Local 695, Laborers

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 695, Laborers International Union of North America, AFL-CIO and Mautz & Oren, Inc. Case 14-CC-876 March 6. 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 19, 1973, Administrative Law Judge Melvin J. Welles 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. FINDINGS OF FACT 1. THE BUSINESS OF FHE EMPLOYERS AND THE LABOR ORGANIZATION INVOLVED Mautz & Oren, Inc., the charging party, is a Delaware corporation engaged in general construction work, with its principal office in Effingham, Illinois, and another office in the State of Indiana. It received products valued in excess of $50,000 during the past calendar year from points outside the State of Illinois. Martin's IGA, an Illinois corporation, is engaged in the retail sale of groceries, meats, and related products. During the past year, it too received products valued in excess of $50,000 from points outside the State of Illinois. Martin's IGA also sold at retail products valued in excess of $50,000 during that period. I find that both Mautz & Oren, Inc., and Martin's IGA are employers engaged in commerce within the meaning of Section 8(b)(4) and Section 2(6) and (7) of the Act. Respondent Union, Local No. 695, Laborers International Union of North America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i In adopting the Administrative Law Judge 's Decision we need not place reliance upon his finding that Larimer 's alleged threat to picket was. in any event, so minimal and isolated as not to rise to a violation of the Act" because we agree with his further findings that it did not amount to a threat and was not directed at Martin. (See third full paragraph of see II. B of ALJD entitled "Discussion.") DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Effingham, Illinois, on October 2, 1973, based on charges filed August 16, 1973, and a complaint issued September 7, 1973, alleging that Respondent violated Section 8(b)(4)(ii)(B) of the Act. Respondent denies any violations of the Act. The General Counsel and Respon- dent have filed briefs. Upon the entire record in the case, including my observation of the witnesses, I make the following: i One Paul Shadwell, apparently a union member, overheard the call from Larimer to Martin Mautz & Oren was engaged by Clyde Martin, president of Martin's IGA, and also mayor of Effingham, Illinois, to construct a new supermarket for Martin, adjacent to his old store. Respondent had futilely attempted to get Mautz & Oren to sign a contract with it, and hire its laborers for the job. Thereafter, Respondent Union, by its business representative, William J. Larimer, sought to enlist Mayor Martin's support in getting Mautz & Oren to hire laborers. As there is no question but that Mautz & Oren was a "primary," and Martin's IGA a "secondary." employer as those terms are used in "secondary boycott" cases, the only issue is whether Larimer's conduct and statements in his conversations with Mayor Martin constituted "threats" within the meaning of Section 8(b)(4)(ii)(B). The testimony concerning these conversations, almost all of it from Larimer and Martini is not in any substantial disagreement. In essence, Martin testified that some time in July, a group of Respondent's agents, including Larimer, called on him at his office in the city hall of Effingham to "sell their services," apparently in connection with two city buildings to be constructed, as well as Martin's own store. Nothing said in this conversation is alleged to have been in violation of the Act. Shortly before August 9, Martin spoke with Larimer on the phone. Larimer told Martin that William (Tom) Arnold, Mautz & Oren's secretary-treasur- er, did not want to employ any laborers. Martin said to Larimer, "I thought we had that outlined before we come to this because we went to the AFL-CIO Union with 209 NLRB No. 72 LOCAL 695, LABORERS Mautz & Oren before and we didn't have any problems and I didn't think we would have any problems this time." Larimer then responded, "I don't want to cause any trouble but we're not getting along." That, according to Martin, "was about the gist of that conversation." A few days after August 9. which was the day the construction of the new store began, Lanmer came to Martin's city hall office, and said, "Clyde, now, Tom Arnold has not employed one man yet . . . There's going to be trouble." Martin responded, "Bill I don't want any trouble, I thought I employed the right people to do the work, we had no trouble with them before and I just felt like we would have no trouble again. Bill, I don't want any trouble, I don't want any picket line." Lanmer replied, "I don't want to either but there may have to be one." A few days later, Larimer, while shopping with his wife at Martin's store, met Martin in the aisle. Larimer said that Arnold ". . . has not employed one of my laborers. Martin said "I don't want any problems, I don't want any picket line," and Larimer responded "1 don't either but there may have to be." Martin told Larimer that he would go talk to Arnold. Martin emphasized that it was he, and not Larimer, who used the word "picket," that Larimer never used that word. Martin agreed that Larimer's attitude during the telephone conversation reported above was that of a "peaceful and law-abiding citizen," and that the conversation was "congenial and friendly in nature consisting of a continuation of the events that took place at City Hall." 2 Larimer's testimony did not, as noted above, differ from Martin's in any substantial manner. Larimer placed the first contact with Martin (other than the group of union agents visiting Martin to "sell their services ,") as August 9, the day of groundbreaking at Martin's store. The following conversation ensued, according to Lanmer, after he met Martin in the aisle of the store. Martin invited Larimer to go to the back of the store where the groundbreaking was to take place; Larimer replied that he had "better not go because I figured Tom Arnold would file charges against me." Martin said "Well, I thought that Tom was all right. They built the other store and I figured he was 100 percent Union." Larimer replied "No, we are having a problem of getting our contract negotiated," and Martin said, "Well, I don't have to give him the contract. I will talk to him and see what 1 can get done." Larimer commented that "If you could that would be fine with me. The least trouble we would have and the less trouble we get involved in the better I like it" Martin said he would talk to Arnold, and that he thought he could "work it out." The meeting concluded with Larimer telling Martin that he would call Carl Moore, the Union's "district man," that he was waiting on word from Moore as to what to do, and that "whatever the order is from the district or the international I will talk to you about it before I do anything. It doesn't make any difference what it is, negotiations or anything, I'll talk to you first." This last portion of Larimer's part of the conversation was in response to Martin saying he did not want picketing or trouble. 411 About 4 or 5 days later, Lanmer called Martin to ask him what he had accomplished- Martin said he talked to the architect, and perhaps also to Arnold, and was told it was not his business, and added that he was "going to talk to them some more and see if I can get the thing straightened out." A final conversation with Martin occurred just after Mautz & Oren filed the charges in this case, on August 16, with Larimer visiting Martin at city hall. Larimer showed Martin the charges, and asked Martin whether he agreed to what was said in them. Martin replied "I don't agree to all of it. All we talked about was in good faith." Larimer said "There wasn't a word of `picket' ever mentioned," and Martin answered "No threat." The complaint, as amended at the hearing, alleges that there were three occasions on which "threats" were made, the first about August 1 in a telephone call, the second (the amendment made at the hearing) about August 6 at the mayor's office, and the third about August 8 at Martin's store. Martin's testimony, as noted above, places the first incident, the telephone call, a few days before the August 9 groundbreaking, the second, at city hall, about August 16, and the third, at Martin's store, about August 13 or 14. Larimer places the first incident as occurring at the store, on groundbreaking day, August 9, the second , a telephone conversation, 4 or 5 days later, about August 13 or 14, and the third, at the council room of Effingham city hall, shortly after the charges were filed on August 16, 1973. Both with respect to the dates and the other minor discrepancies mentioned below, there is ito question in my mind but that both Martin and Lanmer were giving their best recollection of what occurred, and when, with no attempt to dissemble or color matters. Because of the surrounding circumstances testified to by Larimer of the meeting at the store, and because of the tie-in with the charges as to the city hall meeting, I am inclined to believe that Larimer's recollection was somewhat more accurate than Martin's. For this reason, I am also inclined to resolve the minor discrepancies toward Lanmer's version, al- though, as I shall note, the result of this case would be the same were I to find the facts precisely as testified to by Martin. B. Discussion As stated, the only issue in this case is whether in the three short "friendly" and "congenial" conversations between Union agent Larimer and neutral employer Martin, the former threatened the latter within the meaning of Section 8(b)(4)(ii)(B). The words "trouble," "problem," and "picket" were all used to varying degrees during the three conversations , but whether, in their usage and context, they sustain the General Counsel's positions that threats were made cannot be resolved by the use of the words alone. I have accepted Larimer's version of what was said and when it was said as more accurately representing what actually occurred, except as noted below. At the first 2 Referring, obviously, to the Union's attempt to "sell their product" late in July 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation, occurring August 9 at Martin's store, the critical portion of the conversation has Larimer telling Martin that it was "fine with me" for Martin to talk to Arnold because "The least trouble we would have and the less trouble we get involved in the better I like it," followed by Larimer saying that whatever Carl Moore told him to do was, essentially, what he would have to do. I cannot conclude that the use of the word "trouble" by Larimer in this context was intended as, or construed by Martin as, a threat of trouble for Martin, who had already agreed to use his influence with Arnold to attempt to have Mautz & Oren use laborers on the job. Nor can I conclude that Lanmer's remark that he would consult Moore and do whatever he was told to do constitutes a threat. The use of the word "trouble," in my opinion, clearly referred to trouble with Mautz & Oren, not to a prediction or threat of trouble with Martin, and similarly there is no reason to conclude that following the orders of Moore connoted a threat of some adverse action against Martin. Starting, as we must, with the proposition that the General Counsel has the burden of proving a violation of the Act, and taking into account that Martin himself testified as to the "congenial" and "friendly" nature of this and the other conversations between him and Larimer, to infer that other union officials might order action directly against Martin, and that this was the message either that Lanmer intended Martin to get or inherent in the words used would stretch speculation to the breaking point. The alleged threat to picket, in my opinion, did not amount to a threat, was not directed at Martin (or Martin's store under construction), and was, in any event, so minimal and isolated as not to rise to the level of a violation of the Act. Martin specifically testified that he, not Lanmer, first used the word "picket" in their conversation.3 He said, in essence, that he did not want any problems, or any picket line, and Lanmer responded that he didn't either, but "there may have to be."4 As with the word "trouble," there is nothing to suggest that Lanmer had in mind, intended Martin to think, or that Martin did think, that any such picketing would be other than lawful primary picketing against Mautz & Oren. Indeed, in the light of the friendly and congenial nature of the conversation between Lanmer and Martin, and the fact that there was never any actual picketing against which to test the alleged threat, the latter conclusion, that Larimer had in mind at most lawfully picketing Mautz & Oren, and that Martin would so construe Larimer's response, is the more probable inference. Considering also that what Larimer said was in response to Martin's statement, so that Lanmer did not himself bring up or even mention the word picket, and the isolated and minimal nature of the so-called threat to picket, I find that the General Counsel has failed to prove a violation of Section 8(b)(4)(ii)(B) in this respect. As I stated above, were I to accept Martin's version of the conversations as completely accurate, I would not come to a different conclusion. As to the threat to picket, I have already accepted Martin's version of what was said, but have concluded that it was only said on one occasion. The same response by Larimer to the same remark by Martin on two, rather than one, occasions , would remove only the above-stated reason that the statement was isolated, but would not affect my principal reasons for concluding that there was not any unlawful threat to picket proven by the General Counsel. As to the threat of "trouble ," accepting Martin's version would have Lanmer , as the first to use the word, rather than using it in an "I don't want trouble either" manner, as Larimer testified . Again, this would not suffice, in all the other circumstances , and for the reasons set forth above, to alter my conclusion that the General Counsel did not prove that "trouble" for Martin was intended by Lanmer, or implied by Martin. See, e .g., Construction, Building Material and Miscellaneous Drivers Local Union No. 83, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Inc. (Marshall & Haas), 133 NLRB 1144,1145-46. The many cases cited by the General Counsel to support nis position are largely inapposite, the bulk involving actual picketing, and others direct threats to a neutral accompanying specific cease -doing-business demands. The only two cases cited that are at all "in the ballpark," are International Brotherhood of Electrical Workers, Local No. 5 AFL-CIO (Jonel Construction Co., Inc.), 164 NLRB 455, and Lafayette Building and Construction Trades Council (Southern Construction Corporation ), 132 NLRB 673. In the former, the Board affirmed a Trial Examiner's conclusion that a Union violated Section 8(b)(4)(ii)(B) by threatening a neutral with "trouble." There, however, the threat was for the direct and specific purpose of causing the neutral to cease doing business with the primary employer , and was followed by unlawful picketing when the neutral , a general contractor, did award the subcontract to the "bad" subcontractor. In the latter, the threat of trouble on which the violation was based was also specifically directed at a general contractor because of a specific "bad" subcontrac- tor and was also followed by unlawful picketing. Further- more, in both these cases , the facts show an affirmative and direct statement that there would be trouble for the neutral, rather than the indirect and ambiguous type of language, the friendly and congenial setting, and the fact that the language constituting the alleged threats was largely in response to statements by Martin, the "neutral." For all these reasons, I find that the General Counsel has failed to prove that Respondent Union violated Section 8(b)(4)(ii)(B) of the Act. 3 Martin testified to the use of the word on two separate occasions , ° i accept Martin's version of Larimer's response in this connection, as describing them in virtually identical language I am satisfied, and find, that Larimer was rather imprecise in his recollection of what he said, or exactly only in the August 9 conversation at Martin' s store was the word used what Martin said, although agreeing, on cross-examination, that Martin said something about not wanting any picketing or any trouble LOCAL 695, LABORERS CONCLUSION OF LAW The evidence does not establish that Respondent engaged in the unfair labor practices alleged in the complaint. 413 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: ORDER The complaint is dismissed in its entirety. 5 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