San Diego Building

SAN DIEGO BLDG. AND CONSTRUCTION San Diego Building and Construction Trades Council, AFL-CIO and Escondido Ready Mix Concrete, Inc. Case 21-CC-1093 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On April 24, 1969, Trial Examiner Marion C. Ladwig issued his Decision in this proceeding, finding that Respondent had not engaged in and was not engaging in certain unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent Union filed an answering brief. 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 this case 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 briefs, and the entire record in this case, 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 orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'The General Counsel would have the Board overrule certain of the Trial Examiner's credibility findings. While we may differ with the Trial Examiner as to the significance to be placed on certain discrepancies in testimony, nevertheless the preponderance of all relevant evidence convinces us that the Trial Examiner's resolutions of credibility are not clearly incorrect. We shall therefore not overrule him in that regard Standard Dry Wall Products, Inc. 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We do not however adopt the Trial Examiner's unnecessary attribution of ulterior motives to any witness in this proceeding In view of the Trial Examiner's resolution of the Trombley-Mullay conversation , we consider it unnecessary to rely on his alternative basis for dismissing the 8 (b)(4)(i) allegation TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This case was tried at Vista , California, on February 19, 1969, pursuant to a charge filed on September 30, 1968,' by Escondido Ready-Mix Concrete , Inc., herein called the Company or 177 NLRB No. 46 527 Escondido, and pursuant to a complaint issued on November 19. The primary issues are whether the San Diego Building and Construction Trades Council, AFL-CIO, herein called the Building Trades or the Union, on or about September 3, (a) induced an employee of neutral employer Lovell & Morgan to stop working, and (b) made threatening statements to Lovell & Morgan, with an object of forcing it to cease doing business with Escondido, in violation of Section 8(b)(4)(i )(ii)(B) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Union, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED Escondido, a California corporation, is engaged in the retail and nonretail ready-mix concrete business in Escondido, California. The Union concedes that during a representative year, Escondido's gross volume of business in sales and deliveries to contractors in the construction industry, homeowners, and others exceeds $500,000, and that its purchases and receipts from suppliers in the State, of supplies and equipment manufactured outside the State, are between $15,000 and $20,000. The Board has held that where an enterprise falls within the Board's statutory jurisdiction, the employer's retail and nonretail operations are properly combined for determining whether the business satisfies the $500,000 per annum retail standard for the Board' s assertion of its discretionary jurisdiction. Caribe Lumber and Trading Corp., 148 NLRB 277, 278 The Union suggests no basis for holding that such a combined retail and nonretail operation would have any less impact on interstate commerce than a wholly retail operation. In agreement with Trial Examiner Lowell M Goerlich's January 23, 1969, Ruling on Respondent's Motion to Dismiss, I find that there being undisputed statutory jurisdiction, Escondido's total volume of business, including retail and nonretail sales, satisfies the Board's $500,000 per annum standard for the assertion of jurisdiction over retail enterprises. Accordingly I find that Escondido is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A Background In 1966, during an unsuccessful union attempt to organize Escondido's employees, Escondido filed a charge against the Building Trades for engaging in unlawful secondary boycott activities. The case was settled informally in January 1967. Escondido has continued to operate nonunion. On February 7, 1967, Lovell & Morgan, a cement contractor, signed the Building Trades "short. form" agreement, covering its on-site construction work and containing various subcontractor provisions. (The General Counsel does not challenge the legality of the agreement.) The Building Trades has in recent years filed a number of All dates, unless otherwise indicated, are in 1968 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD injunction actions in court to enforce the subcontractor provisions in its agreements . Since February 1, 1966, when the Building Trades adopted a resolution concerning enforcement of its short-form agreements, no complaint has been issued against the Building Trades for using self-help to enforce these subcontractor provisions. Until September 3, 1968, Lovell & Morgan purchased ready-mix concrete from Escondido from time to time. B. Alleged Inducement to Stop Work On September 3, Building Trades Business Representative Charles F. Trombley and Painters Local 48 Business Representative Edward W. Peterson made a routine job check in Escondido, California, where a Lovell & Morgan crew was working on Lincoln Avenue. When they arrived, they saw a concrete pour being made, from an Escondido ready-mix truck. Saying nothing to the Escondido driver, they began checking to see if the six employees on the job were union members in good standing . They spoke first to a carpenter, and Trombley took down his name and the number of his local union. Trombley next spoke to cement finisher Ignacio "Nash" Mullay. (What was said is in dispute, as discussed below.) Thereafter, Trombley asked the other crew members (two finishers and two laborers) for their identification, and took down their names and the numbers of their local unions. The employees continued with the pour, and Trombley and Peterson left. There was no work stoppage. The General Counsel's only evidence that Business Representative Trombley "appealed to, induced, and encouraged an individual employed by Lovell & Morgan to engage in a work stoppage and to refuse to perform services" is the disputed, uncorroborated testimony of cement finisher Mullay. According to Mullay, Trombley walked up and said to him, "Hey, Nash, don't you know you're pouring with a nonunion outfit?" (Emphasis supplied. This conflicts with Mullay's pretrial affidavit, in which Mullay stated that Trombley asked about pouring "for" a nonunion outfit.) Mullay testified that he responded, "I don't know," and kept working. According to Mullay, Trombley did not ask to see his union card and did not say anything about his union status, but proceeded to check "some cards of the other men" and walked away - saying nothing to any of the other employees about working "with" or "for" a nonunion outfit. On cross-examination, Mullay testified that he understood it was Trombley's job to check union cards and report anyone delinquent "to whatever trade it is"; that most of the times in the past when Trombley made a job check, Mullay had been paid up on his union dues; that on September 3, he was in arrears; and that he had not seen Cement Masons Business Agent Paul "Curly" Robertson since "way before then." Trombley, on the other hand, testified that after he spoke to the carpenter, he approached Mullay and said, "Hi, Nash, how are you, did you finally get squared away with Curly? Do you have a card with you?" Mullay answered, "No, I don't have the card with me but I talked to Curly and I'm all squared away." Trombley said, "Well, okay, fine, I'll check with Curly." (Because of the noise from the ready-mix truck , Business Representative Peterson could not hear what was said .) Trombley denied saying anything to Mullay about working "with" or "for" a nonunion outfit. Trombley testified that he later checked with Mullay's union, found that Mullay was suspended, and made that notation on his daily job report . Several days later, he saw Mullay on the Duvard jobsite, where Mullay appeared quite angry and belligerent, as if"he knew that I had found him in a lie." Trombley's September 3 job report describes Mullay as a "suspended member," and reports the names and local union members of the five other employees on the job. It also indicates that Lovell & Morgan was found using Escondido Ready Mix. The report is made to the attention of Local 346 (Mullay's local, now Local 744) and Local 36 (the Teamsters local which has jurisdiction over ready-mix drivers). Thus, according to Mullay's disputed testimony, Business Representative Trombley asked other employes but not Mullay -for their union cards, and singled out Mullay to ask, "Don't you know you're pouring with a nonunion outfit?" The General Counsel theorizes that Trombley "apparently knew" before going to the job that Mullay was not in good standing (and therefore did not check his membership status), and "That Trombley made this remark only to Mullay is not unusual in view of the fact that Trombley apparently recognized Mullay among the workmen when he had made his tour of the jobsite." However, if Trombley already knew that Mullay's membership had been suspended, and reported this on his daily job report without checking either with Mullay or Local 346, Trombley evidently would have regarded Mullay as a nonunion or antiunion employee, who would be the least likely to engage in a work stoppage. Therefore I find, that even if Trombley did make a remark to Mullay about pouring with (or for) a nonunion outfit, Trombley did not do so for the purpose (or with a likely result) of inducing Mullay to engage in a work stoppage. At most, Trombley would have been merely needling Mullay. Moreover Mullay, who appeared to be quite bitter and vindictive, did not impress me as a reliable witness. Because of his demeanor as a witness , and the implausibility of his version of what occurred, I discredit his testimony that Trombley made a reference to a "nonunion outfit." There being no other evidence to support the allegation that Trombley encouraged a work stoppage, I shall recommend dismissal of the allegation. C. Alleged Coercion of Lovell & Morgan Elvin Morgan and Robert V. Lovell were partners in the cement contracting firm of Lovell & Morgan. From time to time, they had discussed whether they should continue purchasing concrete from Escondido, which assisted them in getting cement contracting business. Both believed that purchasing concrete from this nonunion source violated the subcontractor provisions in their Building Trades agreement. According to Lovell, "anything one of us did, the other one agreed to beforehand." Both Morgan and Lovell testified on behalf of the General Counsel at the trial, but they gave different versions of why their firm stopped purchasing concrete from Escondido. 1. Morgan's version Morgan testified that he was present, watching the pour being made from the Escondido ready-mix truck, when Business Representative Trombley made the job check at the Lincoln Avenue jobsite on the morning of September 3. As Trombley was leaving the jobsite, according to Morgan, "all he said to me was, `Looks like I caught you again, Morgan,' and I said, `Yes,' like he did .... That's all that was said to me . . . . He just kept walking on." SAN DIEGO BLDG . AND CONSTRUCTION 529 (Trombley remembered saying instead, "Morgan you'd better read your agreement.") That afternoon, Morgan canceled the order he had placed for Escondido concrete to be delivered to another jobsite the following day. Morgan further testified: Q. Now, after that occasion, did you purchase any additional concrete from Escondido Read-Mix? A. No, I did not. Q. And, why did you not? A. Well, I was under the impression that we shouldn't do it. I mean, we had an agreement with the union to purchase material and we had all union men, so - Q. Why weren't [the orders for the next day] delivered? A. Well, I just didn't want any - to cause no trouble. I didn't want to get in trouble with the union over it. I mean, I knew that I had signed a contract with them. In his brief, the General Counsel contends that "it can be inferred that Trombley's statement to Morgan constituted a threat to use economic or other action to force or require Lovell & Morgan to cease doing business with Escondido Ready-Mix." I do not agree. I see no reason for inferring that by making the single remark, "Looks like I caught you again," Trombley was threatening to take economic or any other illegal action against Lovell & Morgan. There is no evidence of any earlier threat (although, according to Lovell, "that had not been the first time we had been caught using them"). Morgan made no mention of any subsequent threat, when giving his reasons for canceling the next day's order and for not purchasing concrete from Escondido thereafter. 2. Lovell' s version Lovell testified that he himself had a conversation with Business Representative Trombley; that "I would say it was September 3rd" or "a day after, something like that"; that "I believe it was in Poway," California; and that "I am pretty sure it was someone from the Laborer's Union" with Trombley (therefore not the Painters representative who accompanied Trombley on September 3 to the Lincoln Avenue jobsite). Lovell testified that to "the best of my recollection," Trombley "told me he had talked to my partner and said that he had caught him using Escondido Ready-Mix, and that's the way the conversation had started." According to Lovell: Well he said that if we continued to use it, that he had two things that he could do, or we could do, I believe he says, instead of he. They could either bring a suit against us, or I believe he said breach of contract or something to that effect, or they could cancel the contract with the union, and he said he would rather, or prefer doing that rather than to bring a suit against us. Lovell testified that he then concluded - without discussing itwith hispartner - that he would no longer use Escondido Ready-Mix, and that he told Trombley, "as far as I was concerned, I was pretty sure the same of Morgan, that we wouldn't use them any more, that that would be the end of it." Lovell testified that he had known Trombley for a number of years, that he thought Trombley was with the Cement Masons' International, and that he thought at the time that Trombley was speaking as a representative of Cement Masons Local 346, and therefore was speaking as one union member to another (Lovell himself being a member of Local 346). Thus, according to this testimony, the conversation took place before Lovell talked to Morgan about Trombley's visit to the Lincoln Avenue jobsite; Lovell thought at the time that Trombley was making the threat on behalf of Local 346; and because of this threat, Lovell then made a decision - without first consulting with Morgan - not to purchase concrete from Escondido again (despite Lovell's claim that "anything one of us did, the other one agreed to beforehand"). Lovell's pretrial affidavits, however, indicate that the conversation took place after Lovell had discussed the matter with his partner, and after the decision had been made to stop trading with Escondido. In his October 2 affidavit (given soon after the incident), Lovell stated vaguely that the conversation occurred "Sometime in September 1968, about the first week," but stated that he told the Building Trades representative "at that time we had stopped using [Escondido] Ready-Mix and as far as I know we wouldn't be using it again." (Emphasis supplied.) In Lovell's December 19 affidavit, he stated that it occurred a "day or so" after the Lincoln Avenue job (i.e., a day or so after September 3). I also note other inconsistencies between 'Lovell's testimony and his pretrial affidavits. In his December 19 affidavit, he stated that he did not know Trombley's name at the time, but "I knew [him] to be a business representative of the . . . Building Trades."' (Lovell admitted at the trial that the affidavit was "in error" in stating that he knew Trombley as a Building Trades representative.) In both his October 2 and December 19 affidavits, Lovell stated that Trombley said "he" could cancel the union agreement or file suit for its enforcement. Apparently recognizing the implausibility of this, Lovell testified, "I would rather think that he said `we,"' meaning the Cement Masons "or some other part of the union . . . or some of its affiliates or something." Such inconsistencies, together with the vagueness in Lovell's October 2 affidavit and his testimony, suggest fabrications. Testimony by Escondido President Jacob Brouwer has some bearing on whether the Poway conversation between Lovell and Trombley was an actual cause of the cancellation of business, or whether it was injected as an afterthought. Brouwer testified that on the afternoon or evening of September 3, Vice President Harold E. Reiff notified him that Morgan had canceled the order for the following day. (According to Reiff's testimony, Morgan canceled the order, stating that Trombley had come to the job and told Morgan, "We caught you at it again.") Brouwer testified, "We did not even think of making an issue out of this until we lost the customer completely, and then we went back to the case and then we have to think back again . . ." (Emphasis supplied.) Thus, there was no contention made at the time that Business Representative Trombley had threatened Lovell & Morgan, and apparently Escondido President Brouwer (who later filed the charge) had no information then about a conversation between Trombley and Lovell. It is in this contest that I note Trombley's version of what happened. He testified that his visit to the Lincoln Avenue jobsite on September 3 was such a casual, routine matter, he had no idea that anyone was trying to make something of it. Concerning his conversation with Lovell, he testified that it occurred when he was making a job check at Poway, sometime after he saw cement finisher Mullay acting belligerently on the Davard job (several days after September 3), and before he received notice of Escondido's September 30 charge. Lovell called him over 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and said, "Chuck, what about this Escondido Ready-Mix thing? I've got a problem ." Lovell explained that he felt obligated to buy concrete from Escondido when Escondido gives him the plans for future jobs, helping him obtain the contracts for the cement work . Trombley answered, "Well, Bob, that's something you've got to make up your mind what you're going to do. Now, you know you have your union agreement . This is your business . I can't tell you how to run your business . I have no authority to permit you , or to say to you, to go ahead and work the way you want to work . This is up to you how you run your business." Trombley positively denied saying that "he" or "they" could either terminate Lovell' s agreement or bring a lawsuit against him. 3. Concluding findings After considering all the evidence, I am convinced that the Poway conversation occurred at least several days after September 3; that Lovell & Morgan had already decided to stop trading with Escondido (for the reasons given by Morgan in his testimony); and that it was not until Escondido realized that it had "lost the customer completely" and "went back to the case" of Trombley telling Morgan, "We caught you at it again," that Lovell raised the matter of his conversation with Trombley on the Poway job. I further find that Lovell, who considered it to his advantage to continue dealing with Escondido, then began to assist Escondido in building a case against the Building Trades - misinforming the Board agents taking his affidavits. Of course, if Business Representative Trombley threatened to cancel Lovett & Morgan's union agreement to force that neutral contractor to stop doing business with Escondido, the threat would constitute a violation of Section 8(b)(4)(ii)(B) of the Act as shown by the General Counsel's excellent brief, citing applicable authorities. However, Morgan's credited testimony shows that Trombley made no threat of contract cancellation, or other self-help, at the Lincoln Avenue job on September 3 (the day Lovell & Morgan stopped trading with Escondido), and there is no evidence that Trombley thereafter threatened contract cancellation, except the disputed testimony given by Lovell. Having found a number of significant discrepancies between Lovell's testimony and his pretrial affidavits, indicating that Lovell was fabricating evidence to assist Escondido, I consider Lovell's remaining testimony questionable, and too slender a reed on which to base a finding that the Building Trades - on this one occasion - resortedto such a threat ot coercive action. Accordingly, I shall recommend dismissal of the Section 8(b)(4)(ii)(B) allegations. CONCLUSIONS OF LAW The General Counsel has failed to prove that the Union violated Section 8(b)(4)(i)(ii)(B) of the Act. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the following: ORDER The complaint is hereby dismissed in its entirety.