is not by agreement. But this appears to be a difference without a distinction since the basic point which distinguishes the instant case from the cited ones is that here the Respondent made a com- mitment which induced the dismissal (or withdrawal) as in a settlement agreement, whereas there the cases were dismissed after investigation or voluntarily withdrawn by the Charging Party without intervention of the Respondent. I likewise disagree with Respondent that the Re- gional Director possessed no authority to proceed to complaint on the new charge (Case 12-CD-79) without having a new 10(k) proceeding. Since it "See, e g, Square D Company, 105 NLRB 253, 254; Olin Industries, Inc., 97 NLRB 130, N.L R.B. v. Silver Bakery Inc., 351 F.2d 37 (C.A 1, 1965), N.L.R.B v Electric Furnace Company, 327 F.2d 373 (C.A. 6, was alleged that the conduct of Respondent in Oc- tober 1965 was a continuation of its previous con- duct relative to its dispute with the Carpenters Union concerning the erection of precast materials, and there was no indication that an agreed-upon method of voluntary adjustment had been success- ful in resolving the matter, the Regional Director was clearly authorized to proceed to complaint without noticing a new 10(k) proceeding in which the same issue would be litigated. Electrical Workers Local 26, IBEW (McCloskey & Co.), 147 NLRB 1498, 1501-02. 2. Responsibility of Respondent for the work stoppage of October 19 Shortly after the basic Act was amended in 1947 the Board in International Longshoremen's, etc., Union (Sunset Line and Twine Company )21 discussed and set forth fundamental principles respecting responsibility of respondent unions for the conduct of their officers and members in view of the Act's amendment changing the law of agen- cy. The Board recognized that the amendment pro- vided a "clear statutory mandate to apply the 'ordi- nary law of agency' rather than the more stringent rule which had previously applied which exempted [labor] organizations `from liability for illegal acts committed in labor disputes unless proof of actual instigation , participation, or ratification can be shown.' "22 In Sunset Line and Twine the Board set forth the three following fundamental rules of the law of agency which would control decisions on the issues of responsibility respecting labor organizations in this kind of case: (1) The burden of proof is on the party as- serting an agency relationship, both as to the existence of the relationship and as to the na- ture and extent of the agent s authority. In this case the burden rests on the General Coun- sel to prove that the acts committed during the walkout were committed by agents of the Re- spondent acting in their representative capacity. (2) Agency is a contractual relationship, deriving from the mutual consent of principal and agent that the agent shall act for the prin- cipal. But the principal 's consent, technically called authorization or ratification, may be manifested by conduct, sometimes even pas- sive acquiesence as well as by words. Authority to act as agent in a given manner will be im- plied whenever the conduct of the principal is such as to show that he actually intended to confer that authority. (3) A principal may be responsible for the act of his agent within the scope of the agent's general authority, or the `scope of his employ- 1964) R1 79 NLRB 1487 22 Id at 1507-09. LOC. NO. 272, IRON WORKERS 217 ment' if the agent is a servant , even though the principal has not specifically authorized or in- deed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted. Applying the foregoing principles to the case at bar, I find that the General Counsel failed to sustain his burden of proof that the walkout of October 19 was in any manner authorized , instigated, or in- duced by persons who were agents of the Respon- dent. Stipulations in the record attest to the fact that two of Respondent's officials, Business Agent Kenton Wells and his assistant, Raymond Cramer, are agents of Respondent, and I would find that they possessed the requisite authority to call the work stoppage . However, there is not the proverbi- al scintilla of evidence that either of these gent- lemen were present or otherwise engaged in con- duct at the time which could be said to have per- suaded the employees to walk off their jobs. The Board has in the past, based upon the record in some cases'23 found job stewards to possess authority sufficient to bind the Union for their con- duct in those situations. I do not believe the record herein would support a finding that Job Steward Gordon Light had authority on the part of the Respondent to either instigate the stoppage or to make proposals which, if accepted, would bind Respondent to call off the stoppage. But even if it be assumed that Gordon Light possessed such authority, the only evidence in the record that he participated is the hearsay testimony of Rogers that Beverly Light stated during the conversation on Wednesday morning that his brother, Gordon Light, sent him out to the jobsite with a copy of the contract. Beverly Light, while not specifically deny- ing this remark, testified that Heilrigel was the per- son who suggested that he take the contract out to the jobsite. Moreover, Beverly Light testified that prior to the walkout, Gordon had come over and "told us that Mr. Shackelford said they would abide by the ruling of the Joint Board." This would seem to imply that Gordon was attempting to hold the workers on the job rather then encourage a walk- out. Under all the circumstances, I find the evidence insufficient to conclude that the Union's responsibility for the work stoppage rested in any part upon the conduct of Gordon Light. Finally, there is certainly no evidence that Beverly Light, a mere union member , was given any authority by any responsible agent of Respondent to act on its behalf in the matter, nor was he a serv- ant of Respondent who might be said to be acting within the "scope of his employment." There is no gainsayin* the fact that some of the circumstances surrounding the walkout cast long shadows upon the Respondent's contention that it was entirely free of Respondent's direction and control: (1) It occurred subsequent to Wells' at- tempt to secure an assignment of the work from Howland; (2) Wells was rather conveniently out of town and presumably out of contact with his home or office during the first 2 days of the walkout; (3) Wells' personal card was attached to a proposed contract submitted by a member of Respondent to Howland; 24 and (4) it seems unusual that an unedu- cated, inarticulate person such as Beverly Light would assume the initiative of presenting a contract proposal unless there were some direction from responsible agents of the Respondent. But the burden of proving the violation rests, of course, on the General Counsel, and not upon Respondent to disprove it. The foregoing circum- stances, while suspicious, do not measure up to the requisite proof, in my opinion, particularly when considered along with the following counterveiling factors: (1) It is to be recalled that the walkout oc- curred on a Tuesday-in the middle of the week. There is absolutely no evidence that the walkout was planned or that it was other than a spontaneous reaction by the ironworkers to the taunting of the carpenters as testified to by Beverly Light. (2) This walkout occurred long before the Employer was scheduled to commence its operations on the jobsite, such operations not actually commencing until after the first of the year 1966. This was totally unlike the pattern which existed respecting the picketing engaged in by Respondent in 1964 which always occurred almost immediately after the Employer commenced its operations on the respective jobsites. (3) Even though the Employer testified that he had some 300 to 400 jobs involving the erection of prestressed and precast materials after the Board's hearing in the 10(k) proceeding until the October work stoppage, there was no evidence that the Respondent had engaged in picketing or pressure on the Employer elsewhere, or otherwise acted inconsistent with its commit- ment to the Regional Director. In short, there is no pattern to the activity here upon which an in- ference of control and direction by Respondent can be based. (4) It is significant that after Rogers did communicate with Wells and notified him of the walkoff, Wells immediately commenced activities designed to persuade the employees to return to work, and did in fact succeed within a matter of 1 day in returning all the employees to work. Clearly the foregoing factors are inconsistent with the theory that the Union, by subterfuge, in- stigated and encouraged the employees to engage in a work stoppage. Accordingly, as previously noted, I find that the General Counsel has failed to sustain his burden of proving Respondent's respon- sibility for this walkout.25 29 Cf. Local 637, IBT (Southwestern Motor Transport, Inc), 115 NLRB 981, 986; Truck Drivers and Helpers Local 728, Teamsters (Genuine Parts Company), 119 NLRB 399, 416. 24 However, the record shows that Wells was a local politician who might be expected to pass out such a card among the populace , and otherwise make them available to his friends. 45 N.L R B. v. P. R. Mallory & Co., Inc., 237 F.2d 437 (C.A. 7, 1956); ILGWU v. N.L.R.B., 237 F.2d 545 (C A.D.C., 1956). 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Union was not responsible for the work stoppage in October, there is only one bit of evidence that the Union, since the Board's determination on April 29, and the Union's agree- ment to comply with it on May 13, engaged in con- duct proscribed by Section 8(b)(4)(D) of the Act. That is the alleged threat made by Wells to Shackelford around the first of October to the ef- fect that if the Iron Workers did not get the award of the precast materials on the job, Howland would probably have union difficulties such as a picket line. While I have credited Shackleford and dis- credited Wells' denial of the statement, I do not be- lieve that it would effectuate the policies of the Act to recommend an order based upon this one iso- lated instance .26 In so concluding, I deem it signifi- cant that Shackleford did not apparently consider the alleged threat to be serious . He passed it off, as he testified, "I get threats every day in this busi- ness." Having determined that there is insufficient evidence to show that the Respondent has acted in- consistent with its commitment to comply with the decision and determination of the Board in the 10(k) proceeding, I conclude that an order in this case is not warranted and will recommend that the complaint in its entirety be dismissed.27 CONCLUSIONS OF LAW 1. Prestress Erectors, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. 2. Local Union No. 272, International Associa- tion of Bridge , Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. " As previously noted, it is to be recalled that the Employer testified that he had engaged in several hundred jobs during the period between October 1964 and October 1965 , and there is no evidence that any similar conduct was engaged in by Respondent in any of these other situations . There is an intimation in the record that Respondent picketed a jobsite in Hollywood, Florida, subsequent to October 1965, where the Employer was performing work. However, it was not shown that such picketing was directed against the Employer, it being conceded by the Employer 's president that the name of the Employer was not on the picket sign legend as had been the case dur- ing the 1964 picketing. " In view of this Decision , I do not reach Respondent 's other defenses ar- gued in its brief. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner : On August 8, 1966, I issued an initial decision in this proceeding in which I recommended dismissal of the con- solidated complaint. The findings in that decision may be briefly summarized as follows: The original charge in Case 12-CD-52 was filed on July 31 , 1964, by Prestess Erectors , Inc. (herein called Prestress or the Employer), alleging that Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO ( herein called the Respondent ), had vio- lated Section 8(b)(4)(D ) of the National Labor Relations Act, as amended (herein called the Act), by engaging in picketing and work stoppages at various construction projects in Dade and Broward Counties , Florida, with an object of pressuring Prestress to assign the work of hauling and erecting certain precast concrete items to members of Respondent rather than to its employees who are currently members of the Carpenters' District Council of Miami, Florida and Vicinity, AFL-CIO (herein the Carpenters ' Union ). Pursuant to Sec- tion 10(k) of the Act, a hearing before a hearing officer of the Board was held , and the Board issued its Decision and Determination of Dispute on April 29, 1965 ( 152 NLRB 269), in which it was found that employees of Prestress currently represented by the Carpenters' Union are entitled to perform the following work: Erecting and installing all precast concrete items performed by Prestress Erectors , Inc., in its building construction work within Dade and Broward Counties, Florida.' Following this Determination of the Board, the Respondent, on May 13, 1965 , notified the Re- sional Director for Region 12 of the Board , in writ- ing, that it would abide by the Board 's Decision and Determination of Dispute, hereinabove set forth, and thereafter, on June 2, 1965, the Regional Director approved the withdrawal of the charges in Case 12-CD-52. Subsequently, however, Prestress filed additional charges (Cases 12-CD-79 and 12-CC-401) in which it was alleged that Respondent engaged in conduct inconsistent with its pledge of May 13, by engaging in a work stoppage at a construction pro- ject in Dade County in October 1965, with objects proscribed by Section 8(b)(4)(D) and (B) of the Act. Whereupon, the Regional Director, after an investigation in which he found merit in the latter charges, withdrew his previous approval of the withdrawal of the charge in 12-CD-52, con- solidated it with the subsequent charges , and issued a consolidated complaint grounded on all of them. Following a hearing on that complaint , I found, in substance, that the evidence sustained the charges of objectionable conduct which occurred prior to the Board's Determination of Dispute ; however, I also found that the General Counsel had not ' The Board further found that Respondent " . . . is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the above work to ironworkers who are represented by it." LOC. NO. 272, IRON WORKERS 219 sustained his burden of proving that the work stop- page which occurred in October 1965, was charge- able to Respondent and, therefore, that it could not be held that the Respondent had acted incon- sistently with its commitment to the Regional Director that Respondent would comply with the Board's Determination. I therefore recommended dismissal of the complaint.2 Subsequently, the General Counsel filed excep- tions to my Decision and the Respondent filed cross-exceptions. While the case was pending be- fore the Board, Prestress, on December 9, 1966, and February 2, 1967, filed additional charges (Cases 12-CD-95 and 97) alleging that the Respondent, by certain acts and conduct, had again violated Section (8)(b)(4)(D) of the Act. Whereu- pon, the General Counsel, acting through the Re- gional Director for Region 12, finding merit to the charges, moved the Board to reopen the record, to amend the consolidated complaint to allege as violative of Section 8(b)(4)(D) the acts and con- duct averred in the new charges, and to remand the said cases for further hearing before me. The Respondent objected to the General Counsel's mo- tion. The Board, by Order dated March 21, 1967, as supplemented by Order dated April 14: (1) Granted the motion of the General Counsel, as amended, (2) amended the consolidated complaint to include the allegations grounded on the new charges, and (3) remanded the proceedings for further hearing to be held before me on the allega- tions set forth in the consolidated complaint, as amended. The Board further ordered me, upon conclusion of such hearing, to prepare and serve on the parties "a supplemental decision containing revised or additional, findings of fact, conclusions of law, and recommendations, if necessary, based on any new evidence received." After several prehearing continuances, granted at the request of the parties, a hearing was held, pur- suant to the said Order of the Board, at Miami, Florida, on September 6 and 7 at which the General Counsel and the Respondent appeared and were represented by Counsel.3 All parties were af- forded full opportunity to participate in the hearing and to present evidence. At the close of General Counsel's case-in-chief, Respondent moved to dismiss, upon which motion I reserved ruling, and will dispose of same in this Decision. The parties waived oral argument, but subsequently filed posthearing briefs which had been carefully con- sidered. Upon the entire record in the case,' and from my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS5 THE PROCEDURAL ISSUES At the outset, the Respondent raises several procedural issues which it is necessary to resolve before reaching the merits: 1. Respondent contends that the Board acted wrongfully and not consonant with the provisions of Section 10(k) of the Act in refusing to allow the Charging Party to withdraw all of its charges after the Charging Party had reached an agreement with the Respondent Union, which agreement was not inconsistent with the Board's Determination of Dispute. The record shows that subsequent to the Board's remand order of March 21, 1967, as amended, April 14, 1967, the Charging Party filed a motion to permit withdrawal of charges in which it was asserted, in substance, that after the filing of the latest charges herein, the Charging Party and the Respondent reached a basic understanding re- garding settlement of their dispute and therefore the Charging Party did not believe that it would serve the purposes of justice nor the best interest of all persons concerned to continue to litigate these matters, and prayed for leave to withdraw the charges and to avoid further litigation.' Such mo- tion was opposed by both the General Counsel and the Carpenters' Union, and by Order dated May 23, 1967, the Board denied the motion of the Charging Party.' When Respondent sought to adduce evidence on this issue at the hearing, I sustained the General Counsel's objection thereto on the ground that this was an issue upon which the Board had ruled and I was bound thereby.8 ' I did find that, on one occasion , an agent of Respondent had unlawfully threatened a representative of a general contractor. However , I concluded that this one instance of objectionable conduct was isolated and did not warrant the issuance of a remedial order. ' Counsel for the Carpenters' Union made a brief appearance only when a representative of his client was called as a witness . Unlike the first hear- ing, at the second hearing the Charging Party was not represented by coun- sel. ' Subsequent to the close of the hearing, counsel for the General Counsel and counsel for the Respondent submitted two stipulations for my ap- proval, and jointly moved their inclusion into the record as General Coun- sel's Exhibit 15(a) and (b), and 16 . The stipulations are approved , and the exhibits are hereby received into evidence . Also, subsequent to the close of the hearing, counsel for the General Counsel submitted a motion to correct the record in certain respects. Counsel for Respondent also filed such a motion, and, additionally , filed objections to two suggested corrections of the General Counsel, noting that "Respondent has no other objection to General Counsel's motion." With respect to the contested matter , my recollection of the testimony accords with the General Counsel's, accordingly, I grant, in toto, his motion to correct the record and, without objection, also grant Respondent's mo- tion to correct the record. ' No jurisdictional issue was presented in the second hearing. In my original decision I found that the Employer is engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act, and that it would effectuate the purposes of the Act to assert jurisdiction . Respondent, in its answer to the amendment to the consolidated complaint, admits the jurisdictional allegations thereof, and the uncontradicted evidence relating to the two construction projects herein show that each is valued in several millions of dollars Accordingly, I hereby reaffirm my original finding that the Board has jurisdiction of these proceedings and that it would effectuate the purposes of the Act to assert such jurisdiction herein. 'See G.C Exh. 12(p). ' See G C Exh. 12(s) ' However, the Respondent was allowed to make an offer of proof on the record as to the evidence it sought to adduce on this issue. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Respondent contends that the Board acted improperly and contrary to the Administra- tive Procedure Act and its own Rules and Regula- tions and Statements of Procedure in remanding the case to the Trial Examiner for further hearing and in consolidating all the unfair labor practice charges and complaints. Here again , I believe myself bound by the Board 's ruling in the matter and no discussion will be had on this contention. 3. The Respondent contends that the charges in Cases 12-CD-95 and 97 should be dismissed because an agreed-upon method of settling the dispute existed by virtue of the fact that both Unions involved and both general contractors were stipulated to the National Joint Board for the Set- tlement of Jurisdictional Disputes (herein called the Joint Board). Section 10(k) of the Act provides that when a charge is filed alleging an unfair labor practice proscribed by Section 8(b)(4)(D), the Board is empowered to hear and determine the dispute unless ... the parties to such dispute submit to the Board satisfactory evidence that they have ad- justed, or agreed upon methods for the volun- tary adjustment of, the dispute. However, Prestess is not "stipulated" to the Joint Board and therefore it has not agreed upon that method as a voluntary adjustment of the dispute. Moreover, the record shows that neither of the general contractors involved in the instant proceed- ing were , for reasons satisfactory to themselves, willing to submit the instant controversy to the Joint Board. Accordingly, any such "agreed upon method of voluntary adjustment" has broken down in the instant case and is thus not susceptible of resolving this jurisdictional dispute . Accordingly, the qualifying provisions of Section 10(k) are not applicable, and the Board has clear jurisdiction to proceed in a complaint proceeding under Section 8(b)(4)(D).9 4. The Respondent contends that the Regional Director should have ordered a new 10 (k) hearing in Cases 12-CD-95 and 97 before proceeding to a complaint on these new charges . One aspect of this argument was disposed of in my original Decision (see section D,1) adversely to Respondent's con- tentions, and is reaffirmed here. Respondent, how- ever, now contends that since the original 10(k) hearing, and since the Board 's Determination of Dispute, the Joint Board "has issued at least one award to the Respondent Union covering this work, in which it made reference to, or cited, a per- manent, binding, decision covering the type of work involved." 10 While the Board may give due deference to this decision of the Joint Board, I do not believe that this one instance entitles me to go behind and determine de novo the Board's award in the instant matter, and I decline to do so.tl II. THE UNFAIR LABOR PRACTICES A. At the Sunland Training Center Project John A. Volpe Construction Co., Inc. (herein called Volpe), was the general contractor at this project which consisted of approximately 32 buildings located in Dade County, the value of which was about $3,500,000. Volpe contracted out the fabrication of precast concrete items to a firm named Meekins-Bamman who, in turn, sublet the erection of such precast items to Prestress.12 Con- struction on the project commenced in June 1966. On December 1, 1966, Charles Caraker, pres- ident and financial secretary of Respondent, visited the project and spoke with the superinten- dent, John Sparkman.13 Caraker asked Sparkman who was going to perform the erection of the facia stone on the job, to which the latter replied that it had been sublet to Prestress. Caraker replied that they (the Union) would have to do something about that, to which Sparkman retorted that if they picketed the job he would do his utmost to get an injunction against them. Whereupon Caraker left. 14 Sometime later that day, Caraker returned to Sparkman's office in the company of a foreman on the job. Caraker asked Sparkman if the latter would take the matter to the Joint Board, to which Spark- man replied that he had no authority in that respect and that Caraker would have to take it up with Dan Phillips in the main office of Volpe. Whereupon, Caraker left and made an appointment by telephone to see Phillips the next day. On December 2, 1966, Caraker called on Phillips at the latter's office, accompanied by William Hamilton, the recording secretary of Respondent. Caraker told Phillips that the reason he came to see ' See Wood, Wire and Metal Lathers International Union and its Local Union No. 2, AFL-CIO (Acoustical Contractors Association of Cleveland), 119 NLRB 1345, 1351 i° Respondent 's brief page 23 This reference is apparently to the deci- sion of the Joint Board in the Veterans Administration Hospital project. (See my original decision , section C, 3). " See, e.g., New York Newspaper Printing Pressman's Union No 2, AFL-CIO (New York Times Company), 154 NLRB 1122, International Longshoremen 's and Warehousemen 's Union and Local 4 (Aluminum Com- pany ofAmerica), 163 NLRB 1039. "The precast items on this job consisted of facia stone panels, wall panels, and walkway covers is According to Caraker 's testimony at the hearing , he went to the jobsite because there was a union election coming up on December 9 and he wanted to solicit votes among his members . However, in his prehearing af- fidavit he stated that he " went up there to speak to the people pertain- ing to the precast stone erection on that job " " The foregoing is based upon the credited testimony of Sparkman, who impressed me as a candid and forthright witness . In some respects, such testimony is corroborated by the testimony of Caraker, although the latter, in his testimony at the hearing , asserted that in the conversation he was only interested in seeing that the scale of wages paid to the Carpenters who worked for Prestress was comparable to that paid to the Iron Workers However, there was no mention of this in his prehearing affidavit Further, in that document, Caraker reminded Sparkman that in the past the iron- workers had erected the precast stone on the job (he was apparently refer- ring to phase I of the Sunland Project since the instant construction in- volved phase 2), and that Sparkman should realize that it was Caraker's job "to keep what work belongs to the ironworkers to the ironworkers." This and other variances between Caraker 's testimony at the hearing and that given in his prehearing affidavit lead me to discredit Caraker as a witness. LOC. NO. 272, IRON WORKERS 221 him was because Volpe had always used ironwork- ers to perform the erection of precast items, and that he could not understand why a change was being made at this time from ironworkers to car- penters. Phillips replied that the matter was out of his hands since the contracts had been let; that he would be glad to use ironworkers , but that Prestress had a "letter of assignment from the National Labor Relations Board." There was some discus- sion as to the wage differential between the carpen- ters and the ironworkers , Phillips acknowledging that it would probably cost Prestress more money if they used ironworkers.'5 Phillips told Caraker that he actually did not care who "put the stones up" so long as there was no trouble on the job . Caraker as- sured him that there was not going to be any trou- ble on the job, and left. On December 5, 1966, employees of Prestress Erectors first appeared on the jobsite. As previously noted, these employees were represented by the Carpenters Union with whom Prestress had a col- lective-bargaining agreement . On December 8, 9, 12, 13, 14, and 15 , 1966, the Respondent picketed the Sunland Project with picket signs bearing the following legend: Prestress Erectors pays substandard wages to employees doing Ironworkers work. Ironwork- ers Local 272. When the picketing commenced , ironworkers who were performing structural ironwork for two subcontractors (Commercial Erectors and Frank Lapp ) left the job as did electricians who worked for an electrical subcontractor (Dixie Electric), plus about 10 or 11 laborers who were employed by the general contractor . Undenied testimony shows that there was work for these employees to perform when they left the jobsite. Approximately 4 or 5 weeks after the picketing ceased, Caraker had another conversation with Phillips at the latter's office. At that time Caraker was accompanied by John Walsh, a representative of the International Union with whom the Respon- dent is affiliated . Walsh asked Phillips if he would take "this thing" before the Joint Board . Where- upon, Phillips telephoned his home office in Boston, Massachusetts , but they declined to submit the dispute to the Joint Board . After some more discus- sion in which the Respondent's representatives at- tempted to assure Phillips that the erection of precast items was "ironworkers work ," Phillips told them that Prestress had a "letter from the N.L.R.B. assigning the work to [Prestress] in Dade and Broward Counties ...." Whereupon , either Walsh or Caraker replied that they worked pursuant to agreements with contractors and that they did not have an agreement with the Board.16 B. The Triton Towers Project Fred Howland , Inc. (herein called Howland), was general contractor on the Triton Towers apartment project on Miami Beach . This was a high rise apart- ment building with 13 floors, covering two city blocks, and was valued at about $ 10 million. Con- struction commenced in August 1966 . The precast items involved were ramps for parking levels and precast concrete stairs.17 Members of Respondent who were working on the job in November 1966 were employed by Bay Steel Products Company, a subcontractor who sup- plied reinforcing steel and installed the same. Respondent's steward, who was employed by Bay Steel, was one Andy Zakutney . During that month there was a discussion among Zakutney , Marvin Hammack, business agent of the Carpenters' Union, Thaxter Hill, construction superintendent of Howland, and Julian Taylor , the Carpenters' steward.18 Although there is some variance in the testimony as to exactly what was stated at this meeting, there is substantial agreement that the conversation centered upon who was to perform the work of the erection of the precast ramps and stairs-the carpenters or the ironworkers. It ap- peared that the ramps were ready to be set in place whereas the stairs would not be ready for several months. Although the record is not entirely clear on the point, it appears that the sense of the agree- ment reached at the November meeting was that the Carpenters would be allowed to install the precast ramps and the ironworkers would set the precast stairs when the time came . In any event, that was Zakutney's understanding, as subsequent developments show. Thus, as the time neared when the precast stairs were to be erected-on or about January 27, 1967-Respondent's steward, Andy Zakutney, had a conversation with Construction Superintendent Thaxter Hill on the jobsite. Ac- tually, the "discussion " quickly became a heated argument between the two when Hill advised Zakutney that the work of erecting the stairs had been subcontracted to Prestress, which, of course, meant that such work would be performed by em- ployees who belonged to the Carpenters' Union rather than employees who were members of the Respondent. Zakutney admitted becoming quite "upset" upon receiving this information, and they went over to speak with Robert Little , vice pres- ident of Howland, about the matter. Little ex- 16 The record shows that at the time , Carpenters were receiving $4 25 and fringe benefits of 21 cents per hour while the wage scale for ironwork- ers was $4.80 per hour plus fringe benefits of 29 cents per hour. (G.C. Exh. 15(a) and (b).) 16 The foregoing findings are based upon the undenied testimony of Phil- lips. Although Caraker acknowledged having a meeting with Phillips after the picketing ended , he was not further interrogated as to the substance of the conversation. Walsh was not called as a witness, although it was not shown that he was unavailable " Fabrication of the ramps was done by Meekins -Bamman, but the stairs were precast on the jobsite 1R Also present was one Worth, the assistant steward for the Carpenters. Both Taylor and Worth were employed by Howland. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plained that it was a mistake to have promised the work to the ironworkers, if such actually occurred in November, because the contract to Prestress had been let and that there was nothing that he could do about it. Zakutney opined that he did not be- lieve his ironworkers would work on the job where the carpenters were doing the work that they felt belonged to the ironworkers.19 During the early afternoon of Wednesday, February 1, two employees of Prestress arrived on the jobsite and proceeded to "hook on" and remove the precast stairs from the forms where they were fabricated and commenced the process of erecting the stairs in place in the apartment building. Whereupon, several ironworkers, em- ployees of Bay Steel Company and members of Respondent, advised Union Steward Andy Zakut- ney that they were sick and were going home. When this fact was reported to Construction Su- perintendent Hill, the latter contacted Zakutney on the jobsite and asked him what happened. The latter replied that he could not help it if the men went home sick. There is some variance in the record as to the ac- tual number of ironworkers who left work on February 1 and 2.20 The problem is complicated because of the fact that the men worked in small groups at various locations on the jobsite making a headcount by general contractor's representatives difficult and uncertain. However, company records (Resp. Exhs. 8 and 9) show that on February 1, 33 ironworkers worked of which only 23 worked a full 8 hours. On February 2, of the 27 men who worked, 9 worked less than 8 hours.21 There is also variance in the testimony as to whether Zakutney himself worked on February 1 and 2 . He maintains that he worked a full schedule of hours on both days as well as working 2 hours' overtime on February 1. Representatives of the general contrac- tor, on the other hand, testified that they looked all over the jobsite for him on those 2 days and only saw him when he appeared to work the overtime after normal working hours on Wednesday. Com- pany records substantiate Zakutney; however, these records are somewhat less than reliable due to the manner in which they are kept , i.e., the figures thereon are based simply on statements made by in- dividual "pushers" or foreman to the timekeeper who has no actual knowledge of the truth or accu- racy of the figures which the records reflect. How- ever, while I have earlier discredited Zakutney as to 19 The foregoing findings are based upon the testimony of Little, Hill, and Zakutney which is essentially mutually corroborative , except that Zakut- ney denied making any threat . He testified that after Little stated that he (Little ) did not promise Zakutney anything , the latter did not say anything since "after all he was the superintendent." I do not believe that Zakutney, who the record shows was a vigilent and agressive union steward, and so impressed me on the witness stand , would be quite so submissive in the cir- cumstances. Nolan Rutledge, an official of Bay Steel Company, who was present during some of the conversation , stated that he did not hear much of it after Hill and Zakutney commenced talking with Little. f0 The same format occurred on February 2 as on February 1. That is, the ironworkers reported to work in the morning but a substantial number left work during the day. an alleged denial of a statement attributed to him in a conversation, I am unwilling to conclude defini- tively that he would not only perjure himself in a hearing but would categorically defraud the Em- ployer. Accordingly, I find that Zakutney was present on the project during the critical period in- volved. There is no question but that the work stoppage on February 1 and 2 caused considerable incon- venience, delay, and expense to the general con- tractor. Forms for the pouring of concrete were set up on a definite schedule, but the pourings which were scheduled for these days had to be postponed due to the absence of the ironworkers who placed and tied the reinforcing rods. The stoppage also required the working of additional overtime hours to accomplish the work.22 On Friday, February 3, there was a meeting among Seymour Gopman, attorney for the Respon- dent, Michael Burk , business representative of the Respondent, and Robert Little, vice president of Howland, at Gopman's office. Little related to the other two men that he could not understand why Howland was having "difficulty" because it was clear that employees of Prestress who were represented by the Carpenters were entitled to the work as a result of the Board case, and that Howland was not and could not be bound by any agreement which may have been made by the Car- penters Union Representative Marvin Hammack with the job steward of the ironworkers on the job. Burk stated that his people felt that an injustice had been done them because the November agreement had not been carried out. Little offered the follow- ing procedure as a compromise : That after fabrica- tion of the precast stairs was completed by carpen- ters employed by Howland, the ironworkers would be entitled to the work of "hooking on" the crane to the precast item and removing it from the frame. Carpenters employed by Prestress would then complete the job by placing and welding the stairs in the apartment building . The dispute was thus resolved in this fashion. Analysis and Concluding Findings A. The Sunland Training Project Respondent's position, as explicated at the hear- ing and in its brief, is, in short, that it hopes to 21 On Friday, February 3, when an accommodation of the matter, was worked out among the parties, as hereinafter set forth, the ratio was 25 to 4 and on the following Monday and Tuesday the ratio was 27 to 3 and 30 to 1, respectively. " The Respondent sought to adduce testimony to show that Bay Steel Company had contracts at other construction sites which required their employees, and that the Company would shift employees from one con- struction site to another from time to time as necessary . However, such testimony was quite vague and indefinite and did not persuade me that the exodus of ironworkers from the Triton Towers job during the critical period was caused by any such directions from the management of Bay Steel but rather because of the ironworkers own predilections. LOC. NO. 272, IRON WORKERS secure for its members the work of erecting precast items at construction projects within its territorial jurisdiction . However, it vigorously denies that it seeks to do this by threats or coercion, but rather seeks to accomplish the result by noncoercive requests coupled with attempts to equalize the pay scales between the employees represented by the Carpenters Union and its own members. Thus, the argument runs, if the pay is equal , an employer will voluntarily prefer the Respondent 's members to the carpenters because the former are more skilled in performing this particular work. In support of this position, Respondent offered into evidence cor- respondence which passed between the attorney for the Respondent and the attorney for the Charging Party in April 1966, in which the former requested that Prestress raise its level of wages so that em- ployers of ironworkers would not be at a competi- tive disadvantage in bidding for jobs. The Board has upheld the legitimacy of picketing to protest the payment of substandard wages-so- called area-standards picketing-where it has been found that such is the immediate if not the sole pur- pose of such action.23 However, the conduct of Respondent's business agents here, both before and after the picketing, is not consistent with such a position. Thus, Respon- dent's representative, Caraker, upon learning that the precast work at the Sunland project, phase 2, was to be assigned to Prestress , immediately called upon the construction superintendent of Volpe and advised that he (Caraker) was "going to have to do something about it."24 Caraker then attempted to persuade Volpe's representative to take the matter before the Joint Board, and it was only in that con- text that the discussion commenced to revolve around the subject of wage rate differentials. That is, Project Manager Phillips opined that if the dispute was submitted to the Joint Board and if that Board issued a decision in favor of the ironworkers, Prestress would come to Volpe demanding a renegotiation of their contract since it was based upon cost as reflected by the Carpenters Union's wage rate. Thus, it is clear that in the prepicketing conversations, Caraker's approach was that of seek- ing direct assignment of the work to his members 23 See International Had Carriers, Building and Common Laborers' Union of America, Local No. 41, AFL-CIO (Calumet Contractors Association and George De Jong), 133 NLRB 512; Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321, Local 107, International Hod Carriers, AFL-CIO (Texarkana Construction Company), 138 NLRB 102; cf. Loca125, International Brotherhood of Elec- trical Workers, AFL-CIO (Sarrow-Suburban Electric Co., Inc.), 152 NLRB 531. 44 In the context of these circumstances , I agree with the General Coun- sel's contention that this statement constituted a threat in violation of Sec- tion 8(b)(4)(ii)( D). While not determinative, it is clear that Superinten- dent Sparkman considered it so since he retorted that if the Respondent picketed his job he would do his utmost to get an injunction against them 15 To be able to claim responsibility for the assignment of this work to his members immediately prior to the union election scheduled for December 9, certainly would not have hurt Caraker's chances. 4° See Millwrights Local 1102, United Brotherhood of Carpenters and 223 and not of the longer range view of seeking equalization of wage rates.25 The postpicketing conversation between Volpe's Project Manager Phillips and Respondent's representatives Caraker and Walsh confirms my conclusion that assignment of the precast work and not achievement of equal wage rates was upper- most in Respondent's representatives' minds. Thus, even at that time the Respondent's representatives requested Phillips to "take this thing before the Joint Board" and when Phillips replied that the Board had assigned the work to Prestress in Dade and Broward Counties, the union representatives replied that they did not work pursuant to agree- ments with the Board but pursuant to agreements with the contractors. This unrebutted evidence reflects a state of mind on the part of Respondent's representatives not entirely consonant with-in- deed, it is antithetical to-its prior commitment to the Regional Director of May 13, 1965. In sum, I conclude that even though Respondent was interested in achieving an equalization of wage rates, a more immediate objective of the Respon- dent's picketing of the Sunland project, phase 2, was to force or require an assignment of the precast work to its members, in violation of Section 8(b)(4)(i) and (ii)(D). Also, by threatening and exerting pressure on secondary employers such as Volpe in the instant situation and Howland Con- struction Company in the Miami-Dade Junior Col- lege dispute in October 1965 for the purpose of having them cease doing business with Prestress, ". . . constituted a use of unlawful means to force reassignment of the work in violation [of Section 8(b)(4)(i) and (ii)(B)] of the Act."26 B. The Triton Towers Project I have previously found that on or about January 27, 1967, Respondent's Steward Andy Zakutney, upon learning that Prestress was going to perform the erection of the precast stairs, advised the general contractor's representatives that he did not think the ironworkers would remain on the job while the carpenters were doing work which the ironworkers felt was theirs.27 I do not believe that Joiners of America, AFL-CIO (Dobson Heavy Haul, Inc.), 162 NLRB 217. 1 am aware that there has been no Section 8( b)(4)(B) charge filed with respect to the Sunland Training job dispute, however, there was such a charge filed with respect to the Miami-Dade College dispute in October 1965, which I have found constituted a violation . This finding, taken with the subsequent finding is sufficient to warrant the issuance of a recom- mended remedial order $7 Respondent does not seriously contest that Zakutney was its agent on the jobsite within the meaning of the Act. Thus, the evidence shows that Zakutney had authority, on behalf of the Respondent to enforce work rules and to adjust grievances of the members The record showed that he was in frequent contact with representatives of the employers on the job and was looked upon by both employers and employees as the Union on the job. The Board has held, under similar circumstances, that such a job steward is an agent within the meaning of the Act. Local 825, International Union of Operating Engineers, AFL-CIO (Nichols Electric Company), 138 NLRB 542-543; Truck Drivers and Helpers Local Union No. 728, IBT (Genuine Parts Company), 119 NLRB 399, 416. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this statement, phrased as it was , constituted a threat but was rather an educated opinion of the job steward as to what would occur when the iron- workers were advised that they were not entitled to perform this particular work , particularly where they had been previously advised that they would perform it. In fact, that is exactly what did occur, as I have previously found , i.e., a substantial number of ironworkers became "sick " upon the appearance of the Prestress employees , so informed steward Zakutney , and left the premises. There is no direct evidence that Zakutney directed or authorized the walkout . 2S However, this is certainly not determinative of the issue since cir- cumstantial evidence , if substantial and reliable, is sufficient to predicate a finding .29 It has also been said that " . . . the words `induce and encourage' are broad enough to include in them every form of influence and persuasion ,"' and the Board has held that " . . . a union's conduct can come within the reach of the statute where the union sponsors, authorizes or otherwise encourages , the unlawful activity, even though it may not compel or require its members to engage in it. 1131 But it is elemental that the acts of union mem- bers, who are neither officers nor agents, are not imputable to their union unless authorized, ratified or adopted by it.32 For this reason , the ironworkers' membership in the Respondent is insufficient, without more , to hold the Respondent answerable for their conduct even though , on these facts, I would hold such walkout to be concerted and pre- textual .33 Thus, it is necessary to find that Zakut- ney, by his acts and conduct, "induced or en- couraged" the walkout. But there is not the prover- bial scintilla of evidence of this fact unless it can be said that failure to discourage such walkout is suffi- cient to constitute such inducement or encourage- ment.34 It is true that Zakutney , upon learning of the walkout, took no action to discourage it. But the Board has admonished against imputing responsi- bility to a union respondent on the theory that "Respondent `acquiesced in, tolerated , failed to take effective measures to prevent, and ratified a code of conduct by its members not to work with people regarded as nonunion. "'3S " There was testimony by Respondent 's business representative that Zakutney had no authority to call such a stoppage . However, I need not determine the efficacy of this concealed limitation on Respondent 's liabili- ty since I find no substantial evidence that Zakutney called the walkout " Local 25, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 162 NLRB 703. 10 International Brotherhood of C'!ctrical Workers, Local 50I, et al v N L.R.B , 341 U S 694, 701-702 91 Truck Drivers & Help* Local Union No 728 IBT ( Genuine Parts Company), supra. 31 Daughtery Company, Inc, 147 NLRB 1295, 1299; United Associa- tion of Pipe Fitters, Local No 539 (American Boiler Manufacturers Association), 154 NLRB 314, 317. "" Feigning sickness as an excuse not to work with nonunion or otherwise unsuitable fellow employees is not an uncommon ploy of union members in industrial relations. See, e.g., Local 760, International Brotherhood of Elec- The instant situation seems similar to, if not weaker than (from the standpoint of evidence denoting instigation of a work stoppage ), the in- cident involving job Steward Knight in Building and Construction Trades Council of Tampa and Vicinity, AFL-CIO (Tampa Sand and Material Co.),36 where it was found that when the offensive product came upon the project , Knight was seen circulating upon the employees and some mention of "scab" material was heard . "Knight and the other men quit work and stood around ." However, the Board found the evidence "... insufficient to support [an] inference of inducement , particularly where, as here , there is evidence that the rank-and-file were unwilling to handle Cone products." Here, there is substantial evidence to support an inference that the rank-and-file ironworkers felt that an injustice had been perpetrated upon them when the work of erecting the precast stairs was taken away after they were told that they were to perform the work pursuant to an agreement with the Carpenters Union . They displayed their in- dignation by walking off the job . Zakutney's acquiescence in, toleration and ratification of, such conduct is, in my judgment, insufficient to support an inference of inducement . I therefore find that the General Counsel has failed to sustain his burden of proof on this allegation.37 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the interstate opera- tions of the companies involved, have a close, inti- mate, and substantial relation to trade , traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and its free flow. THE REMEDY Having found that the Respondent had engaged in unfair labor practices proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act, I shall recom- mend that it cease and desist therefrom and take trial Workers, A.F. of L. ( Roane-Anderson Company), 82 NLRB 696, 705, fn 10 ' No ironworker was called to testify as to (1) why he left work, or (2) who, if anybody, induced him to take such action. "" Local 349, International Brotherhood of Electrical Workers, AFL-CIO (Dade Sound and Controls), 149 NLRB 430, 432. 132 NLRB 1564, 1567. "' Local 349, International Brotherhood of Electrical Workers, AFL-CIO (Dade Sound and Controls), supra; Building and Construction Trades Coun- cil of Tampa and Vicinity, AFL-CIO (Tampa Sand and Material Co.), supra. Millwrights Local 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Dobson Heavy Haul, Inc ), 162 NLRB 217, relied upon by General Counsel is distinguishable upon its facts since here, upon learning of the stoppage, Respondent's officials met with the vice president of Howland and researched an accommodation of the dispute Thus, it cannot be reasonably said that Respondent "knowingly adopted, sup- ported and ratified the work stoppage . . " LOC. NO. 272, IRON WORKERS 225 certain affirmative action designed to remedy the unfair labor practices of this nature. Moreover, in view of the fact that the Respondent has resorted to secondary boycott pressures implicating innocent parties, in order to force Prestress to assign to iron- workers represented by it certain precast erection work in Dade and Broward Counties, which the Board has awarded to Prestress ' employees represented by the Carpenters Union, I find it ap- propriate to recommend that the Respondent be enjoined from engaging in similar activities involv- ing employees of other employers, or involving any person engaged in commerce or an industry affect- ing commerce for the purpose of disrupting Prestress' business relations with any person.38 Finally, I am convinced, based upon a consider- ation of the record as a whole, that the failure of the leadership of Respondent to fully comply with its commitment to the Regional Director to abide by the Board's Determination of Dispute, has in- evitably seeped down to the membership. Indeed, there being no requirement that such commitment be made known to the membership, it may well be that the latter are unaware of it. Accordingly, and in conformity with the Board's recently announced and implemented policy of making its remedial or- ders more effective ,39 I will recommend that Respondent be required , in addition to the custo- mary posting of the notice hereinafter provided, to: (a) have a duly authorized representative of Respondent read such notice as well as Respon- dent's commitment to the Regional Director of May 13, 1965, to abide by the Board's Determina- tion of Dispute, at the next three ( 3) regularly scheduled meetings of Respondent following the rendition of this decision (or any affirmance thereof by a reviewing authority), or, at Respon- dent's option, have such reading of the notice and commitment of Respondent read by a Board representative 40; (b) after signing, mail to each of its current members a copy of such notice and commitment. Upon the basis of the foregoing findings of fact and upon the entire record in the cases, I make the folllowing: CONCLUSIONS OF LAW 1. Prestress Erectors, Inc., Gust K. Newberg Construction Company, Gulf States Steel Com- pany, International Builders of Florida, Inc., Shef- field Steel Products , Inc., Erectors of Florida, Inc., McDonald Air Conditioning Company, Eldridge Electric, Inc., Edward M. Fleming Company, Inc., Wylo Steel of Florida, Inc., Otis Elevator Company, Millman Construction Company, Biscayne Metal Fabricators, Frank D. Lapp, Gresham Electric Company, United Sheet Metal Company, Inc., Fred Howland, Inc., Poole & Kent, Snapp, Inc., Marks Brothers Company, Poston Bridge and Iron Com- pany, Bay Steel Products Company, and Volpe Construction Company are employers engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. 2. The Respondent and the Carpenters Union are labor organizations within the meaning of Sec- tion 2(5) of the Act. 3. The Respondent has failed and refused to comply with the Board's Decision and Determina- tion of Dispute dated April 29, 1965 (152 NLRB 269). 4. By inducing and encouraging the employees of Prestress, Howland, Volpe, Bay Steel Products, Frank Lapp, and other employers, to engage in work stoppages or otherwise to refuse to perform services for their respective employers, and by threatening , coercing, and restraining these em- ployers, Howland and Volpe, with an object of forcing or requiring Prestress to assign the work of erecting and installing precast concrete items to employees who are members of, or represented by, the Respondent, rather than to the employees represented by the Carpenters Union, although Prestress was not failing to conform to an order or certification of the Board determining the bargain- ing representative for employees performing such work, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. 5. By inducing and encouraging the employees of Volpe, Howland, Bay Steel Products Company, and employees of other employers, to engage in work stoppages or otherwise to refuse to perform services for their respective employers, and by threatening, coercing, and restraining these em- ployers, Howland and Volpe, with an object of forcing or requiring the general contractors to cease doing business with Prestress, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i ) and (ii)(B) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclu- sions of law, and upon the entire record in the cases, I recommend that the Respondent, Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers, '° Compare Local 25, International Brotherhood of Electrical Workers, AFL-CIO ( New York Telephone Company ) 162 NLRB 703; Local 825, In- ternational Union of Operating Engineers (Nichols Electric Company), 138 NLRB 540, 545. °° See H. W. Elson Bottling Company, 155 NLRB 714, enfd . 379 F.2d 223 (C A. 6), J. P. Stevens and Co . Inc., 157 NLRB 869, 878 , enfd. 380 F.2d 292 (C.A. 2), cert . denied 66 LRRM 2728 , and 167 NLRB 266 ' See J. P. Stevens and Co., Inc., 167 NLRB 266, In. 10. 354-126 O-LT - 73 - pt. 1 - 16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, its officers, agents, and representatives, not altered, defaced, or covered by any other shall: material. 1. Cease and desist from : (b) Sign and mail sufficient copies of said notice (a) Engaging in, or inducing or encouraging any to the Regional Director for Region 12 for posting individual employed by Bay Steel Products Com- by Prestress Erectors, Inc., and the contractors and pany, Fred Howland, Inc., John A. Volpe Construc- persons named above in paragraph 1 under Conclu- tion Co., Inc, Frank D. Lapp, or by any other per- sions of Law, at all locations where notices to their son engaged in commerce or in an industry affect - respective employees are customarily posted, if ing commerce, to engage in a strike or a refusal in they are willing to do so. the course of his employment to use , manufacture , (c) Inform its members of its commitment to the process, transport, or otherwise handle or work on Regional Director of Region 12, dated May 13, any goods, articles, materials, or commodities, or to 1965, and of its obligations set forth in the provi- perform any services; or threatening, coercing, or sions of the aforesaid notice , by reading such docu- restraining any of the aforesaid employers , or any ments in regularly scheduled meetings of the mem- other employer or person engaged in commerce or bership, and by mailing a copy of each such docu- in an industry affecting commerce, where in either ment to each of its current members, in the manner case an object thereof is to force or require provided in the section of this Decision entitled Prestress Erectors, Inc., to assign the work "The Remedy. described below to employees who are members of (d) Notify the Regional Director for Region 12, or represented by Respondent rather than to em- in writing, within 20 days from the date of the ployees of Prestress Erectors, Inc., currently receipt of this Trial Examiner's Decision, what represented by the Carpenters' District Council of steps the Respondent has taken to comply Miami, Florida, and Vicinity, AFL-CIO, unless herewith. Prestress Erectors , Inc., is failing to conform to an IT IS FURTHER RECOMMENDED that all allegations order or certification of the Board determining the of the complaint be dismissed insofar as they allege bargaining representative for employees performing violations of the Act not specifically found herein. such work. The work involved consists of. Erecting and installing all precast concrete items performed by Prestress Erectors , Inc., in its building construction work within Dade and Broward Counties, Florida. (b) Engaging in, or inducing or encouraging any individual employed by Bay Steel Products Com- pany, Fred Howland, Inc., John A. Volpe Construc- tion Co., Inc., Frank D. Lapp, or by any other per- son engaged in commerce or in an industry affect- ing commerce, to engage in, a strike or a refusal in the course of his employment to use , manufacture, process, transport , or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or threatening, coercing, or restraining any of the aforesaid employers, or any other employer or person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Fred Howland, Inc., or John A. Volpe Construction Co., Inc., or any other general building contractor to cease doing business with Prestress Erectors, Inc. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places in the Respon- dent's business offices, meeting halls, and all other places where notices to members are customarily posted, copies of the attached notice marked "Ap- pendix."" Copies of said notice , on forms provided by the Regional Director for Region 12, shall after being duly signed by the Respondent's authoriz6d representative , be posted by the Respondent im- mediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter . Reasonable steps shall be taken to insure that such notices are " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words "a Decision and Order." n In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To All Members of Local Union No. 272, Interna- tional Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT engage in , or induce or en- courage any individual employed by Fred Howland, Inc., John A. Volpe Construction Co., Inc., Bay Steel Products Company, Frank D. Lapp, or by any other person engaged in commerce or an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodi- LOC. NO. 272, IRON WORKERS 227 ties, or to perform any services; or threaten, coerce , or restrain any of the aforesaid em- ployers, or any other employer or person en- gaged in commerce or in an industry affecting commerce, where in either case an object thereof, is to force or require Prestress Erectors, Inc., to assign the work described below to employees who are members of or represented by Respondent rather than to em- ployees of Prestress Erectors , Inc., currently represented by Carpenters District Council of Miami, Florida, and Vicinity , AFL-CIO, unless Prestress Erectors, Inc., is failing to conform to an order or certification of the Board deter- mining the bargaining representative for em- ployees performing such work. The work involved consists of Erecting and installing all precast concrete items performed by Prestress Erectors, Inc., in its building construction work within Dade and Broward Counties, Florida. WE WILL NOT engage in , or induce or en- courage any individual employed by Fred Howland, Inc., John A. Volpe Construction Co., Inc., Bay Steel Products Company, Frank D. Lapp, or by any other pperson engaged in commerce or an industry affecting commerce, to engage in a strike or a refusal in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodi- ties, or to perform any services; or threaten, coerce, or restrain any of the aforesaid em- ployers, or any other employer or person en- gaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Fred Howland, Inc., or John A. Volpe Construction Co., Inc., to cease doing business with Prestress Erectors, Inc. LOCAL UNION No. 272, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Resident Office, Room 826, Federal Office Building, 51 SW, First Avenue, Miami, Florida 33130, Telephone 350-5391.