Appendix — National Labor Relations Board v. Local 825, International Union of Operating Engineers

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——

Supreme Court of the United States

OCTOBER TERM, 1969

Nos. 557 and 570

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

—_—V—

LOCAL 825, INTERNATIONAL UNION OF OPERATING

ENGINEERS, AFL-CIO,

Respondent,

and

BURNS AND ROE, INC., ETC.,

Petitioner,

LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGI-

NEERS, AFL-CIO, AND NATIONAL LABOR RELATIONS

BOARD,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

INDEX

Chronological List of Relevant Docket Entries

Decision and Order of the National Labor Relations Board,

dated February 18, 1967 __._____. 3

Trial Examiner’s Decision, issued September 27, 1966

ii INDEX

Excerpts from Transcript of Proceedings-

Witnesses :

Giles Willis

Direct

Cross

Cross (Recalled)

Chris Gunderson

Direct

Cross

Cross (Recalled)

Re-direct

Darrell Langlinais

Direct

Cross

Cross (Recalled)

R. T. Daricek

Direct

Cross

Cross (Recalled)

Telghman Suffrecal

Direct

Cross

Cross (Recalled)

Cross (Continued)

Re-direct

Recross

Robert C. Kylberg

Direct

Cross (Recalled)

Robert A. Escher

Direct

Cross (Recalled) __

Re-direct

Edmund W. Smith

Direct

Henry J. Behrend

Direct

Cross

181

INDEX iii

Page

Excerpts from Transcript of Proceedings—Continued

David Samuel Bodine, Sr.

Direct 238

Cross 248

Re-direct 248

Cross (Continued) _.... . 249

William Bonatz

i ME eR

Cross 266

Robert Illario

Direct __..... = i 287

ere 298

General Counsel’s Exhibits:

1(a) Charge filed in Case No. 4-CC-359 808

1(c) Charge filed in Case No. 4-CD-144 812

1(e) Order Consolidating Cases, Consolidated Complaint

and Notice of Hearing ._ 815 |

4 Contract (cover, and pp. 1-8, 6, 7, 15)... _ 822

5 Letter from Chairman of Joint Board advising of

Submission of jurisdictional dispute, dated Oc- ;

tober 1, 1965 83387

7 Letter from Chairman of Joint Board advising of

Board’s decision, dated October 20, 1965 ......__. _ 889 j

9 Letter from Superintendent of White Construc-

tion Company to Business Agent of Iron Workers ;

Union, Dated September 27, 1965...» 341 '

11 Order of Federal District Court granting Section

10(1) injunction, dated November 8, 1965... 3438

The Decision of the Court of .— for the Third Circuit,

filed April 16, 1969 - = 346

The Judgment of the Third Circuit, entered May 29, 1969 __. 356

The order of the Third Circuit es the Board’s pins

for rehearing dated June 12, 1969 _ 359

The orders of the Supreme Court nome certiorari, dated

February 24, 1970 _....__...__. aise 860

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RELEVANT DOCKET ENTRIES

10. 8.65 Charge filed in Case No, 4-CC-359

11. 5.65 Charge filed in Case No. 4-CD-144

11.17.65 Order consolidating cases, consolidated complaint

and notice of hearing, dated

12. 1.65 Respondent’s answer to consolidated complaint, re-

ceived

1. 6.66 Hearing opened

1. 7.66 Hearing closed

1.24.66 Respondent’s motion to reopen the hearing, dated

2. 3.66 General Counsel’s response to Respondent’s motion

to reopen the hearing, dated

2. 8.66 Trial Examiner’s order to reopen the record, dated

3.31.66 Hearing re-opened

4.14.66 Trial Examiner’s order scheduling hearing to be

reconvened, dated

5.16.66 Hearing closed

9.28.66 Trial Examiner John F. Funke’s Decision, issued

11.10.66 Respondent’s exceptions to the Trial Examiner’s

Decision, received

11.14.66 Charging Party’s exceptions to the Tria] Examiner’s

Decision, received

11.14.66 General Counsel’s exceptions to the Trial Exam-

iner’s Decision, received

2.13.67 Decision and order issued by the National Labor

Relations Board

aan

3.12.68 Board’s application for enforcement, filed

The Decision of the Court of Appeals for the Third

Circuit, filed

The Judgment of the Third Circuit, entered

The Third Circuit’s order denying the Board’s

Petition for rehearing

The Order of the Supreme Court granting certiorari,

dated

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case No. 4-CC-359

LOCAL No. 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AFL-CIO

and

Burns & ROE, INC.

Case No. 4-CD-144

LOCAL No. 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AFL-CIO

and

WHITE CONSTRUCTION COMPANY

DECISION AND ORDER

On September 28, 1966, Trial Examiner John F. Funke

issued his Decision in the above-entitled proceeding,

finding that the Respondent had engaged in and was

engaging in certain unfair labor practices and recom-

mending that it cease and desist therefrom and take

certain affirmative action, as set forth in the attached

Trial Examiner’s Decision. He also found that the Re-

spondent had not engaged in certain other unfair labor

practices alleged in the complaint and recommended that

those allegations be dismissed. Thereafter, the Respond-

ent, the General Counsel, and the Charging Parties filed

exceptions to the Trial Examiner’s Decision and support-

ing briefs. An answering brief was also filed by the

Charging Parties.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National

Labor Relations Board has delegated its powers in con-

nection with this case to a three-member panel.

The Board has reviewed the rulings of the Trial Ex-

aminer made at the hearing and finds that no prejudicial

sion,’ the exceptions, the bri

this proceeting, and hereby adop

sions, and recommendations of the

far as they are consistent with this Decision and Order.

1. We agree with the Trial Examiner that the Re

spondent violated Section 8(b) (4) (i) and (ii) (D) of the

Act, because it was responsible for three separate work

stoppages, with an object of forcing White Construction

Company, herein called White, to assign work on its elec-

tric welding machine to engineers, who are members of

Respondent, rather than to ironworkers who are mem-

bers of Local 350, International Association of Bridge,

Structural & Ornamental Ironworkers, AFL-CIO, herein

called the Ironworkers.* With regard to an earlier work

stoppage which occurred on October 1, 1965, and had

the same proscribed object, the Trial Examiner found

that there was insufficient evidence to hold the Respond-

ent responsible for the strike. We do not agree.

1 We specifically disavow the gratuitous, injudicious, and wholly

unwarranted remarks contained in footnotes 17 and 26 and on page

9 of the Trial Examiner’s Decision.

The following inadvertences contained in the Trial Examiner’s

Decision are hereby corrected: The name “Norton” is changed to

“Wharton” (p. 8, line 22); the correct spelling of one of the em-

ployers herein is Poirier; paragraph 7(a) of the complaint refers

to the forcing of Chicago Bridge, Poirier, and White to cease doing

business with Burns, and paragraph 7(b) refers to the forcing of

Burns to cease doing business with White (p. 9, lines 8-10); the

words “Board Order” are changed to “broad Order” (p. 18, line 46).

* These strikes, which lasted from a few days to several weeks,

began on October 7, November 4, and November 16, 1965.

* On October 19, 1965, the National Joint Board for Settlement of

Jurisdictional Disputes, Building and Construction Industy, here-

in called the Joint Board, after a proceeding in which all parties

participated, issued an award confirming White’s assignment of the

disputed work to the ironworkers. The complaint herein was issued

the Regional Director for Region 4 in accordance with Section

.93 of the Board’s Rules and Regulations, Series 8, as amended,

the Respondent failed to comply with the aforesaid award.

Burns & Roe, Inc., herein called Burns, is a general

contractor for Jersey Central Power and Light Company,

which is constructing a nuclear power generator plant

at Oyster Creek, New Jersey. Certain construction work

was subcontracted by Burns to White, Chicago Bridge

& Iron Co. (herein called Chicago Bridge), and Poirier

& McLane Corporation (herein called Poirier). These

subcontractors employ operating engineers, ironworkers,

carpenters, and laborers. Burns has no construction em-

ployees on the job. All the operating engineers on the

project are members of the Respondent, w which has bar-

gaining contracts with Chicago Bridge and Poirier, but

not with Burns and White. Prior to 1963, Burns and

White, who are members of Building Contractors Asso-

ciation of New Jersey, were covered by a multiemployer

bargaining contract with the Respondent. In January

1964, this Board found the Respondent in violation of

Section 8(b)(1)(B) and (3) of the Act for attempting

to bargain unilaterally with the individual members of

the Association.*

As detailed in the Trial Examiner’s Decision, during

the days immediately preceding October 1, 1965, on which

date all the operating engineers employed by White,

Chicago Bridge, and Poirier engaged in a work stoppage,

Bill Bonatz, Hank Behrend, and Bobbie Illario, agents

of the Respondent, were involved in the conduct described

below.

In the latter part of September, Chris Gunderson,

White’s construction superintendent, was approached by

Bonatz and Behrend and told that an engineer would

be required to push the buttons which operated an elec-

‘rie welding machine recently installed by White on the

jobsite. After Gunderson checked with his office and

was informed that this work had been assigned to White’s

ironworkers who were to perform the actual welding, he

relayed this information to Bonatz and Behrend. On

September 30, Bonatz and Behrend again approached

and told Gunderson that they were going “to knock the

* International Union of Operating Engineers, Local 825, et al.

(Building Contractors Association of New Jersey), 145 NLRB 952,

enfd. by consent decree entered by the U.S. Court of Appeals for the

Third Circuit on August 5, 1966, in Case No. 22-CB-588 (1-2).

ao aay Trea

engineers off the crane”, and they gave Gunderson three

copies of a proposed agreement for White to sign. On

that date, the engim= » and oiler on the crane stopped

work at 10 a.m. and did not return to work until about

1 p.m, on October 1.

On September 29, 1965, Giles Willis, resident construc-

tion manager for Burns, was visited by Bonatz and Beh-

rend and told that members of the Respondent employed

by subcontractors on the job had taken a vote to cease

work unless Burns signed a contract with Respondent.

On the next day, Bonatz, Behrend, and Illario approached

Willis, who was given copies of the above-mentioned pro-

posed contract and told that, unless Burns signed the

contract by the following morning, all the operating en-

gineers would walk off the job. On October 1, at 8 a.m.,

the same three agents again met Willis and asked if

Burns had signed the contract. When Willis replied in

the negative, they left his office and proceeded to the

parking lot outside the gate and engaged in conversa-

tions with the engineers who had gathered there. The

engineers, who were employees of White, Chicago Bridge,

and Poirier, did not report for work until 1 p.m.

The Tria] Examiner viewed the October 1 work stop-

page as spontaneous conduct on the part of the engineers

and found that the General Counsel did not sustain his

burden of proof to show that the strike was authorized

or directed by the Respondent. In our opinion, the pre

ponderance of record evidence requires a finding that the

Respondent indued and encouraged the engineers to en-

gage in the strike, Thus, Behrend presided at a meeting

of all engineers employed on the project which was held

on the jobsite a few days prior to October 1. A unani-

mous vote was taken to strike because of White’s refusal

to assign the welding machine work to an engineer and

because neither White nor Burns had contracts with the

5 The contract sought from White and Burns provided for Re-

spondent’s members to perform the disputed work. The contract

also provides that any employer who becomes a party thereto could

not subcontract any work covered by the agreement unless the sub-

contractor agreed in writing to perform all work subject to the

terms and conditions of the agreement.

Respondent. Bonatz and Illario were also present at this

meeting. Thereafter, there were requests that the work

be performed by Respondent’s members and threats of

work stoppage were made by Respondent’s agents. Im-

mediately before the stoppage of October 1, Bonatz, Beh-

rend, and Illario talked to the engineers assembled at

the parking lot.*

Upon the foregoing facts and the entire record, we

find that a preponderance of evidence establishes that

the Respondent, with an object to force or require White

to assign the disputed work to engineers represented by

the Respondent, induced or encouraged employees em-

ployed by White, Chicago Bridge, and Poirier to engage

in a work stoppage on October 1, 1965, and threatened,

restrained, or coerced Burns and these other employers,

all in violation of Section 8(b) (4) (i) and (ii)(D) of

the Act.

2. Contrary to the Trial Examiner, we find, that the

Respondent violated Section 8(b) (4) (i) and (ii) (B) of

the Act by its work stoppages of October 1 and 7, 1965,

as alleged by the complaint in Case No. 4-CC-359."

* Behrend testified that, after the strike began, he reported it to

the Respondent’s office and that shortly thereafter he received

a message from an unidentified individual at that office that “there

was some kind of negotiations going on and to get the men back

on the job right away”. It also appears that the Joint Board was

notified of the dispute by telegram immediately after the strike

began and the Joint Board requested the general president of

International Union of Operating Engineers to direct the Respond-

ent local union to have the men return to work immediately, pending

an adjustment of the dispute.

* Member Fanning dissents from this finding. His view, expressed

in Local 5, Plumbers Union (Arthur Venneri Company), 187 NLRB

828, 884, and 145 NLRB 1580, 1601, and recently in Millwrights

Local Union 1102 (Dobson Heavy Haul, Inc.), 162 NLRB No. 6, is

that the finding herein that a jurisdictional dispute exists in these

consolidated cases precludes a finding that the Respondent’s con-

duct for the purpose of resolving this dispute is also violative of

Section 8(b) (4) (B). But see the contrary position taken by a

majority of the Board in Venneri and Dobson, and the recent

opinion in Local 25, Internationa! Brotherhood of Electrical Work-

ers, AFL-CIO (New York Telephone Company), 162 NLRB No. 68,

wherein the Board found violations of 8(b) (4) (B) and (D) in a

consolidated proceeding.

We have found that the Respondent was responsible

for the strike of October 1, and in agreement with the

Trial Examiner, we have found the Respondent also

responsible for the strike of October 7.° It is clear that

Respondent’s strike threats and strikes were in further-

ance of the Respondent’s primary dispute with White

who refused to reassign the welding machine work to

engineers represented by the Respondent.® It is equally

clear that the Respondent sought to achieve the assign-

ment of this disputed work by applying economic pres-

sure on neutrals to the dispute—Burns, the general cen-

tractor, and subcontractors Chicago Bridge and Poirier

—with an object of causing a disruption of the business

relationship among the various employers at the jobsite.”

Unlike the Trial Examiner, who found the object pro-

scribed by Section 8(b) (4) (B) to be a literal cessation

of business, the Board has held that an object such as

® With regard to the strike which began on October 7, the evidence

shows that on October 6, the Respondent threatened Willis and

Telghman Suffrecal, representatives of Burns and Poirier, repec-

tively, with a strike, and that Langlinais, project manager for

Chicago Bridge, was told by the Respondent after the strike was

under way that it resulted from the welding machine dispute. Em-

ployees of Poirier and Chicago Bridge, engaged in a work stoppage

between October 7 and 11. These employees had also ceased work

on October 1.

The work stoppages which began on November 4 and 16, 1965,

were confined to employees of White, with whom the Respondent

had a primary dispute, and are not alleged as violations of Section

8(b) (4) (B).

® The General Counsel has argued that the Respondent also had a

primary dispute with Burns arising out of the latter’s refusal to

sign a contract with Respondent, and that White, Poirier, and

Chicago Bridge were neutrals enmeshed in that dispute, but we

perceive no useful purpose for deciding whether a violation should

be predicated upon that theory. We note, however, that the apparent

purpose of Resporndent’s request for a contract from Burns was to

obtain the disputed work from White.

10 See Local 25, International Brotherhood of Electrical Workers,

AFL-CIO (New York Telephone Company), supra; Millwrights

Local Union 1102 (Dobson Heavy Haul, Inc.), supra; Local 1291,

International Longshoremen’s Association et al. (Pennsylvania

Sugar), 142 NLRB 257, 261, enfd. 382 F. 2d 559 (C.A. 8).

the Respondent’s herein, although something less than a

total cancellation of a business relationship, constitutes

a “cease doing business” object within the meaning of

this section of the Act." Here, therefore, within the

meaning of the statute, an object of the Respondent was

to force Burns to cease doing business with White, and

to force Chicago Bridge and Poirier to cease doing busi-

ness with Burns in order to compel Burns to cease doing

business with White.

8. We agree with the Trial Examiner’s recommenda-

tion that a broad cease and desist order is required to

remedy the Respondent’s unfair labor practices found

violative of Section 8(b)'(4) (D) of the Act. In addition

to the work stoppages which stemmed from White’s as-

signment of work, the Respondent has also been involved

in jurisdictional disputes concerning the assignment of

work by other employers on the Oyster Creek project

and has been enjoined by the Court from engaging in

other work stoppages on this project.“ Therefore, until

all building and construction work at the Cyster Creek

project is completed, we shall order the Respondent to

cease and desist from forcing or requiring White or any

other employer engaged on the project to assign any

work to employees represented by the Respondent rather

than to employees represented by another labor organiza-

tion, except insofar as permitted by Section 8(b) (4) (D)

of the Act.

Having found that the Respondent has also engaged

in violations of Section 8(b) (4) (B) and because of the

Respondent’s demonstrated proclivity to engage in un-

lawful secondary activities, as noted in the Trial Exam-

11 Local 3, International Brotherhood of Electrical Workers, AFL-

CIO (New York Telephone Company), 140 NLRB 1729, 730; Local

1291, International Longshoremen’s Association et al. (Pennsyl-

vania Sugar), supra.

12 Bernard Samoff, Regional Director, et al. v. Local No. 825,

International Union of Operating Engineers, AFL-CIO, Civil No.

66-66, consent decree entered on Februai’y 1, 1966, by U.S. District

Court for the District of New Jersey. See also this Board’s De

cision and Determination of Dispute, Local 825, IUOE (Utilities

Lines Construction Co., Inc.), 159 NLRB No. 181.

iner’s Decision, we shall issue a broad cease and desist

order to prevent the Respondent from committing future

violations in its disputes with White and other primary

employers.”

Additional Conclusions of Law

1. By inducing and encouraging the employees of Chi-

cago Bridge and Poirier to engage in work stoppages,

and by threatening, coercing, and restraining these em-

ployers and Burns with an object in each case of forcing

or requiring Chicago Bridge and Poirier to cease doing

business with Burns, and with a further object of fore-

ing or requiring Burns to cease doing business with

White, the Respondent has engaged in unfair labor prac-

tices within the meaning of Section 8(b) (4) (i) and (ii)

(B) of the Act.

2. The aforesad unfair labor practices affect com-

merce within the meaning of Section 2(6) and (7) of

the Act.

ORDER

Upon the entire record in these cases and pursuant

to Section 10(c) of the National Labor Relations Act,

as amended, the National Labor Relations Board hereby

orders that the Respondent, Local No. 825, International

Union of Operating Engineers, AFL-CIO, its officers,

agents, and representatives, shall:

1. Cease and desist from:

(a) Engaging in, or inducing or encouraging any in-

dividual employed by Chicago Bridge & Iron Co., Poirier

& McLane Corporation, or any other person engaged in

commerce or an industry affecting commerce, to engage

in a strike or a refusal in the course of his employment

to perform any services; or threatening, coercing, or

restraining Chicago Bridge & Iron Co., Poirier & Mc-

Lane Corporation, Burns & Roe, Inc., or any other per-

18 See Local 825, International Union of Operating Engineers,

AFL-CIO (United Engineers & Constructors, Inc.), 188 NLRB

279, 280, enfd. 382 F. 2d 478 (C.A. 8).

er an

son engaged in commerce or an industry affecting com-

merce, where, in either case, an object thereof is to force

or require Chicago Bridge & Iron Co., Poirier & McLane

Corporation, or any other person, to cease doing business

with Burns & Roe, Inc., or any other person, or to force

or require Burns & Roe, Inc., or any other person to

cease doing business with White Construction Company,

or any other person.

(b) Engaging in, or inducing or encouraging any in-

dividual employed by White Construction Company, Chi-

cago Bridge & Iron Co., Poirier & McLane Corporation,

or any other person engaged in commerce or an industry

affecting commerce, to engage in a strike or a refusal

in the course of his employment to perform any services;

or threatening, coercing, or restraining White Construc-

tion Company, Chicago Bridge & Iron Co., Poirier &

McLane Corporation, Burns & Roe, Inc., or any other

person, where, in either case, an object ther:»* ©. to

force or require White Construction Company * © 1y

other person engaged on the Oyster Creek, New J:=

project, to assign any work to employees who are rep-

resented by the Respondent, rather than to employees

who are represented by another labor organization, ex-

cept insofar as any such action is permitted under Sec-

tion 8(b) (4) (D) of the Act.

2. Take the following affirmative action which the

Board finds will 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, to be furnished by the Regional Director for

Region 4, shall, after being duly signed by the Respond-

ent’s representative, be posted by the Respondent imme-

diately upon receipt thereof, and be maintained by it for

60 consecutive days thereafter, in conspicuous places,

including all places where notices to members are cus-

tomarily posted. Reasonable steps shall be taken by the

14 In the event that this Order is enforced by a decree of a United

States Court of Appeals, there shall be substituted for the words

“a Decision and Order” the words “a Decree of the United States

Court of Appeals, Enforcing an Order.”

pram enye ecw sae 0

en Te > Nm! me

KK _ees

Respondent to insure that said notices are not altered,

defaced, or covered by any other material.

(b) Sign and mail copies of said notice to the Regional

Director for posting by White Construction Company,

Chicago Bridge & Iron Co., Poirier & McLane Corpora-

tion, and Burns & Roe, Inc., these companies willing,

at all locations where notices to their respective em-

ployees are customarily posted.

writing, within 10 days from the date of this Decision,

what steps the Respondent has taken to comply herewith.

Dated, Washington, D. C.

FRANK W. MCCULLOCH, Chairman

JOHN H. FANNING, Member

GERALD A. BROWN, Member

NATIONAL LABOR RELATIONS

BOARD

[SEAL]

APPENDIX

NOTICE TO ALL MEMBERS

PURSUANT TO

A DECISION AND ORDER

of the National Labor Relations Board, and in order to

effectuate the policies of the National Labor Relations

Act, as amended, we hereby notify you that:

WE WILL NOT induce or encourage any individual

employed by CHICAGO BRIDGE & IRON CO.,

POIRIER & McLANE CORPORATION, or any

other employer, to engage in a strike or a refusal

in the course of his employment to perform any

services; or threaten, coerce, or restrain the above-

named companies, and BURNS & ROE, INC., or any

other employer, where an object in either case is to

force or require CHICAGO BRIDGE & IRON CO.,

POIRIER & McLANE CORPORATION, or any

other employer, to cease doing business with BURNS

& ROE, INC., or any other employer, or to force or

require BURNS & ROE, INC., or any other em-

ployer, to cease doing business with WHITE CON-

STRUCTION COMPANY, or any other employer.

WE WILL NOT induce or encourage any individual

employed by WHITE CONSTRUCTION COMPANY,

CHICAGO BRIDGE & IRON CO., POIRIER & Mc-

LANE CORPORATION, or any other employer, to

engage in a strike or a refusal in the course of his

employment to perform any services; or threaten,

coerce, or restrain the above-named companies, and

BURNS & ROE, INC., or any other employer, where

an object in either case is to force or require WHITE

CONSTRUCTION COMPANY, or any other em-

ployer engaged on the Oyster Creek, New Jersey,

project, to assign any work to employees represented

by LOCAL NO. 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AFL-CIO, rather

than to employees represented by another labor or-

ganization, except insofar as any such action is law-

ful under Section 8(b) (4) (D) of the Act.

LOCAL No, 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AF'L-CIO

(Labor Organization)

Dated _. By

(Representative) (Title)

This Notice must remain posted for 60 consecutive

days from the day of posting, and must not be altered,

defaced, or covered by any other material.

If members have any questions concerning this Notice

or compliance with its provisions, they may communicate

directly with the Board’s Regional Office, 1700 Bankers

Securities Building, Walnut & Juniper Streets, Philadel-

phia, Pennsylvania, 19107 (Tel. No. 597-7601).

aS gg

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF TRIAL EXAMINERS

WASHINGTON, D. C.

Case No. 4-CC-359

LOCAL No. 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AFL-CIO

and

Burns & ROE, INC.

Case No. 4-CD-144

LOCAL No. 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AF'L-CIO

and

WHITE CONSTRUCTION COMPANY

Leo F. Hannon, Esq., and Burton B. Subrin, Esq.,

of Philadelphia, Pa., for the General Counsel.

Vincent J. Apruzzese, Esq., of Newark, N. J., for

the Charging Parties.

Earl S, Aronson, Esq., for Thomas E. Durkin, Esq.,

of Newark, N. J., for the Respondent.

Before: John F, Funke, Trial Examiner.

TRIAL EXAMINER’S DECISION

Statement of the Case

A charge having been filed by Burns & Roe, Inc., here-

in Burns, on October 8, 1965, against Local No. 825,

International Union of Operating Engineers, AFL-CIO,

herein Local 825 or the Respondent, alleging Respondent

violation Section 8(b) (4) (i) and (ii) (B) of the Act and

a charge have been filed by White Construction Company,

a rene me oe -_—

herein White, on November 5, 1965, against Respondent

alleging it violated Section 8(b) (4) (i) and (ii) (D) of

the Act, the General Counsel issued a consolidated com-

— against Respondent alleging violation of said Sec-

tion.

The answer of Respondent denied the commission of

any unfair labor practices.

This proceeding with all parties represented was heard

before me on January 6 and 7, March 31, April 1 and

May 16, 1966, at Philadelphia, Pennsylvania.‘ At the

conclusion of the hearing the parties were granted leave

to file briefs and briefs were received from the General

Counsel.”

Upon the entire record and from my observation of

the witness[es] including their demeanor while testifying,

I make the following:

1The hearing was originally scheduled for December 7, 1965.

At the request of counsel for the Respondent the hearing was

rescheduled by the Regional Director for Region Four on January

6. On that date the Examiner recessed the hearing until] January

7, 1966, at request of counsel for Respondent made through the

General Counsel. On January 7, no representative of the Respondent

appeared and the hearing was opened, testimony taken and the

hearing closed. On January 25, counsel for Respondent, Thomas E.

Durkin, Jr., moved to reopen the hearing and, the Genera] Counsel

not opposing the motion, the motion was granted by the Trial

Examiner by order of February 8, and the date of the reopened

hearing was fixed for February 24. The order limited the reopened

hearing to cross-examination of the General Counsel’s witnesses and

to the testimony of Respondent’s witnesses and Respondent’s docu-

mentary evidence. By agreement of the parties the reopened hear-

ing was again postponed to March 21 and, at request of the counsel

for the Charging Parties it was again postponed until March 31.

At the conclusion of the hearing on April 1, two witnesses under

subpena by Respondent failed to appear (one due to illness) so

the hearing was recessed indefinitely. The hearing was reopened on

May 16, by agreement of the parties and concluded on that date.

2A brief was received from the General Counsel on January 25,

following the close of the hearing on January 7. At the conclusion

of the reopened hearing the General Counsel was given leave to

file a supplemental brief and counsel for the Respondent leave to

file a brief. A supplemental brief was received from the General

Counsel July 1.

Findings and Conclusions

I. The business of the Companies involved

Burns is a New Jersey corporation engaged as engi-

neering constructor for Jersey Central Power & Light

Co., at a nuclear power plant at Oyster Creek, New

Jersey. During the course of the construction of the

Oyster Creek plant Burns purchased materials valued in

excess of $50,000 annually from points outside the State

of New Jersey.

White is a New York corporation engaged as a sub-

contractor for Burns at Oyster Creek in the construction

of a reactor plant at the site. During the course of con-

struction of this plant White has purchased materials

valued in excess of $50,000 annually from points outside

the State of New Jersey.

At all times material herein Porier & McLane Corpo-

ration, herein Porier, and Chicago Bridge & Iron Co.,

herein Chicago Bridge, have been engaged as subcon-

tractors for Burns at Oyster Creek.

Burns, White, Porier and Chicago Bridge are engaged

in commerce within the meaning of the Act.

II. The labor organizations involved

Respondent and Local Union No. 350, International

Association of Bridge, Structural & Ornamental Iron-

workers, herein the Ironworkers, are labor organiza-

tions within the meaning of the Act.

III. The unfair labor practices

A. The facts

1. Background

In September 1964, Burns started construction of a

multimillion dollar nuclear power generator plant at

Oyster Creek, New Jersey, for Jersey Central Power and

Light Company. Burns was the architect engineer and

general contractor but employed no construction workers.

Construction was subcontracted to White (construction

of the reactor building), to Chicago Bridge (construction

of compression chambers, containment vessel and suppres-

sion chambers for the reactor) and to Porier (construc-

tion of the turbine structure, intake and discharge struc-

tures).* All the operating engineers on the job were

represented by Local 825. Neither Burns nor White had

a contract with Loca] 825, Chicago Bridge and Porier

did. Burns had a contract with the International Union

of Operating Engineers, and both Burns and White were

members of the Building Contractors Association of New

Jersey which had had contracts with Local 825 prior to

1968. On January 9, 1964, the National Labor Relations

Board in Local 825, Operating Engineers, 145 NLRB

952, found Respondent in violation of Section 8(b) (1)

and (8) of the Act for attempting to bargain unilater-

ally with the individual members of the Association.‘

2. The work stoppage on October 1

Robert C. Kylberg, general superintendent for White

until the middle of January 1966, testified that discus-

sion as to the assignment of an electric welding machine

to be used at Oyster Creek by White started in August

1965, before White commenced operations at the site.

These discussions were conducted with the contractors

association (presumably the Building Contractors Asso-

ciation) and it was decided to give the assignment to

the Ironworkers. Kylberg testified that this decision was

arrived at by “consensus.”

Robert A. Escher, president of White, testified that

early in September (White started on the job on Sep-

tember 1, 1965), he had a meeting with representatives

of the various crafts to discuss the job in general and

among those present were Peter Weber, president of

Local 825, and T. J. Norton, business agent for the Iron-

workers. There was, according to Escher, no discussion

’ There were other subcontractors who were not involved in the

dispute.

* The Board issued a supplemental decision in this case on Febru-

ary 2, 1966, which did not relate to or affect the Board’s 8(b) (1)

and (8) findings.

of the operation of the electric welding machine which

did not arrive at the jobsite until on or about September

20.

Chris Gunderson, construction superintendent for

White at Oyster Creek, testified that when White in-

stalled the electric welding machine at the jobsite in

September he was approached by Bill Bonatz, job steward

for Local 825, and Hank Behrend, lead engineer for

Porier, and was told he needed an engineer to push the

buttons which started and stopped the machine.® Gun-

derson called his office and was told that the work had

had been assigned to the Ironworkers. When or where

Gunderson reported this to Bonatz and Behrend is not

disclosed but on September 30 Gunderson was again ap-

proached by them and told they were “to knock the men.

off the crane” (White at this time had one crane oper-

ating with an engineer and an oiler) and gave him three

5 Respondent concedes that Bonatz was an agent of Local 825.

It does not concede that two lead engineers, Behrend for Porier

and Illario for Chicago Bridge, were agents. A lead engineer, also

called a master mechanic, is provided by and designated by Local

825 when five or more engineers are employeed by a contractor at a

jobsite. The duties of a lead engineer are defined in Local 825’s

contract (General Counsel’s Exhibit No. 10) Article II, section

as follows:

He shall be responsible for the performance of all duties of

Engineers, Apprentice Engineers, Repair Mechanics, Oilers,

Firemen, Maintenance Engineers, and other employees under

his jurisdiction under the direction of the Employer.

He will not be allowed to operate an Engine, only in the temp-

orary absence of the regular engine. He shall have complete

supervision over all repairs made on all machines and other

automotive equipment used, when such repairs are done on the

job.

The testimony in this case, however, establishes that Behrend and

Illario participated with Bonatz in submitting demands upon the

contractors, that they warned the contractors when stoppages were

to occur and told the contractors what the causes of dispute were.

It was Behrend and not Bonatz who call the Newark office of Local

825 when the first walkout occurred. Having joined with the job

steward and having displayed authority equal to his when disputes

and stoppages arose I think it clear that they acted as agents of

Local 825 and there is no evidence that Local 825 ever repudiated

this authority.

OL IL LOL DLO LE OOO SD

copies of an agreement with Local 825 for White to sign.*

According to Gunderson his engineer and oiler stopped

work at 10 am. on September 30 and did not return

to work until about 1 p.m. on October 1."

Giles Willis, resident construction manager for Burns

at Oyster Creek, testified that on September 29, 1965,

he met in his office at the jobsite with Bill Bonatz and

Har Behrend who told him that members of Local 825

emp:cved by subcontractors at the jobsite had taken a

vote to cease work unless Burns signed a contract with

Local 825. On the next day Bonatz, Behrend and Bobbie

Illario saw Willis, and Illario give him three copies of

a standard Local 825 contract * and told him that unless

Burns signed them all the members of Local 825 em-

ployed at Oyster Creek would walk off.° The following

day, October 1, at 8 a.m. Bonatz, Behrend and Illario

again met Willis and asked if Burns had signed that

contract and when Willis replied in the negative they

left his office. Willis saw them proceed to the parking

lot outside the gate where the engineers were gathered

and after what appeared to be some discussion the engi-

neers left.

R. T. Daricek, superintendent for Chicago Bridge, tes-

tified that on September 30 he met Bonatz and asked

him if the rumors were true that the engineers would

not work the following day and was told by Bonatz that

if Burns did not sign a contract with Local 825 the fol-

lowing morning no engineers would work. When Daricek

protested that Chicago Bridge was under contract with

Local 825 Bonatz told him that all the contractors must

have contracts.

* General Counsel’s Exhibit No. 10.

* Whether or not White’s engineers quit on September 30 the

engineers employed by Chicago Bridge and Porier worked that day.

8 General Counsel’s Exhibit No. 4. This exhibit is the same as

General Counsel’s Exhibit No. 10 which was submitted to White for

signature. Both are copies of Local 825’s A.G.C. contract.

® Although this remark is denied by Illario, I found Willis to be a

completely credible witness and I accept his testimony on this

point.

Behrend and Bonatz testified that this stoppage took

place after the members of Local 825 employed on the

job (approximately 35) held a meeting in the Porier

shanty on September 28 and expressed disagreement with

the policies of Burns and White. Their disagreement

with Burns was directed to the failure of Burns to enter

into a contract with Local 825 and with White to its

failure to contract with Local 825 and with its assign-

ment of work on the welding machine to the Ironwork-

ers. It was the testimony of both witnesses that this

was a spontaneous reaction on the part of the members

and was not directed nor instigated by any official of

Local 825. The members did not go to work on the morn-

ing of October 1.

Behrend testified that when the men failed to go to

work he called the office of Local 825, spoke to a clerk

and informed him of the work stoppage. Subsequently

he received a call from Peter Weber, business manager

of Local 825, to get the men back on the job “right

away.” Behrend complied with instructions, made sev-

eral telephone calls, contacted Bonatz in a restaurant

and the work was resumed. There is no evidence, apart

from Behrend’s testimony that Weber told him the mat-

ter had been settled, as to why Weber told him to get

the men back to work. (Weber did not testify at the

hearing. )

3. The stoppage on October 7

Gunderson testified that on October 6 he still had one

engineer and an oiler working for him and that on Octo-

ber 7 neither “showed up.” Gunderson called Local 825

at Newark and asked for replacement for the next day.

The next day an engineer and oiler appeared at the site,

told him they were going to check with the other engi-

neers before going to work and he “didn’t see them

since.” On October 12 the engineers employed by White

returned to work. There is no explanation in the testi-

mony of either Gunderson, Kylberg nor Escher, as to

the reason for the stoppage nor for the return.

Willis, however, testified that at about 4 p.m. on Octo-

ber 6 Bonatz and Illario came to his office and told him

that unless an operating engineer was assigned to the

welding machine there would be no engineers at work

the following day and Illario again brought up the fail-

ure of Burns and White to sign contracts with Local

825. On that day Burns submitted the dispute over the

work assignment to the National Joint Board for the

Settlement of Jurisdictional Disputes. (General Coun-

sel’s Exhibit Nos, 5 and 6.) Willis told them there would

be no change in the assignment unless it was by the

Joint Board.

Telghman Suffrecal, general superintendent for Porier,

testified that he had 20 operating engineers working on

October 6 and that Behrend, shop steward for his engi-

neers,”® told him he might or might not have engineers

the next day. On October 11 Suffrecal again saw Beh-

rend who told him the engineers would return on the

12th. He admitted that Local 825 had no dispute with

Porier but that it did have a dispute with Burns and

with White.’ Behrend gave him no other reason for

the stoppage. Porier’s engineers worked continuously

thereafter.

Langlinais, project manager for Chicago Bridge, testi-

fied that his engineers did not work on October 7 and

that on October 8 he had a conversation with Bonatz

in which Bonatz told him that the stoppage was the

direct result of the welding machine assignment and the

fact that Burns and White did not have a contract with

Local 825. The engineers returned on October 12 and

worked thereafter. There was no dispute between Chi-

cago Bridge and Local 825.

10 Suffrecal was apparently confused since the record is clear

that Bonatz was shop steward for all engineers employed at Oyster

Creek and that Behrend was lead engineer for Porier. Suffrecal

subsequently corrected this testimony.

11 This statement was denied by Behrend and was the subject of

lengthy cross-examination when Suffrecal was recalled on March

31, 1966. Despite Suffrecal’s evasive and confusing testimony on the

latter date I credit this statement chiefly because the record is

barren of any conflict between Porier and Local 825 and the state-

ment was one which would quite likely have been made. Suffrecal

was clear and convincing on direct and I credit his testimony on

direct.

The only testimony by any representative of Local

825 relating to this stoppage is that of Bonatz. He testi-

fied as follows:

Q. Correct. Now on or about October 6, 1965,

did you say te anyone that unless an operating engi-

neer was assigned to the welding machine there

would be no operating engineers on the job the

following day.

A. Not that I can remember.

Q. There was a work stoppage, was there not,

sir, on or about October 7?

A. I believe so, yes.

Q. How did this work stoppage come about, do

you know?

A. I believe they started the welding machine.

Q. Now after the welding machines were started,

what happened?

A. The men walked off.

Q. Did you tell the men to walk off?

A. No sir.

Q. Well, when the men walked off was there a

meeting?

A. No, I think the meeting was prior to that.

Q. When, sir?

A. A week maybe.

Q. This would be the meeting you discussed back

on or about October 1 or on or about September 29?

A. I believe so.

Bonatz’ statement that he believed the men walked

off on this date because White started operating the

welding machine may have been made in confusion as

to dates. There is no evidence that the machine was

started on October 7 and subsequent testimony indicates

that the machine was first operated by an ironworker

on November 4, (It may have been operated by engi-

neers for 2 days prior to that date.)

4. The work stoppage on November 4

On October 20 the Joint Board notified the parties to

the dispute over the welding machine that there was no

reason to disturb the assignment of work on the welding

machine to the Ironworkers. (General Counsel’s Exhibit

No. 7.) On October 26 a meeting was held at the job-

site to discuss the award. Kylberg met with Weber,

Behrend, Bonatz and Gatti and went to lunch with

Weber and Gatti. Weber told Kylberg that the Joint

Board award was all wrong and that the assignment of

the welding machine meant a great deal to him. He told

Kylberg that if he would work with Local 825 it would

be advantageous and that if not there would be compli-

cations, According to Kylberg he pointed to a crane a

few feet away, asked him how he would like to have

three men on the crane instead of two. He also asked

him how he would like to have a 30-hour week with triple

overtime.” President Escher of White was at that time

on a business trip and it was agreed to withhold final

decision until his return. There is nothing in the record

to indicate that Escher had any conversation with Weber

after his return until December 1.

Gunderson testified that on November 4 he started the

welding machine and that his crane operators walked off

and surrounded the machine and it was not operated

that day."* At this time Bonatz came to him and asked

if he had signed a contract with Local 825. At this time

the witness’ testimony was interrupted and he did not

give the remainder of the conversation. Gunderson stated

that on the next day he again started the machine and

it was again surrounded by his engineers and was not

operated. On November 8 a temporary injunction was

granted by the District Court (General Counsel’s Ex-

hibit No. 11) restraining Respondent from striking, etc.,

12 Gatti was a member of Local 825.

18 On cross-examination counsel for Respondent attempted to draw

a distinction between the use of the words “would” and “could”

in this conversation. The distinction, to the extent it exists, is that

between a direct and implied threat, a distinction not relevant in

Section 8(b) (4).

14 At this time, according to Gunderson, he employed four engi-

neers, Cherry, Bonatz and Gatti and one whose name he could

not recall. These were the men who surrounded the machine.

to compel White to assign the work of starting and stop-

ping electric welding equipment at Oyster Creek to em-

ployees represented by Respondent rather than to mem-

bers of any other labor organization. Gunderson could

not remember when the men resumed work.

Bonatz testified that he was working on the crane on

November 4 and that when the welding machine stated

he joined “some of the fellows around the machine.” He

admitted the machine had been shut off but did not

know who did it. He stayed at the welding machine

oniy a few minutes but did not return to his crane. While

he testified that the crane was not working he admitted

that he did not believe there was anything wrong with

it. He did not work November 4 or 5 but again there

is no evidence to show when or why he returned.

5. The concrete pump

On November 1 White brought an electric pump to

the jobsite to be used for pouring concrete, Gunderson

set the pump on November 15 and Bonatz told him he

would need an engineer to operate it. Gunderson agreed

and told Bonatz to send one out the next day as he

wanted to pour on the 17th. On the 16th Illario came

out with two additional engineers to act as standbys on

the pipe running from the pump and announced that

since there were now five engineers on the job he was

lead engineer. Gunderson refused to employ the engi-

neers on the ground they were not needed. The next

day, the 17th, the same dispute continued and no engi-

neer operated the concrete pump. On that day Ed Smith,

Ironworker foreman, told Gunderson the wires on the

electric welding machine had been cut and oil poured

into the armature. There is no evidence to establish who

sabotaged the welding machine, At about noon the other

engineers employed by White walked off the job.

Gunderson testified that on either the 16th or 17th*

he spoke with Illario and that Illario “mentioned the

fact that this was more or less because of the electric

158 While Gunderson testified that it was either on the 16th or 17th

and it is a fact that Gunderson and Illario talked on both days

the nature of the remark indicates it was probably on the 17th.

welding machine being in operation.” Since the only dis-

pute at this time was over the number of engineers to be

employed and since Illario, who was bringing out the

additional engineers, was the only person directly in-

volved in the dispute there can be no doubt that Illario

was referring to the pump dispute and attributing it

to the welding machine dispute where an injunction pre-

vented a stoppage.

Robert Escher, president of White, testified that he

called Weber at his home on December 1, to find out

how to get the men back to work. He told Weber in

the course of a conversation which lasted over an hour

that he had heard that if he took the electric equipment

(the welding machine) off the job and put in gasoline

equipment that White could go back to work. According

to Escher, Weber answered, “Yes, but you have got to

sign a contract.” Escher told him he could not sign a

contract because there had been a dispute between them

ever since 1962 over this. (This refers to the efforts on

the part of Local 825 to have members of the Building

Contractors Association sign individual contracts.)

When Escher tried to discuss the award of the Joint

Board Weber told him they (the Joint Board) “didn’t

know what the hell they were talking about, that this

was his work and had been his work historically and

that they were just a bunch of dopes and he wasn’t going

to abide by it and that it meant four hundred new jobs

in the State of New Jersey.” Weber denied that Norton,

president of the International Union of Operating Engi-

neers, had ordered him to put the men back to work,

and added that he “didn’t have to.” Again Weber men-

tioned such demands as 30-hour week, triple overtime,

and four men on a crane.

The engineers who walked off on November 17 re

turned to work on either December 21 or 22. Again there

is no explanation given in the record as to the reason for

this return.

16 When Escher inquired why Local 825 was supplying engineers

on three other White projects in New Jersey, Weber told him he

would pull them off the next day. These engineers were never

pulled off the White jobs.

B. Conclusions

1. Credibility

Credibility is an issue in the case and I have already

made certain specific findings which need not be repeated

here. It must be noted, however, that two of the General

Counsel’s witnesses, Suffrecal of Porier and Gunderson

of White, who testified forthrightly and without reserva-

tion on January 7, were recalled on cross-examination on

March 31. On this occasion, confronted for the first time

by a representative of the Respondent, their testimony

became both evasive and confusing. It was apparent

from their conduct on the stand and the hesitancy with

which they answered that they were reluctant to testify

adversely to the interests of the Respondent, generally

regarded as one of the most powerful local labor organi-

zations in the East. I conclude that their testimony given

on January 7 when they were free from any pressures,

however imaginary in nature, was truthful. I also base

this finding on the fact that this testimony corroborates

and fits the pattern of the testimony of other witnesses

for the Charging Party whom I have credited in full

and who did not weaken under cross. Apart from these

two, the General Counsel’s witnesses were forthright and

credible on both direct and cross-examination.

I might also note that much of the testimony of the

witnesses called by Respondent was confusing if not eva-

sive and that no specific finding can be made on much

of it.

Where I have credited the testimony of a witness as

to a specific conversation I have, a fortiori, discredited

testimony of other witnesses which was contradictory

whether or not such a specific finding has been made.

2. Violations of Section 8(b) (4) (B)

The complaint, paragraphs 7(a) and (b), alleges that

the conduct of Respondent as above set forth, supra, had

among it objects the forcing of Chicago Bridge, Porier

and White to cease doing business with White. There

is not a scintilla of evidence to support these allegations.

On this record Respondent may be found to have two

objectives, (1) to force Burns and White to agree to

Local 825’s contract in violation of the Board’s Order

in the Building Contractors’ case, supra, and (2) to

force White to assign the operation of the welding ma-

chine to its members. Neither objective would have been

furthered by a general cessation of business among the

parties. Local 825 never made any request upon Chicago

Bridge, Porier or White to cease doing business with

Burns. Such a request would have been totally irrational

for it would have simply forced Burns to employ other

subcontractors which, with the possible exception of

White, would not have furthered either interest of the

Respondent. But Respondent never indicated it wanted

White off the job—it wanted to harass White to gain

compliance with its requests. Nor was any demand made

upon Burns to cease doing business with White. Re-

spondent never suggested that cancellation of the contract

would have served its purpose. It did inform Burns,

through persons I have found to be its agents, that the

failure of Burns and White to sign contracts and the

assignment of the work on the job were the sources of

the dispute. All Respondent wanted was the work, not

a substitution of contractors nor a termination of con-

tractual relationships between the contractors.

The General Counsel attempts to distinguish this case

from Local 825, International Union of Operating Engi-

neers, AFL-CIO (Nichols Electric), 188 NLRB 540, enfd.

denied, 326 F, 2d 218 (C.A. 3), by stating “there is

ample evidence to show Respondent sought these objec-

tives.” The brief, which is characterized elsewhere by

specificity, give no citation of fact or testimony to sup-

port this conclusion and a search of the record reveals

no testimony to support it.’7 Neither the General Coun-

sel or any other counsel should so mislead a Trial] Exam-

iner. In this case it was necessary for the Trial Exam-

iner to waste his time in a painstaking recheck of the

record in search of this alleged “ample evidence.” Attor-

17 The Board has, however, specifically supported misleading briefs

on the part of the General Counsel and has reprimanded a Trial

Examiner for calling attention to one in S. Klein’s Department

Stores, Inc., 149 NLRB 466.

neys for the General Counsel should regard themselves

as bound by the Canon of Ethics of the American Bar

Association and it is lamentable that the admonition of

a distinguished attorney to his junior associates that

they would meet no more unscrupulous adversary in

court than counsel for the Government should ever find

support.”*

8. Violations of Section 8(b) (4) (D)

The Respondent has failed to file a brief in this case

so its contentions and defenses are subject to specula-

tion on the part of the Trial Examiner. Based solely

on the lines of interrogation taken by counsel for the

Respondent upon examination of its witnesses and cross-

examination of the General Counsel’s witnesses I find

those defenses to be:

(1) That the work stoppages, at least those of October

1 and 7, were neither authorized nor directed by the

Respondent but were spontaneous on the part of the

employed members themselves in resentment of the fact

that there were no contracts between White and Burns

and that operation of the welding machine had been

assigned to the Ironworkers.

(2) That the award of the work on the welding ma-

chine to the Ironworkers was invalid in that the dispute

was submitted to the Board by Burns and not by White

and that Burns was not a party to the dispute.

(3) That the work traditionally and historically had

been performed by Operating Engineers and not by the

Ironworkers.

( : ) That the Ironworkers had made no claim to the

work.

This proceeding does not follow a Section 10(k) hear-

ing but is brought pursuant to the “Alternative Proce-

dure” as set forth in the Board’s Rules and Regulations,

Series 8, as amended, Section 102. 98. This section

reads:

%* Apart from this the case was ably tried and ably briefed by

counsel for the General Counsel and as to this specific criticism it

must be remembered that counsel operate under direction.

“See. 102.98 Alternative procedure.—lIf, either be-

fore or after service of the notice of hearing, the

parties submit to the regional director satisfactory

evidence that they have adjusted the dispute, the

regional director shall dismiss the charge and shall

withdraw the notice of hearing if notice has issued.

If, either before or after issuance of notice of hear-

ing, the parties submit to the regional director satis-

factory evidence that they have agreed upon methods

for the voluntary adjustment of the dispute, the re-

gional director shall defer action upon the charge

and shall withdraw the notice of hearing if notice

has issued. If it appears to the regional director

director that the dispute has not been adjusted in

accordance with such agreed-upon methods and that

an unfair labor practice within the meaning of sec-

tion 8(b) (4) (D) of the act is occurring or has oc-

curred, he may issue a complaint under section

102.15, and the procedure prescribed in sections

102.9 to 102.51, inclusive, shall, insofar as appli-

cable, govern; and sections 102.90 to 102.92, inclu-

sive, are inapplicable.

It has been found that on October 6, 1965, Burns sub-

mitted the dispute respecting work on the welding ma-

chine to the Joint Board and that on October 19 the

Board decided not to disturb the assignment of this work

to the Ironworkers, On October 20 it so notified the

parties. Burns, White * and Local 825 were both bound

by Joint Board rulings.

19 The contract between Burns and White contained the following

clause:

Article 81 Labor Relations

The subcontractor shall be responsible for its own labor rela-

tions with any trade or Union representing his employees

and he shall negotiate and seek to adjust all disputes between

himself and his employees or anyone representing such em-

ployees. The same responsibility shall extend to the Lower

Tier subcontractors. All contractors in lower Tier subcon-

tractors shall in the settlement of any jurisdictional dispute

be bound by the Rules and Procedures of the National Joint

At the hearing the Trial Examiner made certain rul-

ings which are hereby affirmed. He stated that he would

not examine the procedures before the Joint Board or

determine whether or not Burns was entitled to submit

the dispute to that Board. Since all parties appeared

the Examiner felt that this issue could not be raised in

the instant proceeding. Neither would the Examiner per-

mit the merits of the assignment to be attacked in this

proceeding. Whether the work had been traditionally

performed by Operating Engineers was not an issue

before the Trial Examiner since this was not a 10(k)

proceeding. These rulings would eliminate defenses (2)

and (3), supra.

The fact that the Ironworkers had made no claim to

work is equally irrelevant. As the court said in Carpen-

ters et al. v. C. J. Montag & Sons, 335 F. 2d 216 221

(C.A. 9):

The fact that one union has the jobs and holds on

to them in a polite, non-belligerent manner while

the other union uses forbidden tactics to in an effort

to get them, or some of them, does not mean that

what Congress regarded as the evils of a jurisdic-

tional dispute are not present.

The crux of this case lies in the contention that the

work stoppages were not authorized by Local 825. As

to the work stoppage of October 1, I would find that

the General Counsel has not sustained his burden of

proof to show that this stoppage was authorized or di-

rected by Local 825 or its agents.

There is nothing in the record to indicate that either

Bonatz, Behrend, or Illario were not conveying to Willis

the feeling of the men when they advised him that there

would be a stoppage on October 1 if Burns did not sign

a contract. Whether this feeling had been generated

Board where the settlement of jurisdictional disputes and shall

make assignments in accordance with such Rules and Pro-

cedures.

Escher testified that White had in the past submitted jurisdictional

disputes to the Joint Board.

among the men by the agents of Local 825 is open to

question but there is insufficient evidence to support

such an inference. Among the major difficulties in resolv-

ing issues in labor-management relations disputes is the

fact that most decisions, both by labor and management,

are made in camera and full disclosure of the motives

of decisions so reached is seldom, if ever given. If the

motive is unlawful the more realistic term is never, If

simple truthfulness and honesty were ever to prevail the

decisional-making process would be an easy one, but

truthfulness and honesty are not commonly found when

a party is charged with violations of the Act. If people

were honest there would be telephones at racetracks, A

fact not disputed which supports the conclusion reached

is that Behrend reported the walkoff to Newark on the

morning of October 1 and that shortly thereafter he

was ordered by Weber to get the men back to work. I

do not view this walkout without suspicion but resort

must be taken to the familiar cliche that suspicion is

not proof.”

A different conclusion must be reached as to the walk-

out on October 7. I have credited the testimony of Willis

that late in the afternoon of October 6 he was approached

by Bonatz and Illario and told that unless an engineer

was assigned to the welding machine the men would not

work. Suffrecal of Porier was told by his lead engineer,

Behrend, on October 6 that he might or might not have

men working the next day. Langlinais of Chicago Bridge

was told by Bonatz on October 8 that the stoppage was

the direct result of the failure of White to assign the

welding machine to the members of Local 825. Unlike

the work stoppage of October 1 none of Local 825’s agents

testified that the stoppage was the result of a vote of the

members.”* Since this is that kind of case in which the

(The Carvel Company), 62 LRRM 2257, decided May 26, 1966

(C.A. 1), there is no violation unless the employees are induced and

a totally self-generated cessation of work would not be proscribed.

"1 While Behrend testified that he did not tell the men to walk off

on October 6 and that he believed the walkout was the result of the

vote taken a week earlier his testimony is far from conclusive.

issues must, for the most part, be decided on rather

tenuous inferences I find, in view of the warnings given

by union representatives, that the walkout was author-

ized It is true that these same representatives gave

the same warnings of a prospective walkout on October

1 but those warnings were accompanied by statements

that the members were making the decision. The warn-

ings which related to the walkout of October 6 did not

attribute the decision to the men. It does not seem likely

that members of a well disciplined union (and this char-

acterization is based on a review of Board decisions in

volving Local 825 and this Examiner’s

testimony in four cases which he heard in

825 was the Respondent) would again strike

own initiative after having been ordered back

on October 1, an order with which they immediately

complied.

The motive for the walkout on November 4 is mani-

fest. We have a history of the dispute between Local

825 and the two Charging Parties by that date going

back to the time the machine was first installed at Oyster

Creek, More importantly we had the jobsite meeting

with Weber on October 26 in which Weber told Kylberg

that the Joint Board’s assignment was all wrong and

that the assignment of the welding machine operation

meant a great deal to him, a statement which was ac-

companied by thinly veiled threats to impose burdensome

conditions on White. When the machine was first oper-

ated by an ironworker on November 4, White’s four

engineers promptly ceased work and surrounded the ma-

chine. At or about the time the engineers ceased work

Bonatz went to Gunderson and asked him if White had

signed the contract with Local 825." Gunderson told

him, “I did not have.”

22 The inference relates only to the authorization of the walkout.

The purpose of the walkout was clearly stated by Local 825’s agents.

*° This contract, submitted to both Burns and to White (General

Counsel’s Exhibits Nos. 4 and 10) contains an addendum which

includes in the job classifications the work on both gas and electric

welding machines as part of the equipment to be operated by mem-

The men did not return to work until after the District

Court injunction issued on November 8. Nothing could

be clearer than that this walkout was proscribed by

Section 8(b) (4) (D) of the Act and that the methods

employed were in violation of Section 8(b) (4) (i) and

(ii) (D).

Such doubt as might exist that the walkout on No-

vember 17, when the concrete pump was to start oper-

ating, and the demand for additivnal engineers to oper-

ate the pump is resolved by the credited testimony of

Gunderson and Escher. Gunderson testified that while

he was disputing the number of engineers required to

operate the pump with Illario (Gunderson thought one

sufficient while Illario was demanding three) Illario

stated that the requirement was more or less due to the

electric welding machine dispute, Escher, anxious to get

the men back to work, called Weber on December 1 and

in the course of a lengthy conversation was told that if

he replaced the electric machine with a gasoline welding

machine (equipment which would be operated by engi-

neers) and signed a contract, the men would go back.

While it may have been no more than a coincidence that

the wires on the welding machine were cut and oil poured

into its armature on that same day, this coincidence does

nothing to diminish the General Counsel’s case.

In reaching the conclusion that Respondent violated

Section 8(b) (4) (i) and (ii) (D) in these three specific

work stoppages as above found I have considered the

fact that neither Burns nor White had any difficulties

with Local 825 until after the welding machine was

brought to the jobsite about September 20. White, with-

out a contract, was able to obtain engineers from Local

825 and there was no hint until] after September 20 that

the failure to contract would occasion trouble on the job.

During this entire period White was engaged on three

other projects in New Jersey which were not shut down,

another indication that ‘the Oyster Creek problem

stemmed from the welding machine.

bers of Local 825. A signing of the contract would therefore ac-

complish both objectives sought by Respondent—contractual status

and the right to operate the machine.

While the Board (Member Leedom dissenting) has held

that the mere giving of notice of prospective strike ac-

tion against a subcontractor to the prime contractor is

not a violation of Section 8(b) (4) (ii) (B), Local Union

No. 83, Teamsters, etc. (Marshall & Haas), 183 NLRB

1144, I find that case clearly distinguishable from the

instant case. In Marshall & Haas the prime contractor

was not a party to the dispute with the subcontractor

and the notice was given to show that the possibility of

a stoppage might occur on the job and, presumably, to

offer it the chance to settle the dispute. Here Burns was

a primary party to the dispute and the threats made to

White and the work stoppages were directed to the fail-

ure on the part of Burns as well as White to sign a

contract, Under such circumstances I find that the

threats and coercion directed to White were directed

equally to Burns. It was only the fortuitous circum-

stance that Burns employed no engineers at the jobsite

that precluded it from suffering stoppages. I shall there-

fore include Burns in the Recommended Order.

IV. The remedy

Having found the Respondent engaged in certain un-

fair labor practices I shall recommend that it cease and

desist therefrom and take certain affirmative action

necessary to effectuate the policies of the Act.

The General Counsel has requested that a Board Order

issue in this case in view of prior violations of the Act

by Respondent and its failure to comply with Board

Orders.* I agree and shall recommend an order in the

form requested by the General Counsel.”

Upon the foregoing findings and conclusions and upon

the entire record in this case, I make the following:

*See Local 825, Operating Engineers, 145 NLRB 952; Local

825 Operating Engineers, 140 NLRB 458; enfd. 826 F. 2d 218

(C.A, 8) ; Local 825, Operating Engineers, 188 NLRB 279; enfd. 832

F, 2d 478 (C.A. 3); Local 825, Operating Engineers, 181 NLRB

452; Local 825, Operating Engineers, 120 NLRB 545.

* Local 825, Operating Engineers (United Engineers), 188 NLRB

279.

386

Conclusions of Law

1. By inducing and encouraging individuals employed

by Chicago Bridge, Porier and White to engage in work

stoppages and refusal in the course of their employment

to perform any services, by threatening, coercing and

restraining Burns, Chicago Bridge, Porier and White

with an object in each case of forcing and requiring

White to assign the work of operating its electrical weld-

ing machine at Oyster Creek to employees engaged as

operating engineers who are represented by Respondent

and who are not lawfully entitled to such work rather

than to employees engaged as ironworkers who were

represented by the Ironworkers and were lawfully en-

titled to such work, Respondent has engaged in unfair

labor practices within the meaning of Section 8(b) (4)

(i) and (ii) (D) of the Act.

2. The aforesaid unfair labor practices are unfair

labor practices within the meaning of Section 2(6) and

(7) of the Act.

RECOMMENDED ORDER

Upon the basis of the foregoing findings of fact and

conclusions of law, and upon the entire record, it is rec-

ommended that Local Union 825, Internationa] Union

of Operating Engineers, AFL-CIO, its officers, agents,

representatives, successors and assigns shall:

1. Cease and desist from engaging in, or inducing

or encouraging any individual employed by Porier &

McLane Corporation, Chicago Bridge & Iron Company,

White Construction Company, or by any other persons

engaged in commerce or in an industry affecting com-

merce, to engage in, a strike or refusal in the course of

his employment to perform any services, or from threat-

ening, coercing, or restraining the above-named plus

Burns & Roe, Inc., or any other persons engaged in com-

merce, where an object thereof in either case is to force

or require White Construction Company, or any em-

ployer, to assign any work to employees engaged as oper-

ating engineers who are represented by Respondent rath-

er than to employees represented by another labor or-

ganization, except insofar as any such action is per-

mitted under Section 8(b) (4) (D) of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act:

(a) Post at its place of business at Newark, New

Jersey, copies of the attached notice™® marked “Appen-

dix.” ** Copies of said notice to be furnished by the

Regional Director for the Third Region shall, after hav-

ing been signed by a duly authorized representative of

Respondent, be posted by Respondent immediately upon

receipt thereof, and be maintained by Respondent for 60

consecutive days thereafter in conspicuous places, includ-

ing all places where notices to employees are customarily

posted. Reasonable steps shall be taken to see that such

notices are not altered, defaced or covered by other ma-

terial. Upon request from the Regional Director, the

Respondent shall supply him with a sufficient number

of signed copies of said notice for posting by Chicago

Bridge, Porier, White and Burns, they willing, at their

respective jobsite offices at Oyster Creek and other places

of business.

26 In keeping with Board policy, see L. L. Glascock, Inc., 160 NLRB

No. 74, in which the Board revised Examiner Reel’s notice to make

it unintelligible to the average employee, the attached notice has

been drafted with the purpose of similar obfuscation. It might

appear, as it seemingly did to the Trial Examiner in Glascock, that

it would be the policy of the Board to make its decisions clear to

those most vitally affected by them, which in this instance would

include union members as well as the employers. Such is not the

case. The operating engineer who understands this notice has

missed his vocation. He should be deciphering the Dead Sea

scrolls.

27Jn the event that this Recommended Order be adopted by the

Board, the words “A DECISION AND ORDER” shall be substi-

tuted for the words “A RECOMMENDED ORDER OF A TRIAL

EXAMINER?” in the notice. In the further event that the Board’s

Order be enforced by a decree of a United States Court of Appeals,

the words “A DECREE OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER” shall be substituted for the

words “A DECISION AND ORDER.”

(b) Notify said Regional Director, in writing, within

20 days from the receipt of this Decision and Recom-

mended Order what steps have been taken by Respondent

to comply herewith.*

sofar as it alleges violations of Section 8(b) (4) (i) and

(ii) (B) of the Act be dismissed.

Dated at Washington, D. C.

/s/ John F, Funke

JOHN F, FUNKE

Trial Examiner

8 In the event that this Recommended Order be adopted by the

Board, this provision shall be modified to read: “Notify said

Regional Director in writing within 10 days from the date of this

Order what steps the Respondent has taken to comply herewith.”

APPENDIX

NOTICE

TO ALL MEMBERS OF

LOCAL No. 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AFL-CIO

PURSUANT TO

THE RECOMMENDED ORDER OF A TRIAL EXAMINER OF THE

NATIONAL LABOR RELATIONS BOARD

and in order to effectuate the policies of the

NATIONAL LABOR RELATIONS ACT

(As AMENDED)

we hereby notify you that:

WE WILL NOT induce or encourage any individual

employed by CHICAGO BRIDGE & IRON COM-

PANY, PORIER & McLANE CORPORATION,

WHITE CONSTRUCTION CO., INC., or by any

other persons engaged in commerce or in an irdus-

try affecting commerce, to engage in a strike or a

refusal in the course of his employment to perform

any services, or threaten, coerce or restrain the

above-named Companies and BURNS & ROE, Inc.,

or any other persons engaged in commerce or a busi-

ness affecting commerce, where an object in either

case is to foree WHITE CONSTRUCTION COM-

PANY, or any employer, to assign work to any em»

ployees engaged as operating engineers who are rep-

resented by LOCAL NO. 825, INTERNATIONAL

UNION OF OPERATING ENGINEERS, AFL-CIO,

rather than to employees represented by another

labor organization, except insofar as any such action

is permitted under Section 8(b) (4) (D) of the Act.

LOCAL No. 825, INTERNATIONAL UNION

OF OPERATING ENGINEERS, AFL-CIO

(Labor Organization)

Dated By

(Representative) (Title)

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.

If members have any question concerning this Notice

or compliance with its provisions, they may communicate

directly with the Board’s Regional Office, 1700 Bankers

Securities Building, Walnut & Juniper Streets, Phila-

delphia, Pennsylvania 19107 (Tel. No. 597-7601).

[fol. 17]

EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS

BEFORE THE NATIONAL LABOR RELATIONS BOARD

PROCEEDINGS

TRIAL EXAMINER FUNKE: The hearing will be

in order.

Are there any further appearances to be entered at

this time.

MR. SUBRIN: I would like to make a statement.

TRIAL EXAMINER: Yes, Mr. Subrin.

MR. SUBRIN: Mr. Trial Examiner following the re-

cess here yesterday I sent a telegram to Mr. Dirkin and

to the Union and which I think I should perhaps intro-

duce as General Counsel’s Exhibits.

TRIAL EXAMINER: Perhaps you should get the

formal exhibits in first.

MR. SUBRIN: I was going to call these General

Counsel’s Exhibit No. 2, and enter them later.

TRIAL EXAMINER: You can put them in order if

you prefer.

MR. SUBRIN: I haven’t shown these yet to Mr.

Apruzzese. These are the proposed exhibits which have

been marked 1-A through 1-N, the formal papers in this

case.

MR. APRUZZESE: I have no objection.

TRIAL EXAMINER: They will be received a Gen-

eral Counsel’s Exhibit No, 1.

(Thereupon, the documents above-referred to were

marked as General Counsel’s Exhibit No. 1, for

identification and were received in evidence as Gen-

eral Counsel’s Exhibit No. 1.)

MR. SUBRIN: I would like to have the Court Re

[fol. 18] porter to mark as proposed exhibits, General

Counsel’s Exhibit No. 2 which are all copies, of course,

of telegrams, we sent three actually, one to Mr. Dirkin

at his office and one to Mr. Dirkin at the Court where

he was appearing, and one to the Union Hall, and we

have the return receipts on those which I would like to

have the Court Reporter to mark as General Counsel’s

Exhibit 3.

(Thereupon, the documents above-referred to were

marked as General Counsel’s Exhibits Nos. 2 and

3-A, 3-B and 3-C, for identification.)

MR. SUBRIN: Actually I did talk with Mr, Dirkin

after that and I think I should mention that also.

TRIAL EXAMINER: Perhaps—

MR. SUBRIN: Can I offer those?

TRIAL EXAMINER: Yes,

Any objection Mr. Apruzzese?

MR. APRUZZESE: No objection.

I would like to read them.

TRIAL EXAMINER: Very well.

MR, SUBRIN: I was finally able to reach Mr. Dirkin

shortly after four o’clock at the courthouse where he

said he was engaged in a trial of this murder case and

I told him or I related to him the substance of the tele

gram and he said he just couldn’t be in two places at

one time and that he would not be able to appear today.

[fol. 19] However, I suggested to him that he send some

representative of his firm or perhaps from the Union

or somebody to represent him in this case. I explained

to him the circumstances and so on and he said there

was no one else in his firm who was capable of handling

the case. He just stated he just might be available next

week some time, and before the close of the conversation

he said he would send a client down. He didn’t say

whether it would be Mr. Weber or just whom. And the

last thing he said right before I hung up, he said, “I

will be back to you.” What he meant by that I don’t

know and I haven’t heard from him since, so it could

be somebody from the Union will eventually show up

and they may not.

TRIAL EXAMINER: Well, I think we have been

professionally tolerant with Mr. Dirkin’s appearance.

I am ready to proceed.

We have all the papers in. Those last two will be re

ceived into evidence.

(Thereupon, the documents above-referred to, here-

tofore marked as General Counsel’s Exhibit No. 2

and 3-A through 3-C, for identification were re-

ceived in evidence as General Counsel’s Exhibit No.

2 and 3-A through 3-C.)

TRIAL EXAMINER: Are you ready for the first

witness.

MR. HANNON: I don’t feel under the circumstances

there is any need for an opening statement. I think it

is a traditional type case, and in fact it is particular

closing point to Local 825, International Union of Oper-

[fol. 20] ating Engineers, and it is a liquid case which

is reported at 14 NLRB 415. I think that hearing in-

volved a CC and UD case.

TRIAL EXAMINER: I had a Nichols Electric case

which involved a CC. It did not involve a CD.

MR. HANNON: I think there was—

TRIAL EXAMINER: We are talking about two dif;

ferent Nichols Electric cases.

All right.

MR. HANNON: At this time I will call the first

witness. Mr. Giles Willis.

Thereupon,

GILES WILLIS

was called as a witness for and on behalf of the General

Counsel, and first having been duly sworn by the Trial

Examiner, was examined and testified as follows:

DIRECT EXAMINATION

Q (By Mr. Hannon:) Give the reporter your name

and address.

A Giles Willis, Forked River, New Jersey.

Q By whom are you employed, Mr. Willis?

A Burns and Roe Incorporated.

Q And where are you employed?

A At the Oyster Creek Necular Power Plant for the

Jersey Central Power and Light Company.

Q What is being built at Forked River?

ne ET ETE:

[fol.21] A It is a nuclear power generator station.

Q What is Burns and Roe doing on the job?

A Burns and Roe is the architect engineer and also

the constructors.

Q What is the total cost of the job?

A The published cost is $68,000,000.

Q (By the Trial Examiner:) Is Burns and Roe the

General Contractor?

A We are acting as General Contractors, sir. All of

these subcontractors are in the name of Burns and Roe.

TRIAL EXAMINER: I see.

Q (By Mr. Hannon:) When did the job start?

A _ I moved to the job site on September of ’64.

Q What is your approximate scheduled completion

date?

A Our scheduled construction completion date is in

May of 1967 and the plant is supposed to go into opera-

tion in the fall of ’67.

Q Do Burns and Roe have any construction employees

of its own on the job?

Who is doing the actual actual construction?

Various subcontractors,

Are these Burns and Roe subcontractors?

They are.

Q Do you know the job Stewart for the Local 825

Operating Engineers on this job?

{fol. 22] A I do.

Q What is his name?

A Bill Bonatz.

Q Have you had any conversation with Bonatz about

this job?

Yes.

When was your first job?

September 23th.

65?

65.

When did the conversation take place?

In my office.

Who was there?

Hank Behren. He is the master mechanic for

Poireir and McLane, and Bill Bonatz.

POPOPOroO >

Q What happened then in the conversation with these

two men?

A They came into my office about 8:45 in the morn-

ing of September the 29th, and informed me that the

Operating Engineer employed by our subcontractors had

taken a vote and that as a result of this their position

was since Burns and Roe was the general contractor on

the job the Operating Engineers employed by the various

subcontractors on the job would cease to work for these

subcontractors on the job after Friday October the Ist

unless Burns and Roe had signed an agreement with

Local 825.

[fol. 23] Q Does Burns and Roe have an agreement

with Local 825?

A No.

Q What relationship does Burns and Roe have with

the Operating Engineers?

A We have a national agreement.

Q A national agreement?

A Yes.

Q What happened on the following date, September

the 30th?

A On September the 30th at approximately 3:30 in

the afternoon I was visited by Hank Behren, Bill Bonatz,

Bobbie Illario who was the master mechanic for Chicago

Bridge and Iron.

Q Chicago Bridge and Iron another subcontractor?

A Yes, and a Mr. Gatty who was also an employee

of Chicago Bridge and Iron.

Q Did Chicago Bridge and Iron and other subcon-

tractor—

A They was a subcontractor.

Q What happened when these men came in?

A Mr. Alario gave me three copies of 825 contract

and he told me that unless Burns and Roe had signed

a contract with 825 by Friday Morning, October the

Ist, all of the Operating Engineers employed by Burns

and Roe subcontractors on the job would walk off.

MR. HANNON: I would have marked as General

Counsel’s Exhibit No. 4, a document.

TRIAL EXAMINER: Yes.

tt - _ =

{fol. 24] (Thereupon, the document above-referred to

was marked as General Counsel’s Exhibit No. 4, for

identification. )

Q (By Mr. Hannon:) I will show you, Mr. Willis,

what ed as General Counsel’s Exhibit No.

you to identify it.

one of the three.

the three contracts you were handed?

copies.

I move that General Counsel’s Ex-

hibit No. 4, be accepted into evidence.

MR, APRUZZESE: No objection.

TRIAL EXAMINER: It will be received.

(Thereupon, the document above-referred to, here-

tofore marked as General Counsel’s Exhibit No. 4,

for identification, was received in evidence as Gen-

eral Counsel’s Exhibit No. 4.)

Q (By Mr. Mr. Hannon:) This was on September

— > What happened on the following morning, Mr.

illis

A On Friday Morning, October the Ist, at eight

o'clock the same parties, Mr. Bonatz, Mr. Behren and

Illerio asked if Burns and Roe had signed the contract.

I told them we had not. They then proceeded to leave

my office.

Q Did you see them then after they left your office?

A After they left the office they went out to the

parking lot which was outside of our gate and had con-

versation with the Operating Engineers that were stand-

= 25] ing around and sitting in their cars at that

me.

Q What did you see them do then?

A Well, after they had conversations for a few min-

utes they began to get in their car and leave.

Q (By the Trial Examiner:) Did you know these

persons to be members of the Operating Engineers to

your own knowledge?

A I have never seen their cards, sir.

Q Have you seen them employed on the job site as

Engineers?

A I have seen them employed as Operating Engineers

and I have seen them in conversations referred to by

officials of the 825 as being Operating Engineers.

Q (By Mr, Hannon:) How long did the Operating

Engineers remain off the job then?

A Well, about, between twelve thirty and one o'clock

they began to return to their jobs and started up various

equipment.

Q Did you have any conversation with any of them?

A Yes. Somewhere between one thirty and two

o'clock I had conversation with Bill Bonatz, Bobbie II-

lerio over in the area of Piorier McLane operation.

Q What was the conversation?

A I asked the two of them why did the Operating

Engineers return to the job at this time. I was in-

formed by Alerio that the Operating Engineers on this

(fol. 26] job had been instructed by Pete Weber to return

to work and that an agreement had been reached with

Burns and Roe on the problem.

Q After that date did you have any further conver-

sation with the job stewart or members of Respondent

Local?

A Yes.

Q When was it?

A On October the 6th at approximately four o'clock

in the afternoon.

Q Who did you meet at that time?

A At that time, Bill Bonatz and Bobbie Illerio came

into my office and Bobbie said to me unless an operating

engineer is assigned to the welding machine which by

the way is owned by White Construction Company, we

would not have any operating engineers on the job the

following day.

Q What else, if any thing did Alerio say after men-

tioning the electric welding machine?

A He further said that Burns and Roe didn’t have

a contract with 825 and neither did White and that the

operating engineers were reluctant to work where any

subcontractors did not have an agreement with 825.

Q Did you say anything?

A I informed them that Burns and Roe had a Na-

tional Agreement and was not required by the Interna-

tional Agreement to sign local agreements, and I further

informed them that the starting and stopping of the

(fol. 27] welding machine in question had ed

by White to the iron workers and that there would be

no change of this assignment only by the International

General Corp and to substantiate the fact I showed them

a letter from the Chairman of the National Iron Workers

to the International President of the Iron Workers and

both the Operating Engineers.

MR. HANNON: I will have this document marked

as General Counsel’s Exhibit No, 5, for identification.

(Thereupon, the document above-referred to was

marked as General Counsel’s Exhibit No. 5 for

identification. )

Q (By Mr. Hannon:) Mr. Willis I will hand to you

what has been marked as General Counsel’s Exhibit No.

5, for identification.

Yes.

Q And what is it, sir?

A This is a letter from the National Joint Board to

the International President. This is a copy of the letter

which I showed to the men in question.

MR, HANNON: I will offer General Counsel’s Ex-

hibit No, 5 into evidence.

MR. APRUZZESE: No objection.

TRIAL EXAMINER: It will be received.

(Thereupon, the document above-referred to, here-

tofore marked as Genera] Counsel’s Exhibit No. 5,

for identification, was received in evidence as Gen-

eral Counsel’s Exhibit No. 5.)

(fol. 28] TRIAL EXAMINER: Has this dispute been

submitted to the Joint Board by both parties?

MR. HANNON: I think I can clear that up.

TRIAL EXAMINER: Proceed on with it.

Q (By Mr. Hannon:) Now, this was on the 6th of

October, correct, Mr. Willis?

A This was on the 6th of October.

Q Now, the Trial Examiner has just asked a question

about submitting, submission to the National Joint Board.

Are you familiar with its submission to the National

Joint Board concerning the electrical welding equipment

on the job site?

A I am.

Q And just when, if at any time, was it or the sub-

mission made to the Nationa] Labor Board?

A I think it was on the 6th.

Q (By the Trial Examiner:) Of what?

A October. General Counsel made the submission.

MR. HANNON: May I have this marked as General

Counsel’s Exhibit No. 6, for identification.

(Thereupon, a document above-referred to was

marked as General Counsel’s Exhibit No. 6, for

identification. )

Q (By Mr. Hannon:) Will you identify that, Mr.

Willis?

A I do.

Q And what is it?

(fol. 29] A It is a formal committal of the jurisdic-

tional dispute over the assignment of the electrical weld-

ing machine.

MR, HANNON: I will offer General Counsel’s Ex-

hibit No. 6 into evidence.

MR, APRUZZESE: No objection.

TRIAL EXAMINER: It will be received.

(Thereupon, the document above-referred to, here-

tofore marked as Genera] Counsel’s Exhibit No. 6,

for identification, was received in evidence as Gen-

eral Counsel’s Exhibit No. 6.)

Q (By Mr. Hannon:) All right, this was on the 6th.

What happened on the 7th, Mr. Willis?

A On the 7th no operating engineers reporte’ for

work for either McLane, Chicago Bridge and Iron Work

Construction.

Q All these companies subcontractors?

A Subcontractors.

Q How long did they remain off?

A October the 7th, October the 8th, and October the

11th.

Q On what date did they return?

A On the 12th.

Q And after the 12th, did you again at any time

meet with the job stewart or any of the other individuals

that have been in and out of your office?

A On October the 18th at approximately eight o’clock

Hank Behren, Bill Bonatz, Bobbie Alerio, Gatty and an-

(fol. 30] other man who identified himself as an oper-

ating engineer by the name of Cachoose came into my

office and informed me that they had some equipment

outside the gate which they proposed to bring in and

to operate with electricians and the operating engineers

who claimed the work and asked me to see if I could

keep them from coming in.

I informed them that the work was being, was pro-

posed to be done by Freehold Electric was not a part of

vur contractural responsibilities on this job and that was

work being done by otheres, however, I would contact

the parties involved in it and see what I could do. Mean-

while I would keep them out until I had contacted them.

Q Do you know Ray Shinn?

A Yes.

Q Who is Ray Shinn?

A Ray Shinn is the representative of the Local 825

with whom I have been dealing with since I have been

on the job.

Q ‘ Shinn, did you meet with Ray Shinn about this

time

A Later in the afternoon, about two o’clock Ray

Shinn Hank Behren, Bill Bonatz, Alerio, and Cachoose

came to my office and asked to see Mr. Garvin.

Q Who is Mr. Garvin?

A Mr. Garvin is Burns and Roe’s Labor Relations

Consultant.

Q Did you have any conversation with Mr. Shinn?

A Yes, Mr. Garvin, myself went to the conference

{fol. 31] room with the parties just named and we when

we got in there Mr. Shinn said to us that he was only

interested in discussing the problem with Freehould

Electric and not the other problems that we had on the

ob.

We informed him, at that time, that we had the others

and that this was not our responsibility and we could

not enter into any conversation on the problem that was

connected with Freehold.

Q After this date did you hear anyting or were you

informed of an award made by the National Joint Board?

A Yes.

Q About what time was that?

A I received my copy of the National Joint Board

award as a result of the meeting on the 19th, and I

received my copy on the 2lst, I believe.

MR. HANNON: I will have marked for General

Counsel Exhibit No. 7, for identification.

(Thereupon, the document above-referred to was

marked as General Counsel’s Exhibit No, 7, for

identification. )

Q (By Mr. Hannon:) Mr. Willis, I will ask you to

identify that which has been marked as General Coun-

sel’s Exhibit No. 7.

A That is right.

Q That is a copy of the award that came from the

National Labor Board?

A Yes. This is a copy of which I have a copy of the

(fol. 32] National Joint Board award according to his

assignment.

MR. HANNON: I will offer into evidence General

Counsel’s Exhibit No. 7.

MR. APRUZZESE: No objection.

TRIAL EXAMINER: Ie will be received.

(Thereupon, the document above-referred to, iiereto-

fore marked as General] Counsel’s Exhibit No. 7, for

identification, was received inn evidence as General

Counsel’s Exhibit No. 7.)

Q (By Mr. Hannon:) After you received notifica-

tion of this award, Mr. Willis, what did you do about

it, if anything?

A NR pee tn een Rr me atm ee Gene

A As soon as I received my copy of this I attempted

to contact Ray Shinn of the Operating Engineers and

Ted Norton the Business Agent of the Iron Workers in

order to set up a meeting to try to implement the deci-

sion of the joint Board without any hassel or dispute.

I was unable to contact them by phone. So, I sent

them a telegram and received reports of delivery of the

telegram, and I requested a meeting of Friday the 22nd

about ten o’clock on Thursday night Ray Shinn called

me and stated that he had received the telegram and

that he had been in contact with Ted Norton and to

meet with me at ten o'clock on Friday would be incon-

venient for the both of them and asked if I could post-

pone the meeting until] Monday at ten o’clock and I said

that I could.

Q What happened on Monday?

A On Monday Ted Norton and Ray Shinn came to

(fol. 33] the job site, however, they did not come to see

me at all. I saw Ted Norton, in fact I went to lunch

with him and while I was having lunch Ray Shinn came

in and he said that the meeting was going to be later

in the afternoon because he had been informed that Pete

Weber would come down to the meeting at three o’clock.

There was no meeting with me.

Q Did you see Pete Weber on the job?

A Not that day.

Q Did you see him on the job the following day?

A The following day I did see him to the extent that

I could identify him. He did not come to see me.

Q Did you see where he went?

A He went to White Construction Company’s office

trailer.

Q (By the Trial Examiner:) Should the record

show who Pete Weber is?

Q (By Mr. Hannon:) Will you identify Pete Weber?

A To the best of my knowledge and according to

information received from him verbally, he is the Business

Agent of Local 825.

MR. HANNON: I would note too, Mr, Trial Exam-

iner, that there is an admission in the answer that Pete

Weber is a Business Manager of Local 825.

TRIAL EXAMINER: Very well.

MR. HANNON: I have no futrher questions of this

witness.

(fol. 34] Thereupon,

CROSS EXAMINATION

Q (By Mr. Apruzzese:) Mr. Willis, tell us, if you

know, approximately how many engineers walked off the

job or did not work on October the Ist, the date of the

first stoppage?

A How many engineers were employed by the various

contractors we have on the job?

Q Well, all right, how many were employed, how

many operating engineers?

A I couldn’t give you that figure, specifically. I am

sure you have people here that could tell you how many

each one of them had.

Q Do you have any knowledge or approximately how

many there might be on that date, if you know?

A Well, I would estimate somewhere in excess of

twenty.

Q And none of these engineers to your knowledge

worked on the morning of October the Ist?

A No.

Q Now, then, on October the 7th which I believe you

said was the next date the engineers did not work. Do

you have any idea, approximately as to how many engi-

neers were employed on the project?

A Any number I would give you would be an esti-

mate. I would say there would be around twenty.

Q Now, to your knowledge, pardon me, was it neces-

(fol. 35] sary as a result of the operating engineers not

working—let me rephrase that.

As a result of the engineers not working were any

other employees, building craftsman on the job laid off?

A Any information that I would give you relative to

this would be second hand or hearsay inasmuch as we

do not employ these people and the payroll is covered

by others.

Q (By the Trial Examiner:) Did I understand you

correctly to say that Burns and Roe had no contract with

Freehold Electric to perform no services for you?

A For Burns and Roe or any of Burns and Roe sub-

contractor.

Q I was just asking as a matter of curiousity. For

whom were they to perform work?

A They were performing work for a contractor of

Jersey Central Power and Light Company direct. They

are the owners.

TRIAL EXAMINER: Are there any allegations in

the complaint that one of the purposes of the work stop-

page was to compell Burns and Roe to cease doing busi-

ness with Freehold Electric?

MR. HANNON: No, the particular reason, the par-

ticular point in there was to help us to establish agency

relationship.

TRIAL EXAMINER: I have one question before you

proceed, before I forget it.

with whom you had conversations, and I have forgotten

(fol. 36] their names, I believe you said one of them

was a steward of 825 and the others were master me

chanics employed by the various contractors.

Is that correct?

A That is correct.

Q Now, do you know of your own knowledge whether

or not a master mechanic has any duties to perform

for the local 825 apart from the duties for the con-

tractor? If you don’t know the answer just tell me.

A What was the question again?

Q A master mechanic in this industry frequently per-

form some services for his local on the job site as well

as perform services for the company, the contractor. Do

these master mechanics act in any way on behalf of

Local 825?

I am just going by my recollection of past cases.

A If you would observe their activity and their con-

versation and see them running back and forth from

one piece of equipment to the other in which operating

engineers are operating cranes, bulldozers, front end

loaders and so forth you would assume that they were

conducting some business for the union and not for the

contractor.

Q I don’t know if that answers my question, but I

guess that is as far as we can go at this time on that

int.

pe TRIAL EXAMINER: Are we going to introduce any

of the Rules and Regulations which establish the duties

of master mechanics?

(fol. 37] MR. HANNON: Your Honor, I have sub-

poenaed the Bylaws of the Local from the Union, from

Respondent, and of course they are not here today, how-

ever, we do have the various subcontractors on the job

and I think they can supply the evidence as to what

master mechanics do for them on the job.

TRIAL EXAMINER: Very well.

Q (By Mr. Hannon:) I would ask this, Mr. Willis,

you have mentioned three subcontractors that is White,

McLane, Chicago Bridge and Iron. Are these the only

three subcontractors on the job?

A We have a Lower Tier subcontractor of a former

subcontractor. This is American Dewatering who is a

lower Tier subcontractor of Public Constructors, They

are operating the dewatering system at the present time

and have been since the fall of ’64.

Q By dewatering you mean that is to remove the

water—

A Pumping the water out of the holes and removing

it.

Q The actual construction is being done by the three

contractors?

A The three that are named are the only ones doing

any construction work.

MR. HANNON: I have nothing further.

MR, APRUZZESE: I have one other question.

Q (By Mr. Apruzzese:) Mr. Willis, to your knowl-

edge is Burns and Roe a members of the Building Con-

(fol. 38] tractors Association of New Jersey?

A I think that they are affiliated member.

MR. APRUZESE: No further questions.

TRIAL EXAMINER: You may be excused.

(The witness withdrew.)

MR, HANNON: At this time I will call Chris Gun-

derson to the stand.

Thereupon,

CHRIS GUNDERSON

was called as a witness for and on behalf of the General

Counsel,, and first having been duly sworn by the Trial

Examiner, was examined and testified as follows:

DIRECT EXAMINATION

Q (By Mr. Hannon:) Be seated and give your name

and address to the Reporter, please.

A Chris Gunderson, 2115 Jefferson St.

Q Where are you employed, Mr. Gunderson?

A On Oyster Creek Project in Forked River, New

Jersey.

Q By who?

A White Construction Company.

Q What do you do for White?

A I am construction superintendent.

Q What is White doing on that job?

A White is doing the construction of slabs, that is

constructing the reactor building.

{fol. 39] Q When did White start the job?

A About the first of September or around there.

Q 65?

A ’65.

Q What trades do you employ on the job?

A Iron workers, carpenters, engineers, laberers,

Q What labor organization represents your operat-

ingg engineers?

A Local 825.

Q Do you know a Bill Bonatz?

A Bill Bonatz is the shop stewart of Local 825.

Q When was the first time you met Bill Bonatz on

this job?

A The week of September the 20th, 1965, I brought

an electric welding machine to the site and I was ap-

proached by Bill Bonatz and the lead engineer, Hank

Behren who told me I needed an operating engineer from

Local 825.

MR. HANNON: May I have marked for identifica-

tion General Counsel’s Exhibit No. 8.

(Thereupon, the document above-referred to was

marked as General Counsel’s Exhibit No. 8, for

identification. )

TRIAL EXAMINER: Off the record.

(Discussion off the record.)

MR. SUBRIN: Mr. Trial Examiner, the time is now

about twenty minutes after ten and I just came from

(fol. 40] upstairs where Mr. Dirkin had called us. I

spoke with Mr. Dirkin. He was in Newark and he said

at nine o’clock this morning he contacted the Local in

Philadelphia, the operating engineers to have their attor-

ney call him back and perhaps come over here to substi-

tute for him and he mentioned the name of Mr. Fried-

man who is a local attorney here representing operating

engineers.

I told him that we had gone ahead with a witness at

nine o’clock and at that point he seemed a little angry

and said that if we wanted to proceed without him and

if we felt we were going to ram something down his

throat to just go ahead and do it.

I told him it was not our contention, but we were

proceeding with the case as directed by the Tria] Exam-

iner. He stated he didn’t think one day was enough time

for him and when he did say that he would call us back

when he heard from, I guess either Mr. Friedman or

the Philadelphia Local the operating engineers and that

is the way we left it. If I have any further conversa-

tions with him [I will certainly report.

TRIAL EXAMINER: Thank you. We will now pro-

ceed.

Q (By Mr. Hannon:) Mr. Gunderson, you were dis-

cussing the convention with William Bonatz and Hank

Behren about the engineers wanting an operating engi-

neer on the electric welding equipment.

_ I am going to have you to identify what has been

marked as General Counsel’s Exhibit No. 8.

{fol.41] A That is the one on the job rented from—

it is an electric welding machine.

MR. APRUZZESE: Mr. Gunderson, will you speak

up. It is difficult to hear you.

Q (By Mr. Hannon:) Specifically, what work on

that electric welding machine did they want?

A It is used for welding structural steel.

Q And what work did they want? The operating

engineers.

A They wanted a man to push the button to start

the machine and a man to push the button to stop the

machine.

MR. HANNON: I am going to offer General Coun-

sel’s Exhibit No. 8 into evidence.

MR. APRUZZESE: No objection.

TRIAL EXAMINER: It will be received.

(Thereupon, the document above-referred to, here

tofore marked as General Counsel’s Exhibit No. 8,

for identification, was reecived in evidence as Gen-

eral Counsel’s Exhibit No. 8.)

Q (By Mr. Hannon:) Now, after this conversation

with Bonatz and Behren what happened?

A I told them I would call my office and my office

told me to assign the electric welding machine to the

Iron Workers Local 350 of Atlantic City on September

the 27th.

MR. HANNON: I will have this document marked

as General Counsel’s Exhibit No. 9, for identification.

(fol. 42] (Thereupon, the document above-referred to

was marked as General Counsel’s Exhibit No. 9, for

identification. )

Q (By Mr. Hannon:) Mr. Gunderson, I will ask

you to identify that which has been marked as General

Counsel’s Exhibit No. 9.

A That is a copy of the assignment.

MR. HANNON: I will offer General Counsel’s Ex-

hibit No. 9, into evidence.

MR. APRUZZESE: No objection.

TRIAL EXAMINER: It will be received.

(Thereupon, the document above-referred to, hereto-

fore marked as General] Counsel’s Exhibit No. 9, for

identification, was received in evidence as General

Counsel’s Exhibit No. 9.)

Q (By Mr. Hannon:) All right, this assignment was

made on September the 27th.

What happened after that?

A On September the 30th Hank Behren and Bill

Bonatz about ten o’clock approached me and told me

they were going to knock the engineers ‘off the crane and

handed me three agreements between the operators from

Local 825 and asked me to have White Construction to

sign the agreement between the White Construction and

Local 825.

MR. HANNON: I will have marked for identifica-

tion as General Counsel’s Exhibit No. 10.

(Thereupon, the document above-referred to was

marked as General Counsel’s Exhibit No. 10, for

identification. )

[fol.43] Q (By Mr. Hannon:) Mr. Gunderson, I will

ask you to identify General Counsel’s Exhibit No. 10.

A That is one of the copies sent to my office and

White Construction.

Q From whom did you receive this?

A From Hank Behren and Bill Bonatz.

MR. HANNON: I will offer General Counsel’s Ex-

hibit No. 10 into evidence.

MR. APRUZZESE: No objection.

TRIAL EXAMINER: It will be received.

(Thereupon, the document above-referred to, hereto-

fore marked as General Counsel’s Exhibit No. 10, for

identification, was received in evidence as General

Counsel’s Exhibit No, 10.)

Q (By Mr. Hannon:) Now, this was on September

30th you were having a conversation with Behern and

Bonatz?

A Yes.

aad een ee ee

A They started in the morning and knocked off at

ten o'clock.

Q How many did you have working?

A One eigineer and one oiler.

Q They knocked off at ten o'clock?

A Yes.

Q Had you knocked them off?

A No, they walked off the crane.

{fol.44] Q What happened after that?

A October the Ist no engineers showed on the j

Bill Cherry the engineer came on the job around one

one thirty in the afternoon and he proceeded to go

the crane and start the crane and I asked him what

happened. He said, “Well, things will be settled and he

was going to work.”

Q He was one of your employees?

A Yes, he was the operator on the crane.

Q How long did the men continue working after

this time, that would be October the Ist?

A They worked Monday, Tuesday and Wednesday

and Thursday October the 7th, no one showed up.

Q How many men did you have employed on the job

on October the 7th?

A I had about seven or nine iron workers perform-

Q How many engineers?

A one engineer and one oiler.

Q What did you have to do about this work force

when the operating engineers didn’t show up?

A I laid them off.

Q What did yov do about getting replacements for

these operating engineers?

A I phoned to Newark and spoke to Mr. Mack the

dispatcher to send an engineer and an oiler to the project

the following morning at 8:00 a.m.

(fol. 45] Q And what happened?

A The following morning one engineer and one oiler

unidentified showed up. They told me to check with the

w, this would have been the 7th, the last day

u had operating engineers working on the

When did these operating engineers return to the

to work?

A I think it was October the 12th, if I remember.

Q Now, after October 12 did you have any further

Q I will withdraw that question and ask you after

October the 12th, did you at any time attempt to start

your electric welding machine?

A On November the Ist, no, the 4th, I started the

A The engineers.

(fol. 46] And at that time Bill Bonatz come to me and

asked me if I had signed an agreement between White

Construction and the Operating Engineers, which I said

I did not havee, and he said with words to the effect—

Q Were you able to operate the electric welding ma-

chine that day?

A No.

Q Why weren’t you able to operate it?

A They surrounded this welding —* physically.

2 All right, what eee on the following day the

5th

ry The same thing.

Q The same thing. They surrounded the welding ma-

chine?

A Yes.

Q MR. HANNON: Your Honor, at this time [

would like for you to take judicial notice of an order

granting temporary injunction in the United States Dis.

trict Court for the District of New Jersey, dated No

vember the 8th, 1965.

TRIAL EXAMINER: Yow are going to put it in

the record?

MR. HANNON: Yes, sir. I will put it in as an

exhibit and that will be General Counsel’s Exhibit No,

11.

TRIAL EXAMINER: Any objection to its receipt.

MR, APRUZZESE: No objection.

TRIAL EXAMINER: It is received.

{fol.47] (Thereupon, the document above-referred to

was marked as General Counsel’s Exhibit No. 11,

for identification, and was received in evidence as

General Counsel’s Exhibit No. 11.)

Q (By Mr. Hannon:) Now, Mr. Gunderson, you are

familiar with the fact an injunction was granted by the

District Court in New Jersey on November the 8th in

part concerning this electric machine, welding machine?

A Yes, on November the 8th, yes.

Q Now, after November the 8th, what work assign-

ments did you make on the Electric Welding Machine?

A The same work assignment, Iron Workers.

Q Starting and stopping the equipment?

A Yes.

Q Now, after November the 8th, after you made this

assignment to the Iron Workers did you have any fur-

ther conversation with Bonatz about the operation of

the job?

A Do you have the dates.

ot Let me ask you this. I will withdraw that ques-

e, any time did you bring any concrete pump on the

A On November the ist I brought an electric pump

on the job and I started rigging it up. I started to set

the pump on November the 15th.

Q What was this?

That was a portable concrete pump.

Q Did you have any conversations with Bonatz about

(fol. 48] the concrete pump?

A He approached me and tole me on that same port-

able concrete pump I needed one engineer from Local

825 to operate it.

Q What did you say?

A I told him that the engineer, to get the engineer

the following morning because we intended to pour con-

crete on the 17th, Wednesday.

Q What happened on the following morning?

A The engineer showed up and I signed him up and

he went to help the laborers to set up the pump.

Q What happened then?

A At nine thirty Bob Illerio approached me and told

me and told me he was sent out from the Union, he was

the new master mechanic for White Construction Com-

pany and he brought two additional—he told me he would

bring two additional engineers to operate on the same

portable concrete pump.

Q Did he say what those engineers would do on the

concrete pump?

A He said they would connect the piping and the

rubber hose the entire length of the core.

Q That would make three operating engineers?

A Three operating engineers on the portable concrete

pump.

Q What did you tell them?

[fol.49] A I told them that I had assigned the piping

and the hose to the laborers, and I only wanted one engi-

neer to operate the pump and the rest of the laborers—

Q Did you see Illerio after that?

A Later he came to my office after lunch and brought

two engineers and he isked me to sign him up as master

mechanic, and the two engineers to operate on the pump

which I refused.

Q All right, this was on the 16th?

A Yes.

Q What happened on the following day, the 17th?

A Illerio came to ne in the mornine and he told me

he had brought two afditional engineers from Local 825

the American Crane as mechanics which

two engineers and two mechanics on one

A I refused to sign them up.

Q How many operating engineers had you had on

the crane after that date?

A If the boom is less than 100 feet I have an engi-

neer and an oiler. If the boom is 100 or mpre I have

two engineers.

Q What was the boom on this crane?

A 180 feet.

Q Now, where was your job stewart working that

morning, or was he working?

A He was supposed to be working on the crane, on

{fol. 50] the American Crane, and he approached me and

told me he had various things to do on the crane includ-

ing the clutch and the crane wouldn’t be operating for

some time.

Q Did you have any further conversation with him

at that time?

A Well, he told me that he was sick being a shop

stewart on the job, because Bobbie was overruling his

rulings.

Q What was the name of the shop stewart?

A Bill Bonatz. .

Q At this time Bill Bonatz was employed by you?

A That is correct.

Q A How long had he been employed by you at this

time

A Since he was laid off from Chicago Bridge and

Iron.

Q How long had that been?

A Well, I would have to look in my records.

Q When Bonatz first came to you in September was

he employed by you then?

A No, he was working for Chicago Bridge and Iron.

Q When Bonatz was talking to you about the opera-

tion of the crane the fact that he had to do some work

on the clutch had that crane been working the prior

evening?

A It was in perfect condition the day before.

Q What happened after your conversation with Bo-

natz?

A I ordered concrete for ten o’clock. The truck ar-

rived and I put it in position ready to pour concrete.

I looked for the engineer operating the pump and I

(fol. 51] found him in Piorier McLane’s shanty. I told

him to go and start the pump. He walked over followed

by five additional operating engineers. He came to the

pump and I again told him to start the pump. He told

me that orders not to start the pump, and he came and

he and the five engineers surrounded the pump physi-

Q Can you identify these five engineers?

A Yes. The two engineers was the two he brought

in on the 16th, on November the 16th, and the other

two was the one he brought in that morning to work

on the crane.

Q How long did the men remain around the concrete

ump?

: A I left the truck there until twelve o’clock and

thought they would change their minds and then I

dumped the concrete and two men stayed on the pump

until about two thirty in the afternoon.

Q When did your operating engineer employees leave

the job that day?

A At two or two thirty nobody was there. The crane

did not operate the entire day.

Q How about the men on the pump?

A The men on the pump stayed until two thirty that

afternoon.

Q What happened then?

A They disappeared. That was on the 17th.

Q How many operating engineers and employees did

you have that day?

[fol. 52; A I had two on the American Crane, two on

the P.H. which was obsolete. I put the jib on and I

couldn’t lift the job. Two on the American Crane and

one on the pump, the portable pump.

2 And one of these three was Bonatz?

Yes.

Q Did any of these three ask permission to leave the

job before they left?

A No.

Q Were you using the electric welding machine that

day?

A It was the 17th. I used the welding machine in

the morning up til noon time. At one o'clock I was

approached by my iron worker superintendent, Ed Smith

and he told me the wires had been cut on both welding

machines and oi] was thrown in the armature. I was

unable to use the welding machine the rest of the life

of the job.

Q When had the machine been working before this

report from the iron workders?

A Right before lunch.

Q Did any of your operating engineers report for

work on the 18th?

A No.

Q Did you see Bonatz that day?

A I saw him early in the morning.

Q Do you recall what your conversation was, if you

had any?

{fol.53] A If White Construction did not have a

signed contract with 825, this was it.

Q During the time Illerio came to you on the 16th

and the 17th did he make any mention of electrical

welding equipment?

A Yeah, he mentioned the fact this was more or less

because of the electrical welding machine being in oper-

ation.

Q Do you recall when he said that or what time?

A I believe that is the time when he brought the

two men in on the crane on the morning of the 17th.

Q II recall your testimony then no operating engi-

neers reported for work on the 18th of November? How

long did the operating engineers remain off the job?

A They come back December the 21st, or the 22nd.

Q During the interium period between the 17th of

November and the 21st or 22nd of December what did

White do about getting operating engineers to report

to the job?

A We sent telegrams, quite a few telegrams to the

Union and asked them to return to work.

Q Do you recall in those telegrams what you actually

requested them to produce on the job?

A Engineers to the job and one man on the pump.

Q After the engineers left on November the 17th

what did you do about your other employees on the job?

A I had to slowly lay them off and shut the job down

(fol. 54] on December the 17th.

Q How many other employees did you have on the

job on November the 17th?

A I think there were a dozen iron workers, and a

couple of iron worker foremen and ten or twelve car-

penters and carpenter foremen, and five or six laborers

and labor foremen, and the office overhead.

Q You stated the operating engineers reported to

the job on or about December the 21st, or 22nd. Now,

at that time or thereafter did you have any conversation

with Hank Behren about the operation of the job?

A I was told at home on Monday, the 20th, December

the 20th to report to work the following morning which

was Tuesday the 21st and that the engineers would be

on the job and Bill Behren showed up at eight o'clock

and Cherry brought the crane down in the afternoon.

Q After that date did you have any conversation with

Behren?

A Yes. I heard him say that the job would run

smoothly now.

Q Who said this?

A Hank.

Q Did he say anything else?

A Well, we talked about the portable concrete pump.

He said the union still require two men on the pump, one

[fol. 55] engineer and he called the other one a mechanic.

MR. HANNON: I have no further questions of this

witness.

Thereupon,

CROSS EXAMINATION

Q (By Mr. Apruzzese:) Mr. Gunderson, in your

testimony I think you first refered to Mr. Hank Behren

or one of the engineers you had been discussing as 2

lead engineer, and then I think subsequently you also

referred to him as a master mechanic.

Now, I ask you this question. Is the lead engineer or

master mechanic these terms that you use do they apply

to the same men?

A The same men.

Q In other words, sometimes people refer to them

as a lead engineer and other times they are referred to

as a master mechanic?

A According to contract. There is no master me

chanic and no lead engineer.

Q Now, calling your attention to the occasion after

there was a National Joint Board Decision on this elec

tric Welding machine, the Joint Board said the contrac-

tors assignment should not be changed and it had been

the iron workers.

After that when on your job the electric welding ma-

chine was started you testified that some engineers sur-

(fol. 56] rounded the welding machine.

Now, this is my question, on that occasion who were

the engineers, if you know, that surrounded the welding

machine?

A My four engineers, two of them I know by name,

Cherry and Behren and the shop stewart, Bonatz and

Gatty and Bob Arlerio, off and on.

Q All right, you say that these four engineers, Cherry,

Bonatz and Gatty surrounded the welding machine?

A That is correct.

Q Now, I will ask you this question. Were Bonatz

and Cherry working on one of your cranes?

A Correct.

'Q What did they do? How did they get to the weld-

ing machine, they left the crane?

A They left the crane and walked to the welding

machine.

Q Was your electric welding machine operating when

they went to the machine. In other words was it in

the course of operating?

A Yes, they shut it off and surrounded the machine.

Q They shut it off and then they surrounded the

machine?

A Yes.

Q All right, then I believe you told us that they re-

mained around the machine that day and the following

[fol. 57] time subsequent on that day or the following

day when these engineers that you have mentioned sur-

rounded the machine?

A No. It stopped welding.

MR. APRUZZESE: No further questions.

Oh, excuse me, I do have one other area.

Q I think you testified, Mr. Gunderson, on Novem-

ber the 8th, the Federal District Court injunction was

entered?

A Yes.

Q Now, I call your attention to November the 9th,

the following day, to your knowledge did any operating

engineers report to work on the White Construction job

on November the 9th?

A You get me on these dates.

Q Only if you know, if you can recall, Mr. Gunder-

son.

A I don’t recollect.

Q (Trial Examiner:) That is your answer? You

don’t recollect?

A Yes, sir.

TRIAL EXAMINER: He has answered your ques-

tion. He does not recollect.

MR. APRUZZESE: No further questions.

TRIAL EXAMINER: You may be excused.

(The Witness withdrew. )

TRIAL EXAMINER: At this time I think we will

take a five minute recess.

(A short recess was taken.)

(fol. 58] TRIAL EXAMINER: Proceed, gentlemen.

Thereupon,

MR. LANGLINAIS

was called as a witness for and on behalf of the General

Counsel, and first having been duly sworn by the Trial

Examiner, was examined and testified as follows:

DIRECT EXAMINATION

Q (By Mr. Subrin:) State your name and address,

A Langlinais, 128 Graybar Drive, North Lane, New

Jersey.

By whom are you employed?

Chicago Bridge and Iron Company Incorporated.

What is your title?

On this project I am manager.

Of the Oyster Creek project?

Yes.

Did you get a subpoena to testify at this hearing?

I did, sir.

Do you know who the operating engineers job

stewart is at Oyster Creek?

A Mr. Bill Bonatz.

Q Do you know Mr. Bonatz?

A Yes.

Q Were you aware of the stoppage the testimony has

indicated on October the 7th at this job site?

A Yes, sir.

[fol.59] Q At any time did you discuss any problem

with this job at Oyster Creek with Mr. Bonatz?

A Yes, sir. As a result of the stoppage.

Q Would you state what hapened?

A This conversation took place, I believe, on the

morning of the 8th on the second day of the stoppage.

I walked into the job about nine o’clock and walked into

the shanty and Mr. Bonatz was in the office and we said

“Hello” and exchanged pleasantries and walked outside,

and we proceeded to talk about why he and the operating

engineers were not working for Chicago Bridge and Iron

Company and we had a contact with them. We had to

follow our contract and all the past work on this job,

and Mr. Bonatz said, “Well this was a direct result of

OPO PO PO PO

the welding machines, no contract with Burns and Roe

and they could not work without a contract with Burns

and Roe or White, and I said, “Well I’ve got a contract

with you. I want you to come back to work.” Well, he

came to work and it was costing me lots of money and

he said, “Well, why didn’t I do what Poirier McLane

was doing, bill Burns and Roe.” I said, I don’t know

what Poirier McLane is doing and it is none of my busi-

ness and I can’t do this. This is costing me money.

TRIAL EXAMINER: What was Poirier McLane do-

ing with Burns and Roe?

A (The Witness:) According to the operating engi-

neers as job stewart he was submitting a bill to Burns

(fol. 60] and Roe for the delay, the expense of the delay

of the work stoppage. I don’t know this to be a fact,

but I am repeating what he said to me.

TRIAL EXAMINER: I just didn’t understand what

the situation was alleged to have been. I know there

was contracts.

He did state that he wanted a contract with Burns

and Roe and he wasn’t going to work for you or have

his men work for you until they got a contract, Local

825 received a contract for Burns and Roe?

A He specifically indicated to me that the men on

the job had done this on their own that they had acted

as a group and they would work for anybody on the

job, Burns and Roe.

Q (By Mr. Subrin:) Was any mention made at

this time about the electric welding machine?

A I asked them why they were doing this because

the electric welding machine there was no contract, and

I said, “Well, why the, why pick on me?” And we pro-

ceeded to talk about a letter that Burns and Roe was

was supposed to have written to White Construction tell-

ing them to assign the welding machine to the Iron

Workers instead of to the operating engineers, And I

told him that I didn’t think such letter existed and he

said, oh, yes it did because he had seen it. I am still not

aware, I am aware of rumors of the letter, but I have

never seen such letter, so I don’t know whether it exists

or not.

TRIAL EXAMINER: We will take a short recess,

{fol.61] (A short recess was taken.)

TRIAL EXAMINER: On the record. Proceed.

Q (By Mr. Subrin:) Actually this project is carry-

ing on with all these superintendents here?

A Yes, sir.

Q On these dates, October the 7th and October the

8th, did you make any attempt to get workers from

Local 825 hiring hall?

A Yes, I did.

Q Would you describe those attempts?

A Well, about two thirty on the afternoon of the

7th of October we sent a telegram requesting replace

ments for each of the jobs we had for operating engi-

neers, six I think. Master mechanic, two men on the

derrick, compressor man and operating man on the weld-

ing machines, and two operators on the welding machine,

There were six men and a master mechanic, and then

I went back to the job and at about three o’clock I called

Local 825 in Newark to ask if they had received the

telegram and they said they had not received it at that

time. But that they would take the request from me by

telephone, and I proceeded to request the same men, and

then I asked if I could get their permission to continue

to operate the equipment if I would pay the men until

the replacements showed up, and tehey wouldn’t give me

an alswer to that question. They told me I would have

to heve an operator on the equipment.

{fol G62] TRIAL EXAMINER: What specific equip-

ment are we referring tc?

A Welding machine, compressor and a derrick.

I tried several times to get him to say I could not

run the equipment, but he wouldn’t. He would only say

that I had to have an operator engineer there to run the

equipment and then this was the 7th, the 8th the re

placements showed up in the morning and as I under-

stand it none of them would sign up when they found

out there were other people employed on the job, other

operating engineers that weren’t working. They wouldn't

take the jobs of these people, and one at a time one came

into the shanty and one at a time left and proceeded

to go back to town. We called Local 825 again, I did

and talked to Mr, Kahill and Mr. Kahill said that he

was aware of the fact the men would not work and why

they would not work and that they were on their way

back to town.

Q (By the Trial Examiner:) However, at this time

you did not get any specific refusal from the offices of

Local 825 to send you replacements, but simply when

they arrived they would not work?

A That is right.

I asked Mr. Kahill if I could—

Q (By Mr. Subrin:) Do you know who this Mr.

Kahill is?

A I never met him personally.

Would you be able to identify him any other way,

did he say who he was?

(fol.63] A He is one of the dispatchers in 825’s office

as I understand it. I don’t know his duties there, except

it is a name I know and I call when I ask for people.

Q You talked to him before?

A Yes. I tried to get Mr. Cahill to answer my ques-

tion whether or not I could run the equipment and I

would be willing to pay the engineers and he would not

answer it. All he would say was that I had to have an

operator on the job.

Q (By the Trial Examiner:) Does the complaint

allege there was a refusal on the part of Local 825 to

send replacements? Is this a separate specific violation

of the Act?

MR. HANNON: I don’t think that is the specific

refusal, in fact they did engage in a stoppage.

TRIAL EXAMINER: That can be a separate viola-

tion if you have an exclusive refusal clause.

MR. SUBRIN: I have no other questions.

Thereupon,

CROSS EXAMINATION

Q (By Mr. Apruzzese:) During this period of time

when your engineers were not working the project did

your company have any labor dispute with Local 8257

A Outside of this job, no, sir.

Q Well, now with regard to this job, the work you

were doing?

A No.

[fol.64] Q In other words your company was was do

ing, employing operating engineers, were any complaints

made to you about any problem with regard to the work

your company was doing?

A No, sir.

Q So, you had no complaints from 825 whatsoever?

A No, sir.

MR, APRUZZESE: No further questions.

Yes, I have one other question.

I don’t recall whether this was covered.

Q On or about October the 7th which was the date

when the engineers would not work and you say you

sent a telegram out, do you know approximately how

many employees were employed by your company on the

project on that date?

A It would be a guess, but I would say it would be

a guess of probably around 890, I think.

Q On October the 7th?

A I am just guessing.

Q Yes, I understand, but on October the 8th, the

following day would you know approximately how many

employees your company had?

A The same number.

Q The same number, now, as a result of the engineers

not working was the employment of these people af-

fected?

A Yes, sir. It was.

Q How so?

[fol.65] A Well, we couldn’t run the rig, we couldn't

run the welding machines, we couldn’t run the conm-

pressors, and our work was all around welding machines,

and the compressor having need air for the power tools,

we did some clean up work, but we were almost at a

stand still on Friday the 8th, as I recall we knocked the

men off at noon, and again on Monday.

Q Did you lay these people off?

A No, sir, we did not.

0, sir.

Q Thy couldn’t effectively work?

A That is true.

MR. APRUZZESE: No further questions.

TRIAL EXAMINER: Thank you, you may be ex-

cused.

(The witness withdrew.)

Thereupon,

R. T. DARICEK

was called as a witness for and on behalf of the General

Counsel, and first having been duly sworn by the Trial

Examiner, was examined and testified as follows:

DIRECT EXAMINATION

Q (By Mr. Subrin:) State your name and address.

R. T. Darick, Forked River, New Jersey.

Q Who do you work for?

A Chicago Bridge and Iron Company.

(fol. 66] Q Where are you presently employed?

A Forked River, New Jersey on the Oyster Creek

project.

Q What is your title there?

A Superintendent of construction for Chicago Bridge

and Iron Company.

Q Are you here as a result of a subpoena issued by

the General Counsel?

A Yes, I am.

Q Now, this is a little out of order since Mr. Langli-

nais testified first. Will you describe for the record what

Chicago Bridge and Iron are doing on this job site?

A Building compression chambers. We are building

the containment vessel and supression chamber for the

nuclear reactor.

Q When did your portion of the job start?

A December of ’64.

Q And you employ operating engineers?

A Yes, we do.

2 be labor organization representative?

Q How do you normally go about getting operating

engineers for your jobs?

A When we first come to the job we contacted the

office direct. If there is a master mechanic on the job

we go through the master mechanic in hiring employees,

{fol. 67] Q And when do you have a master mechanic?

A After the fifth man, after we hire the fifth man

we automatically receive the sixth, a master mechanic.

Q Since you mentioned this master mechanic will you

describe what he does?

A He contacts his office for additional men when I

need them.

Q Does he do any labor?

A Manual labor, no.

Q Who was your master mechanic in October of 1964,

if you had one? Did you have one?

A In ’65.

In 65?

A I had Robert Illerio.

Q What would happen if you brought a new piece

of equipment on the job?

A He would contact me and tell me the requirements

on this particular machinery, and ask me when I figured

on starting the machine up, thereby ordering a man for

this particular machine.

Q Do you know who the job stewart was at that

time for the operating engineers?

A William Bonatz.

Q Who was he working for directly at that time?

A He was working for me.

[fol. 68] Q Chicago Bridge?

A Yes.

Q Did you have an occasion to talk about the opera-

tion of the job of Bonatz about this time?

A On September the 30th I heard rumors of work

stoppage the following day. I talked to Bill Bonatz in

his pickup truck for about ten minutes asking him if

this rumor was true, and he said if White and Burns

and Roe did not sign a contract before eight o’clock the

following morning ther would be no work the following

Was there anythg else said?

A I asked him whyshould we be penalized when we

ed th: contract and we were working

had no arguement what so ever

ve this Chicago Bridge when the

othe! contractors.

Q What happened he following day?

A None of the brators showed up for work at

eight o’clock. No macines were operating.

Q What machines re you referring to that you had

then?

ng machines and a hundred ton

derrick.

You usually ha, : ,

Ya, &. ' men there by eight o’clock?

Did you talk t

At ome. dirty “Mr. Bonatz after that day?

A At the time I - a

natz I heard the as on the telephone with Bill Bo-

h I . ook r start up and as soon as I

pa Ps F ay oo nd told the operators to shut the

o ae We all my men had already been sent

ome that day. We 4 not need a machine,

Q So, did they coi, ;

te tame 's in the next day? Did they come

A They did.

Did they work the 4th?

They worked Monday through Wednesday.

What happened on Wednesday, Thursday?

On Thursday, October the 7th they failed to show

up again.

{fol.70] Q Did you see either Mr. Bonatz or Mr,

Alerio on Thursday?

A Thursday morning I was talking to Mr. Langli-

nais on the phone and they passed my office and I called

them in and asked them if it was true they were not

going to start the machines up Friday that Thursday

and he said it was true that they were not starting up

the machines.

Q Who was he?

A Bill Bonatz. So, I went back to talk to Mr. Lan-

glinais on the phone and they went about their ways

and I didn’t see them the balance of the day.

Q And how many operating engineers had you em-

ployed the previous day?

A I had at that particulat time eleven operators.

Q And when did they finally come back to work, if

they did.

A On October the 12th.

Q And have the operating engineers been working

for you since that date?

A They have.

MR. SUBRIN: Those are all the questions I have.

Thereupon,

POP

CROSS EXAMINATION

Q (By Mr. Apruzzese:) Mr. Darick, I have only one

question.

On October the 8th which I believe was Friday, Mr.

{fol. 71] Langlinais said you had approximately 80 men

on a project that day.

Now, do you recall were the men given their wages

that day, all your employees.

A On October the Ist, they were.

Q Not the Ist, I am talking about the 8th?

A The 8th of October?

Q Yes?

A No, no.

Q Your engineers did not work on the 7th, is that

correct?

A That is right.

Q Now, my question to you is on that date, October

the 8th, on a Friday were all of your building trades,

craftsmen working for you on that date paid their

wages?

ts They reported to work and we gave them two

hours show up time on that particular day. I am not

sure of this, they reported to work.

Q You sent them home?

A If that was the day thay received their show up

time on that particular day.

Q And they were sent home were they not?

A I believe so on that particular day.

Q All right, my question is this: When these men

left the job the day you had to send them home did you

give them any final instructions as to when you would

want them to return?

(fol.72] A I told them to report the following, the

first stoppage was on the Ist, and they worked three

hours that day and they returned back monday and we

worked until the 7th. The 7th they worked I believe a

full day and the next day we worked, if I remember

correctly, two hours, that was Friday, and then the Mon-

day they reported to work and I believe we paid them

show up time. We had no more cleaning up to do at

that particular time. They were not laid off.

Q But they were paid two hours show up time, and

in any event when they were returning you couldn’t

utilize these people?

A That is right.

Q Because of the stoppage?

A That’s right.

MR. SUBRIN: No questions.

MR, APRUZZESE: No questions. Thank you.

TRIAL EXAMINER: You may be excused.

(The witness withdrew.)

Thereupon,

TELGHMAN SUFFECCAL

was called as a witness for and on behalf of the General

Counsel, and first having been duly sworn by the Trial

Examiner was examined and testified as follows:

DIRECT EXAMINATION

Q (By Mr. Subrin:) State your name and address,

please.

A Telghman Suffeccal.

(fol. 73] Q Mr. Suffeccal did you get a subpoena to

this hearing?

Yes, sir.

Where are you employed?

Oyster Creek project, nuclear power station.

What is your position there?

General superintendent.

For whom?

For Poirier and McLane Corporation

What is Poirier and McLane doing on that job?

They are building the turbine structure, intake

structure and discharge structure.

Q What trades or crafts are employed by Poirier and

McLane?

A The operating engineers, carpenters, laborers and

iron workers. And also subs which consist of electricians

and pumps.

Who represents your operating engineers?

Hank Behren as shop stewart.

What labor organization?

825.

Is that Hank Behren your show stewart?

He has been my shop stewart since roughly the

middle of May?

Q How do you spell Beherend?

A Beherend. Beherend,

Q How many operating engineers employees did you

[fol. 74] have on the job on October the 6th?

A As of that date, 20.

Q Now, what kind of work does Beherend do for you?

POPO PO POP

PO PO PO

A Well, he orders men in when we need them. He

checks their equipment and he has many other activities.

Q How do you mean he orders men in?

A In other words when 1 need men I notify him the

day before and he calls the Hall and produces the engi-

neers.

Q Did you have any conversation with Beherend on

the evening of October the 6th?

A At October the 6th he came and told me that we

may or may not have engineers the following day

Did any engineers report on the following day?

No engineers reported to work as of the 7th.

You would have had twenty on the 6th?

I would have had twenty on the 6th.

How many employees did you have on the 6th?

About 250.

Q Now, after the 6th, then, after the evening of the

6th did you have any further conversation with Behe

rend?

A Nothing, only I asked when we would get the engi-

neers

Q When did they return to work?

A They returned, Beherend told me the 11th at four

o'clock in the afternoon that we may have engineers

back the 12th.

(fol. 75] @Q Did you in any way discuss with Beherend

as to whether Poirier McLane had a dispute with Local

825?

A I asked Beherend and he said he has a dispute

with Burns and Roe and White Construction, but he

has no dispute or no difference with Poirier and McLane.

Q Did he tell you why the men were not working?

A I got no answer.

Q When did your operating engineer employees re-

turn to work then?

A They returned to work at eight o’clock on the

12th, a Tuesday, November the 12th.

Q Have they remained at work since that time?

A That’s right. I have had no shut down of engi-

neers since then.

Q All right, between the 7th and the 12th you stated

that you had about 200 employees on the payroll on the

6th. What did you do about those employees?

A I worked the carpenters. I have 140, 145 carpen-

ters. I worked the carpenters as far as I could go, and

I worked the ‘fice force all night long to make up the

payroll for 200 men, and notified them at ten o'clock

they were getting paid to eleven.

Q Ten o'clock on what date?

A Well, different dates. I worked each trade as far

as I could work them. They were different men.

Q By the 12th, by the 11th, how many employees

[fol. 76] were left on the job?

A In fact two days after the strike or whatever you

call it, by the walkout—

TRIAL EXAMINER: Work stoppage I guess is as

good as anything.

A All right, we worked as far as we could go which

was two days and then I had no carpenter work and |

have no cranes and then I made the pay off, then I was

stuck with the straight time men which I have 17 and

we cut down and paid off accordingly.

MR. SUBRIN: No further questions.

Thereupon,

CROSS EXAMINATION

Q (By Mr. Apruzzese:) You say when you paid

off were these men actually laid off?

A No. We are forced according to agreements to

pay a two hour show up time on certain trades, there

fore when we were still laying the men off we would

tell them to come back the next day and we would guar-

antee them their two hours, so, on the day there was

supposed to be laid off we notified them that we couldn’t

get into the bank until nine o’clock and we worked all

night on the payroll and paid them up to eleven o'clock.

So that gave them an additional hour plus the show up

time.

Q And after that time they were no longer on your

payroll, Is that correct?

A In other words they were paid off until the engi-

{fol. 77] neers showed up which was on the 11th,

Q In other words they were laid off and they were

not to resume work until you called them back and you

didn’t want to call them back until you had engineers?

A Correct.

MR. APRUZZESE: Thank you that is all.

TRIAL EXAMINER: Thank you. You may be ex-

cused.

(The witness withdrew. )

Thereupon,

ROBERT C, KYLLBERG

was called as a witness for and on behalf of the General

Counsel and, first having been duly sworn by the Trial

Examiner, was examined and testified as follows:

DIRECT EXAMINATION

Q (By the General Counsel:) State your name and

address for the Reporter, please.

A Robert C. Kyllberg, 20 Pineway, New Providence,

New Jersey.

Q Will you state your position, Mr. Kyllberg?

A General superintendent for White Construction

Company.

Q Are you familiar with the construction now going

on at Oyster Creek?

A Yes, sir.

Q Do you know Peter Weber?

A Yes, he is Business Agent for Local 825 Operating

Engineers.

[fol. 78] Q Have you ever talked to Weber at the

oe Creek job?

Yes, sir.

When was this?

On October the 26th.

1965?

1965.

Why was it that you had this meeting with Weber

on this date?

A At the inception of this job it was necessary to weld

certain structural steel. We had proposed to use an elec-

tric welding machine, electrically driven welding machines

which we did. We had assigned the operation of the

electric welding machines to the iron workers. This had

been protested by the operating engineers and we had

taken this to the Joint Board in Washington and we had a

decision from the Joint Board which upheld our award

to the iron workers, and we intended to proceed on

this basis.

I received word in New York that the operating en-

gineers were upset over this decision, and—

Q (By the Trial Examiner:) Who did you receive

this word from?

A My superintendent, Mr. Gunderson. So, we ar

ranged a meeting between Mr. Weber and myself to see

if we could iron out difficulties.

Q (By Mr. Hannon:) This meeting took place on

[fol. 79] October the 26th at the job site?

A Yes, sir.

Q Who was with Mr. Weber at this time? Can you

identify any of the people?

A Well, when Mr. Weber came in he felt the operat-

ing engineer employees, he talked with them and when

he and I discussed things we essentially discussed them

alone.

Q Can you identify any of the people to whom you

spoke?

A Oh, many of them. This Hank Beherend that was

in evidence. Bonatz is in evidence. I went to lunch

with a man by the name of Getti and Peter Weber. There

was so Many.

Q Let me get back to the conversation. What ac-

tually was the conversation you had with Weber on the

job?

A He arrived on the site at about eleven o’clock and

he walked over to the actual construction operation, it-

self, where we were going to perform our work and I

explained to him what our work was and what we intend-

ed to do and pointed to the welding machine and explained

our general method of operation.

About that time it was lunch and he suggested we go to

lunch and which we did, and when we came back he

briefly spoke with his people, this man on the job, then

he and I again walked over to the building site. Then

he told me that the Joint Board Decision was all wrong

that this operation of the welding machine meant a great

deal to him. He would not give it up. He had 600

mens job at stake or some such figure. He told me that if

(fol. 80] we work with him it would be very advantageous

for us, and he would help us a great deal, if on the other

hand if we did noc there were all sorts of complications

that could ensue.

We had a crane working just a few feet away. He

pointed to the crane and says, how would you like to

put three operators on that crane? The normal comple-

ment is two. He said, “How would you like to have a

thirty hour work week with those men and triple time

for overtime, the normal work week is forty hours.”

And he told me that Burns and Roe were very bad

people to work with and I told him he had a decision by

the Joint Board about this welding machine. I asked him

if he was so upset over the loss of one man, one mans

time on this welding machine. I said, we are going to

bring a portable concrete pump on the job in the near

future, but the portable concrete pump would be used

very intermitently, we would use it a day and then we

would shut it off for three or four days and then use it

again, and back and forth like this, if it made that much

difference we could put an operating engineer steady on

the concrete pump instead of intermitent.

He said he was not at all interested in the concrete

pump, he wanted the decision on that electric welding

machine altered.

I told him this we couldn’t do. We were members of

the Contractors Association in New Jersey and we sub-

(fol. 81] scribed to following the procedures of the Joint

Board. We were also contractually bound in our contract

work between ourselves and Burns and Roe, and that

labor disputes would be handled through the Joint Board

and the other appropriate established mechinisms for

handling job disputes.

They, again, ran through the bit about if we worked

with them and if we didn’t work with them and then I

asked him to leave that welding machine decision alone

We just had to follow it. I told him that the President

of our company and principal owner was on a business

trip. At that time he would be back in a matter of legs

than two weeks. The work schedule was such that we

could continue erecting constructural steel and not use

the welding machine and we could temporarily not use

the welding machine and not perform a welding operation

and wait until the President of the Firm came back and

we would discuss it again with him. He suggested that

we substitute a gasoline driven welding machine for the

electrical welding machine. And I told him this would

be a subterfuge and evading the spirit of the Joing Board’s

Decision and we couldn’t do that.

So, the meeting was more or less terminated on the

note that we would temporarily withhold welding until

the President came back.

MR. HANNON: May I have marked for identification

this document as General Counsel’s Exhibit No. 12.

[fol. 82] (Thereupon, the document above-referred tp

was marked as General Counsel’s Exhibit No. 12,

for identification.

Q (By Mr. Hannon:) Mr. Kyllberg, you stated in

your conversation and you brought up the subject of a

concrete pump.

Will you identify that picture.

A Yes. This is a Whitman portable concrete pump

that we intended to use to pump concrete into the struc-

ture.

Q Is that the concrete pump that was brought out to

the job?

A Yes.

Q What was it Mr. Weber said about this pump the

assignment of work to this pump?

A He siad he was not interested.

MR. HANNON: I offer into evidence General Coun-

sel’s Exhibit No. 12.

TRIAL EXAMINER: This is the pump that was go

ing to be used intermitently?

A Correct.

MR. APRUZZESE: No objection.

TRIAL EXAMINER: It will be received.

(Thereupon, the document above-referred to, here-

tofore marked as General Counsel’s Exhibit No. 12,

for identification, was Received in evidence as Gen-

eral Counsel’s Exhibit No. 12.)

(fol. 83] MR. HANNON: No further questions.

MR. APRUZZESE: No questions.

Yes, I have one question.

Q (By Mr. Apruzzese:) Mr. Kyllberg you said some-

thing about the White Construction is a Member of the

Building Association of New Jersey?

A Yes, it has been a member all during this period and

prior to this for some years.

MR. APRUZZESE: Thank you. No further ques-

tions.

TRIAL EXAMINER: You may be excused. Thank

you; ""~

(The witness withdrew. )

Thereupon,

ROBERT A. ESCHER

was called as a witness for and on behalf of the General

Counsel, and first having been duly sworn by the Trial

Examiner, was examined and testified as follows:

DIRECT EXAMINATION

Q (By Mr. Hannon:) State your name and address

for the Reporter.

A Robert A Escher, 17 Ducker Pond Road, Demerest,

New Jersey.

Q Will you state your position, Mr. Asher?

A I am president of the White Construction Com-

pany.

Q Does White belong to any Association in New Jer-

sey for collective bargaining purposes?

(fol. 84] A Yes, we belong to the Building Contrac-

tors Association of New Jersey and which we have be-

longed to for many, many years, and I am presently a

Trustee of the Association.

Does that Association presently have a contract

with Local 825, Operating Engineers?

A No.

MR. HANNON: Mr. Trial Examiner, I would ask

you to take official notice of National Labor Relations

Board case citation Local 825 Operating Engineers and

the Building Contractors Association of New Jersey at

145 NLRB 9652, and in that decision the Board found that

Local 825 had violated the National Labor Relations Act

because it refused to bargain collectively with the Build-

ing Contractors Association of New Jersey and it re

strained and coerced members of that association in its

selection of the Association of its representative ror col-

lective bargaining purposes.

MR. SUBRIN: I think that case is before the en-

forcement branch now.

MR. HANNON: And I think as I understand it that

the case has been on remand for or a certain portion of

the case not pertaining to the AP Section.

TRIAL EXAMINER: What is the point in that case

that would be emphasized here or be pertinent here.

MR. HANNON: I think it should be emphasized on

this point of view, Mr. Trial Examiner, there has been

[fol. 85] testimony that Local 825 represents the employ-

ees on White’s job and we have at the same time testi-

mony that Local 825 agents have gone to White and

asked for a contract. So, there seems to be some com-

plications as to just what the relationship is between

White and Local 325.

TRIAL EXAMINER: Whether they have an indi-

vidual contract or whether they have a contract through

the White’s membership through the association?

MR. APRUZZESE: If your Honor is going to take

judicial notice of the case I obviously assume you are

going to read it it as well. The only other point that I

think is worth mentioning at this juncture and in addi-

tion to the matters that Mr. Hannon mentioned namely,

the Union did not bargain in good faith, they have been

found to not have bargained in good faith and they en-

—— tas

deavered to negotiate individually rather than to sever

the individuals from the Association. There was also a

finding by the Board in that case as to the Unit that was

appropriate for the purposes of collective bargaining and

the unit that was appropriate for the purposes of collec-

tive bargaining list specific items of equipment over which

the engineers were the appropriate bargaining agent and

likewise a list of equipment over which they were not

rly under the Board’s finding authorized to bargain

for. 90, it is quite significant with regard to these sub-

jects, your Honor.

TRIAL EXAMINER: Aside from which I have the

(fol. 86] Joint Board’s settlement of disputes.

Q (By Mr.. Hannon:) I understand there has been

no contract with Local 825 since the 1962. Is that cor-

rect?

A That is correct.

Q There has been considerable discussion about con-

tract between Burns and Roe and White as to what

White is doing on this particular job site.

Now, are you familiar with the contract that is in

existence between Burns and Roe and White?

A Yes.

Q Now, Mr. Escher, what do the contents of that con-

tract say in regard to the subcontractors obligations to

the National Joint Board?

A Well, we are to abide by the :ules and procedures

of the Joint Board in settling jurisdictional disputes.

MR. HANNON: Your Honor, this is a rather lengthy

document to put into evidence. I would like to have it

identified and put in abstracts from it.

TRIAL EXAMINER: If there is no opposition there

will be none from me.

MR. HANNON: Will the Reporter mark this as Gen-

eral Counsel’s Exhibit No. 18, for identification.

(Thereupon, the document above-referred to was

marked as General Counsel’s Exhibit No. 18, for

identification. )

(By Mr. hannon:) Mr. Escher, can you point to

(fol. 87] that portion of the contract—first, let me ask

you to identify that which has been marked as General

Counsel’s Exhibit No. 13?

A Yes, that is our contract with Burns and Roe with

my signature on the contract.

Q When is the contract dated?

A The agreement was made and entered into on the

26th day of August 1965.

Q All right, can you identify that portion of the con-

tract that pertain~ to the obligation of the subcontractor

in the jurisdictional disputes?

A Yes.

Q Where is that?

A That is on page 19 of General Requirements, para-

graph 31. It is titled “Labor Relations”.

Q And what is your understanding of that?

A My understanding is that we will in the settlement

of any jurisdictional dispute be bound by the Rules and

Procedures of the National Joint Board.

MR. HANNON: Mr. Trial Examiner, I will request

permission, again, to introduce only that portion.

TRIAL EXAMINER: Are you going to read it into

the record?

MR. HANNON: I think that would be the easiest.

This is under Article 31, “Labor Relations. The subcon-

tractor shall be responsible or its own labor relations with

any trade or Union representing his employees and he

[{fol. 88] shall negotiate and seek to adjust all disputes

between himself and his employees or anyone represent-

ing such employees. The same responsibility shall extend

to the Lower Tier subcontractors. All contractors in

lower Tier subcontractors shall in the settlement of any

jurisdictional dispute be bound by the Rules and Pro-

cedures of the National Joint Board where the settlement

of jurisdictional disputes and shall make assignments in

accordance with such Ruies and Procedures.”

That is the portion that I would have read into the rec-

ord and that is the portion of the contract I would have

considered into evidence.

TRIAL EXAMINER: There being no objection that

portion of the contract has been received as exhibit

marked for evidence.

ea,

—

Q@ (By Mr. Hannon:) Mr. Escher, has White in the

past submitted other disputes to the National Joint

Board?

A Yes.

How recently?

A In May or June of 1965.

Now, as far as this particular dispute is concerned

over the electrical welding machine that was submitted

to the Natiozal Joint Board on October the 6th, 1965, did

White carry out the assignment that was made in the

ward on October the 19th?

A Yes.

Does White consider itself bound by the award that

was made by the National Joint Board?

(fol.89] A Very definitely.

Now, as I understand it the other craft involved |

in that electric welding machine assignment was the Iron

Workers.

Is that correct, Local 350?

A Yes.

Q Now, just what contractual relationship, if any,

does White have with the Iron Workers?

A We have no direct contractual relationship with

them because we are a member of the Building Contrac-

tors Association of New Jersey. They are our bargain-

ing agents and we are bound by the contract they have

with the Association.

MR. HANNON: I will have this document marked as

General Counsel’s Exhibit No. 14, for identification.

(Thereupon, the document above-referred to was

marked as General Counsel’s Exhibit No. 14, for

identification. )

Q (By Mr. Hannon:) Mr. Escher, will you identify

that document that has been marked as General Coun-

sel’s Exhibit No. 14, for identification.

A Yes.

Q What is it?

A This is a contract that we are working under with

the Iron Workers.

MR. HANNON: I am going to off

This text is long and has been trimmed here. Open the source document for the complete record.

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