Local 926, Operating EngineersDownload PDFNational Labor Relations Board - Board DecisionsApr 27, 1972196 N.L.R.B. 692 (N.L.R.B. 1972) Copy Citation 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 926, International Union of Operating Engineers and High Point Sprinkler Company of Atlanta. Cases 10-CD-233, 10-CD-234, 10-CC-790, and 10-CC-793 April 27, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 8, 1971, Trial Examiner John F. Funke issued the attached Decision in this proceed- ing. Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions and support- ing briefs, and the Respondent filed a brief in opposi- tion to the exceptions of the General Counsel and the Charging Party. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions,2 only insofar as they are consistent herewith. We find no prejudicial error, however, in his rulings on evidentiary or proce- dural matters. There were three work stoppages which occurred on November 18, 1970, January 6, 1971, and March 15, 1971. The stoppage on November 18 occurred when Bill Jones, master mechanic for Economy (the prime mechanical contractor), upon inquiring and learning that the man operating the Lull lift was not an operating engineer, said he was going home, made a gesture with his hand, and left the jobsite. Thereu- pon, the other operating engineers (employed by Economy and other subcontractors) shut down their machines and left. They returned to work a day or two later, at the request of Respondent's business agent, Archer, who told them he would submit the matter to the Joint Board. After the Joint Board awarded the disputed work to members of Respondent, the Employer acceded to We do not adopt the Trial Examiner 's comments on matters extraneous to this proceeding. In particular , we disavow his remarks with respect to the Board's findings in the Decision and Determination of Dispute issued here- tofore The question before the Board at that time was merely whether there was reasonable cause to believe that Section 8(bX4XD) had been violated, rather than whether a violation had in fact occurred, and it was thus unneces- sarh to determine then whether the record warranted the latter finding. We find that the letter from Respondent 's attorney to the Employer and Economy , dated July 6 , 1971, violated Section 8(bx4XuXB) and (D) of the Act, rather than 8 (bx4XiXB) and (D), as inadvertently stated by the Trial Examiner. Economy's request and permitted Economy to use its own employees, represented by Respondent, to oper- ate the Lull lifts. However, on January 5, 1971, em- ployees of the Employer again began to operate these machines. The operating engineers continued to work throughout that day but walked off the job after a short time the next morning. They returned a few days later when the operation of the machines was again assigned to members of Respondent. On March 15, employees of the Employer again operated the Lull machines and all members of Respondent employed by Economy walked out until the work was reassigned again to the engineers the next day. However, when the Employer once again assigned the disputed work to its own employees after the Board had held that such employees were entitled to perform the work, the operating engineers remained on the job. The Trial Examiner found that the General Coun- sel did not establish Respondent's responsibility for the various work stoppages. Specifically, with respect to the walkout on November 18, he found insufficient evidence that Jones' gesture was a signal to other operating engineers to stop working or that Jones was a steward or otherwise had authority to call a work stoppage. We disagree. As to Jones' status, the multiemployer contract un- der which Respondent's members worked for Econo- my expressly state that "There shall be a steward on each job" and that his duties were "to look after the interest of both parties, see that the number of men desired by the employer is reported promptly to the proper authorities ... and take up all grievances on the job and try to have same adjusted. In the event he cannot adjust them, he must promptly report that fact to the proper authority." These are precisely the func- tions actually performed by Jones, and they bear no resemblance to the master mechanic's duties as set forth in the contract? Respondent, which was fully aware of Jones' activities, never informed the contrac- tors that he was exceeding his authority; instead, it accepted the benefits of his conduct. It is thus clear that, even if Jones was never formally designated as job steward, he occupied that position in fact. In declining to find Jones an agent of Respondent, the Trial Examiner stated that he saw no basis for inferring that Jones was acting solely on its behalf. This, however, is not the proper standard; a finding of agency is not precluded by the fact that, as master mechanic, Jones was also acting on behalf of Econo- my.4 This is particularly true with respect to an in- ducement of a walkout by employees of Economy, 3 These duties are described in fn 7 of the Trial Examiner's Decision, which erroneously states this provision is part of the Respondent's work rules. 4 Local No. 825, International Union of Operating Engineers, AFL-CIO (Burns & Roe, Inc ), 162 NLRB 1617, 1626-27, fn. 5, enfd . in relevant part 410 F.2d 5 (C.A 3) 196 NLRB No. 103 LOCAL 926, OPERATING ENGINEERS since such a walkout, while serving Respondent's pur- poses, was obviously detrimental to Economy. In ad- dition, Jones' efforts to get the Employer to use operating engineers , especially his admitted statement concerning the Employer's plan to assign the disputed work to its own employees, that "It won't work," clearly exceeded his duties as master mechanic and can only be explained as activity on behalf of Respon- dent. While Economy indicated it wanted the Em- ployer to use operating engineers , the only interest it could have in this matter was to make sure that its own employees would continue to work, and it would not have resorted to threats of refusals to work to achieve this end. On the basis of the above facts, we conclude that Jones was an agent of Respondent. We further conclude, contrary to the Trial Examin- er, that the three walkouts were induced by agents for whose conduct Respondent is responsible, rather than being simply spontaneous protests by the operating engineers . As to the first walkout, we have already found that Jones was Respondent's agent, and if his gesture alone was not a sufficiently clear signal to the operating engineers to stop working, his departure from the jobsite surely was. Furthermore, this con- duct was consistent with Jones' prior warning that the Employer's assignment would not work. We therefore find that Jones induced this walkout. Subsequent events further demonstrate that when the operating engineers walked off the job thereafter, they did so, not because they were unwilling to work while members of other unions performed work claimed by the operating engineers,' but because Respondent's agents told them to do so. Significantly, a day or two after the November 18 work stoppage, the operating engineers returned to work when Respondent's business agent asked them to, even though members of another union were still perform- ing the disputed work. On January 5, when the Employer's employees again began to operate the Lull machines, no agent of Respondent was there to tell the operating engineers what to do, and they worked that day. They did, however, stop working early the next morning; the only plausible inference is that they did so because, in the meantime, they had received instructions from one of Respondent's agents. Final- ly, after the work was again assigned to the 3 The Trial Examiner erroneously stated that one operating engineer, whose testimony he accepted, testified that all of the operating engineers walked out for this reason . In fact , this witness testified only as to his own motive for walking out . Accordingly, our conclusion that the walkouts were not spontaneous , but were induced by Respondent, does not require rejection of the Trial Examiner's credibility findings. 693 Employer's employees in accordance with the Board's Decision and Determination of Dispute, the operat- ing engineers remained on the job. It is clear from the above that the operating engi- neers worked on several occasions when members of another union were performing the disputed work. When they did refuse to work, however, they consis- tently did so simultaneously and with unanimity. In our view, their pattern of behavior belies the assertion that they acted out of ardent individual devotion to the principles of their International union. That they were, in fact, adhering to Respondent's principles cannot, however, be denied. Respondent consistently claimed the disputed work. Its business agent, Archer, admittedly informed Economy of prior Joint Board awards holding that operating engineers were entitled to perform similar work and, when the initial threat by Respondent's agent, Jones, proved ineffective, the Respondent's International union also submitted this dispute to the Joint Board. Fur- thermore, Respondent never attempted to discipline any of the striking employees, although the contract covering this jobsite prohibited work stoppages aris- ing out of jurisdictional disputes and Respondent's constitution makes members subject to discipline for interfering with the performance of contracts. Indeed, after the Board's Decision and Determination of Dis- pute, Respondent, through its attorney, threatened further work stoppages if the Employer acted in ac- cordance with the Board's award. We thus have a continuing course of conduct by Respondent in fur- therance of its claim to the disputed work, which be- gan before the work stoppages and continued after the Board's determination. Under all the circumstances we are persuaded that Respondent, on November 18, 1970, January 6, 1971, and March 15, 1971, induced or encouraged employ- ees of Economy to engage in work stoppages and thereby threatened, coerced, and restrained the Em- ployer, Economy and J. A. Jones, all with an object of forcing the Employer to assign the disputed work to employees represented by Respondent and forcing Economy and J. A. Jones to cease doing business with the Employer.6 By such conduct, Respondent violated Section 8(b)(4)(i) and (ii)(B) and (D) of the Act. ORDER Pursuant to Section 10(c) of the National Labor 6 Local No. 825, International Union of Operating Engineers (Burns & Roe, Inc), 162 NLRB 1617 , 1621-22, enfd . 400 U.S 297. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Local 926, International Union of Operating Engineers, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in, or inducing any individual em- ployed by J. A. Jones Construction Company, Econo- my Mechanical Industries, Inc., or any other person engaged in commerce or in an industry affecting com- merce to engage in , a strike or a refusal in the course of his employment to perform any services, where an object thereof is to force or require J. A. Jones Con- struction Company, Economy Mechanical Industries, Inc., or any other person engaged in commerce or in an industry affecting commerce, to cease doing busi- ness with High Point Sprinkler Company of Atlanta. (b) Engaging in, or inducing any individual em- ployed by J. A. Jones Construction Company, Econo- my Mechanical Industries, Inc., or any other person engaged in commerce or in an industry affecting com- merce to engage in, a strike or a refusal in the course of his employment to perform any services, where an object thereof is to force or require High Point Sprin- kler Company of Atlanta to assign any work to em- ployees who are represented by Respondent rather than to employees who are represented by another labor organization. (c) Threatening, coercing, or restraining J. A. Jones Construction Company, Economy Mechanical Indus- tries, Inc., or any other person engaged in commerce or in any industry affecting commerce, where an ob- ject thereof is to force or require J. A. Jones Construc- tion Company, Economy Mechanical Industries, Inc., or any other person to cease doing business with High Point Sprinkler Company of Atlanta. (d) Threatening, coercing, or restraining J. A. Jones Construction Company, Economy Mechanical Indus- tries, Inc., or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require High Point Sprinkler Company of Atlanta to assign any work to employees who are represented by Respondent rather than to employees who are represented by another labor or- ganization. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspic- uous places , including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered , defaced , or covered by any other material. (b) Sign and mail copies of said notice to the Re- gional Director for posting by J. A. Jones Construc- tion Company , Economy Mechanical Industries, Inc., and High Point Sprinkler Company of Atlanta, these companies willing , at all locations where notices to their respective employees are customarily posted. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. ' In the event that this 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 " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in, or induce or encourage any individual employed by J. A. Jones Con- struction Company, Economy Mechanical In- dustries, Inc., or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to perform any services, where an object thereof is to force or require J. A. Jones Construction Company, Economy Mechanical Industries, Inc., or any other person to cease doing business with High Point Sprinkler Com- pany of Atlanta. WE WILL NOT engage in, or induce or encourage any individual employed by J. A. Jones Con- struction Company, Economy Mechanical In- dustries, Inc., or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to perform any services, where an object thereof is to force High Point Sprinkler Company of Atlanta to assign any work to em- ployees represented by Local 926, International Union of Operating Engineers, rather than to LOCAL 926, OPERATING ENGINEERS employees represented by another labor organi- zation. WE WILL NOT threaten, coerce, or restrain J. A. Jones Construction Company, Economy Me- chanical Industries, Inc., or any other person en- gaged in commerce or in an industry affecting commerce, where an object thereof is to force or require J. A. Jones Construction Company, Economy Mechanical Industries, Inc., or any other person to cease doing business with High Point Sprinkler Company of Atlanta. WE WILL NOT threaten, coerce, or restrain J. A. Jones Construction Company, Economy Me- chanical Industries, Inc., or any other person en- gaged in commerce or in an industry affecting commerce, where an object thereof is to force High Point Sprinkler Company of Atlanta to as- sign any work to employees represented by Local 926, International Union of Operating Engi- neers , rather than to employees represented by another labor organization. LOCAL 926, INTERNATIONAL UNION OF OPERATING ENGINEERS (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, Peachtree Building, Room 701, 730 Peachtree Street, NE, Atlanta, Georgia 30308, Tele- phone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F . FUNKE , Trial Examiner: This proceeding was brought before the National Labor Relations Board , herein the Board, upon: 1. A charge by Hi h Point Sprinkler Company of North Carolina , herein Hi Point North Carolina against Local 926, International Rion of Operating Engineers , herein the Engineers or the Respondent , in Case l0-CD-233 alleging the Engineers violated Section 8(b)(4)(ii )(D) of the Act, filed November 17, 1970. 2. An amended charge by High Point Sprinkler Company of Atlanta , herein the Employer , in Case 10-CD-233, alleg- ing the Engineers violated Section 8(b)(i) and (ii)(D) of the 695 Act, filed November 20, 1970. (By this amendment the Em- ployer succeeded High Point of North Carolina as the Charging Party.) 3. A charge by the Employer against the Engineers in Case 10-CD-234 alleging the Engineers violated Section 8(b)(4)(i) and (ii)(D) of the Act, filed March 15, 1971. 4. A charge by the Employer against the Engineers in Case 10-CC 790 allegin the Engineers violated Section 8(b)(4)(i) and (ii)(B) of the Act, filed January 11, 1971. 5. A charge by the Employer against the Engineers in Case 10-CC-793 alleging the Engineers violated Section 8(b)(4)(i) and (ii)(B) of the Act, filed March 15, 1971. 6. A hearing held pursuant to Section 10(k) of the Act before George L. Card, Hearing Officer, at Atlanta, Geor- gia, on January 5, 6, and 7, 1971. 7. A Decision and Determination of Dispute by the Board finding there was reasonable cause to believe the Engineers had violated Section 8(b)(4)(D) of the Act, dated June 28, 1971, reported at 191 NLRB No. 52.1 8. An injunction by the District Court for the Northern District of Georgia pursuant to Section 10(1) of the Act issued July 22, 1971. 9. Order consolidating cases and complaint issued by the General Counsel against the Engineers alleging Engineers violated Section 8(b)(4)(i) and (u)(D) and (l)-of the Act, dated September 1, 1971. 10. Amendment to the complaint by General Counsel, dated September 8, 1971. 11. Hearing held by me at Atlanta, Georgia, September 22, 1971. 12. Stipulation at the hearing that the Trial Examiner take official notice of the transcript and exhibits in the 10(k) proceeding and the transcript in the 10(1) proceeding.2 13. Briefs submitted by the General Counsel, counsel for the Respondent Engineers, and counsel for the Employer, received November 3, 1971. The briefs were exceptionally able and helpful. Upon the entire record in this case and from my observa- tion of the witnesses while testifying, I make the following: FINDINGS I THE COMPANIES INVOLVED J. A. Jones Construction Company, herein J. A. Jones, was the general contractor engaged in the construction of the Western Electric Cable plant, herein the Western plant or the jobsite, in the Atlanta, Georgia, area. Economy Mechanical Industries, Inc., herein Economy, was engaged by J. A. Jones as a subcontractor in the con- struction of the Western plant. High Point North Carolina was engaged as a subcontrac- tor by Economy for the purpose of installing an automatic sprinkler system at the Western Plant. The Employer is a Georgia corporation engaged in in- stalling automatic systems. As such it agreed with High Point North Carolina to provide the labor for installing the sprinkler system for the Western plant. In a representative year it purchases materials valued in excess of $50,000 from places outside the State of Georgia. The Employer is engaged in commerce within the meaning of the Act. 1 Five months and 21 days after the close of the hearing. 2 The transcript in the 10(k) proceedings totalled 524 pages; in the 10(1) proceeding 56 pages. Where exhibits in the 10(k) and 10(1) proceedings are referred to herein they are so designated. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. LABOR ORGANIZATIONS INVOLVED its attorney to the Employer threaten to shut down the work at the jobsite unless the Employer assigned the work of operating the Lull lift to employees who were members of the Engineers rather than to employees who were not mem- bers of the Engineers? (4) Was W. L. (Bill) Jones a steward and/or an agent of the Engineers? The Engineers is a labor organization within the meaning of the Act. Local 669, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada , herein Local 669 , is a labor organization within the meaning of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Issues The issues presented: (1) Did the Engineers on or about November 18, 1970, January 6, 1971, and March 16, 1971, cause its members employed by Economy and other employers to cease work for the purpose of forcing the Employer to assign the work of operating a Lull lift machine to employees who were members of the Engineers rather than to its employees who were not members of the Engineers? (2) Did the Engineers cause its members employed by Economy and other employers to cease work for the pur- pose of forcing and requiring Economy and other employ- ers to cease doing business with the Employer? (3) Did the Engineers by a letter dated July 6, 1971, from B. Background The background facts are not in dispute. J. A. Jones, the general contractor at the Western plant, subcontracted the mechanical construction to Economy, which in turn subcontracted the design, fabrication, and installation of the automatic sprinkler system to High Point North Carolina. High Point North Carolina in turn subcon- tracted the installation of the system to the Employer which agreed to provide the labor. J. A. Jones , as a member of the Association of General Contractors, had a collective-bargaining agreement with the Engineers and Economy also operated under a contract with the Engineers? The Employer had a collective-bar- gaining contract with Local 669. (Employer's Exh. 1, 10(k).) The followingg witnesses who a peared in either the 10(k) proceeding or the 8(b)(D) and (B) proceeding, or both, had best be identified. They were: Name Position Employer Albright A. D. Asst. Bus. Mgr. Engineers Aldridge, H.M. Vice President High Point N.C. Aldridge, W.F. President Employer Allen, Dick Project Manager Economy Donnelly , H.G., Jr. General Foreman Economy Hall, W.L. Asst. Bus. Mgr. Engineers Honeycutt, W.L. Vice President Employer Howard, J. C. Operating Engineer Economy James, C.R. Superintendent Economy Jarrett, G.L. Employee Employer Jones, W.L. Master Mechanic Economy Russell, J.C. Job Foreman Employer C. The Facts 1. The work stoppage of November 18 The first violation alleged is that the Engineers, on No- vember 18 , 1970, induced and encoura ed a work stoppage at Western in violation of Section 8(b) ,4Xi) and (ii)t( and (D) of the Act . This dispute and the stoppage arose from the operation of the Lull lift by members of Local 669 rather than by employees who were members of the Engineers. James C. Russell testified in the 1 0(k) proceeding that he was job foreman for the Employer at Western and that on or about November 8 , 1970, three Lull lifts were sent to the jobsite by the Employer . On November 9 he had a conversa- tion with H. G. Donnelly, general foreman for Economy, i The contract which Economy agreed to observe was between the Engi- neers and the Association of Steel Erectors and Heavy Equipment Operators. (Resp. Exh. 10, 10(k).) and Bill Jones, master mechanic for Economy, in which Donnelly asked him if he wanted to hire an operator for the machine." He told them that the Employer would operate the machine with its own employees and Jones then told him that "we will shut the plant down, we need to go fishing anyway." On November 11 he told Dick Allen, project man- ager for Economy, that the Employer was going to operate the machine (with members of Local 669) and Allen asked for time to straighten the situation out, otherwise the Engi- neers would shut down the job. On November 16 Russell stated he intended to use Lull lift and that C. R. James, superintendent for Economy, Allen, and Donnelly asked him not to operate it but to see a Mr. Spooner, an employee of Economy. He talked to Spooner and did not operate the machine that day. On November 18 he assigned the opera- tion of the machine to G. L. Jarrett, a member of Local 669. 4 Russell testified that Donnelly identified Jones as a job steward for the Engineers LOCAL 926, OPERATING ENGINEERS At this time Jones came over to the machine and asked to see Jarrett's card and was told that Jarrett had a Local 669 card. Jones told him that he could not operate with that card, went back to his forklift machine, made a circular motion with his hand over his head and brought down his hand, palm down. Then the rest of the operating engineers brought their buckets to the floor and "we continued with our operation." On the next day Russell returned to the jobsite and the operating engineers did not work. The Em- ployer operated the Lull lift with Local 669 members until December 3 when Russell was told Economy would furnish the operators for the machines, using members of the Engi- neers . James, according to Russell, brought out the operat- ing engineers and told them they were to operate the Lull lifts. Members of the Engineers operated the lifts until De- cember 23, when the work closed down. Jarrett, who testified in the instant proceeding only, stat- ed on November 18 Jones asked to see his (union) book and that Jones was operating a machine on that day. He did not testify (in fact he was not asked) that Jones told him he could not operate without an Engineer's card. Donnelly, testifying in the 10(k) proceeding, stated he had a conversation with Russell when the Lull lifts were brought to the jobsite and that he took Bill Jones with him to check the "books" of the Employer's operators. Although Jones was with Donnelly, Donnelly stated that the job steward was Dan Dailey (for the pipefitters) and that it was the steward's job to check the books. Jones' presence was "more or less coincidental." When he left Russell, Bill Jones was still with him (Russell) but he did not know what was said. Donnelly explained that while he was in charge of the pipe- fitters on the job, Jones was in charge of the operating engineers and also their job steward.5 This information he received from Jones himself. Donnelly did not testify to any threats made by Jones to close down the plant. In the proceeding before me Donnelly's testimony was confined to November 18 and to the fact that after a stop- page of 2 or 3 days all the operating engineers returned to work. Dick Allen, who appeared in the 10(k) proceeding only, testified that he was project manager for Economy at the jobsite and at one time he had a problem (he could not recall what it was) with the sheetmetal workers and asked Jones if he could help him out. At that time Jones identified him- self as shop steward for the Engineers but Allen admitted that none of the Engineers' business agents so identified him.' He did state that when he had a problem regarding work assignments he usually talked to Jones. On cross-examination Allen testified that Jones, as mas- ter mechanic, was in char a of the work of the operating engineers , that he was a foreman, and that when he dis- cussed problems with Jones it was as master mechanic or foreman. 5 Donnelly's testimony is ambiguous on this point , because he also testified that Jones did not become steward until the first steward had left the job. He did state that Jones had identified himself as job steward before the Lull lifts were placed on the job . He did know that Jones was master mechanic and that he (Donnelly) as general foreman had to deal with him in that capacity with respect to problems with the engineers Allen also admitted that at the time of the sheetmetal problem another engineer "was kind of handling matters on the job" and he did not know if he talked to Jones or "this other man." Later , when interrogated by the Hearing Officer , Allen could not recall that Jones ever identified himself as steward ; in fact , he did not believe he had. 697 As to November 18, Allen testified that he believed the Engineers walked off the job and that he asked Jones the reason and Jones told him the Engineers believed the work (operating the lifts) belonged to them. Jones, according to Allen, did not call anyone off the job but only told him how the Engineers felt. Allen again stated that he believed the Engineers went back to work when Archer told them to go back. C. R. James, a superintendent for Economy, testified in the 10(k) hearing that W. L. Hall, assistant business manag- er for the Engineers, told him that Jones was job steward for the Engineers. He could not, however, fix the date of this conversation as either before or after the November work stoppage and testified that the designation was made when he had noticed the regular job steward was no longer on the job. James was not clear as to Jones' alleged duties as either master mechanic or job steward or how the respondibilities differed. All he apparently wanted to know from Jones was the rates of pay or the hours worked by particular operating engineers . Tones would provide the answer from his book, the "little yellow contract." (Resp. Exh. 10, 10(k).) Accord- ing to James practically every operating engineer carried one in his pocket for reference. William A. (Bill) Jones testified in the instant proceeding that he was a member of the Engineers and that he was employed by Economy as its master mechanic at the West- ern plant from August 1970 until May or June 1971. As master mechanic it was his job to hire and fire other operat- ing engineers , look after the men, and keep the equipment going. In this capacity he was the job foreman for Econ- omy. When the forklifts (Lull lifts) started operating on No- vember 18 Jones asked the operator for his book and when he found out that the operator had no Engineers book he told him he was not supposed to operate without an Engineer's book and that he (Jones) had not come out to take his job. Jones said it "made me plumb sick to my stomach and I went home." It was then that Jones said "to hell with it" and made the motion previously described and went home. He was not, according to his testimony, operat- ing a machine on that day. In the 10(k) proceeding Jones denied that he told Allen or anyone else that he was job steward for the Engineers at the jobsite.8 As to his conversation with Russell when the Lull ma- chines first appeared Jones stated he asked Russell if he would want an engineer to run the machine and when Rus- sell told him they would use their own men he told him it would not work and walked away. The work rules of the Engineers provide (Resp Exh . 10, 10(k)): SECTION 17. MASTER MECHANIC Master Mechanics must be a qualified Operating Engineer . Said qual- ification to mean he must be able to maintain and repair any piece of equipment on the job. They are to have charge of Engineers and equip- ment. When five (5) or more Engineers are employed by one Contractor, a master Mechanic must be in charge and receive not less than twenty- five cents (25 cents) per hour above journeymen's rate . Master Mechan- ics are not permitted to operate machines . Engineers shall make all repairs on their machines when there is no Mechanic on the Job , or when the Mechanic is otherwise engaged . This Section does not conflict with Section 13. 8 This issue was not resolved by the Board in its Determination and Deci- sion Jones agreed with Donnelly that a job steward had been appointed and that he was "in and out" and not there too long. He also stated that he had not, except for a brief period at Western, worked at a job in the Atlanta area where a job steward had been appointed. When a problem arose it was solved by calling the hall. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD His testimony as to November 18 does not differ in sub- stance from his testimony before me , except that he denied that thewave of his arm constituted a signal to anyone and that when Archer came out a day or two later and instructed the men to go back to work and he was told this he stated he was running the job, not Archer, and quit and again went home. (Later in his testimony he denied stating he was running the job .) He did testify at some length as to his opposition to have any other craft than engineers operating engineers ' equi ment, stating, I ain 't working no job with no long tails rf f can help it. If I get hungry enough I might, but I ain't that hungry yet." T. D. Archer , business manager for the Engineers , testi- fied that the first he learned that High Point (not further identified) was operating at the Western plant was when he was told that some members of the Engineers had walked off the job in a dispute over the operation of the Lull lift. About a week or 10 days before the walkout (Archer could not fix dates) he had a conversation with Dick Allen , project manager for Economy , in which they discussed the jurisdic- tion of the Engineers and at that time Archer gave Allen a group of decisions by the Joint Board of Jurisdictional Awards , awarding the opp ration of forklifts to the Engi- neers . (Resp . Exh. 12, 10(k).) After Archer received word of the walkout he went to thejobsite (he thought it was the next day) talked to the project manager for J . A. Jones and to Allen , and told them he would instruct his "people" to return the next day . He then filed notice of the dispute with Joint Board . On November 24 the Joint Board issued its certificate awarding the work to the Engineers . (Resp: Exh. 1, 10(k).) The Lull lifts were operated by operating engineers (employees of Economy) from December 3 through 23. Archer testified that he had not called or authorized the work stoppage and, as to the authority of W. L. Jones, he stated that he had never designated him or any other mem- bers of the Engineers as steward. The plant was sufficiently close , according to Archer, to permit him or one of the three assistant business managers to handle any problem. Stew- ards , in Archer 's opinion , created problems. W. L. Hall , assistant business manager for the Engineers, testified in the 10(k) proceeding that he had never appointed Bill Jones job steward and had never told Dick Allen that Jones or anyone else was job steward at Western. A. D. Albright, another assistant business manager for the Engineers , testified that he did not call the work stop- page of November 18 nor did he call any work stoppage by the Engineers at Western . He, too , testified that he had never appointed Jones job steward , had never told any rep- resentative of Economy that Jones was the steward, and so far as he knew there was no job steward at Western. John C. Howard , who did not appear in the 10(k) hearing, testified that he was a member of the Engineers and was operating a cherry-picker for Economy at the jobsite on November 18. When he saw an employee of the Employer who was not a member of the Engineers operate the forklift he let down the boom on his machine and went home. He received no signal or instructions from anyone and did not see Jones wave his arm. He did not know whether all the engineers walked off or not but did state the stoppage lasted 2 or 3 days . He went back to work when he saw the ma- chines were no longer operated by pipefitters . His reason for walking off was his unwillingness to work on an ob where members of other crafts were performing his (Engineers') work on the same job. 2. The shutdown of January 6, 1971 From December 23, 1970, until January 5 , 1971, the Lull lifts were not in operation. W. L. Honeycutt , Employer 's vice president , testified in the 10(k) proceeding that the lifts were closed down during the Christmas holidays and that later he was called by Employer's counsel and told that the "arrangement (under which the Engineers had been operating the lifts) no longer existed." He then ordered his pipefitters to operate the lifts, starting January 5, the first day of the 10(k) hearing. The operating engineers worked on January 5 but walked off on January 6. All the business agents of the Engineers who were in- volved in any way at the Western plant , Archer, Albright, and Hall together with Bill Jones , were in attendance at the hearing on January 5 , 6, and 7 , and all testified they had not called or authorized the walkoff and there is no evidence that any of them did. The only testimony on this point is that of Howard who testified the men walked off when the lifts were operated by pipefitters and they did so to protect their own job interests. On January 9, pursuant to another agreement between Economy and the Employer (Resp . Exh. J, 10(1)) the lifts were again operated by the Engineers . This agreement con- tinued (with one interruption on March 15) until July 4 when the Board 's Decision and Determination awarding the work to the Employer 's employees was received. No walkoff or work stoppage occurred after this date. H. G. Donnelly, Jr., general foreman for Economy, testi- fied at the 10(k) hearing on January 6 that about 9:15 that day the opperating engineers employed by Economy left the jobsite . He asked one of his engineers , Jack Jones (not to be confused with Bill Jones ), why they were leaving and he pointed to the Lull lift operated by the Employer with a sprinkler fitter" and a scissors lift operated by an electri- cian . On cross-examination Donnelly testified that Economy's operators had worked on the preceding day al- though the Lull lift had been operated by the Employer with employees from the "sprinkler fitters local." (Members of Local 669.) 3. The shutdown of March 15, 1971 Russell testified that on Friday , March 12, he told Dick Allen that on the following Monday he would operate the lifts with pipefitters. On Monday , March 15 , the operating engineers walked off the job. W. L. Aldridge, president of High Point North Carolina, testified in the 10(11) proceeding that in mid-March 1971, prior to the walkout , he told Mr. Bruecsh of Economy that High Point would refuse to continue pay for the operating engineers and would put the pi efitters back on the ma- chines . After the walkout Bruecsh threatened to cancel the High Point contract if it continued to use pipefitters, and an agreement was reached to use operating engineers until the Board decided the 10(k) case. The operating engineers then returned to work. There is no evidence that this walkout was called, or- dered , or authorized by any representative of the Engineers. LOCAL 926, OPERATING ENGINEERS 699 4. The Letter of July 6 On July 6 , J. R. Goldthwaite , Jr., counsel for the Engi- neers , wrote Economy and the Employer a three-page letter attached hereto as "Appendix A." The General Counsel contends that this letter, particularly the first three pparagraphs , violates Section 8(b)(4)(i)(D) and (B) of the Act. D. Findings 1. The work stoppages The Board's Decision and Determination of Dispute, above, resolves , at least as far as the Trial Examiner is concerned , the issue of the proper assignment of work. I also find that that Decision and the rulings made on motions of the Engineers to quash the 10(k) notice of hearing and its supplemental motion to reopen the record have foreclosed the issues therein raised from determination by the Trial Examiner. The question before the Trial Examiner is wheth- er the Engineers violated Section 8(b)(4)(B ) and (D). As Trial Examiner George Bott observed in International Die Sinkers Conference, 162 NLRB 528, 531: The so -e issues before me in this case , therefore are whether there has been compliance with the Board's determination and whether Respondent has violated Section 8(b)(4)(ii)(D) as alleged . The latter issue, al- though considered preliminarily in the Section 10(k) proceeding, may be tried de novo in the unfair labor practice proceeding because the standard of proof in the unfair labor practice proceedin g is not "reasonable cause to believe ' as in the Section 10(k) proceeding but "preponderance of the evidence" as required in all un- fair labor practice cases. The complaint in this case does not raise the issue of compli- ance with the Board's determination. The General Counsel relies, as evidence of the Engineers' unlawful conduct, on the work stoppages or walkouts by members of the Engineers on November 18, 1970, and Janu- ary 6 and March 15, 1971. The walkouts admittedly oc- curred and admittedly were provoked by the assignment by the Employer of the work of operating the Lull lifts to its employees who were members of Local 699 rather than to members of the Engineers. Since there is no evidence that any business agent of the Engineers called, authorized, or ratified any of these stop- pages, the only evidence to establish the responsibility of the Engineers rests on the conduct of Bill Jones on November 18 and his status as an agent of the Engineers .9 On these issues the Board in its Decision and Determination of Dis- pute made the following finding: The evidence, on the basis of Jones' own testimony, establishes that it was Jones' responsibility to check with Respondent whenever there was a problem which affected Respondent's interests .3 The act of the em- ployees in walking off the job on November 18 follow- ing Jones' acknowledged gesture of disapproval over the work assignment and departure from the jobsite is some evidence that the employees involved recognized Jones' apparent authority to act on Respondent's be- half and that the gesture was a signal to quit work 9 There is no evidence that Jones participated in any way in either the stoppage on January 6 or that on March 15 . On January 6 he was in atten- dance at the 10(k) hearing and on March 15 he was absent from the jobsite suffering from a heart attack. Moreover , the walkout by Respondent' s members on January 6, 1971, following the reassignment of the dis- puted work of the Employer's own employees was con- sistent with the actions of Respondent's members on November 18 in supporting Respondent's established policy of claiming the disputed work for its members. 'Jones testified , "If I'm in doubt about anything , whether its a job or a man's been done wrong, if the company has been done wrong or if anybody's ill over something either way, I call the hall and ask them about it and ask them what I should do." This conclusion of the Board 10 is supported by one se- lected citation of testimony which does not present a com- plete picture (only that part favorable to the Board's conclusion) of Jones' authority or of the interests he was representing.] ] Jones was appointed master mechanic by Economy, not by the Engineers , and he represented Economy 's interests at the jobsite , including the hiring of operating engineers, the assignment of their work (not all operators were qualified to handle all equipment),and determining , from the"book," their rate of pay . When conflict over union rules or work assignments arose it was to Economy's interest to have them settled and the way to reach settlement was to call the hall. This was Jones ' responsibility as master mechanic and is the first step in the settlement of most jobsite disputes in the construction industry. If not settled by telephone the next step is a visit from a union agent . Jones was , it is true, a union member and required to be one but this does not justify the inference that he acted solely on behalf of the Engineers in resolving disputes . It would perhaps be more accurate to describe his duties as liaison officer between his employer and his union. In Nassau and Suffolk Contractors ' Association, Inc., 118 NLRB 174, 182, a Board majority , in considering whether participation by master mechanics in the administration of a union constituted a violation of Section 8(a)(2) due to their supervisory status with their employer, recognized their dual capacity, stating: If we examine the circumstances of this case , we find the master mechanics are foremen with the powers of such positions in the construction industry. They are not executives or officers as the dissent seems to imply. In addition the master mechanics owe allegiance at least as much to their Union as to their employers. They are agents of both. They obtained their positions only with the approval of the Union and the latter can cause their discharge by ousting them from member- ship. In long-unionized industries , the impetus for re- quirin foremen to be members of the rank-and-file union has come from the latter. There are distinctions which may be made between the role of master mechanics in Nassau and Suffolk Contractors and the case herein , in that, unlike Nassau, there was no requirement that the master mechanic also serve as job steward 12 nor does the record reveal that the Engineers 10 The term Board is used in its generic sense, applying not only to the members but to their staffs who assist in the preparation of its decisions. 11 Jones also testified that his duties as master mechanic included the right to hire and fire employees, "to look after the men , see that the men get work and keeping men on the job, fix the equipment when it goes down ." He also received instructions from the hall as to the qualifications of the members with respect to specific equipment. Neither Jones nor the other Economy su Ipervisors had this knowledge. s As to the alleged appointment of Jones as shop steward , I credit the testimony of Archer, Albright, and Jones that he was never so appointed. Archer gave two plausible reasons for not replacing Bailey (or Dailey): (1) 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designated Jones as master mechanic. Nevertheless it would be to the Engineers and not to Economy that Jones would look for future employment and it would be naive to believe that Jones would act either contrary to its working rules or contrary to its interests. I think a closer review of the record must be made to determine whether Jones was acting as agent for the Engineers when he walked off the job on November 18 and whether he in fact "signalled" the other operating engineers to follow. It is clear that when the Employer brought its lifts to the obsite on November 8, Economy foresaw trouble. Donnel- ^y and Jones asked Russell if he wanted an operating engi- neer to run the machines. Russell replied that he would operate them with his own (the Employer's) men. Russell testified that Jones told him if he did he (Jones) would close down the plant. Jones testified that he told Russell there would be trouble. On the basis of his demeanor as a witness I credit Jones. Jones not only appeared truthful but also gave no indication that he was given to making sweeping or unnecessary threats. I do not find that at this time either Jones or Donnelly (who was not a member) was acting solely on behalf of the Engineers. Both were interested in keeping the job running, to the'advantage of both Economy and the members of the Engineers. Russell spoke with Allen on November 11 and told Allen the Employer would oper- ate with Local 669 employees and Allen asked for time to straighten the situation out. Allen, as project manager for Economy, was hardly representing the Engineers. On No- vember 16 James and Donnelly, representing Economy, were told by Russell he was going to operate the lifts and James asked him to talk to Spooner, another employee of Economy. In these three conversations it was representa- tives of Economy, not of the Engineers, who asked Russell to delay in making the assignment. There is no evidence that any representative of the Engineers talked to or made any request of the Employer's or Economy's representatives that the work be assigned to the Engineers or made any threats of a work stoppage. Archer did, however, have a conversa- tion with Allenprior to November 18 in which he gave Allen a group of Joint Board decisions awarding the disputed work to the Engineers. Nor is there doubt that the Engineers claimed the right to the work, and that Jones as master mechanic and union member was aware of this claim, ap- proved it, and predicted that there would be a problem. We now reach the events of November 18. When the operation of the lifts was started on November 18 the Board found that Jones made an "acknowledged gesture of disapproval" over the assignment and departed from the 'obsite. It then concluded that this was `some evidence that the employees involved recognized Jones' ap- parent authority to Act on Respondent's behalf and that the gesture was a signal to quit work." But these findings are simply conclusionary.13 There is no direct evidence either the jobsite was sufficiently close so that he could handle any problems and (2) shop stewards only created problems . Cognizance might be taken of the fact that jobsite problems in the area of Atlanta, Georgia, are not ordinarily as abrasive as those arising in the metropolitan area of the city of New York. (See the history of litigation involving Local 138 (Long Island) and Local 825 (northern New Jersey), Operating Engineers , before this Board.) 13 There is no such word as "conclusionary ." It has been conceived out of wedlock by the courts to describe findings of the Board which, at least in the opinion of the courts , are not supported by evidence in the record. Until legitimated by usage , its status and lineage remain unrecognized by lexicog- raphers . Its sire, of course , was necessity. The Second Circuit has used the word "conclusory" with the same meaning, e.g., "Conclusory allegations that Jones had any authority, apparent or otherwise, to signal the employees to quit work or that his gesture of disapproval was a signal to quit work. Nor, in fact, is there evidence any engineer saw the gesture. Jones' own testimo- ny was that he was disgusted and "sick" at the thought that the pipefitters were taking his work away from him and the Engineers . The gesture was certainly not the usual wave of the hand which signals a walkout. In the proceeding before me. another operating engineer, Howard, testified that he qut on November 18 and again on January 6 and March 15 because he believed work which rightfully belonged to the Engineers had been assigned to another union. He did not walk out in response to any signal from Jones and, if his testimony is accepted, and I accept it, all of the operating engineers who walked out on the specified dates acted in individual protest of the assignment. It was their jobs which were at stake. This spontaneous protest theory was rejected by the Board (reversing the Trial Examiner on this issue) in Local 825, International Union of Operating) Engineers, AFL-CIO (Burns & Rae, Inc.), 162 NRLB 155. 4In that case a unan- imous vote had been taken at the jobsite by the operating engineers to strike over a disputed work assignment. The Board held Respondent Local 825 responsible for the strike on the ground that a lead engineer (master mechanic) had presided over the meeting and that a union agent was pre- sent at it. The Board also found, and there was substantial evidence to support its finding, that the lead engineer was an agent of Respondent. (Lead engineers were designated by the Respondent.) This brings us to the critical question; are there any cir- cumstances under which a strike or work stoppage is not a violation when it is found that the object thereof was unlaw- ful under Section 8(4)(B) or (D)? The First Circuit answered this question in the affirmative in N.L.R.B. v. Local 217, Plumbers [Carvel Co.] 361 F.2d 160 (C.A. 1), where it point- ed out that Section 8(b)(4)(B) did not proscribe all forms of economic self-help but only forbade a labor organization or its agents to engage in, or to induce or encourage ... a strike or refusal to work." It recognized that there existed a narrow distinction between union-induced and independent self-help but held the latter was not unlawful under Section 8(b)(4)(B). It did state: It may be highly unlikely that employees in the position of Carvel's will refuse to work without having some union suggestion to do so, but we must hold, so far as the abstract terms of the present contract are con- cerned, that as they do not call for Section 8(b)(4)(B) proscribed conduct they remain within the construc- tion industry proviso to Section 8(e). Counsel for the Employer takes a different point of view and his brief baldly states the Board law on this issue to be that "concerted action may be attributed to a labor organi- zation even in the absence of provable authorization by 15 The cases cited below do indeedunion officers or agents" furnish strong support for the postulate that, where a re- spondent union is charged with unlawful conduct, proof of questioning the ultimate findings of the Regional Director are not sufficient " (Lipman Motors, Inc v. N.L R.B, 451 F.2d 823 (CA. 2).) "Conclusory" is defined in Webster's Third International as- "Conclusive , rare " The word, obviously, was not used in the sense of its dictionary definition. 14 Aff., 400 U S 297. 15 Citing Teamsters Local 327, 173 NLRB No. 220; Laborers Union, Local 12, 174 NL° B No. 150, Iron Workers Local 272, I72 NLRB No. 19; IBEW, Local 25, 162 NLRB 703. LOCAL 926, OPERATING ENGINEERS union responsibility need not be established but may be inferred 16 This may be true but the inference must be a reasonable one and find some support in the extrinsic facts for it is still the General Counsel's burden to sustain his case be a fair preponderance of the evidence.17 Neither the Board nor the Courts have held that every unlawful work stoppage is per se the responsibility of the union involved. In IBEW, Local 25, above, Trial Examiner Paul Bisgyer stated, page 718: It is true that there is no direct evidence that the Respondent's Business Manager Kraker or its Business Representative Costello or any other official explicitly ordered or authorized the work stoppages or threats. Certainly, this is not determinative of the question of responsibility and, by no means, rules out circumstan- tial evidence, if substantial and reliable, upon which to predicate a finding. It is not beyond experience that involvement in an activity may take various tacit and subtle forms and may be as effective as outright inter- vention in achieving unlawful or improper objectives. [Citing United States v. International Union, United Mine Workers of America, 77 F.Supp. 563, 566.] That case and the case cited are in keeping with the law. The difficulty with finding a violation here is that the instant case presents no such substantial evidence to support the inference. In IBEW, Local 25 the Trial Examiner found that it was the obligation of the Respondent's agent to protect the disputed work against encroachment by other crafts and keep jobsites under watch, and that the shop stewards were required by the Union's bylaws "to see that no trade or workmen encroach upon the jurisdiction" of Respondent. The Examiner then fixed responsibility upon the Union in part upon the failure of the stewards to dissuade the electri- cians from striking and upon the failure of the local to discipline its members for the unlawful stoppages. Respondent's constitution and bylaws forbade unauthor- izedpwork stoppages under pain of penalty. Here the Engineers' rules imposed no such duty upon stewards and the General Counsel has not established, in my opinion, that any steward was representing the En&i- neers at the time of the stoppages. Nor did the bylaws forbid unauthorized stoppages as they did in IBEW, Local 25.18 In the Mine Workers' case, the District Judge in his fa- mous "nod or a wink or a code" decision found evidence to support his finding of union responsibility in letters from 16 The proposition that a lesser degree of proof is required where the respondent is a labor organization than where respondent is an employer must be rejected. 17 Strong suspicion does not become a "reasonable inference " merely by so designating it. 19 Counsel for the Employer strongly uses this failure to discipline its members as evidence of union responsibility . At this time the Engineers were operating not only under contracts which gave them theright to operate the machines in question but also under awards from the Joint Board , followed by a specific award of the disputed work at the jobsite, to the Engineers. It might further be noted that these awards received acquiescence from the Pipefitters International . Since the Engineers believed it had a right to the work, and its claim was more than merely colorable, I would see no justifica- tion for penalizing members for protecting their job rights, rights which were conceded by all but the Employer. Adjudication by the Board did not come until more than 7 months after the first stoppage and in the interim the work continued to be assigned to the Engineers by agreement between the Employ- er and Economy , agreement which was twice broken by the Employer. There are equities in this case which favor the Engineers but with which we, since we are administrating a statute, are unconcerned. 701 the Mine Workers to the signatories to the National Bitumi- nous Coal Agreement containing clear threats of strike. He also found that: The idea of suggesting that from 350,000 to 450,000 men should all get the same idea at once, indeendently of leadership, and walk out of the mines, is of course simply riduculous. But neither of these factors are found in this case. There is no prior correspondence establishing a threat, direct or implied, or a strike and no simultaneous mass walkout by the entire membership of an international union. The only implication of a prior threat is contained in Jones' admitted statement to Russell that there might be trouble (over the assignment of the Lull lifts)." But this statement, whether construed as a threat or aprediction,2° would be a slender reed upon which to rest union responsibility. Jones' opinion was certainly shared by other representatives of Economy and to say whether at the precise moment he spoke he was speaking as a master mechanic employed by Economy or as a member of the Engineers with authority to bind them requires an insight beyond the reach of most examiners. I reject the latter contention on the ground of insufficient proof. I find that a preponderance of the evidence does not establish that the Engineers induced or encouraged its mem- bers to strike or refuse to work on November 18, 1970, and January 6 and March 15, 1971, since there is insufficient evidence to establish (a) Bill Jones had authority, apparent or implied, to call a work stoppage; or (b) that his quitting work and his simultaneous gesture on November 18 consti- tuted a signal to the other operating engineers to quit work. 2. The Goldthwaite letter I find that the letter from J. R. Goldthwaite, Jr., to Economy and the Employer dated July 6, 1971, violated Section 8(b)(4)(i)(B) and (D) of the Act. It first refers to the breach of the agreement under which the parties (J. R. Jones, Economy and the Employer) were then operating by which an operating engineer was assigned to the Lull lift. It then asserts that Economy and the Employer must abide by this agreement. I agree that the agreements were breached but I am faced with the fact that the Board had, b7 this time, reached decision and awarded the work to empyees who were members of Local 669. The Employer was thus free to assign the work to its employees despite other committ- ments insofar as the Board was concerned. The letter then asserts that unless Jones and Economy live up to the agree- ment "it will be necessary for Operating Engineers, Local 926 to pursue every possible means to protect the rights of its members and the contractual obligations owed to Local 926, including both legal action and self-help." 19 Since the lifts were on the jobsite from November 8 until November 18 it would be surprising if the fact that the Employer intended to operate the machines with pipefitters did not become generally known . The time permit- ted concern and undoubtedly resentment to incubate among the engineers and it might also be surprising if there was not some discussion with Engi- neers' business agents. Whether or not they took place there is no evidence that the engineers received any instructions or encouragement to strike. The only intervention I find on the part of the Engineers with respect to the November 18 incident is that the Engineers induced the employees to return pending settlement of the dispute by the Joint Board. 20 This is one of the most delightful word games in labor law . Since there are neither cahphers nor scales which may accurately measure the distinction nor supply arithmetical yardsticks, any conclusion is purely subjective. Deci- sion inevitably reflects the conclusion desired. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I cannot construe this blunt language as anything but a threat to take strike action if necessary to force Jones and Economy to cease doing business with the Employer and to force the Employer to assign the disputed work to members of the Engineers. Upon the foregoing findings and upon the entire record in this case I make the following: CONCLUSIONS OF LAW 1. Respondent Local 926, International Union of Operat- Ing Engineers , by threatening, coercing, and restraining J. A. Jones and Economy with object of forcing and requiring J. A. Jones and Economy to cease doing business with the Employer , violated Section 8 (b)(4)(i)(B) of the Act. 2. By threatening, coercing , and restraining the Employer with the object of forcing and requiring the Employer to assign the work in dispute to employees represented by the Engineers , the Respondent Engineers violated Section 8(b )(i)(D) of the Act. 3. Respondent Engineers did not violate Section 8(b)(4Xii)(B) or (D) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY Having found the Respondent Engineers engaged in cer- tain unfair labor practices I shall recommend that it cease and desist from the same and take affirmative action neces- sary to effectuate the policies of the Act. [Recommended Order omitted from publication.] APPENDIX A Gentlemen: Re: High Point Sprinkler Company and Operating En- gineers Local 926 On Friday I notified Mr. McNeill Stokes , attorney for Economy, and Mr. Lee of J. A. Jones Construction Compa- ny that High Point Sprinkler Company had again notified members ol the Operating Engineers Union employed on the Western Electric project at Norcross-Tucker and had announced its intentions of lmanning the Lull high lift machines with its own employees: notwithstanding the previous orders of J. A. Jones that a full-time qualified operator be used and that the award of the Joint Board awarding such work to the Operating Engineers be complied with as the labor policy of the J . A . Jones Company and notwithstanding the change order issued by Economy directing High Point to man the Lull machines with Operating Engineers , with which High Point agreed. On this morning I was advised that the Lull machines were manned by plumbers employed by High Point . Gentlemen, it is necessary that you take effective action to require High Point to abide by Jones' labor policies and to live up to its contractual commitments to Economy Mechanical Indus- tries. Operating Engineers Local Union 926 regards the failure of Jones and Economy to require High Point to abide by Jones' Labor policies and to live up to its contractual com- mitments to be a breach of the contractual agreements in effect between Operating Engineers Local 926 and Jones and between Operating Engineers Local 926 and Economy. I have been requested by Operating Engineers Local 926 to advise you that unless Jones and Economy live up to their contractual commitments with the Union and require High Point to abide by Jones' labor policies and require High Point to live up to its agreements with Economy by Mon- day, July 12, it will be necessary for Operating Engineers Local 926 to pursue every possible means to protect the rights of its members and the contractual obligations owed to Local 926, including both legal action and self-help. In this connection , Economy Mechanical Industries oral- ly agreed to abide by the contracts in effect between Operat- ing Enginegrs Local 926 and the Associated GeneralpCon- tractors and between Local 926 and the Association of Steel Erectors. Those agreements have now expired and have been replaced by new agreements . While Economy was requested to agree in writing that it would abide by such agreements, a written agreement has never been forthcom- ing; however, Economy, so far as the Union has been ad- vised, has lived up to its oral agreement , with the exception above noted. Sixty-day notices terminating the AGC agreement and the Steel Erectors' agreement were sent more than sixty days prior to June 30, the expiration of those contracts; and, as stated above, new agreements have been negotiated. The new agreements provide that employees will be paid retro- actively at the new rates established in the new agreements as soon as the new agreements have been approved by the Craft Board in Washington. Economy was requested some time ago to advise Local 926 in writing by Monday, July 5, whether or not it would agree to abide by the terms of the new AGC agreement and the terms of the new Steel Erec- tors' agreement, including the provisions for retroactive payment of wages as soon as the new contracts are ap- proved. As yet, the Union has not received from Economy the written assurances which it requested. The Union has requested me to advise you that unless such assurances are received by Monday, July 12, the Union will consider its oral agreements with Economy at an end and will be compelled to call a work stoppage to protect the interests of its members employed by Economy. Yours very truly, J. R. Goldthwaite, Jr. Attorney for Operating Engineers Local 926 Copy with citationCopy as parenthetical citation