Local 348, Int'l Brotherhood of Teamsters, Etc.

1 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 348, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America [McCourt Construc- tion Company and Thorpe Construction Company] and Jesse Holland. Case No. 8-CC-113. August 21, 1961 DECISION AND ORDER On May 9, 1961, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings made by the Trial Examiner -at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this case, 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 348, In- ternational Brotherhod of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from threatening, coercing, or restraining Mc- Court Construction Company, Thorpe Construction Company, and their officers or any other person engaged in commerce or in an in- dustry affecting commerce, where an object thereof is to force or require Jesse - Holland, a self-employed person, to join Respondent Union, a labor organization. 2,. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by an authorized representative of the Respondent, be 1 The Respondent's request for oral argument is hereby denied as the record , exceptions, and brief adequately present the issues and positions of the parties. 2In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " 132 NLRB No. 99. LOCAL 348, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1121 posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Eighth Region, for posting by McCourt Construction Company and Thorpe Construction Company, if willing, at all loca- tions where notices to their employees are customarily posted. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 348, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, AND EMPLOYEES OF MCCOURT CONSTRUCTION COMPANY AND THORPE CONSTRUCTION COMPANY 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, you are notified that : WE WILL NOT threaten, coerce, or restrain McCourt Construc- tion Company and Thorpe Construction Company and their offi- cers or any other person engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring Jesse Holland, a self-employed person, to join this labor organization. LOCAL 348, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS, WAREHOUSE- MEN, AND HELPERS OF AMERICA, Labor Organization. Dated-- -------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding against Local 348, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or the Respondent, involves Section 8 (b) (4) (ii) (A) and Section 2(6) and (7) allegations, and was initiated by Jesse Holland , herein called Holland or the Charging Party. The hearing was conducted on November 21, 1960 , at Akron, Ohio. The Respond- 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent filed a brief with the Trial Examiner on December 21, 1960, and thereafter a supplement thereto on January 13, 1961. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS ACTIVITIES OF THE EMPLOYERS INVOLVED The complaint alleges that McCourt Construction Company, hereinafter called McCourt, is an Ohio corporation engaged at Akron, Ohio, in the business of asphalt road and highway construction. McCourt, in the course and conduct of its business, was engaged on or about September 22, 1960, and at all times material herein, in the performance of a prime contract with the State of Ohio for the widening and resurfacing of certain State of Ohio routes, being Routes 82 and 306 in or near Aurora, Ohio, at a contract price in excess of $50,000. Thorpe Construction Company, hereinafter called Thorpe, is an Ohio corporation engaged at Akron, Ohio, in the business of asphalt road and highway construction. Thorpe, in the course and conduct of its business, was engaged on or about Septem- ber 22, 1960, and at all times material herein, in the performance of a prime con- tract with the State of Ohio for the resurfacing of a certain State of Ohio route, being Route 91, at a contract price in excess of $28,000. At the hearing herein the parties stipulated that McCourt and Thorpe are en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. Upon all of the foregoing the Trial Examiner finds that McCourt Construction Company and Thorpe Construction Company of Akron, Ohio, are engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 348, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues As the Trial Examiner sees it, the issue herein is whether or not the Respondent Union threatened, coerced, and restrained Thorpe and McCourt to cease doing busi- ness with Jesse Holland, the Charging Party herein, with the object thereof of forc- ing Holland, a self-employed person , to join the Union in violation of the provisions of Section 8(b) (4) (ii) (A) of the Act. B. The status of Holland The record shows that at times material herein Jesse Holland, a resident of Akron, Ohio, was the owner of a 1960 Reo Tandem truck, which cost him $15,000. The record also shows that the truck was purchased by him, and that neither Thorpe, McCourt, nor any other "company" cosigned his note when he purchased the truck. The truck is registered in his name. In addition , he personally paid for the insur- ance on the truck. Moreover, the truck carries neither the name nor the insignia of any company either on the door panels or any other place on the truck. Holland had hauled for different companies engaged in the highway construction and repair business in the Akron, Ohio, area for several years before he became involved in the incidents which we are concerned herein . In the course of his work he hauled various materials which are used in the repair and construction of highways, such as sand, crushed stone, or gravel and in particular hot asphalt. In order to haul the latter it was necessary for him to have an insulated bed on his truck, so that the hot asphalt could be delivered at the jobsite in workable condition. It was for this reason that he had such a bed installed on his new 1960 Reo Tandem truck, which he was operating at times material herein. He had hauled for Thorpe on different jobs for at least 5 years before he went on the job we are concerned with herein. As for McCourt, the record is none too clear, but it does show that he had hauled for it off and on before September 1960. According to the credible and uncontradicted testimony of Holland, and other witnesses called by the General Counsel in support of his case-in-chief, particularly the following officials of Thorpe Construction Company: John A. Thorpe, III, Hobart L. Barlowe, and William Thorpe, and Henry J. Stager, vice president of McCourt Construction Company, neither of the Employers involved herein con- LOCAL 348, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1123 sidered their relationship with Holland as that of employer-employee, but as con- tractual between themselves and Holland as an independent owner and operator of his own trucking business. This is amply evidenced by the fact that neither Thorpe nor McCourt deduct withholding tax and social security payments from moneys they paid Holland for his services. Nor do they make any payments to the Industrial Commission of Ohio for workmen's compensation benefits for Holland in the event he was injured while hauling their materials. Other evidence that Holland was strictly on his own, so to speak, is the fact that he pays for his own insurance, upkeep, and other expenses on his truck, and the license to the State of Ohio for operating it over its highways without any contribution from the Employers involved herein. In addition he purchases his gas, oil, and the like from whom he pleases without either contributions or advice from them as to where he should purchase his supplies. Quite frankly, there is not a scintilla of evidence in this record that the Employers herein have ever exercised or even attempted to exercise any control over Holland and the operation of his truck. The record also shows that Holland is paid so much per ton mile by Thorpe for hauling the asphalt from its mixing plant to the jobsite. While on the other hand the truckdrivers who admittedly are employees of Thorpe are paid by the hour. In the event Holland should have an accident while transporting asphalt from Thorpe's mixing plant, he must bear the loss himself while on the other hand Thorpe's truck- drivers suffer no loss of pay while the trucks they operate are idle. Holland's loss, of course, in such an event would be the "tonnage per mile" that he was unable to move during the time involved. While the record shows that Holland lines his truck up with Thorpe's at the mixing plant, there is nothing unusual in this routine for the simple reason that he is there to get a load to haul and the only practical way he could get near the loading place would be to move along with the other trucks. To attempt to operate otherwise would be chaotic and create a situation detrimental to all. It must be remembered that all of us regardless of our status in society must obey the rules of the road, so to speak, if we expect to survive in this day and age. The same is true as regards the route Holland takes from the mixing plant to the jobsite. While the record shows he could take any route he cared to, nevertheless he like any normal person used the quickest and best route available from the mixing plant to the jobsite. The mere fact that Thorpe's trucks may have used the same route is of no significance, for the simple reason that it was to Holland's interest to get his load to the job situs as quickly as possible, and return for another, because the more he hauled the greater the tonnage and return on his investment; his truck. Here again ordinary commonsense prevails, not legal- istic jargon. Upon arrival at the jobsite Holland for the same reasons advanced above took his turn at the "Barber-Green" 1 for unloading his truck. As the Trial Examiner sees it employees of Thorpe and the State of Ohio are in attendance at the Barber- Green, and direct the moving of the trucks to the dumping spot and supervise the traffic in this particular area. This is understandable because caution must be taken to protect the asphalt that has already been spread on the roadbed. Here again commonsense and the rules of the road necessarily prevail in order to accomplish the mission of the trucks regardless of whether they are owned and operated by the Employers or by self-employed persons. The record also shows that when a job is finished or when work is slack, Holland is advised by representatives of the Employers that there is "no work." In such circumstances he is free to go wherever he pleases. Here again he is in a different category than employees of either Thorpe or McCourt, because in the event that the layoff is for several weeks and they are unable to secure employment elsewhere, then they are eligible for unemployment compensation, but he is not, since he as an independent owner-operator is not considered as an "employee" and hence not entitled to the benefits of the Ohio Unemployment Compensation Law. The record further shows that Holland reports at the asphalt plants of the Em- ployers involved herein at the same time as the other truckdrivers. He takes his place in the line and his truck is loaded in the same manner as the other drivers.2 The plant operates 8 hours a day. Consequently, the Employers of necessity have to regulate the loading of the trucks in an orderly and efficient manner. Such a prac- i As the Trial Examiner interprets the record this is a device into which the trucks dump their hot asphalt at the jobsite. The purpose of the device is to regulate the appli- cation of the asphalt or "black-top" on the roadbed. 2 In the case of Thorpe, it owns and operates several of its own trucks, while McCourt uses the services of other owner-operators such as Holland. See supra. 614913-62-vol. 132-72 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tice is not only beneficial to the Employer but to persons like Holland as well, other- wise his earning power would be greatly impaired by delays in getting the "tonnage" that is the "pay-load" under his agreement with both Thorpe and McCourt. Conclusions as to Holland's Status After long and careful consideration the Trial Examiner is convinced, and finds, that Jesse Holland was an independent owner-operator at gall times material herein. His reasoning in this regard is predicated upon the following facts. To begin with, both Holland and the Employers herein considered their relation- ship as contractual and not that of employer-employee. In the eyes of the Federal Government, Holland was considered an independent operator for tax purposes and the requirements of other agencies, such as social security and the like. The same is true as regards the State of Ohio, particularly his status as an employee within the meaning of the Industrial Commission of Ohio, Workmen's Compensation Division, and the Ohio Unemployment Compensation Commission. The Trial Examiner has carefully considered the well-documented brief of counsel for the Respondent Union, and the cases cited therein, including the citation sub- mitted to him for consideration on or about January 14, 1961, of which more anon? The status of persons like Holland has been before the Board and courts on many occasions. The determination of the question is always difficult for the simple rea- sons that the facts vary from case to case. Consequently, the issue must be consid- ered on a case-by-case basis. Even so, the Board and the courts have, over the years, established certain criteria or standards to assist us in the determination of this per- plexing question. As the Trial Examiner sees, it is now well settled that in deter- mining the status of persons like Holland, allegedly an independent contractor, the Act requires the application of -the "right of control" test. Under the Board's "rights of control" test, relationship is one of employment where persons for whom services are performed retain right to control manner and means by which result is to be accomplished; "relationship is that of independent contractor where control is re- served only 'as to result sought." 4 As indicated and found above the only control exercised by either Thorpe or McCourt over Holland's activities was that he follow the "rules of the road" in haul- ing asphalt from their plants to the jobsite.5 As also indicated above this was no special advantage to the Employers but beneficial to all concerned including the State of Ohio, the ultimate beneficiary of their joint efforts. The only control "reserved" by the Employers herein was to process the asphalt and load it on Holland's truck and unload it at the jobsite. Holland's main concern was to get a load to the job- site as quickly as possible and get back to the asphalt plant and load up for another trip. The more he hauled the more he made because every load meant more "ton miles," which was the determinative factor upon which he was paid by both Thorpe and McCourt. The Trial Examiner finds that Holland's compensation was con- trolled by his own industry and efficiency in hauling the Employer's asphalt and materials to the jobsite. A further factor in his earnings was the care and operation of his truck, which the record clearly shows was his sole responsibility. The Trial Examiner has considered the cases cited by counsel for the Respondent in his brief in support of his position that Holland was in fact an employee of both Thorpe and McCourt at times material herein. As he sees it the cases referred to relate to situations where the facts found by the Board were to the effect that the Employer not only exercised control over the manner and means by which the result was to be accomplished, but in many instances contributed in some manner to the operation of the individual trucks as in the Buffalo Courier Express case cited above.6 In the later case the employer not only exercised control over the opera- tions of the "owner-driver" distributors but in some instances contributed to the operation of their trucks through a "truck-allowance." As indicated above the issue herein as to Holland's status is akin to those considered in many another case that has been before the Board in the past. In the final analysis each case rests on its own bottom, so to speak, insofar as the determination of the issue is concerned. In the circumstances the Trial Examiner sees no necessity to cite herein ad infinitum excerpts therefrom in support of his reasoning in disposing of the issue. Suffice it to say that in his considered opinion the Board's "right to con- 8 Buffalo Courier-Empress, Inc, 129 NLRB 932. 4 Quotes from L R.R.M, Accumulative Digest and Monthly Classification Guide, 44 0560. See Buffalo Courier-Empress, Inc , 129 NLRB 932. 6 See supra 6 See supra for citation. LOCAL 348, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1125 trol" test, which has been set forth above, is controling, and he has given it due consideration in arriving at his ultimate conclusion as regards Holland's status. As indicated and found above the Employers herein, Thorpe and McCourt, do not, in fact, exercise any significant control over Holland's method of operation, and he enjoys a degree of independence in the operation of his truck and assumes respon- sibilities and risks normally assumed by entrepreneurs rather than employees. In the circumstances found and described above, and upon the record considered as a whole, the Trial Examiner concludes and finds that Jesse Holland was and is an independent contractor within the meaning of the Act at all times material herein. C. Holland's relations with the Respondent Union The record is none too clear as regards Holland's relations with the Union over the years prior to 1960. He joined the Union in July 1958, and was in good standing with it until December 1958, when he "dropped out," as he put it in his testimony at the hearing herein. Sometime in June 1960, Mike Seibel, business agent for Local 348, asked him to join the Union. Holland told'him that he would as soon as he got hold of some money. Seibel gave him a week to join up. Holland told him again that he would not have the money in a week for the simple reason he was not mak- ing enough money at that particular time. About a week later Seibel approached him again about joining the Union. He told him that if he "would bring a contract signed by the Company" he would do so.7 At this time Holland was hauling for Thorpe Construction Company.- Insofar as the record herein is concerned Holland heard no more from the Union until the middle of September 1960. On the night of September 15, 1960, Holland received a telephone call from Hobart L. Barlowe, superintendent of the Thorpe Construction Company's asphalt plant, from which he was then hauling asphalt to a job for the State of Ohio. Accord- ing to Holland's credible testimony Barlowe told him "you better not go back on the job in the morning." He asked him why, and Barlowe told him, "If you go out, why, the Union said they were going to shut the job down." 8 Holland told him that he had been thinking about joining the Union. Barlowe then told him to go on another job. We now come to an incident that occurred the next morning, September 16, 1960, which is of importance because it constitutes one of the, defenses advanced by the Respondent Union at the hearing herein. What transpired on this occasion is best told in the testimony of Holland himself. Consequently, a pertinent excerpt from his testimony in this regard follows below: A. Well, I came in to Thorpe's place of business and Michael Siebel and Joe Stauffer was there and I asked Stauffer, I said,-"Stauffer, what are you and Mike trying to do to me?" Stauffer told me, he said, "Well," he said, "if you don't join the union, you will see what will happen, or else." I was busy talking to 'him and during that time we proceeded in conversation, well, Michael was walking up on me from the rear. Q. Is that Michael Seibel? A. That is right. Q. Continue. A. When he walked up on me, advanced on me, I didn't know what the issue was, so when he came at me while I was talking to Stauffer, well, when he started at me, I started after him. Q. How do you mean you started after him? A. Well, we had a little row up there, a little scrimmage, because after he was crowding me like he did, I figured there was no telling what he was liable to do to me, so I was going to try to take care of myself, what I could. Q. Did you have a knife with you on this occasion? A. Yes, I did. Q. Did you do anything with that knife? A. No, I didn't, but I got after both of them with the knife, Seibel and Stauffer, too. Q. Do you mean you chased them? A. I did. Q. Did you catch them? A. No, I didn't. 7 Quotes from Holland's credible testimony 8 Quotes from Holland's credible testimony 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As indicated above the primary reason for referring to the "knife incident" is be- cause Mike Seibel, the business agent for Local 348, testified at considerable length in this regard at the hearing herein., The gist of his testimony was to the effect that Holland threatened to kill both he and Stauffer and that both were badly upset by his vicious and unprovoked attack upon them on the morning of September 16, 1960. His testimony in this regard was for the purpose of explaining in part the motive be- hind his demands upon Thorpe and McCourt to cease doing business with Holland .9 The Trial Examiner has given considerable thought to the role of the above inci- dent insofar as the issues herein are concerned and he has reached the conclusion that the least said about it, the better for all concerned. Suffice it to say that if it was as vicious as Seibel contends then he, of course, had his remedy under the penal code of the State of Ohio. Since there is no evidence in this record that either he or Stauffer reported the incident to the proper authorities in Summit County, Ohio, the Trial Examiner is convinced that they likewise were content to let the incident rest in the hallowed quiet of the past insofar as the laws of Ohio are concerned. So is it here; since a hearing before either the Trial Examiner or any other Trial Examiner cannot be turned into a quasi-criminal forum. Such matters are for a police or other courts upon which jurisdiction over the subject matter has been conferred, in- sofar as this incident is concerned, by the State of Ohio. Holland's version of his conversation with Barlowe on the night of September 15, 1960, has been set forth above. In the main it was corroborated by Barlowe in his testimony at the hearing herein. Barlowe further testified as regards the events that led up to his decision to call Holland and tell him to stay away from the asphalt plant the next morning, September 16, 1961. The gist of his testimony in this re- gard was to the effect that Mike Seibel called him and told him not to ". . . put Mr. Holland back to work." In addition, Seibel told him in effect that if he did, the Union would have to take some kind of action. Quite frankly Barlowe's testimony was rather vague as regards the kind of action Seibel said would be taken, this is evidenced by the following excerpt from his testimony on cross-examination in this regard: By Mr. KNEE: Q. Now, at the times he talked with you, did he ever threaten to strike your plant? A. No, not at the plants, no. Q. Did he ever threaten to strike the plant at all? A. Well, I couldn't say if he didn't at all or not. He said he would have to take action and he might have said he would have to put a picket up. I am not sure what all was said over the phone. At this time the Trial Examiner feels that reference should be made to the Re- spondent Union's contention at the hearing herein that it had a contract with both Thorpe and McCourt that contained a maintenance-of-membership provision therein, and that conseqeuntly under its terms the Union had a right to demand that Holland be "fired" by the Employers because he had refused to join the Union. Despite its contention in this regard it did not choose to submit it to any of the witnesses for examination at the hearing herein, either for identification or offer it in evidence for the benefit of all concerned. In the circumstances the Trial Examiner is con- vinced that there was no written agreement between the Employers involved herein and the Union, but that there was an oral agreement or understanding that included a maintenance-of-membership provision. As indicated above it was this provision in the so-called contract that the Respondent Union relies upon in defense of its conduct toward Holland. From what the Trial Examiner is able to glean from the record, Thorpe permitted Holland to continue hauling for it ,a day or so after the "knife incident" of September 16, 1961. On or about September 27, 1961, William Thorpe, general superintendent of the Thorpe Construction Company, received a telephone call from Mike Seibel relative to Holland. The Trial Examiner considers his testimony in this regard of the utmost importance for reasons which will be apparent below. Consequently, an excerpt therefrom follows below: Q. With whom was that conversation? A. That was with Mike Seibel. Q. How did that conversation come about? A. Well, I put Jesse back to work about five days prior to that and Mike called me on the phone and said he was surprised that I put Jesse back to work, concerning he didn't consider he was the type of man I would put back to See infra for further comment in this regard. LOCAL 348, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1127 work because of a certain knife incident at the plant, and he appealed to me on the basis of goodwill not to put Jesse back to work, or to not rehire him. Q. Now, can you please tell us what else was said in that conversation? A. Following that, he told me that there was a strike they were having at National Engineering Company, on the expressway, and he intimated it would be very easy to take those same men and bring them over to us. Q When you say that they were having a strike, you mean that Local 348 of the Teamsters was having a strike at National Engineering Company? A. Yes. Q. And it would be easy to take them and take them to your job construction site? A. Yes. Q Did he say anything about the relationship that the union had had with the company in the past? A. Yes, he said we had always had good relationship and he would like to 'continue that and try to get along. Q. In view of this conversation that you had with Mr. Seibel, did you take any action? A. Yes. I called Mr. Hobart Barlowe and told him not to put Jesse on the following morning. Q. Did you have any further discussions with any other union officials con- cerning Mr. Holland's union membership? A. I saw Mike Seibel the following day and told him that I had told Barlowe not to put Jesse on that morning. Q. Has Mr. Holland worked for your company since that time? A. Not to my knowledge. On cross-examination Thorpe restated Seibel's reference to the strike at National Engineering Company in the following language: He said that they had some men that were striking against National Engineering Company and it would be very easy to bring those men "over to you people. I believe that was the phrase." [Emphasis supplied.] The Trial Examiner finds that Thorpe's interpretation of Seibel's reference to "those men" over at the National Engineering Company was that ". . . he meant the men on strike at National Engineering." 1e Thorpe also testified that he assumed that Seibel had reference to the men he had,picketing over at National Engineering. Whether or not Seibel meant to strike Thorpe Construction Company by the use of the phrase "bringing those men over" in Thorpe's opinion hinged upon how one interpreted it. As the Trial Examiner sees it, Thorpe himself so interpreted Seibel's remarks as a threat to strike or picket the Company's plants; and the Trial Examiner so finds. His finding in this regard is buttressed by the fact that shortly after Seibel called Thorpe about Holland on September 27, 1960, he in turn called Barlowe and told him ". . . not to put Jesse on the following morning." Seibel in effect denied the testimony of both Barlowe and Thorpe as regards his statements to them about Holland. He particularly denied the testimony of both as regards the Union taking "action" of some kind to enforce its demands as to Holland. In the course of his testimony he went to some length to explain what he meant by mentioning the National Engineering strike to Thorpe in their telephone conversation on September 27, 1961. Seibel was present in the hearing room at the time William Thorpe testified and evidently heard his version of the above telephone conversation. This is evidenced by the following excerpt from his testimony on direct examination by counsel for the Respondent Union: Q. And I want you to state whether or not you told him, Mr. Thorpe, now, whether you told him that you would bring pickets over to his place from another job. A. Absolutely not. Never have I made that statement. Q. Did you ever refer to pickets in any manner? A. No, sir. Q. When you talked with him over the telephone or,any other occasion you had occasion to talk with him? A. He may have misinterpreted something, the fact that when I talked to him on the telephone the night before, I asked him to meet me at twelve o'clock, noon, at such and such a place in=south Akron at restaurant, and this particular restaurant, right out in frolit, is National Engineering was working, and Joe 10 Quotes from Thorpe's'credible testimony! 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stauffer, which is another business agent, and myself had a strike there and we didn't have any pickets at that time. We didn't even have any pickets, so how could we make a statement, or I make a statement that I am going to bring pickets over, or which ever statement he made? I couldn't possibly make that statement, because we didn't have any pickets on the job. Q. Well, that is all right. All I wanted to know is whether you ever, in any of your conversations with Mr. Thorpe, if you ever told him anything about bring people-strike that-bring pickets "over to you people." A. No, sir. [Emphasis supplied.] Quite frankly the Trial Examiner is not persuaded that Thorpe misinterpreted Seibel's remarks in their telephone conversation, but on the other hand he is con- vinced that Thorpe's version thereof was correct, and he so finds. Seibel did not impress the Trial Examiner as a truthful witness. As the record clearly indicates he was somewhat loquacious at times, and most emphatic at times in his denials. A contributing factor in the Trial Examiner's appraisal of Seibel as a witness is found below: Q. You testified that you had a conversation with Mr. Bill Thorpe of the Thorpe Construction Company relative to the continuance of Mr. Holland haul- ing for the company; is that correct? A. Yes. Q. Did you tell Mr. Thorpe that the union did not want Mr. Holland driving for them any more? A. No. Q. Did you tell him that the union did not want Mr. Holland to do any hauling for them any more? A. That the union did not want- Q. That the union did not want Mr. Holland to do any hauling for the Thorpe Construction Company any more. Did you tell them that? A. No, sir. Q. Mr. Seibel, r want to show you an affidavit that you gave to me in con- nection with the investigation of this case. Is this the affidavit you gave me? Is that your initial there? A. Yes. Q. Is that your signature there? A. Right. Q. I read to you from this affidavit: `5I told him," referring to Bill Thorpe, "that Jesse was in violation of our con- tract by not joining the union. I said that I didn't care if he worked on a non- union job, but that this one was and he should not be permitted to work unless he came in and reinstated himself in the union."" A. That is correct. And you just asked me- Q. Did you make that statement? A. Yes. Q. Was it true when you made it? A. Yes, and the statement- Q. Was it true when you made it? A. Yes. Mr. LEVINE: Thank you. I have no further questions. REDIRECT EXAMINATION - By Mr. KNEE: Q. Is that still true? A. Yes, it is true. TRIAL EXAMINER : Is that all? Mr. LEVINE: I have no further questions. Mr. KNEE: No. TRIAL EXAMINER: Are you through with the witness? Mr. KNEE: Yes, sir. • • • - TRIAL EXAMINER: You are excused. In the circumstances found and, discussed above the Trial Examiner credits the testimony of Barlowe and William Thorpe as.regards their conversations with Seibel, and finds that he made the remarks attributed to him by them in their testimony at the hearing herein, and discredits Seibel's denials and versions thereof. . As the Trial Examiner interprets the record and, has found above, Seibel's call to William Thorpe about Holland was on or about September 27, 1960. What tran- LOCAL 348, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1129 spired thereafter has also been set forth above in the excerpt from Barlowe's testi- mony which shows that Barlowe called Holland and told him not to report at the plant the next morning. Insofar as this record is concerned this was the last time Holland hauled for Thorpe. On the next day, September 28, 1960, Holland started hauling for the McCourt Construction Company. According to his credible testimony, Henry Stager, the plant superintendent and a vice president of the Company, called him aside around 4 p.m. that afternoon and told him that ". . . the union called up and said if you didn't join, why, they was going to close the job down the following day." He replied, "Well, I guess I will have to join, I suppose," and that he would come back to the job as soon as he got straightened out with the Union. Holland's version of what transpired on September 28, 1960, was corroborated by the testimony of Henry John Stager, vice president of McCourt Construction Company and manager of its asphalt plant. His testimony in this regard was clear and to the point, for this reason the following pertinent excerpt therefrom follows below: Q. Did you have any conversation with any officials of the Local 348 Team- sters Union when Mr. Holland came to work for your company? A. Well, they called me. Q. Who called you? A. Mike Seibel. Q. When? A. September 28. Q. Was it the same day that Mr. Holland came to work for the Company? A. Yes. Q. What did Mr. Seibel say to you and what did you say to him? A. Well, he just called me on the phone and said, "Mr. Holland don't belong to the union," and that he had chased him around someplace with a knife and we would have to lay him off, or he would make us trouble. Q. What was that last? A. Or he would make us trouble. Q. -Or he would make you trouble? A. Yes. TRIAL EXAMINER: Or do what? I didn't quite get it. Mr. LEVINE: The answer was, "or he would have to make us trouble." TRIAL EXAMINER: Very well. BY MR. LEVINE: Q. Did you ask him why? A. No, he told me why. He said he didn't belong to the union and he had a knife and chased him with a knife. Seibel's version of the above conversation is at odds with that of Stager. For the most part it consists of denials of pertinent portions thereof and the advancement of the "knife incident" as the major reason for the Union's demand that McCourt cease doing busyness with Holland. Here again the Trial Examiner is convinced that pertinent excerpts from the witnesses' testimony would be beneficial for all concerned, primarily because it goes right to the heart of the Trial Examiner's resolution of the credibility of Seibel as a witness when considered in the light of the record as a whole. Consequently the following excerpt therefrom follows below: 11 Q. Now, did you ever have an occasion to talk with Mr. Stager, Hank Stager, out at McCourt Construction Company? A. Yes, I did, over the telephone. Q. Would you explain the circumstances under which that arose? A. Yes, I will. This happened at the time when were were-when I say "we," I am referring to Mr. Stauffer and myself-we had a little labor dispute with National Engineering at this time and we weren't in the office when Mr. Stager had called for me, and in the meantime we had called our office for calls, checking, and they said that we had a call from McCourt Construction Company and we got the number and I called back, and the reason he had called was that he needed two drivers the next morning, and that was his reason for calling. I said that was fine and we would send two drivers out in the morning. Through our conversation I asked him if Jesse Holland was working for him, and I believe, now, that he said, 'No, but be is on his way up here now to go "See supra in re the Trial Examiner's initial finding as regards the credibility of Seibel as a witness 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work," and I told him then about the knife incident and I said to Hank, "Hank," I explained it to him how he threatened our lives with a knife and so on and so forth, and that "you wouldn't want a man like that working for you." And he said, "I am glad you told me." I said, "Hank, we have never had any trouble with you, Hank, and I am sure we never will have," and that was my statement. Q. Did you ever, during the course of that conversation with Hank tell him that we might have trouble with you people? A. No. Q. To the best of your recollection, now, Mike, was that the only- A. That was my statement. Q. Was that the only time you used the word "trouble"? A. Right. On the next day, September 29, 1960, Holland went to the Board's Regional Office in Cleveland, Ohio, and filed the charges herein. Upon his return to Akron, he went to the union hall and paid his reinitiation fee and 3 months' dues, a total of $60. A day or so later he went back to McCourt and told Stager that he had straight- ened up his affairs with the Union. Stager said "that is good enough for me," 12 and permitted him to resume his hauling for the Company. On November 1, 1960, U.S. District Court for the Northern District of Ohio, by McNamee, Chief Judge, issued a temporary injunction restraining the Respondent Union and its agents from: "In any manner or by any means, threatening, coercing or restraining Jesse Holland, McCourt Construction Company, Thorpe Construction Company, or any other person engaged in commerce or in an industry affecting com- merce, where an object thereof is to force or require Jesse Holland to join Respond- ent Local 384 or any other labor organization." 13 Conclusions The Trial Examiner has found above that Jesse Holland, the Charging Party herein, was a "self-employed person" or in the vernacular of most of us an "inde- pendent contractor." Having so found there yet remains for disposal the following question: Did the Respondent Union by its officers, agents, and representatives, Seibel and Stauffer, threaten, coerce, and restrain McCourt and Thorpe by threaten- ing to picket or strike their places of business if they continued to do business with Holland, with the object in view of forcing or requiring Holland to join the Union? Upon all of the foregoing, and upon the record as a whole, the Trial Examiner is convinced and finds that the Respondent Union by its agents, Seibel and Stauffer, engaged in the aforementioned conduct with the object in view of forcing Holland to join the Union. His reasoning in this regard is predicated upon the following facts which he has found above. To begin with the credible testimony of Hobart L. Barlowe and William Thorpe, officials and supervisors for the Thorpe Construction Company, clearly shows that Michael J. Seibel, business agent for Local 348, demanded that Thorpe cease doing business with Holland because he had failed and refused to join the Union. While the record shows that the threats he made in his conversations were somewhat vague as regards the use of the word "picket" and "strikes," nevertheless it does show, and the Trial Examiner so finds, that he did use the words "take action of some kind," and that he would bring men "over to" Thorpe's place of business from the National Engineering Company where the Union was engaged in a strike. That Thorpe's officials interpreted Seibel's statements as threatening and coercive is amply demon- strated by the fact that they complied with Seibel's demands and did in fact cease doing business with Holland. Further evidence that Barlowe so interpreted Seibel's statements to them, is shown in Holland's credible testimony that Barlowe told him on the evening of September 15, 1960, that if he came back on the job the next morning, September 16, ". . . the union said they were going to shut the job down." That William Thorpe likewise so interpreted Seibel's demands is evidenced by Thorpe's credible testimony that he called Barlowe on September 27, 1960, and told him not ". .. to put Jesse on the following morning" after Seibel told him that it would be very easy to bring the "men" over from National Engineering to "us," meaning Thorpe's places of business. As the Trial Examiner sees it Barlowe and Thorpe, both of whom had been en- gaged in the construction business for years, had dealt with union representatives 12 Quotes from Stager's testimony. '- Quotes from Chief Judge McNamee's opinion. See 41 LRRM 2096, and General Counsel's Exhibit No 2 herein. BECKER-DURHAM, IN C. 1131 including the responsible officials of the Respondent Union, in the course and con- duct of their daily affairs; and quite naturally were familiar with the language and phraseology used in the discussion of labor matters. In the circumstances they would have been most naive indeed to have "mis-interpreted" Seibel's statements to them as regards the consequences that would ensue if they failed to heed his de- mands that Thorpe cease doing business with Holland. That they were not so naive is amply demonstrated by the action they took as to Holland. The same reasoning applies to Henry J. Stager who had been plant manager for McCourt Construction Company for 25 years, and at the time of the hearing herein was its vice president while it is true that Seibel raised the "knife incident" in his conversation with Stager about Holland, nevertheless he did tell him to ". . . lay him off, or he would make us trouble." 14 Stager clearly understood what Seibel meant, and as a result Holland was laid off shortly thereafter. While the Trial Examiner is not unmindful of the "knife incident," he is convinced that in the final analysis it was used by Seibel merely as an excuse to cover up the real reason for his demands that the employers herein cease doing business with Holland. The Trial Examiner's reasoning in this regard is predicated upon the un- disputed fact that Seibel made his first demand upon Thorpe to cease doing business with Thorpe, on September 15, 1960, the day before the "knife incident" occurred. As a matter of fact it was this action on the part of Seibel that provoked the incident itself. In the circumstances the Trial Examiner concludes and finds that by the acts and conduct described above that the Respondent Union did engage in and is engaging in conduct violative of Section 8(b) (4) (ii) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Charging Party, Jesse Holland, as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner shall recommend that it cease and desist therefrom and take certain affirmative action which he finds necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the record in the case, he makes the following: CONCLUSIONS OF LAW 1. Local 348, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of the Act. 2. Jesse Holland is a person engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act. 3. McCourt Construction Company and Thorpe Construction Company are en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. By the unfair labor practices as found above, the Respondent has thereby vio- lated Section 8(b) (4) (ii) (A) and Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 14 Quotes from Stager's credible testimony. Becker-Durham, Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 3-CA-1525. August 21, 1961 DECISION AND ORDER On May 3,1961, Trial Examiner Stephen S. Bean issued his Inter- mediate Report in the above-entitled proceeding finding that the Re- 132 NLRB No. 95.