Portland Dist. Council of Carpenters

PORTLAND DIST. COUNCIL OF CARPENTERS 599 Portland District Council of Carpenters , AFL-CIO and Cascade Employers Association, Inc. Building and Construction Trades Council of Portland and Vicinity , AFL-CIO and Cascade Employers Association, Inc. Building and Construction Trades Council of Portland and Vicinity, AFL-CIO and Cascade Employers Association, Inc. Cases 36-CC-250, 36-CC-250-2, and 36-CC-252 September 24, 1969 DECISION AND ORDER BY CHAIRMAN MCCUI.LOCH AND MEMBERS FANNING AND JENKINS On May 22. 1969, Trial Examiner George H. O'Brien issued his Decision in the above-entitled cases. finding that the Respondent had not engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in these cases, and hereby adopts the findings,' conclusions. and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint he, and it hereby 'These findings and conclusions are based in part on credibility determinations by the Trial Examiner, to which the Charging Party has excepted It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless a clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect We find no such basis for disturbing the Trial Examiner's credibility findings in this case Standard Drt. Wall Produciv Inc . 91 NLRB 544, enfd 188 F 2d 362 (C A 3) However, we disagree with one cf the Trial Examiner's findings, i e , that Ron Savage, partner in Die-Crane of Oregon, initially claimed that he spoke with Earl Kirkland of the Building and Trades Council only three times and later contradicted himself The record reveals that although on d,cect examination. Savage discussed three telephone conversations he had with Kirkland, he wa, not asked then nor did he contend that these were the only times they had spoken to one another This error does not require modification of the Trial Examiner's other findings is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATFMENT OF THE CASE GI.ORGE H. O'BRIEN.Trial Examiner:'On April 2 and 3, 1969. a hearing was held in the above entitled matters in Portland, Oregon, at which all parties appeared and participated. The Amended Consolidated Complaint issued February 20, 1969, alleges in material substance that Building and Construction Trades Council of Portland and Vicinity, herein called Council, at the behest of Portland District Council of Carpenters, herein called Carpenters, did from December 24. 1968, through January 2. 1969, picket the Larch Place Apartment Construction Project of Niedo Investment Company, causing carpenter., employed by Nfedo to cease work, and did on January 2 threaten Niedo with a further work stoppage if Niedo co-itinued to do business with a nonunion carpet supplier and carpet layer, that an object of the picketing and the threat was to force or require Niedo to cease doing business with two individuals. Frank Nata and George Burns, and that Carpenters and Council thereby violated Section 8(b)(4)(i)(n)(B) of the Act. The Consolidated Complaint further alleges that Council, through its Executive Secretary, Earl B. Kirkland. on January 30, 1969, and on February 4. 1969, threatened Ditz-Crane of Oregon Inc. with picketing to lorec Ditz-Crane to cease doing business with Jack L. Largent, it nonunion drywall and roofing contractor, and that Council thereby violated Section 8(b)(4)(ii)(B) of the Act Respondents deny the commission of any unfair labor practice. They assert that the picketing of Larch Place Apartments had the sole object of persuading Niedo to recognize and bargain with Carpenters and Council as the representatite of Niedo's employees. Respondents deny that the picketing had any other object, deny that any agent of either Respondent made any threat to any person and deny that Kirkland had any conimunication whatever with any representative of Ditz-Crane ' Upon the entire record in the case. including my observation of the witnesses, and after due consideration of the oral argument of counsel for Respondents. and of the briefs filed by counsel for the General Counsel and by the representative of the charging party, I make the following: FINDINGS OF FACT I. JURiSDIC'f ION The complaint alleges and Respondents admit. 3 b. During the calendar year 1968, Bcnwalt and its successor Niedo purchased in excess of $50,000 worth of goods and materials either directly from outside the State of Oregon or from suppliers who in turn purchased them directly from outside the State of Oregon, which goods and materials were used in the 'rhe allegations of unfair labor practices involving Nicdo are based upon charges in Cases 36-CC-250 and 250-2 filed respectively, on December 26 and 30, 1908 A consolidated complaint issued February s, 1969, based upon amended charges filed the same date The allegations of unfair labor practices involving Ditz-Crane are based upon a charge in 36-CC-252 flea February 6 1969 and amended February 20, 1969 A motion by Respondents' counsel to sever the Ditr-Crane case from the Niedo cases made alter all parties had rested, was denied as untimely 178 NLRBNo.94 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Larch Place Apartment construction project. 6.b During the past year , Largent , in the course and conduct of its said business, purchased and received goods, supplies and materials , shipped to it at Salem. Oregon, from outside the State of Oregon valued at more than S50,000 I find that Niedo and Largent are employers engaged in commerce and in business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act for the Board to assert jurisdiction in Cases 36-CC-250 and 250-2 on the basis of the business of "secondary employers at the location affected " and in 36-CC -252 on the basis of the "entire business of the primary employer." Local Union No. 299 Sheetmetal Workers International Association (S. M Kisner and Sons ), 131 NLRB 1196; Madison Building & Construction Trades Council (H. & K Lathing Co.). 134 NLRB 517 IT. THE LABOR ORGANIZATIONS INVOLVED Respondent , Portland District Council of Carpenters, herein called Carpenters ; respondent, Building and Construction Trades Council of Portland and Vicinity, herein called Council: and Carpet and Linoleum Lavers Union Local 1236, herein called Carpet Layers, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLhGFD UNFAIR LABOR PRACTICES IN THE NILDO CASES A. The Issues and Arguments of Counsel The issues are (1) whether an object of Respondents' picketing was to force or require Niedo to cease doing business with Nata and Burns, (2) whether any statement made by Earl Kirkland to Margaret Dowsley on January 2, 1969, constituted a threat to, or coercion or restraint of Niedo and (3) whether Kirkland's failure to specifically exclude Nata and Burns from the coverage of the subcontracting provisions in the agreements which he tendered to Dowsley is a per se violation of Section 8(b)(4)(ii)(B) of the Act. The General Counsel argues that Dowsley's testimony establishes that she was forced to sign a contract with a subcontracting clause by threats of continued and renewed picketing and that Kirkland threatened to shut the job down if Niedo continued to permit Nata and Burns to work on the project, and that the following facts demonstrate that Council's picketing was for a proscribed object: (1) Carpenters employed by Niedo continued to work during legal picketing by Carpet Layers, (2) Both Carpet Layers and Carpenters are affiliates of Council, (3) Carpenters' agent, when he called at the project was accompanied by Carpet Layers' agent, and (4) The banner worn by Council's picket did not identity Niedo.' Counsel for Respondent argues that Dowsley's testimony, where contradicted by Kirkland is unworthy of credit, that rather than being forced to sign Council's standard agreement, she was anxious to sign, that she raised no question about the content of the agreement, and that there is no credible evidence in this record of any connection between the Carpenters dispute with Niedo and the Carpet Lavers dispute with Nada and Burns. He 'I find that the name "Niedo Investment Company" did appear on Council's picket banner asserts that the complaint should be dismissed for failure of proof of proscribed object. B. Sequence of Events In 1967 Walter Niedermeyer and Ben Niedermeyer, a partnership doing business as Benwalt Construction Company commenced the construction of Larch Place Apartments in Beaverton, Oregon. On September 1, 1968, Ben Niedermeyer bought out his partner, and continued with the Larch Place Apartments Project. doing business under the name of Niedo Investment Company. From the inception of the project William D. Wells, a member in good standing of the Carpenters Union, was superintendent with authority over carpenters and laborers employed successively by Benwalt and by Niedo and over most of the subcontractors. The office work was handled in Portland by Margaret Dowsley, Secretary to Ben Niedermeyer. The carpeting for the Larch Place Apartments was purchased from Frank P. Nata, who with his wife do business under the name of Frank's Carpets. under an oral agreement. Nata, in turn, subcontracted the carpet laying to George Burns d/b/a Advance Carpet, also under an oral agreement. There were three entrances to the project. At one of these entrances a sign was placed which bore the text "For Frank's Carpets, Their Employees and Subcontractors". There was no sign at either of the other entrances to the project. On several occasions prior to mid-December 1968 Nata was approached by Joe Snedecker, a business agent of Carpet Layers. About 2:30 p in. on Tuesday, December 17, while Nata was laying carpet, a picket appeared bearing the sign, "Frank's Carpets Observes Sub-Standard Wages and Other Working Conditions. Carpet and Linoleum Lavers Local 1236". The picket did not parade but remained adjacent to the entrance designated for Frank's Carpets. There was no cessation of work by any employee On Wednesday, December 18, Dan J. Fraser, a business representative of Carpenters went to the project with Mr. Snedecker. Fraser inspected the cards of four carpenters then working and ascertained that all were members in good standing of the Carpenters Union. Superintendent Wells asked Fraser if he and his men, all of whom were directly employed by Niedo, should continue to work behind the Carpet Lavers picket and Fraser replied that they should keep on working. Fraser told Wells that Niedo did not have a union contract, (this was news to Wells) that he would try to get hold of Ben Niedermever to get him to sign a contract, and that if the Carpenters could not get a deal with Niedermever they would have to put up a picket. Wells phoned Dowsley, told her of Fraser's call and asked if Niedo had a working agreement with Carpenter's Union. Dowsley replied that "at that time they did not." Wells then told her that Fraser was trying to get hold of Ben Niedermeyer to get an agreement from him. On December 20, 1968, Earl B. Kirkland, Executive Secretary of Council at the request of Mr. Webber,' Executive Secretary of Carpenters addressed the following letter to Ben Niedermeyer: Please be advised we represent a majority of your construction employees at your project on S. W. Spencer Street in Beaverton, Oregon. 'Deceased prior to date of hearing herein PORTLAND DIS'I COUNCIL OF CARPENTERS 601 We desire to meet with you immediately and enter into bargaining. Please let me know immediately when we can meet. In the event that we fail to hear from you at once we shall take such action as is necessary to protect our legal interests Under date of December 21, Mrs. Dowsley replied I am sorry that Mr. Niedermcyer is again in the Providence Hospital. and has recently been transferred from the Coronary Care Unit to a private room You can see it is impossible for him to meet with you However, it seems to me that the difficulty occasioned, as I understand it from out superintendent, is not with any complaint with our men. but. rather, with some other union of carpet layers, over which we have no control, and with whom we have a firm legal contract between them and ourselves which they must execute. It appears as though you are directing your complaint to Mr. Niedermeyer whereas it should be directed to some other party. Not one man in our employ has voiced a complaint or grievance. The letter was signed "N[EDO INVEST MENT CO., M. Dowsley, Manager" and copies were sent to the Officer in Charge of the Portland Office of the National Labor Relations Board and to M r Well On every working day from December 18 through Monday, December 23 the Carpet Layers picket remained adjacent to the Frank's Carpets entrance, and the union carpenters continued to work. On Monday December 23 Fraser informed Wells by telephone that there would be a picket the next day. Wells passed the word to his men and told them they should exercise their discretion. When Wells reported at the project at 7:30 a in. on Tuesday. December 24 he observed a picket, patrolling the entire length of the project wearing an apron banner with the legend. "Unfair, This Contractor Does Not Observe Union Conditions and Wages, Building Trades Council, A.F.L."4 Only one of the four carpenters reported for work, and he left as soon as he observed the picket. On Thursday, December 26 the original charge in Case 36-CC-250 was filed, naming "Portland District Council -)I Carpenters" as the "Labor organization against which charge is brought", naming "Advance Carpet Co. and Niedo Investment Co. of Vancouver and Beaverton, Oregon" under "Name of Employer" and naming "Cascade Employers Association Inc. for the above noted firms,"5 under "Full Name of Party Filing Charge". The Charge alleged that Dan 1- raser "did threaten, coerce and remove members of Carpenters from the job site of Niedo Investment Co. at 355 S.W. Spencer, Beaverton, Oregon, to force Niedo to cease doing business with Advance Carpet Co.. of Vancouver. Washington. That this same union representative did perform the same threats on or about October 22, 1968 and again about December 18. 1968." 'My findings as to the words on tht, picket banner are based on the testimony of Wells and Kirkland Welts' original notes had been destroyed and he had no recollection as to whether or not Niedo's name appeared Kirkland testified that when the apron banner left his office it had stapled to it a plce.c of venal cloth bearing the words, "Niedo Investment Company." 'The words "for the above noted firms" do not appear in the amended charge filed February 4, 1969 The original and the amended charge were both signed by Pat Blair On some date between December 24 and January 2, Mrs. Dowsley spoke to Ben Niedermeyer and received instructions "to keep the men working." On January 2 about 1:15 p.m. Kirkland and Dowsley met in Kirkland's office. There they signed a short form Building Trades Council Agreement and a separate "Letter of Understanding". The Building Trades picket was removed that evening, and Niedo's carpenters returned to work on January 3 On January 24. 1969, Ben Niedermeyer signed an application for membership in Cascade Employers Association Inc , of Salem, Oregon. which contained the statement* "It is my understanding that we may ask the Association to represent us in all matters concerning labor relations On February 11, 1969, Ben Niedermeyer dispatched the following letter to Mr Kirkland' This is to advise you that Mrs. Dowsley under no condition had authority to enter into any contract with your union or any other union. Therefore, we have forwarded this date our check in the sum of $ .. under protest, with the provision that it is being forwarded for refund should we prevail at the hearing or legal action which transpires as a result of her illicit signing of a contract at your insistence C The Meeting in Kirkland's Office January 2. 1969 1. The testimony of Margaret Dowsley On direct examination Dowsley testified that on December 27 or 28 she received a telephone call from Mr Kirkland who "said that we didn't have a contract with the Carpenter's Union, and he wanted us to sign a contract and he wanted to bargain with us." Dowsley replied that she was not in a position to bargain and that it wasn't her job to handle matters like that, but agreed, nevertheless. to meet with Kirkland in his office at I p.m. on Thursday, January 2. In answer to questions by the General Counsel as to what transpired at this meeting, Mrs Dowsley testilied: Well, Mr. Kirkland said it was necessary for its to sign an agreement with his union, and I said that I wasn't in a position to sign a document like that. I had no authority to sign it, and that, if I did sign it, I'd have to sign subject to Mr Niedermeyer's approval, and he told me that he'd been instructed by his attorney that that wasn't sufficient, he would have to I would have to sign as an alternate signer He stressed then he showed me one of the agreements I was going to have to sign, and he stressed He paiticularly stressed Paragraph IV [short form Building Trades Agreement]. lie wanted me to be aware of the implications in the Paragraph IV and said I realize that, when we sign this agreement. that any of the subcontractors on the job would have to belong to a union, and as I recall, he brought up the name of Frank's Carpets, and the implication was that he was going to . . . . Well, he said we would have to sign I'd have to sign this agreement in order for our men to get back to work . We had quite a discussion about how I was going to sign it, and 1 finally signed it as Office Manager. . Well he did say that, if we had people working on the job who didn't belong to a union, lie would shut the job down. . . He insisted on me signing a letter of understanding. . . [after Dowsley and 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kirkland had signed both documents ] I said to him that I hoped I didn't lose my job over this, and he said. "Well, don ' t worry about that: if you do run into trouble, we' ll just shut the job down again" I asked him if I signed the articles of agreement if he would remove the pickets and he said "yes". Article TV of the short form agreement reads: The EMPLOYER agrees that if he shall subcontract any work. provision shall be made in such subcontract for all of such work on any job or construction site to be performed pursuant to an executed current agreement with the appropriate union having work and area jurisdiction affiliated with the COUNCIL The letter of understanding recites It is hereby understood that Pat Blair and/or the Cascade Employers Assn. Inc. of Salem , Oregon, to my knowledge do not represent Mr. Niedermeyer or Niedo Investment Company in any capacity. It is further understood that on January 2 . 1969. 1. Margaret Dowsley, have hereby signed the standard agreement of the Building and Construction Trades Council of Portland and Vicinity. It is further understood and agreed that all construction people working on Niedo Investment Company's projects shall belong to one or the other respective craft unions affiliated with the Building and Construction Trades Council of Portland and Vicinity. Under cross-examination Mrs. Dowsley testified that her call from Kirkland could not have been received on January 27 because she was not in the office on that day, nor on the 28th. because that was Saturday so it must have been on either the 30th or 31st. She recalled telling Mr. Niedermeyer that she was going to see Mr. Kirkland but could not remember what she said or what Ben Niedermeyer said "because 1 don't think this is important" She identified Henry McCarthy as having been present during part of her conversation with Kirkland, but insisted that he was in and out of the office, and that no other person was present . When she told Kirkland that she did not want to sign the contract, Kirkland asked if Mrs Niedermeyer would sign it. Dowsley replied that she did not think so, because Mrs. Niedermeyer had no knowledge of the business. After about half an hour she went out to a pay phone. Being unable to reach Mrs . Niedermeyer, she called the NLRB office and asked Hedges what she should do. Hedges' only advice was to speak to her lawyer if she had one (She was not asked whether she attempted to communicate with Ben Niedermeyer). After 10 minutes she returned and told Kirkland she would sign the contract as "office manager " The conversation with Kirkland then continued until about four p.m. When asked to relate the entire conversation she answered : "There was obviously more conversation , but I can't tell you what we said . It wasn't- I remember the important parts of it." She further admitted that Mr . Kirland had told her that her problem with the carpet layers union was separate and distinct from the problem with the Carpenters , and that the documents which she signed settled only the Carpenters' strike. She also reiterated her testimony that "if we let [Nata and Burns] continue to work on the project, if they didn't belong to a union that he would shut our job down." 2. The Testimony of Earl B . Kirkland Earl B . Kirkland testified that he had been Executive Secretary of the Council for 3 years, its President for 5 years prior thereto, and a labor representative for 17 years. He wrote the letter of December 20 at the request of Carpenters and authoriLed the picketing at the request of Carpenters When the picket sign left his office it had stapled to it on a piece of vinal cloth, the words: "Niedo Investment Company" Kirkland was on vacation from December 24 through January 1, and made no business calls during that period. On the morning of January 2, he received a call from Mrs. Dowsley She wanted to know what position she was in with the Building Trades Council. Kirkland told her to read his letter of December 20. She asked if signing an agreement would take care of her problem. Kirkland offered to show her the agreement and they agreed to meet in Kirkland's office at 1 p.m. the same day. Kirkland was 15 minutcb late returning from lunch and found Dowsley in the office which he shared with McCarthy Dowsley said she would sign an agreement if it would take care of the problem. Kirkland told Dowsley that he would accept her signature only if she would assure him that she had the authority to sign. Dowsley said she would go to a pay phone and make a call She was gone about 30 or 40 minutes. When she returned, she said she had the authority. Kirkland then handed Dowsley a copy of the contract and asked her to read it. Dowsley perused it lightly and signed. Before Kirkland signed he asked Dowsley whether Niedo was represented by Cascade Employers Association or y Pat Blair Dowsley answered that it was not. Kirklan then asked Dovvsley if she would sign a statement tc , that effect. She said she would. In explanation of the last paragraph in the "Letter of Understanding" Kirkland testified I asked her if she agreed to the terms of the agreement and if she understood that the agreement meant that they would have union employees on the job under the employ of Niedo Investment Company, and she said .,yes, she understood that". I said, then, 1 could put this in a letter of understanding also, and she could not disagree with this." Kirkland denied making any threat to shut the job down, testified that there was no discussion of the possibility of Dowsley losing her job, and that near the conclusion of their meeting- All the terms of the contract were pointed out. After the agreement and the letter were signed, Dowsley asked if this would remove the carpet layers banner from the job and I told her that was a separate problem that I had nothing to do with that, and she would have to deal directly with them. She nodded her head and that ended the conversation. 3. The testimony of Robert L. Stanfill Robert L. Stanfill, Secretary of the Oregon State Building and Construction Trades Council (of which the Portland Council is a constituent member) testified that he covered Kirkland' s desk while Kirkland was on vacation and had lunch with Kirkland on January 2. When they returned to the office about 1:15 Dowsley was waiting. Stanfill overheard part of the conversation, heard Kirkland ask Dowsley if she had authority to sign a contract, heard her negative reply, saw her leave the office and heard her state when she returned_ about 30 to 45 minutes later that she did have the authority. He also heard Kirkland state that any problems Niedo had with Carpet Layers was a separate grievance between her and them. PORTLAND DIST. COUNCIL OF CARPENTERS 603 4. The testimony of Henry McCarthy Henry McCarthy occupies a desk about 5 1/2 feet from Kirkland's desk in the same office. When Dowsley arrived on January 2, he introduced himself and they talked about the weather until Kirkland arrived. McCarthy was waiting for a long distance call and listened to the entire conversation between Kirkland and Dowsicy. Kirkland did not threaten to shut the job down if she had nonunion people working Dowsley asked, if she signed the agreement, would that get rid of the linoleum workers picket. and Kirkland replied that that was a problem which she would have to take up with Carpet Layers. Kirkland did not say "as long as you've got those carpet layers on there that are nonunion he's going to close down the job." Dowsley was gone about 40 minutes while she made her phone calls. When she came back she said she would sign the agreement as office manager of the company. At the conclusion of the interview McCarthy drove Dowsley to her bus stop, and they talked about heart attacks, Ben Niedermeyer's, and McCarthy's. Dowsley voiced no complaints. D Concluding Findings in the Niedo Cases 1. Kirkland did not by words or actions threaten, coerce, or restrain Dowsley or Niedo. Nothing said or done by Kirkland can be construed as evidence that any part of the object of any action of either respondent was to cause a cessation of the business dealings between Niedo and Nata, or between Nata and Burns. I credit the testimony of Kirkland as to what was said and done in his meeting with Dowsley on January 2 He was open and forthright both on direct and under cross examination and his testimony is wholly consistent with the uncontroverted facts in this record . Kirkland, at the request of Carpenters wrote to Niedermeyer stating that he represented a majority of Niedo's employees and requesting a meeting to negotiate a contract . Upon receipt of Dowsley's letter , he issued a picket banner on an apron with the name of Niedo Investment Company attached. Niedo's employees ceased work . The next move was obviously up to Niedo. There was no reason for Kirkland to call Dowsley . There was every reason for Dowsley to call Kirkland Dowsley did call Kirkland on the morning of January 2 and asked Kirkland what she would have to do to get her men back to work . Kirkland told her to read his letter; i.e., negotiate a contract . Dowsley asked for and received an appointment . When Dowsley arrived, Kirkland refused to discuss contract terms until he was assured that Dowsley had the authority to negotiate . Upon receiving that assurance he tendered the short form agreement to Dowsley Her only question was whether signing the short form would get Niedo 's employees back to work. Upon being assured that it would, she signed the agreement. She raised no question about any of its terms Kirkland, desiring to make sure that she knew what she was signing, went over every term of the agreement with her . She still raised no objection. Kirkland was aware that Pat Blair, purporting to represent Niedo, had filed a charge alleging that Carpenters were engaging in a secondary boycott, and before he signed the contract which Dowsley had already approved requested assurance that Pat Blair did not in fact represent Niedo. Dowsley gave him that assurance and acquiesced in a statement to be included in a separate letter intended to assure that all persons directly employed by Niedo would be members of unions affiliated with Council . Then and only then did Dowsley inquire whether the agreements which she signed would remove Carpet Layers picket. She was told by Kirkland that it would not, and she was satisfied with that answer Her instructions from Niedermeyer were to "keep the men working." Carpet Layers picket had not interfered with the job in the past, and she correctly understood from Kirkland that it would not interfere in the future. Niedo's employees returned to work on January 3 Whether Carpet Layers continued to picket on or after January 3 is not established on this record. I do not credit Dowsley on any point where she is contradicted by Kirkland. She was a loyal and devoted secretary carrying out the instructions of her employer She was carrying out his instructions when she signed the agreement and the letter in Kirkland's office on January 2. When Niedermeyer on February 11 falsely accused Dowsley of an "illicit" action, she reconstructed, rearranged and added to her recollection of the events of January 2 and the days preceding. Cross-examination developed small but significant inconsistencies in her testimony. Dowsley had testified that Kirkland called her on either the 28th or 29th of December and related the conversation clearly and in detail . She could not recall in any detail her conversation with Ben Niedermeyer which. she testified, immediately followed her telephone conversation with Kirkland Having first placed the Kirkland conversation on January 27 or 28, she recalled that she was not in her office on January 27. When she was reminded that the 28th was Saturday , she moved Kirkland's call up to the 30th or 31st 2. General Counsel has not established by a preponderance of the evidence that Council's picket banner did not bear the words, "Niedo Investment Company." 3. The fact that employees of Niedo continued to work despite the picket of a sister union at a "reserved gate" on the same premises cannot be construed as evidence that subsequent picketing by Council had as an object, the removal of Nata and Burns from the job. Los Angeles Building and Construction Trades Council ( Gasket Manufacturing Company). 175 NLRB No. 43. 4. The fact that a representative of Carpet Layers and a representative of Carpenters visited the project on the same day does not constitute evidence of any common object. Los Angeles Building and Construction Trades Council (Cecil Mays). 161 NLRB 729 5 The short form agreement signed by Dowsley contains no term alleged to be unlawful . In the absence of evidence that the subcontracting clause therein was directed at Nata or Burns, a strike to compel Niedo to sign this contract would not be unlawful . Los Angeles Building and Construction Trades Council (Couch Electric Company Inc.), 151 NLRB 413. Kirkland 's assurance that the contract signed by Dowsley did not settle the Carpet Layers dispute and the fact that all of Niedo ' s direct employees returned to work as soon as the contract was signed is the equivalent of the Respondent's statement in Couch Electric that it was not opposed to Couch's completion of his work on the project. 6. The final paragraph of the Letter of Understanding was intended to and did apply only to persons who were or might be employed directly by Niedo . Any ambiguity in the language of the memorandum should be construed in favor of legality. N.L.R.B v. News Syndicate Co , 365 U.S. 695. 7. There is no credible evidence on this record that any action of either respondent had as an object the removal 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the project of any identifiable nonunion subcontractor. IV. TiiE ALLEGED UNFAIR LABOR PRACTICES IN TTTF I)iTZ-CRANF CASE A. The Issue, and Arguments of Counsel The issue in the Ditz-Crane case is whether the General Counsel has established by a preponderance of the evidence that Earl B. Kirkland, executive secretary of the Building and Construction Trades Council of Portland and Vicinity, is the individual who had a series of telephone contacts with Ditz-Crane of Oregon between January 28, 1969, and February 7, 1969. The General Counsel argues that identity is established (I) by the testimony of Savage that on at least one occasion he looked up the number of the Building Trades Council, called this number, asked for Mr. Kirkland, and had a conversation with this person, and (2) that the substance of the several telephone conversations contain internal evidence that the speaker was Earl Kirkland Respondent objected in timely and proper manner to the receipt of any evidence as to the content of the telephone conversations because of the failure of the General Counsel to lay a proper foundation by showing either (1) that the voice of the caller was known to the witness or (2) that the witness placed the call to the place of business of Earl Kirkland I overruled this objection on the ground that there might be internal evidence in the conversation itself which could establish identity ° When the General Counsel rested, and after Respondent' s motion to dismiss had been denied, testimony was received from Earl B. Kirkland and from Henry McCarthy. Respondent argues as additional grounds for dismissal (1) that I should credit the testimony of Earl Kirkland that he has never spoken on the telephone to any person in the office of Ditz-Crane of Oregon, (2) that the testimony of Kirkland and McCarthy establishes that Earl Kirkland was in a meeting and could not have been the person who placed the call to DitL-Crane on the afternoon of Monday, February 3, 1969, and (3) that the internal evidence of the subject of the phone calls. and the surrounding circumstances all point away from, and not toward, Earl B Kirkland as the speaker. B. The Business of Dttz-Crane of Oregon Ronald Savage, who describes himself as a partner in Ditz-Crane of Oregon testified that it began business November 1, 1968, that its business is the construction of residential homes, that all of its construction work is subcontracted and its only employees are himself and his secretary, who occupy separate but adjoining offices. C. The Telephone Calls 1. The testimony of Inez Potticary Potticary testified that she received a call from a man who identified himself as Mr Kirkland of the Building Trades Council on January 28 or 29. The same person For complete definitions of the legal principles governing the admissibility of and the weight to be accorded testimony relating to telephone conversations see 8 Wigmorc Evidence , Sec 669 and 2155 (3d ed 1940) called every day that week, on each occasion he asked for Mr. Savage. On each occasion Potticary made a note of his name and telephone number and gave the note to Mr. Savage The person may have called as early as Monday, January 27. On one occasion which may have been Friday, January 31, or may-have been some time the following week the person said he would picket Ditz-Crane's "Mountain Park" job because Mr. Savage was using Largent Roofing Company which was a nonunion contractor and sometime later in the week this person said he had reached the saturation point and wanted some action from Mr. Savage so far as Largent was concerned. Potticary had a clear recollection of only one conversation. This was on February 7 when she was on an extension phone with Mr. Savage. "Mr. Kirkland" told Potticary that he had not threatened to put pickets on the job and Mrs. Potttcary replied: "You certainly did". As to the threat itself, Potticary could not remember whether it was made on Friday or was made on some other day. She was only sure that the threat was made and she conveyed it to Mr Savage. In explanation of her failure to recall any other details she testified "I'm just repeating what was asked me to repeat". She has no note of any telephone conversation. having given all her notes to Mr. Savage. who disposed of them 2. The testimony of Ron Savage Savage on direct examination testified that he had three conversations with a person who called himself "Mr Kirkland". The first was on Monday, February 3, 1969. "Mr. Kirkland" was the caller. Mr. Kirkland said that he would like to have a contract signed by Mr. Largent, and by Mr. Savage and by the Building Trades Council, and requested that Savage bring Largent to "Kirkland's" office and all three sit down. About 2 days later Savage received a message from Potticary that "Mr. Kirkland" had phoned and said he was going to put pickets on the job. As soon as he got this message, Savage called Kirkland. In this second conversation "Mr. Kirkland" said that if something was not done he would have to shut Savage down. Savage then called Largent, who directed Savage to go to Mr. Blair, which he did, and Mr. Blair took care of the matter by filing the instant charge on February 6. The next day, February 7, "Mr. Kirkland" phoned and spoke to Savage_ for the third and last time. "Mr. Kirkland" denied that he had threatened Savage with picketing. Savage asked Potticary to get on the phone. Potticary told "Mr Kirkland" that he had told her that he would picket Dttz-Crane if the Largent problem was not straightened out Under cross examination on the first day of this hearing Savage testified that Potticary placed the call on the sole occasion when Savage called Kirkland. Under further cross examination on the second day of hearing, Savage fixed the time of his first conversation with "Mr. Kirkland" as about 3 p m. on Monday. February 3, and testified that its substance was as follows: Mr Kirkland identified himself and stated that he was with the Building Trades Council and said that he wanted to discuss with me the problem that we had out there. lie was very cordial; we had a nice conversation about the fact that I was using Largent. and 1 believe that I explained why I used Jack, and that I wasn't even aware of what subs that I used were union or nonunion , but that I would call Jack and explain that we had a problem and that I would call Mr. Kirkland PORTLAND DIST. COUNCIL OF CARPENTERS 605 back, and the first conversation, as I remember, was fairly cordial and fairly short The second conversation was Wednesday morning, February 5. Savage arrived at his office about 9.30 a.m. looked at his notes and called Kirkland. Savage testified: In this particular conversation we were still talking about getting Mr. Largent in, and I asked Mr. Kirkland if it would be all right with him and with the other unions involved it Mr. Largent's company paid health and welfare and did not join the union, and Mr. Kirkland said, no, that that was not right because they had had problems with Mr. Largent in the past, and "He may be able to get away with this in Salem, but he can't do this in the Portland area", and I said that I didn't really care what was done between the two parties, but I did want to get the dispute ironed out, and Mr. Kirkland wanted me to bring Mr. Largent in. and come in myself, to which I didn't really want to do but I said I would get back to Mr. Largent and I would call Mr. Kirkland back His third conversation was on Thursday, February 6 about 3 p.m., "at that time Mr. Kirkland and I had a discussion about Mountain Park and about my company and about our relations with the unions and . as I recall, he wanted to know why I didn't use a union contractor, and I replied that I used Mr. Largent because he is a personal friend, regardless of what his price is or whether there are union contractors in the area." Savage testified that his fourth conversation with Kirkland was on Friday, February 7: 1 called Mr. Kirkland and identified myself and said I had been having trouble reaching Mr. Largent, that 1 would appreciate it if he wouldn't put a picket on the job, and that I would call him back as soon as I got hold of Mr. Largent. At this time I think we went into the discussion of the subs and why I used Mr. Largent. Without any particular reference to any of the foregoing conversations Savage did testily on the second day of hearing. A. However, I reached Mr. Kirkland by phone myself once. Q. You did? A. Yes, sir, I did Q. When was that? A. As far as the particular date, sir, I coudn't tell you. Q. Well, this is quite important, sir, and I'd like to try and pin you down, because there is a credibility issue. A. Well, could I refer to the - well, let's see - - I'll backtrack. It was the - itwas the time after he had spoken to my secretary and had made the statement of the pickets, and I called him back immediately. and she was busy, and unless --- in other words, my normal procedure is that she makes my phone calls unless it's something that is very, very important that I want done now; then, I make the phone call. And in this case, I felt that it needed to be taken care of immediately, so I phoned at that time. Q. And this was the telephone number that your secretary supplied you with on one of these memo pads? A. No sir. I looked this one up myself. Q. Oh, you did look this one up? A. Yes, sir. Savage destroyed all notes of all telephone calls from or to "Mr. Kirkland." 3. The testimony of Earl B. Kirkland Kirkland testified on direct examination that he first heard of Ditz-Crane when he received a copy of Pat Blair's charge on March 12. 1969 He does not know Savage, never made any phone calls to Savage and never received any telephone call from Savage He has never received any request from any union to take action against Ditz-Crane, and had nothing in any file on Ditz-Crane. He has had no contact with Largent since becoming secretary of the Building Trades Council. On Monday, February 3, 1969. he was at a meeting of the Multnomah Labor Council, and did not leave the meeting from the time it started at 1.30 p.m. until it adjourned sometime between 3:30 and 4:30 p.m. Under cross examination he testified that he had heard of Largent, that Largent's reputation with unions was not good, that Largent was an antiunion contractor, and one of the first contractors that Pat Blair had as a client in Salem, Oregon. 4 The testimony of Henry McCarthy McCarthy testified that he sometimes takes calls for Mr. Kirkland when he is out of the office and that he never received any call from Savage, Potticary, Ditz-Crane or Largent He attended the Monday, February 3 meeting of the Multnomah Labor Council and knows that Kirkland remained in the meeting from the time it started at 1:30 until it ended sometime between 3:45 and 4 o'clock. D. Concluding Findings in the Ditz-Crane Case It is obvious that the calls from the man who said he was "Mr. Kirkland" do not identify the caller as Earl Kirkland. If Savage had in fact looked up the number of the Building Trades Council in the telephone book and had called that number and asked for Mr. Kirkland, and a voice had then come on the telephone, acknowledging that he was Mr. Kirkland, there would be at least prima facia identification I find that he did not. Savage had in his possession at least three notes from Potticary with the number which the caller had given to her. Savage testified on cross examination on the evening of April 2 that he did not look in the telephone book, that his secretary placed the call, and that he placed the call to Kirkland on February 3 or 4, the day after his secretary got the message that there was going to be picketing. It was only on the second day of his testimony that he said he looked up the number. His testimony is otherwise filled with contradictions. From his initial testimony that he spoke to Kirkland only three times, and that two of these calls were initiated by Kirkland, there developed four and possibly five conversations, two of which were initiated by Savage. When asked on cross-examination to describe the Monday conversation in full, it came out without any reference to threat or picketing. When he described a conversation of Wednesday in full, immediately before Mr. Blair agreed to take care of the problem, again there was no threat. He corrected this deficiency by recalling a fourth conversation. When Savage was asked to read his pretrial statement which lacked consistency with either his direct or his cross-examination he explained that the statement was not entirely accurate, stated that he had called this fact to the attention of the Board agent who took the statement and that the Board agent had asked him to sign it anyway. The credibility of neither witness is 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enhanced by Potticary' s statement that she was just repeating what she was told to repeat or improved by her explanation that she meant she was told to repeat what she had put in a pretrial statement There is nothing in the content of any conversation that would identify Earl Kirkland, other than the caller's naked assertion. I have found that Savage did not call the number listed for the Building Trades Council in the telephone book. Ditz-Crane had been in business for less than three months, yet the caller knew its telephone number, knew that Mr. Savage was directing its operations, and knew that a contract had been awarded to Jack Largent. Earl Kirkland did not know Savage and cannot be presumed to know anything of his background or attitudes. There was pending in the Board's regional office a charge filed by Blair alleging that Kirkland had made unlawful threats against Niedo. Kirkland believed that Largent was antiunion and that he had been represented by Blair for many years. That Earl Kirkland in this situation, and with these beliefs would ask a complete stranger to arrange a meeting with him to persuade Jack Largent to sign a union contract and would follow this request with a naked threat to shut down Savage's operation simply defies credulity. I am asked by the General Counsel to assume that no person or organization other than a Building Trades Union could be interested in the fact that Jack Largent was nonunion , to infer from this assumption. that a Building Trades Union must have asked Earl Kirkland for assistance , and to conclude from this inference that Earl Kirkland made the telephone threat to Ditz-Crane. I do not grant his assumption and cannot draw the inference which he requests. I credit the testimony of Earl Kirkland that his first knowledge of Ditz-Crane and Savage came from reading the charge filed by Pat Blair in the instant case. I credit the testimony of Earl Kirkland and Henry McCarthy that Earl Kirkland was in a meeting at the time that "Mr Kirkland" placed a call to Savage on Monday, February 3. 1 find that Earl B. Kirkland has not been identified as the individual who threatened to picket the Ditz-Crane project. Since he is the only person alleged by the complaint to have made threatening statements and since he did not, no violation by Council has been established. CONCLUSIONS OF LAW 1. Ben Niedermeyer, doing business as Niedo Investment Company is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Ben Niedermeyer, doing business as Niedo Investment Company, Frank Nata, doing business as Frank's Carpets and George Burns, doing business as Advance Carpeting Installations are persons in an industry affecting commerce within the meaning of Section 8(b)(4)(i)(n)(B) of the Act. 3. Jack L. Largent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Jack L Largent and Ditz-Crane of Oregon are persons in an industry affecting commerce within the meaning of Section 8(b)(4)(ii)(B) of the Act. 5. Portland District Council of Carpenters and Building and Construction Trades Council of Portland and Vicinity, and Carpet and Linoleum Layers Union Local 1236 are labor organizations within the meaning of Section 2(5) of the Act. 6. The allegations of the consolidated amended complaint that 'Portland District Council of Carpenters, and Building and Construction Trades Council of Portland and Vicinity have engaged in unfair labor practices within the meaning of Section 8(b)(4)(t)(ii)(B) of the Act have not been sustained RECOMMENDED ORDER It is recommended that the consolidated amended complaint be dismissed in its entirety.