Operative Plasterers, Local 394

OPERATIVE PLASTERERS, LOCAL 394 Operative ,Plasterers' & Cement Masons' International Association, Local 394 and Burnham Brothers, Inc. Case 28-CB-704 November 9, 1973 DECISION AND ORDER BY MEMBERS JENHINS, KENNEDY, AND PENELLO On May 7, 1973, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Contrary to the Administrative Law Judge, our dissenting colleague would find that an object of the work stoppage was to cause the Employer to make contributions into the escrow fund. In so doing, he relies on credited testimony that Respondent's vice president, Reginald Watson, told two employees that this was the reason for the strike and on uncontrad- icted, but discredited, testimony of the Employer's attorney, Dennis Blackhurst, that Respondent's president told him that this was one reason for the stoppage. With respect to the former, the Administrative Law Judge found that to accept Watson's statement as the true motive for the, strike would ignore the record as a whole. We agree. Watson played no part in the decision to strike and was a layman who understand- ably could have difficulty in distinguishing between an escrow account and a trust fund.' Respondent engaged in no prior work stoppages over the Employer's failure, or any other employer' s failure, to pay into the escrow account. However, Respon- dent had previously struck over the Employer's prior failure to keep his trust fund payments current. The trust administrator's report shows that the Employer 1 Our dissenting colleague, in discussing an employee's testimony, states, "Me reference to a `trust fund' obviously related to the escrow fund." 2 That uncontradicted testimony, cannot be discredited solely by the witness' demeanor is not so clear an evidentiary rule as our colleague implies. Compare N.L.RB. v. Ray Smith Transport Co., 193 F.2d 142, 146 (CA. 5, 1951)-no lawful finding can be made contrary to direct, unimpeached, uncontradicted, and reasonable testimony-withN.L.RB. v. Radchffe, et at. d/bla Homedale Tractor & Equipment Company, 211 F.2d 309, 315 (C.A. 9, 1954)-the Board may decline to credit the testimony of interested witnesses, even though such testimony is not contradicted-and 207 NLRB No. 8 147 was chronically delinquent in such payments. The Employer asked his attorney to find out why the strike was called and was told the stoppage con- cerned the trust fund. The attorney did not mention the escrow account. The Employer, who was over $400 in arrears, made payment to the trust adminis- trator the next day. The work stoppage was called off shortly thereafter-the following day-when Res- pondent normally would have learned of the pay- ment. The Employer neither delivered the check to Respondent, as it had previously done, nor informed Respondent that payment had been made. Thus, the actions of both the Employer and the Respondent are consistent with, and indicate, the fact that the trust fund delinquency was the object of the strike. Our dissenting colleague would overrule the Ad- ministrative Law Judge's credibility resolution against Blackhurs`'s testimony on the grounds that "the trier of fact is not free to disregard the [uncontradicted] testimony of a witness because he is not impressed by the bearing or delivery of that witness." 2 That situation, however, is not present in this case. The Administrative Law Judge found that the witness' testimony was discredited not only by his demeanor, but also by the witness' changing testimony, the circumstances of the case, and the record as a whole. Blackhurst originally testified about only the trust delinquency. After being shown his affidavit he testified about the escrow fund. In addition, the Employer, credibly without contradic- tion, testified that Blackhurst told him the stoppage was over the trust fund. The testimony that Black- hurst omitted mention of the escrow account is direct evidence that Blackhurst did not consider it to be a cause of the work stoppage and circumstantial evidence that it had not been mentioned by Respon- dent's president. A trier of fact need not accept uncontradicted testimony as true if it contains improbabilities or if there are reasonable grounds for concluding that it is false. It is well settled that a witness' testimony may be contradicted by circumstances as well as by statements and that demeanor may be considered in such circumstances.3 And the Board gives great weight to an Administrative Law Judge's considera- tions of demeanor.4 For these reasons We find that the Judge's credibility resolution is not contrary, to the clear preponderance of all relevant evidence. N.L.RB. v. Local 138, International Union of Operating Engineers, AFL-CIO [Zara Contracting Co., Inc.], 293 F.2d 187, 192 (C.A 2, 1961)-a finding based solely on the trier's disbelief of uncontradicted evidence is not necessarily invalid. Where, as here, the trier of fact is also the judge , he can determine whether the situation warrants consideration of demeanor . If his determina- tion is reasonable it should not be overturned. Such is the case at bar. For further discussion of the issue see 62 ALR 2d 1191. s Jones on Evidence, 29:13 (6th ed. 1972). a In Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F 2d (Continued) 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, even were we to credit Blackhurst's testimony, it would show only that Respondent's president made the statement. It would be evidence, but not conclusive proof, of motive. As indicated in the discussion of Watson's testimony, the record as a whole belies the contention that the escrow account was a motive for the work stoppage. Accordingly, we shall adopt the Decision of the Administrative Law Judge and dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER KENNEDY, dissenting: The complaint alleged that Respondent violated Section 8(b)(3) of the Act by engaging in a work stoppage and by refusing to refer employees to the Employer with an object of compelling the Employer to place in escrow a contractual wage increase disapproved by the Construction Industry Stabiliza- tion Committee (CISC). Respondent admitted the work stoppage, but denied that an object thereof was as attributable by the complaint. In order to prove that the work stoppages had the object described in the complaint, the General Counsel presented as witnesses two working fore- men, John Natale and Garland Bartlett, members of the Respondent Union, who testified that about the middle of June 1972, while working at projects of the Employer, Reginald Watson, assistant business agent and vice president of Respondent, told them to stop working and report to the union hall because the Employer was not placing money in escrow for wages. The Administrative Law Judge credited this testimony against the denials of Watson. On its face, this credited testimony directly establishes the prohibited object of the work stoppage. However, the Administrative Law Judge refused to give effect to Watson's statement because it is "so patently at odds with other clearly established facts that no effective force can be given to it." According to the Adminis- trative Law Judge, Watson played no part in the decision to call the work stoppage and there is no evidence that his statement was consistent with Respondent's policy in dealing with other employers who had ceased making similar escrow payments. I cannot agree that Watson's statement was so at odds with other evidence in the record that no effect can be given to it. There is no suggestion in the record as to why Watson, who admittedly was authorized to call the work stoppage, erroneously attributed the cause to the failure to make escrow payments. Moreover, there is other testimony which corroborates Watson's statement as to the reason for the work stoppage. Thus, when Foreman Bartlett on Watson's instructions called at the union hall and spoke to Parker, Respondent's secretary-treasurer and its principal official, the latter told him, according to Bartlett, "that Burnhams was behind on their health and welfare and they were not paying into the escrow fees." Bartlett also testified: Mr. Parker told me that afternoon that the Burnhams was some $400 delinquent in their health and welfare and they also was not paying into their trust fund, that he didn't want me to continue working for them until we got things squared away ... . The reference to a "trust fund" obviously related to the escrow fund. Bartlett gave further testimony concerning his conversation with Parker which indicates Respondent's concern about the Employ- er's refusal to make escrow fund payments. Thus he recalled: Mr. Parker told me that afternoon that they had a meeting in Scottsdale on the funds that was due into the escrow and some of the contractors was paying it and some wasn't, and most everyone in the Valley was paying it except one or two, but the Burnhams hadn't paid a dime in on it. Parker did not deny the foregoing testimony of Bartlett. Further corroborative of the General Counsel's contention that Watson expressed Respondent's reasons for calling the work stoppage is the testimo- ny of the Employer's attorney, Blackhurst. The attorney testified that after the work stoppage in June he telephoned Parker to ask the reason for the stoppage. Parker replied: ... that there was a shortage on, I believe, the health and welfare funds and that also the Burnhams were not paying money into the escrow for the January I increase. Parker did not deny the attorney's testimony. Although he said that he was unable to recall the words used during this conversation, he "assumed" that the attorney's version was true. Notwithstanding that Parker, who was in the best position to know, accepted the accuracy of the attorney's version of their conversation, the Administrative Law Judge did not credit it because he was "not impressed by the demeanor of Blackhurst [the attorney] and received the impression from his bearing and delivery that his 362 (C.A. 3, 1951), the Board stated, "[A Is the demeanor of witnesses is a factor of consequence in resolving issues of credibility, and as the Trial Examiner, but not the Board, has had the advantage of observing the witnesses while they testified, it is our policy to attach great weight to a Trial Examiner's credibility findings insofar as they are based on demeanor OPERATIVE PLASTERERS, LOCAL 394 149 version of the phone conversation was not accurate." This is an impermissible application of the demeanor principle. When witnesses give conflicting versions of an event, demeanor is a proper factor to be considered in resolving the conflict. But when adverse witnesses agree as to a conversation between them, as here, there is no credibility problem because there is no conflict. Under these circumstances, the trier of fact is not free to disregard the testimony of a witness because he is not impressed by the bearing or delivery of that witness. Demeanor is a last resort in resolving credibility; it does not have sufficient scientific validity to justify creating a credibility problem. To summarize: The Administrative Law Judge credited testimony of the foremen witnesses that Respondent's assistant business agent told them to stop work because the Employer was not making contributions to the escrow fund. The Employer attorney's uncontradicted testimony is that Respon- dent's business agent told him that one of the reasons for the work stoppage was the failure to make escrow fund contributions. Foreman Bartlett's uncontradict- ed testimony of his conversation with Parker after the work stoppage was confirmatory of Respondent's concern about nonpayment into the escrow fund as well as of nonpayment of health and welfare benefits. This testimony proves, in my opinion, the General Counsel's complaint allegation that one of the reasons for the June 1972 work stoppage at the Employer's projects was the failure to make escrow payments which the CISC had forbidden.5 I realize that the Administrative Law Judge has credited Parker's testimony that the sole reason for the June 1972 work stoppages was the Employer's failure to pay money owed to the health and welfare trust fund. But the Board is not bound by his credibility determinations As stated by the Board in the Poinsett Lumber case: 7 In Standard Dry Wall Products Inc., [91 NLRB 544] the Board said, "It is our policy to attach great weight to a Trial Examiner's credibility findings insofar as they are based on demeanor. Hence we do not overrule a Trial Examiner's resolutions as to credibility except where the clear preponderance of all the relevant evidence con- vinces us that the Trial Examiner's resolution was incorrect." This policy is grounded in the fact that, unlike the Board, the Trial Examiner, by virtue of his direct observation of witnesses at the hearing, has the opportunity to observe and evaluate factors of appearance and demeanor of witnesses. However, as we also stated in Standard Dry Wall Products Inc., in contested cases, "The Act commits to the Board itself, not to the Board's Trial Examiner, the power and responsi- bility of determining the facts as revealed by a preponderance of the evidence," and the Board is not bound by the Trial Examiner's findings of facts, but bases its findings upon a de novo review of the entire record. It seems to me that the clear preponderance of the relevant testimony set forth above establishes that the Administrative Law Judge was incorrect in crediting Parker's explanation of the reason for the work stoppage. Accordingly, I would find, in accord with the contention of the General Counsel, that one of the objects of the work stoppage was to cause the Employer to make contributions to the escrow fund in violation of the CISC prohibition. In view of his finding as to Respondent's object in causing the work stoppage, the Administrative Law Judge found it unnecessary to decide whether it was a violation of Section 8(b)(3) if the work stoppage were intended to compel the Employer to place in escrow a contractu- al wage increase disapproved by the CISC. I would proceed to consider this issue either by remanding the case to the Administrative Law Judge or by the Board directly. 5 The Administrative Law Judge also rejected the General Counsel's contention that, in addition to the work stoppage , Respondent refused to refer employees to the Employer for the same reason-the failure to make escrow payments. In view of the fact that the remedy would be the same, I consider it unnecessary to pass on this aspect of the Administrative Law Judge's ruling. 6 N.L.R.B. v. Bogart Sportswear Mfg. Co., Inc., 461 F.2d 847 (C.A. 5, 1972); Sign and Pictorial Union Local 1175, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO [Webster Outdoor Advertising Co.] v. N.L.R.B., 419 F.2d 726 (C.A.D.C., 1969); Halliburton Company v. N.LR.B., 409 F.2d 496 (C.A. 5, 1969). 7 Poinsett Lumber and Manufacturing Company, 147 NLRB 1197, 1198. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case, held on March 27, 1973, is based upon unfair labor practice charges filed by Burnham Brothers, Inc., herein called the Employer, on June 15, 1972, and a complaint issued on October 20, 1972, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Acting Regional Director for Region 28, alleging that Operative Plasterers' & Cement Masons' International Association, Local 394, herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(b)(3) of the National Labor Relations Act. Respondent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following: 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED Burnham Brothers, Inc., the Employer, an Arizona corporation, with its principal place of business in Mesa, Arizona, does business in Arizona - as a lathe, plastering, and drywall contractor in the building and construction industry, and during its normal course of business annually receives through Arizona suppliers materials valued in excess of $50,000 shipped to said suppliers from outside the State of Arizona, and annually furnishes to firms directly involved in interstate commerce services valued in excess of $500,000. The parties stipulated, and I find, that the Employer is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Operative Plasterers' & Cement Masons' International Association, Local 394, the Respondent, is a labor organization within the meaning of Section 2(5) of the Act. i III. TILE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues The Employer by virtue of its membership in an association of plastering contractors, Associated Plastering Contractors of Arizona, Inc., herein called the Association, is bound by that collective-bargaining agreement entered into by the Respondent and the Association on June 1, 1971, herein called the Association contract. The Associa- tion contract is effective from June 1, 1971, through May 31, 1973. It provides for certain wage increases effective June 1, 1971, January 1, 1972, and June 1, 1972. Prior to the negotiation of the Association contract, the President of the United States, acting under the authority of the Economic Stabilization Act of 1971, promulgated Execu- tive Order 11588 to stabilize wages in the unionized portions of the construction industry (WSC 501:61).1 This order established a Construction Industry Stabilization Committee, herein called CISC, to stabilize wages in the unionized portions of the construction industry, and provided, inter a1ia, that all wage increases and other economic adjustments in the construction industry were to have the approval of the CISC before they could be put into effect. The order also provided for the creation of craft dispute boards, composed of representatives of labor and industry, for each craft to assist in resolving wage disputes and to pass in the first instance, subject to CISC review, on the acceptability of negotiated wage increases. The craft dispute board set up to assist the CISC in the plastering industry was the Plasterers & Cement Masons National Craft Board.2 The Respondent and the Association on June 1, 1971, when they entered into the Association i WSC refers to the BNA volume entitled "wage and Salary Controls " 2 On August 15, 1971, the President, acting under the authority of the Economic Stabilization Act of 1970, promulgated Executive Order 11615 (WSC 501:31), establishing the 90-day wage and price freeze, commonly known as Phase I of the economic stabilization program. Then, with the advent of Phase II on November 14, 1971, there became effective Pay Board contract, knew that the wage and fringe benefit provisions would have to be approved by CISC. To provide for this contingency, article 29 of the Association contract entitled "Presidential Executive Order 11588," was negotiated by the parties. The article reads in its entirety: The parties understand that because of the President's Executive Order 11588, the increases in wages and fringe benefits reflected in this agreement cannot go into effect until they are approved by the Construction Industry Stabilization Committee. However, it is agreed by the parties under this agreement that once the wages and fringe benefits are approved the increases will go into effect retroactively to the effective date of the agreement. Therefore, the Contractors will establish an escrow account in Great Western Bank, Phoenix, Arizona. During the period of time between the effective date of the Agreement and approval by the Construction Industry Stabilization Committee of the increases negotiated herein, the Contractors will pay to the employees the rates contained in the prior Agreement between the parties and immediately deposit in the escrow account the increase portion of the newly- negotiated rates. Once final approval has been given by the Construction Industry Stabilization Committee, the amounts accumulated in escrow (to the extent ap- proved) shall be paid to the employees involved retroactively to the effective date of the Agreement; any excess (not approved by the Construction Industry Stabilization Committee) shall be returned to the depositing Contractors. At that point, the escrow account shall be closed. Out-of-town contractors shall be required to follow the same procedure. Each deposit into the escrow Account shall be accompanied by a report with a copy to the Union showing the name of the Contractor, the Union account number, the names of the affected employees, the hours worked by them and such additional information as may be necessary to account for the amount deposited on behalf of each such employee in the payroll period covered. Notwithstanding any other provision of this Agree- ment, and in particular any "no-strike" clause that may be contained herein, the Union shall be free to strike or engage in any lawful, primary, economic action over any dispute between the parties involving wages and fringe benefits, until such time as the rates negotiated by the parties have been given final approval by the Construction Industry Stabilization Committee under E.O. 11588. If this agreement is approved by the Construction Industry Stabilization Committee under Executive Order 11588, it shall not be reopened during the term of the agreement except by mutual agreement. If this agreement is not approved by the Construction Industry Stabilization Committee under Executive Order No. 2 issued by the Pay Board under the authority delegated it by Executive Order 11640 (6 CFR 159). That order delegated to the CISC authority to administer Pay Board policies with respect to wages in the construction industry, and provided that all wage increases and economic adjustments in the construction industry were to have the approval of CISC before they could be put into effect. OPERATIVE PLASTERERS, LOCAL 394 151 Order 11588, and Executive Order 11588 is rescinded or suspended at any time, during the term of this agreement, then, in that event, notwithstanding any other provision contained in this agreement, the parties hereto shall be required to renegotiate all wage and fringe benefit provisions contained in the agreement, provided, however, that the wage and fringe benefits shall in no event exceed those contained in this agreement. As described below, the CISC reviewed the various wage increases included in the Association contract, approved the one effective June 1, 1971, and rejected the others. It is in this context that the General Counsel alleges that Respondent violated its obligation to bargain in good faith with the Employer under Section 8(b)(3) of the Act by causing work stoppages and refusing to refer employees to the Employer with an object of causing the Employer to place in escrow the wage increases disapproved by the CISC. B. The Decision of the CISC Concerning the Wage Increases Provided for by the Association Contract Pursuant to the Presidential Orders and the order of the Pay Board, the wage increases in the Association contract, effective June 1, 1971, January 1, 1972, and June 1, 1972, were submitted to CISC which on about January 25, 1972, notified the parties: [CISC] has found acceptable only the first step of the economic adjustments provided for in the contract to take effect on June 1, 1971, and the local parties are free to place them into effect. However, the committee is returning the remaining wage and salary increments provided for in the agreement to the [Plasterers & Cement Masons' National Craft Board] without approval. Those provisions of the contract returned to the craft board without approval cannot be placed into effect and the local parties should proceed to modify this agreement and return it to the craft board for review. The Association and Respondent entered into negotia- tions with the aim of making the January 1, 1972, and June 1, 1972, wage increases acceptable to the CISC. On or about June 13, 1972, they entered into an agreement which decreased the amount of the contractual increases effective January 1, 1972, by 25 cents an hour, and June 1, 1972, by 45 cents an hour, and negotiated a wage increase of 70 cents an hour effective January 1, 1973. This modification of the Association contract was submitted to, and on August 28, 1972, eventually rejected by, the CISC which notified the parties: [CISC] after careful consideration of the agreement finds that the economic adjustments due on January 1, 1972, June 1, 1972, and January 1, 1973, are substantial increases and are inconsistent with the criteria utilized by the Committee. Therefore, the Committee is returning this agreement to the Craft Board and advises that no increase on January 1, 1972, and increases of 454 on June 1, 1972 and 200 on January 1, 1973 would be appropriate. The Committee suggest that steps should be taken by the parties to modify this agreement and to return it to the craft board for review. The Respondent and the Association asked the CISC to reconsider this decision and on January 22, 1973, CISC notified the parties: [CISC] is returning the following proposed economic adjustments to the craft board without approval: January 1, 1972, June 1 , 1972 and January 1, 1973 increments. The Committee reaffirms its suggestion that no increase on January 1, 1972; 454 on June 1, 1972 and 20¢ on January 1, 1973 would be appropri- ate. The parties should proceed to modify the agree- ment and submit it to the Craft Board for review and resubmission to the Committee. Thereafter, the Respondent and Association submitted a new proposed wage package, through the Craft Board, to the CISC. At the time of the hearing in this case, the parties had been notified that CISC had approved this modifica- tion provided it was further modified in certain respects. The Respondent and the Association are currently renego- tiating the matter. Effective November 14, 1972, the Pay Board issued a number of regulations on the subject of the stabilization of wages and salaries. In connection with these regulations, the Pay Board issued what are known as "Pay Rulings." One of these rulings which deals with escrow accounts, Pay Board Ruling 1972- 125, was issued on December 13, 1972, and reads as follows: (WSC 501:2130): Issue Would it constitute a violation of Economic Stabili- zation Regulations, § 201.41, 37 Fed. Reg. 24971 (1972), for an employer to place negotiated wage increases in an escrow account pending approval by CISC and the Pay Board, respectively? Ruling No. Section 201.41 prohibits the payment or receipt of any portion of a wage and salary increase not permitted by the Economic Stabilization Regulations or by decision or order of the Pay Board or its delegate. In the situation where wage increases are delivered to and remain in an escrow account pending approval by either CISC or the Pay Board, depending on which body has jurisdiction, with reversion to the employer upon disapproval, such increases are neither paid by the employer nor received by the employees. Note, however, if the escrow agreement does not provide for reversion to the employer in the event of, and immediately upon, denial of the exception by CISC or the Pay Board, such wages and salaries would be considered paid and received in the year that such wages and salaries are placed in escrow and such payment would constitute a violation of the Regula- tions. See Examples (4) and (5) of Economic Stabiliza- tion Regulations, § 201.41, 37 Fed. Reg. 24971 (1972). Examples (4) and (5) of the Economic Stabilization Regulations, sec. 201 .41, referred to in the above ruling read, in pertinent part, as follows: (WSC 501: 1035, 1036): Example (4). Assume the same facts as in Example (1), except the parties also agreed that the increase in excess of the standard would be paid into an escrow account pending approval or disapproval of the request for exception. The terms of the escrow agreement provide that to the extent the exception is granted 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD escrowed monies will be paid to the employees and to the extent that exception is disallowed the portion disallowed will revert to Employer A. The escrow agreement would terminate at that time. Since the terms of the escrow agreement provide only for payment of amounts approved by the Pay Board and reversion of the disapproved amounts, the parties to the contract did not violate the provisions of this chapter. Example (5). Assume the same facts as in Example (1) and (4) except that the terms of the escrow agreement provide that disapproved amounts shall continue to be paid into the fund and shall be paid out to the employees upon the relaxation or cessation of economic controls or when otherwise legally allowable. Since the terms of the escrow agreement provide for beneficial ownership by the employees of the escrowed amounts, such amounts constitute deferred compensa- tion for services rendered in the control year such amounts are paid into escrow. Continued payment of such amounts by Employer A after a disallowance by the Pay Board results in a violation of the provisions of this chapter by all parties at interest to the agreement. Consistent with the Pay Board Ruling 1972-125, prior to the ruling the secretary of the CISC by memorandum of June 7, 1972, had notified all of its craft boards: At its meeting of June 2, 1972, the CISC considered the matter of placing momes in escrow in connection with economic adjustments in agreements negotiated before November 14, 1971 where the CISC has ruled adjust- ments unreasonably inconsistent with stabilization policies. In the situation in which an increment has been disapproved and a lesser amount has been authorized, monies in excess of the authorized amount may neither be placed in escrow nor continue to be placed in escrow. As indicated above, in January 1972 and August 1972, the Respondent and the Association were notified that the CISC had rejected the January 1, 1972, and June 1, 1972, wage increases provided for in the Association contract. By the end of August 1972, the Association had returned to its members all of the money placed in the contractual escrow account to cover these increases. Even prior to this date, however, virtually all of the approximately 12 to 14 Association members covered by the Association contract, with the knowledge of the Union, had stopped placing money in escrow. One of these employers ceased making payments in January 1972, two in February 1972, one in March 1972, one in April 1972, one in May 1972, one in July 1972, and another early in August 1972. There is no evidence or contention that, in an effort to compel these employers to place money in escrow, the Respondent called work stoppages or refused to refer employees. To the contrary, the Association's executive secretary, John Whitney, the individual who would normally be informed by the members about such matters, as a witness for the General Counsel, credibly testified that none of these employers had informed the Association that the Respon- dent had either caused work stoppages or had refused to refer employees to jobs to compel the employers to continue to place money in escrow. C. The Union's Dispute With the Employer Over Health and Welfare, Pension, and Vacation Contributions Allegedly Owed by the Employer Under the Terms of the Association Contract The Association contract obliged the Employer on behalf of its employees to pay money into various trust funds-health and welfare, pension, and vacation-herein collectively called either the trust fund or the health and welfare trust fund. The trust fund is administered by an organization known as Fund Administrative Association of Arizona, Inc., herein called the Administrator. From at least June 1, 1971, through July 1972, the Administrator during its normal course of business almost monthly transmitted audits of the Employer to the Respondent showing that the Employer was delinquent in making payments to the trust fund, and owed the fund money. Between June 1971 and June 1, 1972 , the Respondent, through its representatives, complained to the Employer about this matter and on several occasions the Respondent called work stoppages for the purpose of pressuring the Employer into paying money allegedly owed to the trust fund.3 Nevertheless, in May and June 1972, a copy of the Administrator's audit of the Employer's account sent to the Respondent showed that the Employer still owed the trust fund in excess of $3,000. In reaching these conclusions, I have not decided whether in fact the Employer, as alleged by the Adminis- trator and Respondent, owed money to the trust fund during the periods relevant to this case. The merit of the Respondent's claim is only relevant insofar as it reflects upon the Respondent's good-faith belief that the Employer owed such money. On this point the whole record, including the audits submitted to the Respondent by the Administrator in the normal course of business, and the pre-June 1972 complaints and work stoppages by the Respondent over the alleged shortages, preponderately establish the Respondent's good faith in this matter. The fact that the Administrator apparently negligently mailed forms to wrong addresses and that the Respondent's attorney apparently ignored a letter from the Employer's attorney in early February 1972 seeking to discuss the trust fund money allegedly owed by the Employer does not in my opinion establish that the Respondent's long-standing dispute with the Employer over the trust fund delinquen- cies was a sham. D. The Events Leading Up to and Surrounding the Filing of the Employer's Charge in this Matter On or about January 12, 1972, the Employer through its attorney, Dennis Blackhurst, by letter notified the Respon- dent and the Association that it was resigning from the Association. The letter, in its entirety, reads: As you know, this office represents Burnham Brothers, Inc., a member of your Association. We are enclosing herewith the check of Burnham Brothers, Inc. 3 The Association contract outlaws all work stoppages except in certain situations, one of which is a failure to pay the contractual fringe benefits. OPERATIVE PLASTERERS, LOCAL 394 153 in the amount of $100.00 which will pay its dues to the Association in full through January 1972. You are aware from our previous discussions that the Burnham brothers have been considering resigning from the Association for some time. There have been several occurrences indicating to them that the Associ- ation cannot represent them in a satisfactory manner. I cite only one at this time, that being the failure of the Association, through its attorney, Mr. Foster Mori, to resolve the dispute with the Plasterers Union attorney over the sum of approximately $1,500.00. Please be advised that Burnham Brothers, Inc. is hereby resigning from the Association. It is my understanding that Burnham Brothers, Inc. has the approximate sum of $6,000.00 in an account with the Association, which sum the Association is holding until a ruling is made by the Construction Industry Stabilization Committee regarding approval of the labor agreement between the Association and the Plasterer's Union. This is- in addition to the sum of approximately $1,500.00 earlier mentioned which is being held. We expect these sums to be returned, or accounted for by the Association, when decisions are made regarding such funds. Shortly after the receipt of this letter, the Respondent's secretary-treasurer, Donald Parker, concerned about the Employer's escrow account payments covering the con- tractual wage increase of June 1, 1971, spoke with Attorney Blackhurst who arranged a meeting between Parker and the Employer's president, Robert Burnham. The meeting took place in Blackhurst's office on January 18, 1972, at which time Burnham and Parker agreed to set up a joint account at a local bank into which the Employer would deposit enough money to pay retroactively the Association contract's June 1, 1971, increase in wages. On January 18, 1972, a joint account was opened and the Employer deposited in excess of $15,000 to cover its contractual obligation to pay, if necessary, the June 1, 1971, contractu- al wage increase. There is no evidence that Parker in January 1972, when he spoke to either Blackhurst or to Burnham, demanded that the Employer pay into an escrow account any money relating to the contractual increase effective January 1, 1972. Subsequent to the opening of the joint bank account pertaining to the June 1, 1971, contractual wage increase, CISC, as described earlier, on January 25, 1972, informed the parties that it had found this wage increase acceptable. By letter dated February 1, 1972, Parker informed the Employer of this fact. The Employer, using the money contained in the joint account and with the assistance of the Union, paid those employees entitled to receive the June 1, 1971, wage increase. The letter of February I, 1972, also informed the Employer that the CISC had rejected the January 1, 1972, contractual increase of $1 per hour and, in this regard, Parker requested that the Employer pay $1 per 4 The remarks attributed to Watson are based on the credible testimony of Natalie and Bartlett. To the extent he contradicted the testimony of Natalie, Watson was not an impressive witness. I also reject Watson's testimony that, after speaking with Natalie on June 13, Watson was not able to locate another crew on the Hallcraft job. I find Watson located Bartlett and credit Bartlett's undenied version of what Watson said to him. 5 The remarks attributable to Parker are based on Bartlett's credible each hour worked by each employee into the established escrow account provided in the Association contract. The Employer just ignored this portion of the letter and placed no money in escrow covering the January 1, 1972, contractual wage increase. There is no contention or evidence that at this time or that shortly thereafter the Respondent engaged in any conduct calculated to cause the Employer to continue to make wage payments into an escrow account. Also, there is no contention or evidence that the Union ever again mentioned this subject to the Employer until the events of about June 13, 1972, described below. In the middle of June 1972, the Respondent directed its members employed by the Employer to cease working on two projects, the Hallcraft and Scott jobs. On or about June 13, Working Foremen John Natalie and Garland Bartlett were employed by the Employer on the Hallcraft job. The Respondent's assistant business representative, Reginald Watson, on that day at different locations on this job told Natalie and Bartlett to direct their crews to stop work and to report to the union hall, stating that the Employer was not placing money in escrow for wages. Bartlett, who voiced a desire to continue working, was told by Watson to speak with Parker, the Respondent's secretary-treasurer and its principal official.4 Natalie and his crew and Bartlett and his crew stopped work and that same afternoon checked in at the Respondent's hiring hall at about 4 p.m. as instructed. Bartlett, following Watson's instructions, at this time went into Parker's office to determine when he could return to work for the Employer. Parker informed Bartlett that the Employer was behind in its health and welfare payments and also mentioned the fact that the Employer was not placing money in escrow. In this regard, Parker told Bartlett that some of the contractors were placing money in escrow and some were not, that almost everyone in the valley was paying into escrow except for one or two, but that the Employer had not placed any, money in escrow. At this point, Parker, in the presence of Bartlett, received a phone call from the Employer's attorney, Blackhurst, and at the conclusion of his conversation with Blackhurst Parker told Bartlett that the Employer had admitted that it had made a mistake of about $400 in the health and welfare payments and was going to take care of that matter. Parker told Bartlett not to return to work with his crew until the Employer had paid the money owed to the health and welfare fund, and that Bartlett should not return to work until the Respondent had received this money in its office.5 As Bartlett testified, "the gist of the thing [was] that Parker did not want [me] to return to the job until the health and welfare funds had been received.", Parker further instructed Bartlett not to return to work the next day until he, Bartlett, checked with the Union. That same afternoon Bartlett called the Employer-Glenn Burnham-who told him that the Employer had found an testimony which was not denied by Parker. B By conditioning the end of the work stoppage on the Employer's delivering a check personally to the Respondent, Parker was using a device he had successfully used earlier. Glenn Burnham, the Employer's secretary- treasurer, testified that the first time the Respondent in 1971 called a work stoppage over money owed the health and welfare fund he had to hand deliver a trust fund check to Parker to get the employees back to work 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD error on its part of about $400 in the health and welfare payments and that it would hand carry the money "there" by 9 a.m; the next morning and for Bartlett to get his crew and return to work the next morning. The next morning, June 14 or 15--sometime prior to 8:30 a.m.-Bartlett called the Respondent's office and asked Watson if the Respondent, as promised by the Employer, had received the money owed by the Employer. Watson told Bartlett'it was too early and refused to advise him whether he should return to work. Bartlett, however, returned that morning to work at the Employer's Scott job. Also returning to work on this job, at the same time, was Natalie. That afternoon, June 14, at about 2:30 p.m., Watson came on to the jobsite where Bartlett and Natalie were working and in the presence of Natalie placed his hand on Bartlett's shoulder and told him to stop work, that the crew should go back to the union hall and place their names on the out-of-work list. Natalie and Bartlett and the rest of the crew stopped work. The next morning, June 15, Natalie and Bartlett signed in at the union hall as being out of work. In the meantime, the Employer-Glenn Burn- ham-had been informed by Bartlett what had taken place and he told Bartlett to hold tight as the Employer was in the process of getting an injunction against the Union. Later Burnham told Bartlett that the Employer had gotten its injunction and asked him to` return to work with his crew the next morning. Bartlett communicated this to Watson who advised him to call the Respondent's office the next morning, explaining "I have nothing on record now." The next morning Watson informed Bartlett that he knew nothing about the alleged injunction against the Union and for Bartlett to use his own judgment in deciding whether to return to work. Both Bartlett and Natalie returned to work that day. As found above, Bartlett testified that in mid-June 1972, after being directed to stop working by Watson, he went to Parker's office at which time Parker, on the phone, spoke to the Employer's attorney. The Employer's attorney, Blackhurst, testified that on or about June 14, 1972, the Employer-Robert Burnham-notified Blackhurst of a work stoppage and Blackhurst immediately telephoned Parker and asked him the reason for the work stoppage. According to Blackhurst, "[Parker] informed me that there was a shortage on, I believe, the health and welfare funds and that also the Burnhams were not paying money into the escrow for the January 1 increase." Blackhurst testified he told Parker that there had been a bookkeeping mixup on the health and welfare and the Employer was in the process of getting the money and the Union would have it the next day, but the Employer was not going to pay any money into the escrow until the CISC told them to do so. Parker stated the Employer and one or two others were the only contractors not making the escrow payments. Attor- ney Blackhurst again repeated that the Employer would not make any such payments until CISC put its stamp of approval on the January 1, 1972, increase. Blackhurst then testified he had no recollection of Parker's answer, and specifically testified that the subject of the Union's referral of employees did not come up during this conversation. But, after looking at the affidavit he had submitted to the Board on June 22, 1972, in connection with the charge that he filed for the Employer in this case , Blackhurst later testified, "I do recall that Parker indicated that unless they paid into this escrow account the union was not going to supply them with men." The words attril?uted to Parker during the course of the Parker -Blackhurst phone conver- sation of June 14, as previously set -out, are based on Blackhurst's testimony. Parker testified he had no inde- pendent recollection of what he, Parker, said to Blackhurst during this conversation but that on three or four occasions he had spoken to Blackhurst about the Employer's delinquency in making health and welfare payments. Parker also testified that under the circumstances-his inability to independently recall the words he used on this occasion-he would "assume" Blackhurst's version of what was said was true. I received the impression that Parker was a witness sincerely attempting to accurately recall what he said to Parker but without success, that his inability to remember was caused by the lapse of time and not by a desire to forget or hide the truth . On the other hand, I was not impressed by the demeanor of Blackhurst and received the impression from his bearing and delivery that his version of the phone conversation was not accurate. In changing his testimony on the matter of whether Parker said anything about the Union referring employees to the Employer, after looking at his affidavit, Blackhurst did not seem to me to be at all confident that in fact Parker made this statement but rather he impressed me as telling the truth when he initially testified that Parker did not mention this subject. Accordingly, I reject this portion of his testimony as not credible. I also received the impression that Blackhurst emphasized certain parts of Parker's conversation out of proportion to their proper scale in the context of the conversation. The tenor of Blackhurst's testimony is that Parker indicated it would take a payment of both the health and welfare and the escrow money to settle the work stoppage. I do not believe him. Not only was he an unimpressive witness, this testimony does not jibe with the record as a whole. Thus, Foreman Bartlett testified that after Parker's phone conversation with Blackhurst that Parker told Bartlett, in effect, that if the Employer, as promised, paid the money owed to the health and welfare trust fund the men could return to work. Even more important, Robert Burnham testified he telephoned Attorney Blackhurst the day of the work stoppage and asked him to find out from the Union what the problem was and that Blackhurst later told him that the reason for the stoppage was "over a $400 shortage" in the health and welfare trust fund. There was no mention by Blackhurst to Burnham that the Union was also demanding that the Employer place money in escrow. Blackhurst did not explain why he failed to tell his client that one of the reasons the Union was causing the work stoppage was the Employer's failure to place money in escrow. Based on the foregoing, I find that the clear message conveyed by Parker to Blackhurst was that the work stoppage was caused by money owed the health and welfare trust fund, that it could be ended by remedying this matter, and I further find this was in fact the message conveyed by Blackhurst to the Employer. Burnham, when told that the work stoppage had been caused by a shortage of money in the Employer's health OPERATIVE PLASTERERS, LOCAL 394 155 and welfare trust fund account, proceeded to make out a check for the shortage, which had been brought to his attention, which he deposited in the trust fund's bank account on or about June 14 or 15 at 9 a.m. There is insufficient evidence to establish, as contended by the General Counsel, that the Respondent, after it learned that the money had been deposited with the trust fund, induced further work stoppages. Of course, if there were further work stoppages, it would cast doubt on whether the Respondent really was concerned about the Employer's health and welfare delinquencies or whether it was using this as an excuse to compel the Employer to place money in escrow. The General Counsel contends there was a further work stoppage. In my opinion the record does not establish such a Respondent-induced stoppage. The de- scription and time sequence of the work stoppage, set out above, is based on a composite of the testimony of Blackhurst, Watson, Bartlett, and Natalie which establish- es that work stoppages on two jobs took place on consecutive days in the middle of June prior to the filing with the Board of the instant charges by Attorney Blackhurst on June 15, 1972, at 12 noon. I realize that Natalie at one point testified that the work stoppage on the Scott job took place on either June 20 or June 21 and that Bartlett at one point testified that there were two or three stoppages-"I think one around the 13th or 14th and one around the 19th [of June ]." But Natalie did not testify about a June 20 or June 21 work stoppage nor did Bartlett offer any testimony about a work stoppage which took place on or about June 19. To the contrary, when the testimony of Bartlett, Natalie, Watson, and Blackhurst is read as a whole, it is clear that the only competent evidence of work stoppages initiated by the Respondent during June are the work stoppages described above on' the Hallcraft and Scott jobs which occurred on consecutive days immediately prior to the filing of the charges by Blackhurst in this case on June 15, 1972. This question-whether the Respondent continued to induce work stoppages even after it learned that the Employer, as promised, had delivered a check for its health and welfare delinquency-plays a significant role in the' case. Yet, Blackhurst, when he initially testified, although he testified about the Respon- dent's induced work stoppages, did not mention the fact that there was a further work stoppage after he filed his charges on June 15 with the Board. He was later recalled, however, and this time testified that "several" days after Robert Burnham deposited the check on June 14 with the trust fund there was another work stoppage at which time the Employer on June 21 went into the State Superior Court and enjoined the picketing. Blackhurst, as was the case with his other testimony, did not unpress me when he gave this testimony which involved a matter-the fact of a work stoppage initiated by the Respondent which he was not competent to testify about and which the General Counsel did not-support by competent testimony. In fact, other evidence' adduced by the General Counsel to establish a subsequent work stoppage did not corroborate Blackhurst. Thus, Glenn Burnham testified that on or ,7 Pursuant to the terms of the Association contract, the Employer is obligated to here all employees from the Respondent's hiring hall and only if the Respondent fails to furnish employees within 48 hours can the Employer about the day after his brother, Robert Burnham, delivered the check to the trust fund on June 14 there was a work stoppage on the Scott job. Plainly, this does not support the testimony of Blackhurst that another work stoppage took place "several" days after the delivery of the check. If anything, it lends further support to the inference that the work stoppages on the Hallcraft and Scott jobs took place on consecutive days immediately before the filing of the charge in this matter. Finally, I have considered the fact that there are indications that the Employer told Foremen Natalie and Bartlett, when they returned to work, that it had secured a state court injunction against the Union. Since the injunction was granted on June 21, this would indicate there might have been another work stoppage immediately prior to June 21. But, on the record in this, case, this is sheer speculation which is no substitute for proof that the Union after the work stoppages in mid-June on the Hallcraft and Scott jobs did in fact engage in a subsequent work stoppage. Nor does the record preponder- ate in favor of a finding that the Union initiated a work stoppage or induced the employees to continue to stay out of work even after it learned that the Employer had deposited the check with the trust fund. There remains one factual matter, namely, the conten- tion of the General Counsel that the Respondent has refused to refer employees, upon request, to the Employer.? In support of this contention the General Counsel proved that on various dates between June 30, 1972, and January 30, 1973, the Employer requested that the Respondent refer employees, and that the Respondent on these occasions failed to refer such employees. It is also undisputed that the Respondent during 1971 and 1972, due to the tremendous growth in population and construction in the area of Phoenix, Arizona, had a difficult time supplying employees to employers upon request. It is also undisputed that during the months of April 1972, May 1972, and November 1972, the Employer requested ' by name employees registered on the out-of-work list who were referred to the Employer by the Respondent. And, I also findbased on the credible undenied testimony of Parker-that on June 23, 1972, the Employer requested two plasterers for June 26, 1972, and that the Respondent in fact referred one man. Finally, other than the rejected testimony of Blackhurst, described above, the General Counsel offered no testimony as to the reasons, if any, given by Respondent's officials to the Employer for the failure to fill the Employer's requests for employees. IV. ULTIMATE FINDINGS The General Counsel, as pleaded in the complaint, contends that the Respondent violated Section 8(b)(3) of the Act by engaging in work stoppages and by refusing to refer employees with an object of compelling the Employer to place in escrow a contractual wage increase not approved by the Construction Industry Stabilization Committee (CISC). Respondent admits the work stoppages but denies the object attributed to the stoppages by the General Counsel. Don Parker, the Respondent's principal secure employees from any source. The contract also allows the Employer to ask for certain employees registered on the out-of-work list by name. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD official, testified that the work stoppages, including the June 1972 stoppages, were motivated solely by the desire to compel the Employer to pay money owed to the health and welfare trust fund. In my opinion, the evidence fails to establish that Respondent engaged in work stoppages with an object of compellmg the Employer to place in escrow wage increases provided for in the Association contract. I reach this conclusion because of the following factors. Any finding that the Respondent had such an objective would be based in large part on the remark made by Assistant Business Representative Watson on or about June 13 or 14 when he directed Working Foremen Natalie and Bartlett to stop working. Watson told them that the Employer was not putting money into the escrow fund for wages. Watson is an agent of Respondent and his statement to the working foremen constitutes an admission against interest. But, to say that this ends the matter and that Watson's statement establishes that an object of the work stoppage was to compel the Employer to place a wage increase in escrow is to blindly ignore reality-the whole record. The whole record reveals a situation in which Watson's statement, a form of admission, is so patently at odds with other clearly established facts that no effective force can be given it. Watson played no part in the decision to call the work stoppage, and there is no evidence or even an indication that his statement was consistent with the Respondent's policy in dealing with other employers who had ceased placing the contractual wage increase in escrow. To the contrary, the testimony of the Association's executive secretary is to the effect that the Respondent had not threatened or taken any economic action against any of the Association's members who, like the Employer, had stopped placing money in escrow. Even more important in considering the significance of Watson's statement is the fact that immediately following this statement that Wat- son's boss, Parker, the Respondent's principal official and the one who decided to stop work on the Employer's job, told Foreman Bartlett and the Employer that if the Employer paid the money it owed the health and welfare trust fund Respondent would allow the employees to return to work. At no time subsequent did Parker or any other official of Respondent say or do anything to contradict Parker's statement. Indeed, the events which had taken place before the June 1972 work stoppages lend weight to the bona fides of Parker's statement and to his testimony at the hearing that the work stoppages in June 1972 were motivated solely by the Employer's failure to pay money owed to the health and welfare trust fund. In this regard, there is no evidence that the Respondent previously had expressed animus toward the Employer over its failure to place the January 1, 1972, wage increase in escrow. Other than Respondent's written request of 8 Regarding the Respondent's refusal to refer employees to the Employer the evidence establishes that on certain dates the Respondent failed to refer employees and on other dates did refer employees to the Employer. Whether the General Counsel established that the failures to refer were in fact a refusal to refer or simply a failure based upon the lack of qualified employees registered for referral is a question I have not answered , for the evidence does not preponderate in favor of a showing that in not referring employees to the Employer the Respondent was motivated by a desire to compel the Employer to place contractual wage increases in escrow. In February 1, 1972, that such payments be made-a request devoid of any implication of economic action by Respon- dent if it was not complied with-there is no evidence that from February 1, 1972, until about June 13, 1972, that any official of Respondent either said or did anything which indicated that the Respondent was mad at the Employer, let alone that it was considering economic action against the Employer over its failure to place money in escrow. As a matter of fact, the Respondent, according to the Association's executive secretary, took no action against any of the members of the Association who, like the Employer, had discontinued placing wages in escrow. Finally, in determining what motivated the June 1972 work stoppages, I have considered the fact that they were consistent with the tactic used by Respondent in the past in its historical dispute with the Employer over alleged nonpayment or late payment to the health and welfare trust. On a number of occasions within the 12-month period prior to June 1972, the Respondent had expressed its displeasure to the Employer about money allegedly owed to the health and welfare trust fund and on a number of occasions called work stoppages to compel payment of this money into the trust fund. Based on the foregoing, I find that a preponderance of the evidence does not establish that the Respondent engaged in work stoppages or refused to refer employees8 with an object of causing the Employer to place the contractual wage payments in escrow, and I shall, accordingly, recommend that the complaint be dismissed in its entirety .9 CONCLUSIONS OF LAW I. Burnham Brothers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Operative Plasterers' & Cement Masons' Interna- tional Association, Local 394, is a labor organization within the meaning of Section 2(5) of the Act, and at all times material herein has been, and is, the exclusive representative of all employees in the bargaining unit described below for the purpose of collective bargaining with respect to wages, rates of pay, hours of employment, or other conditions of employment. 3. All employees employed by Burnham Brothers, Inc., within the jurisdiction of the above-named labor organiza- tion, excluding supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: reaching this conclusion, I have relied upon the same reasons set forth in the text above, as well as the fact that the Respondent did refer employees to the Employer, upon request, during times material to this case and in particular on June 26, 1972. 9 In view of this finding, I have not decided if it would be a violation of Sec 8(b)(3) of the Act for Respondent to have induced work stoppages and withhold employees from the Employer to compel the Employer to place in escrow a contractual wage increase disapproved by the CISC. OPERATIVE PLASTERERS, LOCAL 394 157 ORDER'° The complaint is dismissed in its entirety. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations. be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes.