Local 542, Operating Engineers

LOCAL 542, OPERATING ENGINEERS Local 542, International Union of Operating Engi- neers (AFL-CIO) and its agents Robert Cahill and Ralph Schwartz and Paddock Pool Builders Inc. Case 4-CC-750 March 6, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 31, 1973, Administrative Law Judge Eugene G. Goslee issued the attached Decision in this proceeding. Thereafter, the Charging Party and the Respondent filed exceptions. The General Coun- sel filed cross-exceptions and a brief in support of the cross-exceptions, in answer to the Respondent's exceptions and in partial support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent with the following.' The General Counsel alleged that on 3 days (June 12, July 5, and July 6, 1973) Local 542 violated Section 8(b)(4) of the Act by picketing the common situs when the primary employer, subcontractor Paddock Pool Builders Inc., its employees, and its equipment were not on the site. The General Counsel also alleged that on July 5 while Local 542 engaged in picketing its business agent, Ralph Schwartz. unlawfully induced operating engineers employed by Murray Walter, Inc., the prime contractor, who were then working at the Valley View school job, to leave the jobsite. The construction of the indoor swimming pool at the Valley View project was to be completed in three stages, with a hiatus of several weeks between stages. During the first stage of construction, completed near the end of April 1973, no picketing took place, but, as found by the Administrative Law Judge, both Walter and Paddock were put on notice of the primary dispute between Respondent Local 542 and Paddock and warned that the job might be picketed if that was not settled before Paddock started work at the project site. The second stage of construction 1 Member Fannir_g would affirm the Administrative Law Judge's Decision in its entirety 2 The "gate" was a post in the middle of the 40-foot-wide entrance road to the project, with signs indicating the Paddock area and the neutral area No unfair labor practice was alleged as to the location of the June 12 377 began May 23, when picketing occurred with placards indicating the existence of the dispute between Paddock and Local 542. Paddock left on May 24, removing all employees and equipment except some construction materials. On June 7, Walter advised Respondent Union of a separate gate. effective June 12, and pickets appeared early the morning of June 12 with the same signs used in May.2 Employees of Walter and some subcontractors refused to cross the line. Paddock was not working June 12, but on July 5 it was. The pickets returned about 11 a.m. on the latter date, after which Business Agent Schwartz drove into the site and told Farr, an employee of Walter and a member of the Operating Engineers, to get off the job, also telling Farr that he, Schwartz, had already directed a backhoe operator to do the same. Fan left. About noon on July 5, Walter advised Paddock that its removal from the project was desired until such time as the dispute with Respondent Union was resolved. Following this, Walter advised the Union of this step by telephone, promising to confirm by telegram. In late afternoon, Paddock removed its employees and equipment from the site, not to return during July. The pickets reappeared the morning of July 6; employees of neutrals refused to cross the line, and Walter reminded the Union of its message of the day before. The response of Business Agent Cahill was that the promised telegram had not been received. After this conversation, the pickets were removed. We agree with the Administrative Law Judge's finding of violation based on the July 5 inducement of the employee of a neutral employer to cease work, and the July 6 picketing at a time when Respondent had no reasonable expectation that Paddock would be working. We do not agree with his recommended dismissal as to the picketing which occurred June 12 and July 5. As to these, we find merit in the General Counsel's exceptions. We view the Union as obligat- ed on June 12 to ascertain whether Paddock was actually on the premises. The mere fact that a separate gate was to be available as of that date did not entitle the Union to assume that Paddock would work that day inasmuch as the work pattern for constructing swimming pools contemplated substan- tial lapses between phases. Also, we agree with the General Counsel that the happenings of July 5 and 6 should be considered together; that the objective of enmeshing neutrals was shown on July 5 by the inducement of Farr to leave the job and the picketing, but General Counsel contended that the neutral portion of the roadway was used, which showed intent to enmesh neutrals As the Administrative Law Judge found no violation concerning June 12, he did not resolve the issue as to where the picketing occurred , though he questioned the adequacy of the area set aside 209 NLRB No. 59 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continuance of the picketing the next day when Respondent had no reason to expect Paddock to be at the site. In the circumstances, we do not agree that Paddock's presence at the job on July 5 was sufficient to immunize the picketing on that day from the overall objective to enmesh neutrals, an objective which we view as evident beginning June 12. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below,3 and hereby orders that the Respon- dent Local 542, International Union of Operating Engineers (AFL-CIO) and its agents Robert Cahill and Ralph Schwartz, Archibald, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: 1. Delete from paragraphs 1(a) and (b) of the recommended Order the words "with whom it has no primary labor dispute." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 3 We agree with the General Counsel and the Charging Party that the words "with whom it has no primary labor dispute" are an unnecessary restriction upon the thrust of the Order and notice and not in consonance with previously issued Orders and notices judicially approved APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT engage in, or induce or encour- age any individual employed by Murray Walter, Inc., or any other person engaged in commerce or in an industry affecting commerce, to engage in a refusal in the course of his employment to use, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Murray Walter, Inc., or any other person engaged in commerce or in an industry affecting commerce, to cease doing business with Paddock Pool Builders Inc. WE WILL NOT threaten, coerce, or restrain Murray Walter, Inc., or any other person engaged in commerce or in an industry affecting com- merce for the object described in the preceding paragraph, under the circumstances prohibited by Section 8(b)(4)(B) of the Act. LOCAL 542, INTERNATIONAL UNION OF OPERATING - ENGINEERS (AFL-CIO) AND ITS AGENTS ROBERT CAHILL AND RALPH SCHWARTZ (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Suite 4400, William J. Green, Jr., Federal Building, 600 Arch Street, Philadelphia, Pennsylvania 19106, Telephone 215-597-7601. DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: This case came on to be heard before me at Scranton, Pennsylvania, on September 20, 1973, upon a complaint' issued by the General Counsel of the National Labor Relations Board and an answer filed by Local 542, International Union of Operating Engineers (AFL-CIO) and its agents Robert Cahill and Ralph Schwartz,2 hereinafter referred to collectively as the Respondents. The issues raised by the pleadings in this proceeding relate to whether, or not the Respondents have violated Section 8(b)(4)(i) and ii(B) of the National Labor Relations Act, as amended, by acts and conduct hereinafter specified. At the conclusion of the hearing all parties waived oral argument, but a brief has been received from the General Counsel and a memorandum of points and authorities from the Respondents, and both have been duly considered. Upon the entire record in this proceeding, and from my observation of the testimony and demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYERS Pursuant to a stipulation of the parties arrived at during the course of the hearing, I find that Paddock Pool Builders, Inc., hereinafter called Paddock, is a New York corporation, maintains its principal office at Albany, New I The complaint in this case was issued on August 6, 1973, upon a charge filed on July 16, 1973 , and served on the Respondent on the same date Y The complaint and other formal documents pertaining to this proceeding were amended at the outset of the hearing to reflect the proper spelling of Ralph Schwartz' name LOCAL 542, OPERATING ENGINEERS York, and is engaged in the construction industry for the design and construction of swimming pools. At all times material to this proceeding Paddock was engaged as a subcontractor, under a contract held from Murray Walter, Inc., hereinafter called Walter, in the construction of a swimming pool at the Valley View School, located at Archibald, Pennsylvania. As the parties have also stipulat- ed, I further find that during the year preceding issuance of the complaint in this case, Paddock derived revenues m excess of $50,000 from its operations conducted outside the State of New York, and Paddock is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. In accordance with the complaint, and the Respondent's amendments to their answer, I find that Walter is a New York corporation, engaged m the building and construc- tion industry, and at all times material to this proceeding has been engaged as a prime contractor on the Valley View project at Archibald, Pennsylvania. In addition to Pad- dock, Walter engaged A. G. Smith Construction Services (structural steel); Anthracite Plate Glass Co. (aluminum and glass); Culp Bros., Inc., (dry wall and plastering); and Boly's Iron Works (iron work) as subcontractors on the Valley View project. I find, therefore that Walter, A. G. Smith Construction Services, Anthracite Plate Glass Co., Culp Bros., Inc., and Boly's Iron Works are persons engaged in commerce, or in an industry affecting com- merce, within the meaning of Section 8(b)(4) of the Act. II. THE STATUS OF THE RESPONDENT The complaint alleges, the answer admits , and I find that Local 542, International Union of Operating Engineers (AFL-CIO) is a labor organization within the meaning of Section 2(5) of the Act, and Robert Cahill and Ralph Schwartz are its agents within the meaning of Section 8(b) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED The record is clear that at all tunes material to this case a primary labor dispute existed between Local 542 and Paddock, and as a part of this dispute Local 542 intermittently picketed Paddock at the Valley View site. The General Counsel alleges that on three separate occasions, June 12, July 5, and July 6, 1973,3 the Respondents violated Section 8(b)(4) of the Act by picketing the Valley View project at a time when Paddock, its employees and equipment, were not at the common situs, thereby coercing and restraining Walter and other neutral employers, and inducing their employees to engage in a work stoppage. The General Counsel also alleges that on July 5, coincidental with picketing, Local 442, through its agent Ralph Schwartz, orally induced operating engineers employed by Walter to leave the jobsite. In addition, although not alleged in the complaint or advanced as a separate violation of the Act, the General Counsel contends that by picketing at an entrance to the project set aside and posted for Walter and other neutral contractors, the Respondents have further evinced the 379 secondary objective of their picketing of the Valley View project. By their answer the Respondents deny that they have engaged in any violation of the Act, and affirmatively contend that all picketing and other conduct at the Valley View site was lawful primary activity directed at Paddock as the legitimate object of a lawful primary dispute. A. The Events of June 12 and July 5 and 6 The subcontract from Walter to Paddock for construc- tion of the swimming pool at the Valley View project was let in January or February, and the pool was scheduled to be completed in three separate stages. The first stage involved the excavation for the pool, and forming and placing the reinforcing steel. Working in conjunction with employees and equipment provided by Walter for the excavation work, Paddock's employees began this stage of the construction process m late March, but underground water conditions delayed the work and phase one was not completed until near the end of April. Insofar as the record reflects the Respondents did not picket the Valley View project during the first phase of the pool construction, but both Walter and Paddock were put on notice of the primary dispute between Respondent Local 542 and Paddock, and were warned that the job might be picketed. On some undisclosed date in the spring of 1973, Robert W. Becket, construction superintendent for Paddock, received a call from Respondent Schwartz, who reminded Becket of a dispute which should be settled before Paddock began work on the Valley View site. Walter has a bargaining agreement with Respondent Local 542, and in February or March Walter's job superintendent, Robert Nemconsky received a similar telephone call from the Respondents. Schwartz told Nemconsky that the Operating Engineers had a problem with Paddock, and if the dispute was not settled by the time Paddock came to work on the Valley View site, the job would be picketed. The second stage of the pool construction was the gunnite phase, which involved the application of pneumati- cally applied concrete. Paddock began this phase of the work about May 23 with a crew of seven or eight laborers and masons and the necessary equipment. Pickets ap- peared on the jobsite during this second phase of the pool construction with placards advertising the existence of a dispute between Respondent Local 542 and Paddock. Paddock left the job on May 24, but the record is not clear as to whether the departure was caused by the picketing, or by completion of the gunnite phase of the work. When Paddock left the jobsite on May 24, all of its employees and equipment were removed, but some materials such as reinforcing rods and sand were left at the pool site, and the project was in an obvious state of incompletion. According to Becket's testimony, Paddock was not scheduled to return to the site during the month of June, and in fact did not return until July 5. On June 7, nevertheless, Walter sent a mailgram to Respondent Local 542, informing the Union that effective June 12 a separate gate would be reserved for the Paddock and its delivery- 9 All dates recited hereinafter are in 1973, unless specified to the contrary 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men and suppliers, and another gate reserved for the exclusive use of all others on the project site. Before 7 a.m. on June 12, the so-called separate gates had been established and posted. The general description of the entrance to the site and the location of the separate gates will be discussed hereinafter in connection with the General Counsel's contention that the Respondents exhib- ited a secondary objective by picketing at the gate reserved for Walter and other neutrals. About 7:30 a.m. on June 12 pickets appeared at the site and resumed picketing at the entrance with picket placards identical to those used in the May 23-24 picketing. Approximately 50 of Walter's employees, and employees of some of the subcontractors on the site, refused to cross the picket line and did not work on June 12. Paddock returned to the jobsite on July 5, apparently prepared to complete the gunnite phase of the construc- tion. Paddock's employees and equipment arrived at the site between 7:30 and 8 a.m. and about l l a.m. Respon- dent Schwartz and two pickets appeared at the project entrance. On July 5, Walter had about 50 employees on the site, including one member of the Operating Engineers, Richard Farr. Shortly after noon on July 5, Job Superintendent Nemconsky contacted Walter's main office and received instructions to remove Paddock from the project. Nemcon- sky wrote down the instructions, dated and signed them, and then presented the instructions to Becket for his signature on behalf of Paddock. According to Nemcon- sky's further testimony, about 3:30 or 4 p.m. he called the Respondents' office and read to Respondent Cahill the instructions pertaining to Paddock's removal from the project until the labor dispute between Paddock and the Union had been resolved. Nemconsky also told Cahill that the information he had imparted during the conversation would be confirmed in a telegram. In later testimony Nemconsky related that the promised telegram was sent out of Walter's office, but there is no other evidence in the record to substantiate either the dispatch or receipt of any telegram. Between 4:30 and 5 p.m. on July 5, Paddock removed all of its employees and equipment from the project site, and did not return to the site until the latter part of August? Judson K. Shaffer is employed by Walter as a general labor foreman, and was employed at the Valley View project on July 5. Richard Farr, a member of the Operating Engineers, was working under Shaffer's supervision operat- ing a forklift. During the morning Farr requested Shaffer's assistance to clean the filter on the forklift. While Shaffer was lending his assistance, Respondent Schwartz and another unidentified individual drove up. Schwartz asked Shaffer, "Who the hell are you?" Farr replied, "He's the general labor foreman from Murray Walter who' s giving me some assistance with the lift here." Schwartz respond- ed, "Mr. Farr, I've just dropped pickets off at the main gate. I told the backhoe operator to leave the job; 5 there are pickets here. I want you to leave also." Fan then told Schwartz that he had the lift down, and asked what he should do with the parts. Schwartz answered, "Leave it back there, get off the job." Farr left the job, and was later seen talking to the pickets at the project entrance. Respondent Schwartz testified to the conversation with Farr on July 5. Schwartz admitted asking Shaffer who the hell he was, and in explanation for the inquiry testified that Shaffer is not a member of the Operating Engineers and not entitled to perform repair work on equipment within the Respondent Union's jurisdiction. According to Schwartz' further testimony, Shaffer muttered some reply that the machine was down, and Schwartz countered, "Well, I'm getting the hell out of here, there's pickets outside." The pickets reappeared at the project site on the morning of July 6, again with a placard advertising the dispute with Paddock. Approximately 50 of Walter's employees were scheduled to work at the project on that day, but refused to cross the picket line. Nemconsky observed the picket line about 7:30 a.m. and shortly thereafter called Respondent Cahill. Nemconsky repeated the statement he had read to Cahill the day before concerning Paddock's removal from the project, and asked Cahill why the pickets were out. Cahill replied that the Union had not received the telegram Walter promised to send. The pickets were removed after Nemconsky's conversation with Cahill. B. Contentions of the Parties In support of the allegations of 8(b)(4)(B) violations, the General Counsel contends that the facts of this case fall within the ambit of the evidentiary standards established by the Board for common situs picketing in the Moore Dry Dock case.6 More particularly, the General Counsel asserts that the Respondents failed to comply with Moore Dry Dock by refusing to limit their picketing to those times when Paddock was engaged in its normal business activities at the Valley View situs, thus displaying that an objective of the picketing was to enmesh Walter and other neutrals in a dispute in which they were not involved. To support this contention the General Counsel relies on the evidence that the Valley View swimming pool, and apparently all pools constructed by Paddock, are erected in three separate stages, with a definite hiatus between phases. From this posture the argument is advanced that the Respondents were aware of the hiatus between the several phases of the construction, that the Respondents had access to the Valley View site and opportunity to observe when Paddock was on or off the job, and, accordingly are charged with the burden of ascertaining, as a condition to the lawful resumption of picketing, whether Paddock was engaged in its normal activities on the site. Insofar as the General Counsel's argument pertains'to the picketing of June 12 and July 5, I find reason to disagree with his proposition. There is no evidence in the record that Respondents were put on notice at any time between May 24 and July 5 that Paddock was not working at the site, or any notice as to On August 29, pursuant to a 10(j) petition, the United States District 5 The record reveals that an employee of subcontractor Ezra Stipp was Court granted a temporary injunction , and insofar as the record reflects the operating a backhoe on the site on July 5 Respondents' picketing of the Valley View project after that date has been 6 Moore Dry Dock Co, 92 NLRB 547 limited to times when Paddock was on the site LOCAL 542, OPERATING ENGINEERS 381 when, if at all Paddock would resume work on the pool. To attribute sufficient knowledge to the Respondents to support a finding of a violation for resumption of the picketing, I would be required to infer from all the circumstances that the Respondents received notice by some indirect means, not only of the times Paddock was actually absent from the site, but knowledge of the intended dates of return. On the record before me, the facts will not support the inference. The swimming pool where Paddock's employees were engaged is located below ground level, and inside the shell of a building. Although Paddock's trucks and equipment were parked outside the shell of the building, the site could not be seen from the pickets' station at the single entrance to the project, and was not readily observable from any other vantage point to which the pickets had access. In short, the construction site where Paddock was engaged was not easily surveilled except at close range. The General Counsel argues, nevertheless, that because of the bargaining agreement with Walter, the Respondents had ready access to the whole project, and Schwartz in particular had frequent opportunities to observe Paddock's operation. Assunung these to be the facts, it is necessary to consider what Schwartz, or any other interested observer would have been witnesses, and what presumptions the observer would be entitled to draw. When Paddock departed from the site after the picketing on May 23-24, he removed all men and equipment, but left behind sand and reinforcing steel to be used in the subsequent stages of the construction. The mere presence of these materials would probably not, under Board and court precedent, establish Paddock's presence on the job to the extent common situs picketing would be lawful, but the presence of the materials, coupled with the unfinished nature of the construction, would certainly alert any interested observer to the probable return of Paddock to the jobsite. In the circumstance of this case a finding that the Respondents knew, on any given day, that Paddock's employees were absent from the common situs is insuffi- cient to support a finding that a resumption of the picketing was a violation of Section 8(b)(4)(B). The finding is only supportable upon additional proof that the Respondents had no reasonable grounds for the belief that Paddock's return was imminent. Officials of both Walter and Paddock testified to the necessary hiatus between the three phases of the pool construction, and both companies knew the approximate date when Paddock would resume work. It would have been a simple matter to notify the Respondents that Paddock was off the common situs and not expected to return until a stated date, but the companies chose instead to shift the burden to the Respondents, with the obvious anticipations that Local 542 would choose to picket on some occasion when Paddock was off the common situs. There must, of course, be reasonable grounds for the Respondents' belief of Pad- dock's presence on the common situs,7 but a union's right to engage in lawful primary activity cannot be played like a yo-yo, and the evidentiary standards of Moore Dry Dock cannot be construed to place an unconscionable burden on the Respondents. There was, in fact, no picketing of the site between May 24, and June 12, but the events of June 7 can only be construed as additional proof of the reasonableness of the Respondents' belief of Paddock's presence on the common situs where the picketing was resumed on the latter date. On June 7, Walter put the Respondents on notice that separate gates would be posted, and the target date for this action was June 12. The notice could only serve to confirm what was already obvious to the Respondents-Paddock's work on the site was incomplete and his employees would return. The action date set for the implementation of the separate gates was given as June 12, and the Respondents could readily presume this was the date when Paddock would return to the common situs. Picketing was resumed on June 12, but was discontinued after I day. The picketing did not resume again until July 5, when Paddock's employees and equipment were on the common situs. During the course of the hearing in this proceeding, but not in his brief, the General Counsel contended that the Respondents' conduct with respect to the separate gates established by Walter on June 12, even though not alleged as a violation of the Act, should be considered in assessing the object of the picketing. The facts are that there is a single entrance to the Valley View project, which consists of a right-of-way approximately 40 feet wide leading off a public street. The entrance is in the shape of a T, with the public street serving as the crossbar. The main construction site at the Valley View project, and particularly the swimming pool, cannot be observed from the entrance, and observation from other vantage points would require access to private property. To create separate gates for the primary and the neutrals, Walter fixed a 4 by 4 post, wrapped with ribbon, in the center of the entrance way, approximately 20 feet back from the public street. Large signs were placed on either side at the extreme edge of the entrance, one marked for Paddock's use, and the other for Walter and other neutrals. The only testimony elicited concerning the picketing at the so-called separate entrance to the site was from Job Superintendent Nemconsky. He testified that on rune 12 he saw the pickets walking on both the blacktop surface of the public street and across the access way where the signs were posted. He was unable to testify, for lack of opportunity to observe, how frequently or for what length of time the pickets remained at the entrance reserved for neutrals. In view of the physical circumstances, I have serious reservations that the separate entrances erected by Walter on June 12 would legally restrict the Respondents to picketing in a limited 20-foot space set aside for Paddock, its suppliers and deliverymen. Assuming to the contrary, however, there is insufficient evidence that the Respon- dents picketed the gate reserved for neutrals to the extent necessary to warrant a finding of an unlawful objective. The General Counsel, moreover, does not rely on the alleged conduct involving the reserved gate as a separate ' Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Atlas Reid, Inc,) 170 NLRB 584. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation, but only as background evidence confirming the Respondents' secondary motive. The evidence relating to the picketing at the reserved entrance is limited to June 12, and in view of the finding that there was no unlawful conduct on the part of Respondents on that date, the evidence and the General Counsel's contention are rejected. Accordingly, I find that the Respondents' picketing of the common situs at the Valley View project on June 12 was lawful primary activity, unattended by any secondary objective.8 As to July 5, my finding is the same with respect to the picketing itself, modified only to the extent of my finding on the oral inducement set forth below. As to the oral inducement alleged to have occurred on July 5, I find reason to credit the testimony of Shaffer and to reject Schwartz' version of the conversation. Schwartz testified that he entered the site after the pickets had been posted, but was unable to recall whether he posted the pickets, or whether they were posted by Cahill. I accept his inability to recall this aspect of the events, but I also find that it colors the reliability of his testimony relating to the rest of the incident. More crucial, Schwartz entered the site through the picket, line, but his reason for doing so was never explained. He admitted that he stopped to talk to no persons on the site other than Fan and Shaffer and left the site immediately after the conversation. Upon this, and all of the relevant evidence, I find that Schwartz directed Farr to leave work because of the picket line, thus inducing and encouraging Fan to engage in a work stoppage. I also find that by telling Farr that he had directed the backhoe operator to leave the job, Schwartz compounded the inducement and encouragement. There remains for consideration the Respondents' continuation of the picketing on July 6. As related above, on the afternoon of July 5, Nemconsky called the Respondents to inform them that Paddock's work had been suspended and Paddock would not return to the project until its dispute with Respondent Local 542 had been resolved. The Respondent contends that the evidence pertaining to Walter's notice to the Union about Paddock's removal from the job should be rejected on grounds of lack of proof that the Union received the notice. To this extent Nemconsky testified on direct that he called the union hall and talked to Respondent Cahill. On cross-examination Nemconsky stated that he did call the union hall, but could not testify positively that he talked to Cahill. Cahill did not testify in this proceeding, and I accept Nemconsky's testimony that he called the union hall and read the message . The finding is the more appropriate in the face of Nemconsky's uncontradicted testimony that on July 6, when he questioned Cahill about the continuation of the picketing, Cahill complained that the telegram promised by Nemconsky had not been received. If Cahill did not receive the notice directly from Nemconsky, he received it indirectly from some other source. It is true that evidence is 8 In arriving at this finding, I reject the General Counsel's reliance on Cascade Employers Association, 180 NLRB 241, Farmers and Merchants Bank of Menomonee Falls, 196 NLRB 487, Atlas Ret4 Inc., supra, and other cited cases In those cases the union picketing at a common situs was under specific notice of the absence of the primary from the site, or, unlike here, the factual circumstances were such that the Union could not entertam a lacking that the Respondents received the telegram promised by Nemconsky. Even so, the notice received from Nemconsky on July 5 was sufficient to place the Respondents on notice that Paddock had been removed from the jobsite, would not return until the dispute was resolved, and to require the Respondents to make some reasonable inquiry about Paddock's continuing presence on the common situs before resuming the picketing on July 6. By failing to make a reasonable inquiry after notice of Paddock's removal, the Respondents failed to limit their picketing to times Paddock was engaged in its normal business at the situs,9 and thereby violated Section 8(b)(4)(i) and (ii)(B) of the Act. I have found above that the Respondents violated Section 8(b)(4)(i)(B) of the Act by Schwartz' conduct inducing and encouraging an employee of a neutral employer, Murray Walter, Inc., to cease work on the Valley View project. I have also found that the Respon- dents violated Section 8(b)(4)(i) and (ii)(B) by picketing the Valley View project on July 6, when the primary employer, Paddock Pool Builders, Inc., was absent from the common situs and the Respondents had no reasonable expectation that Paddock would return. The conduct is sufficient to warrant the finding that an object of the Respondents' picketing of the common situs at the Valley View project was that prohibited by Section 8(b)(4) (B) of the Act, and a cease and desist order is required.io IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondents set forth in section III, above, occurring in connection with the operations of Paddock, Walter and other persons engaged on the Valley View project as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states, and tend to lead to, and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, I shall recommend that the Respondents be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions, and the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Paddock Pool Builders, Inc., is, and has been at all times material to this proceeding an employer engaged in reasonable belief that the primary was present on the common situs. 9 Cascade Employers Association, Inc., supra, and Moore Dry Dock Co, supra. 10 See Btsantz Electric Co, Inc, 192 NLRB 283, 287, but compare IBEW, Local 441 (Suburban Development Co), 158 NLRB 549 LOCAL 542, OPERATING ENGINEERS commerce within the meaning of Section 2(6) and (7) of the Act. 2. Murray Walter, Inc., A. G. Smith Construction Services, Culp Bros., Inc., Boly's Iron Works, and Anthracite Plate Glass Co., are employers engaged in commerce, or in an industry affecting commerce within the meaning of Section 8(b)(4)(B) of the Act. 3. The Respondent, Local 542, International Union of Operating Engineers (AFL-CIO), is a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. 4. Robert Cahill and Ralph Schwartz are agents of Respondent Local 542 within the meaning of Section 2(13) and 8(b) of the Act. 5. By the acts and conduct set forth in section III, above, the Respondents have 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 are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER" The Respondent, Local 542, International Union of Operating Engineers (AFL-CIO), its agents Robert Cahill and Ralph Schwartz, and its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging any individual employed by Murray Walter, Inc., or any other person engaged in commerce or an industry affecting commerce with whom it has no primary labor dispute, to engage in a strike or a refusal in the course of their 11 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall , as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 383 employment to use, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Murray Walter, Inc., or any other person engaged in commerce or in an industry affecting commerce, to cease doing business with Paddock Pool Builders, Inc., under circumstances prohibited by Section 8(b)(4)(B) of the Act. (b) Threatening, coercing, or restraining Murray Walter, Inc., or any other person engaged in commerce or in an industry affecting commerce with whom it has no primary labor dispute, for the object described in the preceding paragraph under circumstances prohibited by Section 8(b)(4)(B) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at the business office and meeting hall of Respondent Local 542 copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent Local 542's repre- sentative, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respon- dents to ensure that said notices are not altered , defaced, or covered by any other material. (b) Sign and furnish to the Regional Director for Region 4, sufficient signed copies of said notice for posting by Paddock Pool Builders, Inc., and Murray Walter, Inc., if willing, at places where notices to their employees are customarily posted. (c) Notify the Regional Director for Region 4, in writing, within 20 days of the receipt of this Order, what steps have been taken by the Respondents to comply herewith. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "