MARIS, Special Master: The National Labor Relations Board filed a petition praying that Local 825, International Union of Operating Engineers, AFL-CIO, hereinafter called the Union; Peter Weber, its president and business manager; John Pierson, one of its business representatives, and Robert Fanning, another of its business representatives, be adjudged in and punished for criminal contempt by reason of their having engaged in secondary boycott activities thereby violating, disobeying, and refusing to comply with two decrees of this Court, entered on October 22, 1963 and August 5, 1966 at its docket Nos. 14318 and 15928, respectively, which enforced the Board's orders requiring the respondent to cease and desist from certain practices and to take certain affirmative action. Further, the Board in its petition prayed that this Court adjudge the Union to be in civil contempt because of the alleged disobeyance of the said two decrees and prayed for an order requiring the Union to purge itself of such contempt by fully complying with and obeying the decrees of this Court. Specifically, the Board's petition alleged that at three separate construction sites, located at South Bound Brook, New Jersey; Newark, New Jersey, and Cornwall, New York, the Union had applied prohibited secondary pressures against neutral employers in order to force them to cease doing business with employers with whom the Union had disputes.
An order was issued upon the Union to show cause why it should not be held in civil contempt and the Union was directed to answer the Board's original petition only on that aspect which sought an adjudication in civil contempt. The Union answered, denying that it had disobeyed this Court's decrees, raised various affirmative defenses, challenged the jurisdiction of this Court to try the civil proceedings, and requested trial by jury on the civil contempt issues. The Board filed a motion to strike the Union's request for a jury trial and also to strike certain of the Union's affirmative defenses, which was granted by order of May 2, 1968 denying the Union's request for a jury trial and striking from the answer its affirmative defenses numbered 3A, 4, 5 and 8.*fn1 The Board had also moved for the appointment of a special master to hear the evidence and make recommendations upon the issues raised in the civil contempt proceedings. On May 17, 1968 an order of reference was entered appointing me as special master to summon witnesses and conduct hearings upon the matters in dispute and to report findings of fact and conclusions of law thereon.
During the pendency of these proceedings before me, the Board filed a motion for leave to supplement its petition alleging that the Union had exerted secondary boycott pressures at another construction site, this one located at Hanover, New Jersey. The Board was granted leave to supplement its original petition for adjudication in civil contempt and other civil relief and the Union was directed to answer the additional allegations. On December 3, 1968 the time for answer by the Union was extended to December 13, 1968. The Union answered, denied any violations and demanded trial by jury on the new issues raised in the supplemental petition. The Union's demand for jury trial on the additional issues was denied and the new matter was referred to me for consideration in accordance with this Court's order of December 3, 1968.
Proceedings of the Special Master
A prehearing conference was held in Philadelphia on July 16, 1968 and hearings were commenced on September 9 and continued on September 10 and 11, 1968, November 18 and 19, 1968, December 26 and 27, 1968, and concluded on January 7, 1969. For the convenience of a majority of the witnesses called, the hearings were held in Newark, New Jersey. 42 witnesses were heard. The Board's Exhibits Nos. 1, 2, 3, 3A, 4 and 5, and the Union's Exhibits Nos. 1 and 5 were received in evidence. The transcript totals 1090 pages. Counsel have now filed their requested findings of fact and conclusions of law together with briefs in support thereof.
In limine , the Union attacks the jurisdiction of the Court to try these cases, arguing that a civil contempt proceeding cannot lie and it requests that I recommend to the Court that the petition of the Board be dismissed for that reason. The Union says that even if it had engaged in the illegal secondary boycotts charged by the Board, those acts had ceased at the time the petition was filed, and since the prohibited acts had ceased, the Court lost civil jurisdiction because there is nothing the Union can now do to purge itself of that contempt. The Board opposes the contention of the Union that civil contempt is avoided if at the precise time that the Board's petition is filed the Union is not engaging in a prohibited act and argues that under the Union's theory the latter may refuse to obey the Court's decrees and a whole series of violations may be perpetrated with which the Court would be powerless to deal through civil contempt proceedings.
I do not consider this contention, however, for it is clear that this issue was not a matter referred to me for consideration. On the contrary, the Union sought to raise this issue in its answer as affirmative defense numbered 8 but, as I have indicated, this defense was stricken from the answer by the Court's order of May 2, 1968.
I turn accordingly to those matters which have been referred to me for consideration, namely, the contentions of the Board that the Union, in four separate incidents, violated section 8(b)(4)(i) and (ii)(B) of the Labor-Management Relations Act, 29 U.S. C.A. § 158(b)(4)(i) and (ii)(B),*fn2 thereby violating the two decrees of this Court prohibiting such conduct.
I. Occurrence at Construction Site at South Bound Brook, New Jersey
The Board's petition alleges that the Union violated the Court's decrees of October 22, 1963 and August 5, 1966, in that in furtherance of a dispute between the Union and Morin Erection Co., the Union, acting through its agents, Victor Belmonte and Jack Smith, induced individuals employed by persons engaged in an industry affecting commerce to engage in a strike and refusal in the course of their employment to perform services at the South Bound Brook construction site and, further, coerced such persons with the object of forcing and requiring them to cease doing business with Morin.
Upon consideration of the evidence I make the following
1. At all times material:
(a) The firm of Allan Brothers & O'Hara was an employer engaged in the building and construction industry and was the prime contractor for the construction of a manufacturing and office building for Waldron & Hartig Division of Midland-Ross Corporation at South Bound Brook, New Jersey.
(b) Volunteer Structures Company was an employer in the construction industry and a subcontractor of Allan Brothers & O'Hara for the erection of structural steel at the South Bound Brook site.
(c) Morin Erection Company, hereinafter called Morin, was an employer engaged in the construction industry installing steel decking at various job-sites in various states. Morin was the subcontractor of Volunteer Structures Company for the erection of the steel roof-deck at the South Bound Brook site. In order to perform this contract, the steel material for the roof-decking was required to be hoisted or lifted.
(d) United Crane & Shovel Service Company, hereinafter called United, was an employer engaged in the business of renting cranes owned by it with operators and oilers paid by United, or without such employees, to persons in the building and construction industry.
(e) The above are all persons engaged in industries affecting interstate commerce.
2. Morin rented the service of a crane from United to hoist Morin's materials for the roof-decking job, to commence work on August 10, 1966, to be manned by an operator and oiler, at the lump sum of $250.00 per day. The crane, together with its crew, arrived at the South Bound Brook site on August 10, 1966, before 8 A.M.
3. Before the crane could operate, the boom was required to be assembled. The crane operator pulled levers inside the cab to lower the boom while ironworkers, employees of Morin, put bolts in the boom. This was done under the direction of John Cyr, Morin's superintendent on that job. During this operation, Simeon Morin, vice president of Morin, was also present. Morin did not have a collective bargaining agreement with the respondent Union but did have a contract with the Ironworkers Union.
4. Morin had a primary labor dispute with the Union concerning Morin's refusal to employ one of the Union's operating engineers to start and stop an electric welding machine used by Morin in welding structural steel.
5. Victor M. Belmonte, a member of the Union who was employed by another contractor at the South Bound Brook site, functioned as the Union's shop steward. His duties included seeing that the Union's policies were carried out. He examined the Union books of other employees at the job site. On August 10th he checked the Union books of United's crane operator and oiler when they arrived. The crane-operator and oiler employed by United were members of the respondent Union.
6. During the latter part of June 1966 Belmonte had ascertained from William Crum, general superintendent for Allan Brothers & O'Hara, the prime contractor, that Morin was going to perform the steel roof-decking work. At that time Belmonte told Crum that Morin had had some difficulties with the Union on several previous jobs and that unless Morin had come to some agreement with the Union "they wouldn't allow any hoisting operators to work for him on this job" (Tr. 97). Crum called Morin's office to alert the firm of this possibility.
7. The Morin truck on the job site contained a welding machine which was bolted to the frame, but that particular machine never welded roof deck.
8. On August 10, 1966 after the boom of the crane had been assembled, Belmonte told the crane operator, Mike Vitoli, to "check out" with the Union hall (Tr. 276). Vitoli left the crane and walked in the direction of the construction office to make a telephone call. After he returned, he did not operate the crane that day and no hoisting service by United's crane was performed for Morin.
9. Jack Smith, business agent for the Union, arrived at the construction office on August 10, 1966 about 11:30 A.M. and had a conversation with Simeon Morin in respect to employing a Union operating engineer for Morin's welding machine. When Simeon Morin answered in the negative Smith told him that Morin would not "go to work" (Tr. 20). Smith then left the construction site.
10. On the afternoon of August 10th, Crum asked Belmonte about a rumor that the job would be picketed the next morning. Belmonte confirmed that possibility.
11. That afternoon Crum instructed Morin's ironworkers not to come on the job the next morning. He gave Simeon Morin the same instructions, who assured Crum that Morin's men would not be on the job the following morning and that Morin's differences with the Union would be "cleared away" before Morin started any work on that job (Tr. 109).
12. The next morning, August 11th, at about 7:45 A.M., groups of pickets assembled at the two entrances to the South Bound Brook site, about five or six pickets at each entrance. Belmonte was walking in one of the picket lines carrying a picket sign. The signs contained the following handprinted legend: (Tr. 154)
"Employees of Morin Erection Company do not receive area standard wages, benefits and working conditions.
Local 825, International Union of Operating Engineers"
13. At about the same time Simeon Morin came on the job site with Delano Morin, president of Morin, John Cyr, Morin's superintendent for hoisting the material, and two other ironworker employees. There were automobiles parked along the road and a group of men were standing outside the construction area. The pickets were then at each entrance.
14. Simeon Morin spoke to Al Shinn, another crane operator sent by United, who said "he wasn't going to operate before the problem was taken care of with his delegate" (Tr. 26). After conversing with Crum, Simeon Morin left the job site. United's crane did not operate that day for Morin.
15. Although some cement trucks crossed the picket line that morning, they were standing idly by; there was no pouring of cement while the picketing was in progress. Nor is there any evidence that any work by employees was actually performed before the picket line was removed.
16. Shortly after 8 A.M. that morning Crum called Charles Auginbaugh, plant manager for Waldron & Hartig Division of Midland-Ross Corporation, advising him that the construction work could not progress because there were pickets at the site.
17. Auginbaugh arrived at the site, was referred to Belmonte as the man in charge of the picketing; Auginbaugh asked Belmonte why he was picketing the job site and Belmonte pointed to his picket sign saying "that they had trouble with this contractor on various jobs" (Tr. 119). Auginbaugh asked Belmonte to remove the picket line but Belmonte said he had no authority to do so but would call his superior on the telephone at the Union. Auginbaugh told Belmonte that if "there were, in effect, any legitimate grievances by any union on the job that that particular contractor would have to resolve his differences or get off the job" (Tr. 120). Jack Smith was called on the telephone by Belmonte and the phone subsequently handed to Auginbaugh who told Smith that legitimate problems between the Union and the contractor "would be resolved or the contractor would be off the job" (Tr. 122). Smith then instructed Belmonte to remove the pickets. The picket line was dispersed about 9:30 A.M. on August 11th.
18. Morin's employees were not involved in a labor dispute with Morin nor were they on the picket line. Morin left the job site before the pickets were removed and was advised by Crum not to return until its problem with the Union was resolved.
The Board contends that the evidence supports its charge that the Union engaged in a course of conduct designed to coerce neutral employees with an object of bringing pressure through them to force Morin to comply with the Union's demands or to have Morin removed from the job. This the Board says, was sought to be accomplished by Belmonte by stopping United from working for Morin on August 10th by a warning to the prime contractor that a picket line would appear, and by the picket line which did appear the next morning under Belmonte's direction.
First, the Union, while admitting that Belmonte was its shop steward, denies that there is sufficient evidence to support a finding that he was an agent whose actions are binding upon it. In this regard the responsibility of the union for the particular acts of a steward is determined by general principles of agency law. NLRB v. Brewery & Beer Distributor Drivers, etc ., 3 Cir. 1960, 281 F.2d 319, 322; NLRB v. Inter. Broth. of Boilermakers, etc., Local No. 83 , 8 Cir. 1963, 321 F.2d 807, 810. Certainly if he acts only as an individual rather than within the authority the union has conferred, the union is absolved. NLRB v. Local 815, Internat'l Bro. of Teamsters, etc ., 2 Cir. 1961, 290 F.2d 99, 104. In determining whether a person is acting as an agent of another "the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." Section 2(13) of the Labor-Management Relations Act, 29 U.S.C.A. § 152(13). There is no evidence here from which the inference can be drawn that Belmonte was acting as an individual. On the contrary, it is clear he was acting on behalf of the Union, as its shop steward. Accordingly, Belmonte's statements and actions on behalf of the Union are attributable to it, whether expressly authorized or not.
The Union next argues that the crane operator and oiler were in reality employees of Morin and hence their work stoppage involved their own employer, Morin. I find no merit in this contention. The fixed rate of $250.00 per day charged Morin for the service of a crane included the crew from 8 A.M. to 4:30 P.M., with an overtime charge is so used. United selected the particular men sent with the crane; the crew were on its payroll and it made all the payroll deductions from their wages; United had a collective bargaining agreement with the respondent Union covering these employees. On the other hand, the crane operator and oiler were not carried on Morin's payroll; Morin carried no insurance on these men nor made any of the standard deductions on their behalf. If any one of the crew proved to be unsatisfactory Morin could not fire him but would be required to call United for a substitution.
It is true that in performing service for Morin, the crane and its crew were under the direction of John Cyr, Morin's superintendent for the hoisting job. In hoisting the material, the operator would be directed as to where to place the crane, told what Morin wanted lifted, and by voice or arm signal would be told where Morin wanted the hoisted material placed. However, in performing its service, the operator and oiler were not directed as how to perform their functions properly. If United's crew had operated the crane, Morin's ironworkers on the ground would have attached the roof-decking material to the hook of the crane and after hoisting, the material would have been detached by other ironworkers waiting on the roof. The Board contends that this relationship did not change the status of the employees of United, nor did it make Morin and United allied employers. In support of its position, the Board relies on Labor Board v. Denver Bldg. Council , 1951, 341 U.S. 675, 689-690, in which case the Court said:
"We agree with the Board also in its conclusion that the fact that the contractor and subcontractor were engaged on the same construction project, and that the contractor had some supervision over the subcontractor's work, did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other. The business relationship between independent contractors is too well established in the law to be overridden without clear language doing so."
The Union, however, argues that the Denver Building case concerned a contractor-subcontractor relationship and therefore is inapplicable here. It is the Union's contention that the relationship of Morin and United was that of lessee-lessor, which it is argued calls for the application of a different principle. The distinction thus sought to be made has no legal basis, however. The existence of the employer-employee relationship is generally determined from the particular facts and circumstances of the case. Ordinarily four elements may be taken into consideration, (1) who hired the employee; (2) who may discharge the employee; (3) who pays the employee's wages, and (4) who has the right to control the conduct of the employee when he is performing the particular job in question. See Restatement 2d, Agency § 220; 35 Am. Jur. Master and Servant §§ 3, 4. In Outdoor Sports Corp. v. American Fed. of Labor , 1951, 6 N.J. 217, 78 A. 2d 69, 75, the court said:
"It is of the essence of the employeremployee relationship that there be a hiring for a fixed or definite period of time for either fixed wages or some form of remuneration fixed or agreed upon and that the employee's work should be subject to the direction and control of the employer."
In Funk v. Hawthorne , 3 Cir. 1943, 138 F.2d 686, 688, Judge Goodrich, in speaking for the Court stated:
". . . That the general employer may at any time substitute another employee and that he rents the machine and employee together, particularly where that is his business, are factors indicating a continuation of general employment. Pointing to a similar conclusion, although not necessarily decisive, would be the fact that the general employer paid the wages, deducted taxes therefrom, supplied the gas and oil, kept the trucks in repair and that the instrumentality was a valuable one requiring the services of a skilled operator."
In Pennsylvania Smelting & Refining Co. v. Duffin , 1950, 363 Pa. 564, 70 A. 2d 270, 271, the court had occasion to determine whether one hiring a crane and operator, became, under the facts of that case, the employer of the operator. The court said:
". . . Where one is engaged in the business of renting out trucks, automobiles, cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master, since he is engaged in the very occupation for which he was originally so employed . . . That initial presumption is here strengthened by all the circumstances attending the hiring and the operation of the crane. Defendant was in the regular business of renting cranes together with their operators, and he had the power not only in each instance to send an operator of his own choice but at any time at his pleasure to take him off the job and substitute another, - something which, of course, plaintiff had no right to do. The possession of such power is significant in the consideration of the right of control . . . Plaintiff was not in the business of operating cranes, which is an activity requiring technical skill on the part of the operator, - a fact that is likewise important in determining the question here involved, for it is inconceivable that the parties could have intended that plaintiff was to direct a specialist in a field in which it would have been wholly incompetent."
Applying these principles of law to the facts of this occurrence, I conclude that United and Morin were not allied employers and that the crane operator and oiler were employees of United, a neutral employer in regard to the Union's labor dispute with Morin.
The Union further argues that the record is devoid of evidence that its conduct was designed to compel any neutral employees in the course of their employment not to work for a neutral employer or that its conduct was designed to compel any neutral employer or contractor to cease doing business with Morin.In considering this question, I bear in mind that to constitute unlawful secondary activity the Union must exert pressure upon the neutral employer with the object of forcing him to cease doing business with the employer with whom the Union has its dispute, frequently described as the primary employer. The gravamen of a secondary boycott is that its sanctions bear not upon the employer who alone is a party to the dispute but upon some third party who has no concern in it. Its aim is to compel him to stop doing business with the employer in the hope that this will induce the employer to give in to his employee's or the Union's demands. Electrical Workers v. Labor Board , 1961, 366 U.S. 667, 672 (General Electric Co.); International Brotherhood v. National Labor Rel. Bd ., 2 Cir. 1950, 181 F.2d 34, 37. In this regard, the Supreme Court in Electrical Workers v. Labor Board, supra , said:
"But not all so-called secondary boycotts were outlawed in § 8(b)(4)(A). 'The section does not speak generally of secondary boycotts. It describes and condemns specific union conduct directed to specific objectives. . . . Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person. Thus, much that might argumentatively be found to fall within the broad and somewhat vague concept of secondary boycott is not in terms prohibited.' Local 1976, United Brotherhood of Carpenters v. Labor Board , 357 U.S. 93, 98. . . .
"Important as is the distinction between legitimate 'primary activity' and banned 'secondary activity' it does not present a glaringly bright line. The objectives of any picketing include a desire to influence others from withholding from the employer their services or trade. See Sailors' Union of the Pacific (Moore Dry Dock ), 92 NLRB 547. 'Intended or not, sought for or not, aimed for or not, employees of neutral employers do take action sympathetic with strikers and do put pressure on their own employers.' Seafarers International Union v. Labor Board , 265 F.2d 585, 590. 'It is clear that, when a union pickets an employer with whom it has a dispute, it hopes, even if it does not intend, that all persons will honor the picket line, and that hope encompasses the employees of neutral employers who may in the course of their employment (deliverymen and the like) have to enter the premises.' Id ., at 591. 'Almost all picketing, even at the situs of the primary employer and surely at that of the secondary, hopes to achieve the forbidden objective, whatever other motives there may be and however small the chances of success.' Local 294, supra , at 890. But picketing which induces secondary employees to respect a picket line is not the equivalent of picketing which has an object of inducing those employees to engage in concerted conduct against their employer in order to force him to refuse to deal with the struck employer. Labor Board v. International Rice Milling, supra .
"However difficult the drawing of lines more nice than obvious, the statute compels the task. Accordingly, the Board and the courts have attempted to devise reasonable criteria drawing heavily upon the means to which a union resorts in promoting its cause. Although 'no rigid rule which would make . . . a few factors conclusive is contained in or deducible from the statute,' Sales Drivers v. Labor Board , 229 F.2d 514, 517, 'in the absence of admissions by the union of an illegal intent, the nature of acts performed shows the intent.' Seafarers International Union, supra , at 591.
". . . The Moore Dry Dock case, supra , laid out the Board's new standards in this area. There, the union picketed outside an entrance to a dock where a ship, owned by the struck employer, was being trained and outfitted. Although the premises picketed were those of the secondary employer, they constituted the only place where picketing could take place; furthermore, the objectives of the picketing were no more aimed at the employees of the secondary employer - the dock owner - than they had been in the Pure Oil and Ryan cases. The Board concluded, however, that when the situs of the primary employer was 'ambulatory' there must be a balance between the union's right to picket and the interest of the secondary employer in being free from picketing. It set out four standards for picketing in such situations which would be presumtive of valid primary activity; (1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his ...