Carpenters District Council

CARPENTERS DISTRICT COUNCIL Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Donn E. McKay d/b/a Apollo Dry Wall. Case 7-CC-790 June 10, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 25, 1974, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Adminis- trative Law Judge's Decision, cross-exceptions, and a supporting 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 1 of the Administrative Law Judge and to adopt his recommended 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 conclusion that Respon- dent has not violated Sec . 8(b)(4)(ii)(B) of the Act and his recommended dismissal of the complaint in its entirety , we rely on the particular facts and circumstances of the instant case . The crux of General Counsel's case involves a single conversation between two of Respondent 's representatives and the neutral employer 's job superintendent . The latter appears to have testified about this conversation primarily on the basis of his subjective interpretation of the remarks made by Respondent 's representatives rather than in terms of the actual statements made and language used by Respondent's representatives. There were no events or conduct either preceding or subsequent to this conversation that are attributable to Respondent which could be utilized to evaluate the apparently ambiguous nature of the remarks of Respondent 's representatives . In such circum- stances the specific language used , which the witness in the instant case appears either to have been unable to recall or failed to testify about specifically,becomes critical in determining whether or not the Act has been violated. DECISION STATEMENT OF THE CASE 291 JAMES M. FITZPATRICK, Administrative Law Judge: This is a secondary boycott case in which the issue is whether union representatives unlawfully threatened , coerced, or restrained a general contractor to not use a nonunion subcontractor. I find hereinafter that they did not act unlawfully. The case arises out of unfair labor practice charges filed with the National Labor Relations Board (herein the Board) on October 9, 1973,1 by Donn E. McKay, an individual, doing business as Apollo Dry Wall (herein Apollo) against Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein Respondent). Based on these charges a complaint issued October 29 on behalf of the Board, alleging that Respondent had committed unfair labor practices in violation of Section 8(b)(4)(ii )(B) of the National Labor Relations Act, as amended (the Act). Respondent filed an answer denying Board jurisdiction and also denying that it had committed unfair labor practices as alleged. The matter was tried before me at Detroit, Michigan, on December 11. Upon the entire record, my observation of the witnesses, and consideration of the arguments of counsel and the brief filed by Respondent, I make the following: FINDINGS OF FACT I. THE EMPLOYERS INVOLVED This case involves the construction of a housing project in Westland, Michigan, known as Continental Woods Condominiums. North American Development Corpora- tion, owned and operated by one Daniel Malone, is the owner-developer and general contractor in the construc- tion. Between the months of June and December 1973, North American will have purchased and received at the project lumber and related products valued in excess of $ 55,000 from ERB Lumber Company, which is located in Michigan but receives the lumber and related products from suppliers outside Michigan. When completed in the autumn of 1974, the project will consist of at least 140 housing units in 20 to 27 separate buildings. The whole project will cost between $4.5 and $5 million. Lumber and related products valued at between $400,000 and $500,000 will have been used in the construction. I find that North American is a person engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. At the time of the events involved in this case, a variety of subcontractors were working on the jobsite. These All dates herein are in 1973 unless otherwise indicated. 211 NLRB No. 36 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD included Sam Wien (painting), Jouppi, Inc., and Jerritt (carpentry), Spalding Aluminum Siding and Roofing (siding and roofing), Truwall Construction (basement walls), Garden City Construction, Inc. (drywall), and Bryant Moon Plumbing (plumbing). Of these, only Moon operated nonunion. There is no evidence that his nonunion status had any effect on the job. All of the other subcontractors named were union operators and, since their work involved some carpentry, all maintained collective-bargaining agreements with Respondent. John Miller and his wife are coowners of Garden City Construction, Inc. (herein Garden City). In the perform- ance of drywall work, Garden City uses both carpenters and painters and maintains collective-bargaining agree- ments not only with Respondent, covering the carpenters, but also with a union representing the painters, which is not involved in the present matter. Construction at the project proceeded by stages. Subcon- tracts for various aspects of the work were awarded for each stage as it was about to commence. Thus, Garden City, the initial drywall subcontractor on the job, began work in August on the first building brought to that stage of completion, building 3. The next buildings scheduled to be available for drywall work were building 5 and building 4, in that order. It does not appear that Garden City's subcontract covered these two buildings. I infer, however, from the record as a whole, that Miller hoped to obtain further drywall work beyond the initial building 3. Donn E. McKay, doing business as Apollo DryWall, is engaged at Westland, Michigan as a drywall contractor in the construction industry. He operates nonunion. In early July he obtained from Malone of North American copies of plans and specifications for the project involved here for the purpose of developing bids for drywall work. Around the first of August, he submitted bids to North American according to the type of units being built. Sometime in September, Malone advised him he had been awarded a subcontract, and on September 24 or 25 he and Malone executed a written contract for the drywall work on buildings 5 and 4. At that time Garden City was still working on building 3 but North American was dissatisfied with the quality and speed with which the work was being accomplished. North American made the decision to change drywall subcontractors because it was looking for more in performance and quality than it was getting from Garden City, plus the fact that Apollo's bid was lower than the price Garden City was charging. The subcontract awarded to Apollo amounted to $4,628 for building 5 and $11,664 for building 4, a total of approximately $16,293. Malone told McKay that if his work was satisfactory as to quality and production, he would receive more work from North American. Malone indicated he previously had awarded a subcontract for building 3. In any case, McKay knew that Garden City was already on the job. II. THE LABOR ORGANIZATION INVOLVED Respondent is an organization made up of 15 local unions in and around Detroit, Michigan, which are affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. As noted above, Respon- dent is party to a collective-bargaining agreement with Garden City, but not with Apollo. The complaint alleges, the answer admits, and I find that it is a labor organization within the meaning of Section 2(5) of the Act. George Betz, an industry steward, is employed by Respondent as a field investigator concerning the employ- ment of carpenters installing drywall, floors, roofing, and aluminum siding. Floyd Lynch is a business agent of Carpenters Local 982, one of the local unions affiliated with Respondent, and in whose district the project in question is located. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Planned Replacement of Garden City by Apollo As noted in section I, above, Garden City was the initial drywall subcontractor on the project and was so engaged on September 24 or 25 when North American signed a contract with Apollo to perform the drywall work on the next two buildings to come on line. On the morning of Thursday, September 27, Thomas Harbourne, the project superintendent for North Ameri- can, told McKay that in about I week building 5 would be ready for Apollo to commence drywall work . Later that same morning, Miller of Garden City had occasion to be in North American's construction office on the project and Harbourne told him Garden City was being replaced as the drywall subcontractor. On learning this, Miller stated to Harbourne that the replacement had better be a union contractor or "there's going to be trouble ." That afternoon Harbourne reported by telephone to McKay what Miller had said. He wanted to know what they could do about that. As a result of this call, McKay contacted Lee Lawrence, executive secretary of Associated Builders and Contractors, an association of contractors to which McKay belongs, and arranged for a meeting between Lawrence, McKay, and Harbourne for the following Monday, October 1. B. Garden City Complains to the Union Upon learning that Garden City was being replaced, Miller immediately complained to Betz. According to Betz, Miller mentioned that he had been doing the drywall work at the project in question and that there was going to be another subcontractor coming in. Miller wanted to make sure that the replacement was a legitimate contractor who paid fringe benefits the same as Garden City. Betz promised Miller he would investigate, learn who was going in on the job, and check the whole project. Miller mentioned Apollo's name to Betz but he did not recognize the name at that time. C. Respondent's Representatives Meet With North American On the morning of Friday, September 28, Betz appeared on the project in the company of Floyd Lynch. After Harbourne approached them and they had introduced themselves, he invited them into the project office where they conversed for about 10 minutes. Betz did most of the talking. Neither he nor Lynch stated CARPENTERS DISTRICT COUNCIL 293 at any time precisely why they were on the jobsite. Betz inquired as to the identity of contractors on the job beginning with the roofing subcontractor . Harbourne replied that Spalding Aluminum was doing the roofing. Betz then asked who was doing the siding and Harbourne answered that Spalding was also doing the siding. Betz then asked who was doing the wood flooring. Harbourne replied that they were having rugs. Betz noted that did not concern him. He then asked who was the roughing contractor. Harbourne said Jouppi . Betz also asked about finished carpentry contractors. Finally, Betz asked who was doing the drywall work. According to him, Harbourne answered that Garden City was doing the drywall work at that time but that he was thinking about changing contractors and going to either Econo or Apollo. The testimony of Harbourne indicates that he did not volunteer that a change in drywall subcontractors was imminent. According to him, after he had identified Garden City as the drywall contractor on the job, Betz asked him if he contemplated any other contractors than those then currently working on the job, to which Harbourne responded that he had bids from at least two, Apollo and Econo . I credit Harbourne's version of that part of the interchange because I think it unlikely that he would have volunteered the information about additional bids. Betz and Lynch indicated that Garden City and Econo were union contractors. They did not recognize the name of Apollo as being that of a union contractor . Up to that point Apollo was the only contractor named in the conversation who was not identified by Betz and Lynch as having a contract with Respondent. There is variance in the testimony as to what was said from this point on. According to Harbourne , Betz said, respecting Apollo, "He's not one of our members to the best of my knowledge." The conversation then turned to "general complications." According to Harbourne, "He [Betz ] informed me of general complications once again of having a non-union contractor on a job such as this and said that his union did not want any trouble in this respect and neither did I .... " Harbourne said he would keep them informed, to which either Betz or Lynch said that Lynch had a son working on the job who could always keep them posted. Harbourne's testimony is not entirely clear. On direct examination, he reported that nothing was said about what the "complications" might be. On cross-examination, he indicated that the term "general complications" were not words used by Betz but was his own summary of what was said. He described his meaning as follows, "General complications would be any complication that arose to slow up the job in any way." He admitted, that that was what he was worried about, but he also admitted that neither Betz nor Floyd said anything about slowing up the job, and that, although carpenters were working on the job at the time, they did not say they were going to interfere with those carpenters continuing to work , nor did they in fact interfere with them. But, using slightly different words, Harbourne did adhere on cross-examination to his earlier testimony that Betz alluded generally to the possibility of adverse developments. Thus, he was asked if Betz and Lynch said anything to him about "not wanting any problems." He reported that Betz said something like that. He was then asked to state exactly what was said, with the admonition that it was a very important matter. He then answered, "I understand. The conversation tone and so forth was something to the effect that we don't want any problems and neither do you. It was a-it was a bit of information that was being relayed on. It was an informing statement of sorts." Both Betz and Harbourne agree that near the end of the conversation, and after Apollo had been named as a possible drywall subcontractor, Betz handed Harbourne his business card with the instructions that he could call a telephone number written on the back to learn whether Apollo was a union contractor. The number is that of Respondent's office. Betz' version of the conversation after Harbourne identified Apollo as a possible contractor is as follows, "I asked him-I told him, I says, well, Econo strikes me. I know them. I says but Apollo, I says, I don't know them. I don't know if they have a contract or not, I says, and, at that time, I pulled out my card and I gave him my business card and I says well he might be a legitunate contractor, but would you please call this number and I wrote it on the back because he might have signed up Betz continued his account of the conversation as follows, "Well, he [Harbourne ] says, well, we don't want any trouble and I say, well, I'm not out here to cause any trouble, but, I says, would you just call this number. The girls at the desk there have a spindle and you can find out if he [Apollo] has a contract or not. He [Harbourne] says, well, this job has got to go. It's behind and it's got to go." Betz also testified that Lynch mentioned that at one time his son had worked on the job, but he was not there at that time. The testimony of Harbourne and Betz are in conflict on two points: First as to whether or not Betz used words indicating there might be difficulties on the job, and second, the supplemental point as to whether Betz and Lynch indicated they could keep track of the situation on the job through Lynch's son. Both Harbourne and Betz appeared to be forthright witnesses. In some respects Betz' testimony is more specific and clearer than that of Harbourne. Nevertheless, Harbourne was a credible witness and I credit his account rather than that of Betz primarily because Lynch did not testify. Lynch is an official of one of Respondent's constituent locals and presumably within the control of Respondent. No explana- tion appears in the record as to why he did not testify regarding this meeting in which he participated and in which his presence was of some significance. In the circumstances, I make the inference that if he had testified his testimony would not have corroborated Betz. Further, I think Harbourne's version is corroborated by the fact that after this meeting with Betz and Lynch the general contractor decided not to use Apollo with which it already had a written contract for drywall work on buildings 5 and 4 and instead to continue with Garden City with whom it had no written contract for those buildings and with whom at that point it was dissatisfied. It is true that at the hearing Harbourne stated he was satisfied with 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garden City's later work, but he came to this conclusion only after completion of building 5 which was substantially after the time of events involved here. Counsel for Respondent brought out that use of a nonunion plumbing subcontractor has not resulted in any difficulties on the job . But there is no evidence that any union representative ever visited the job with respect to the nonunion plumbing subcontractor. By contrast, the prospect that Garden City, a known union contractor, was not going to have further work on the project and that Apollo, who admittedly was not known as a union contractor , was being brought in, was the reason that Betz and Lynch came to the job to "investigate." Neither Betz nor Lynch stated outright that Apollo was nonunion . The testimony of Harbourne is that they did not recognize the name of Apollo as that of a contractor with whom Respondent had a collective-bar- gaining agreement . I find, however, that they in fact knew at that time that Apollo was a nonunion operator. I base this on the record as a whole and particularly on the fact that Betz, as industry steward, is concerned with contrac- tors doing specialized work in drywall, wood floors, roofing, and siding and as a professional would likely know who were the union and nonunion contractors in his field of interest. Further, he had already been alerted by Miller to the possibility that Apollo was nonunion and had already had an opportunity to check it out in his own office, the very place he wanted Harbourne to telephone. In addition, at the meeting with Harbourne he was accompanied by Lynch in whose district the job was located, which, coincidentally, is the same community in which Apollo does business . It is inconceivable that a professional such as Lynch would not know that Apollo was a nonunion contractor using carpenters. In sum, Betz and Lynch showed a false mask of ignorance regarding Apollo's nonunion status. The overall purpose of Betz and Lynch in going to the job was to investigate the entire job insofar as carpenters were being used. This general investigation included, and in fact concluded, with Betz' inquiry regarding the replacement of Garden City. Irrespective of the words used, the message conveyed to Harbourne was that in the eyes of the Union Apollo was not on par with either Garden City or Econo. The thrust of this message was not significantly altered by holding out to Harbourne the possibility that a phone call to the union hall might turn up information about which the industry steward and the business agent were unaware. I find, therefore, that the intentional message given to Harbourne was that in the eyes of Respondent Apollo had not qualified as a union contractor. The more crucial question is whether the message also included words which reasonably could be construed to indicate that Respondent would cause some adverse consequences to flow to North American from its use of Apollo. Based on the testimony of Harbourne, whom I credit, I find that Betz, using words such as "trouble" or "problems," told Harbourne that Respondent did not want any such difficulties and neither did Harbourne. In context, the inference inescapably flowing from that vague statement was that unspecified difficulties could result if a nonunion drywall subcontractor such as Apollo were used on the job. Also based on the testimony of Harbourne, I find that he told Betz and Lynch he would keep them informed. Either Betz or Lynch then said that Lynch had a son on the job who could keep them posted . I do not credit the testimony of Betz that Lynch said his son had been, but no longer was, on the job. I reach this finding because Lynch did not testify, nor did his son, and while the record is not entirely clear, a fair inference from the evidence regarding the various contractors on the job at the time is that both Jerritt (the contractor for whom Lynch's son worked) as well as Jouppi were working on the project. The remark about Lynch's son served as notice to North American that a conduit existed for quickly notifying Respondent of the presence on the job of the disfavored subcontractor. Betz and Lynch were not satisfied to leave it up to Harbourne to advise them who was to do the drywall work. This emphasized the possibility that Respondent might do something if North American persisted in its choice of Apollo . The definition of what "trouble" or "problems" might develop remained unspecified. Later in the afternoon of September 28, Harbourne saw McKay at the jobsite. The record doesmotreflect what, if anything, he told McKay at that time. D. The Meeting on October 1 As noted earlier herein, McKay arranged the meeting at the jobsite on Monday, October 1, between himself, Lee Lawrence of his association , and Harbourne. The meeting lasted about 20 minutes . Harbourne reported that on the previous Friday a representative of Respondent had been at the project and indicated there would be trouble if a nonunion subcontractor were brought on to the project. Lawrence gave an extensive recitation of the benefits of membership in his association, including various ways of working around work stoppages which might occur. Finally Harbourne decided, and announced to the other two, that he had made a decision to use a union drywall subcontractor on building 5, the next building to come on line, in order to avoid the possibility of interruption of the work. At that point the possibility of Apollo doing the drywall work on building 4 _remained open , but McKay was not given any definite time when he might begin work. Lawrence suggested that McKay file charges with the Board. E. Later Events Later in the week of October 1, Harbourne decided that he would use Garden City to do the drywall work on building 5 and so advised Miller . In informing Miller, Harbourne ihdicated that the reason for using Garden City was that North American could not afford to use Apollo because it was not a unionized contractor and the job might be stopped. Sometime in the latter part of that week he informed McKay that Garden City had been chosen for building 5 and that it would be 2 or 3 weeks before the next building (building 4) would be ready for drywall work, indicating that Apollo could do that building. Since the events reported above, Apollo has received no CARPENTERS DISTRICT COUNCIL 295 word from North American as to when it could commence work pursuant to its subcontract . About a week or so before the hearing herein (which would put it around the end of November or early December), McKay had a further talk with Malone of North American who at that time denied that he had a contract with Apollo or that he had signed a further contract with Garden City to do additional drywall work on the project. Malone further told McKay that he did not want him coming onto the project because if he did all the union men would walk off. F. Discussion The project started with Garden City performing the work on the first building. In the circumstances, I find that Miller reasonably anticipated that he would receive further work. In part because Garden City's work was unsatisfac- tory, and in part because McKay put in a lower bid, North American contracted with Apollo for drywall work on the next two buildings. Because of the intervention of Betz and Lynch on September 28, North American decided not to use Apollo and instead continue with Garden City, thereby avoiding any problems which might be caused by use of a nonunion subcontractor . The intervention which caused this switch was a vague reference to "trouble" or "problems." Whether such conduct rises to the level of a threat, coercion, or restraint within the meaning of Section 8(b)(4)(ii)(B) of the Act is the dispositive legal issue here. The record as a whole, including the September 28 meeting between Betz, Lynch, and Harbourne, demon- strates that Respondent's purpose in contacting North American was to insure that a nonunion drywall subcon- tractor such as Apollo did not come onto the project. Accordingly, I find that a preponderance of the evidence establishes that Respondent harbored a "cease doing business" object within the meaning of Section 8(b)(4)(B). Such an object is not unlawful, however, unless implement- ed by unlawful means. The only thing Respondent's agents did here was make verbal statements to the superintendent of the general contractor. The legality of the statements depend not only upon the words used but also upon the background facts against which they were made and the identity of the person to whom they were made . The background here was the imminent removal from the job of union subcontractor Garden City and the arrival on the job of nonunion subcontractor Apollo . Respondent might have achieved a change in the projected course of events by various types of conduct, legal or illegal. It did not exert direct influence on the primary employer, Apollo. Betz and Lynch never went to McKay. Their whole effort was directed toward North American, a neutral insofar as the nonunion status of Apollo was concerned. Respondent's conduct in this affair, therefore, whether lawful or unlawful , was entirely secondary in nature . I find that Betz' statements to Harbourne, although secondary in nature and for a cease- doing-business object, were too vague and ambiguous to justify a finding that they threatened, coerced, or re- strained North American . I conclude, therefore, that Respondent did not violate Section 8(b)(4)(ii)(B) of the Act. See Carpenters District Council ofHouston and Vicinity (Astrodomain Corporation), 202 NLRB No. 109; Local Union 825, International Union of Operating Engineers, AFL-CIO (William C. Ehret), 137 NLRB 136, 139. But cf. Local Union No. 174, Teamsters (V. G. Scab, 172 NLRB 1217; and International Brotherhood of Electrical Workers, Local No. 5, AFL-CIO (Jonel Construction Co., Inc.), 164 NLRB 455. The question is a close one, particularly in view of such Board pronouncements as Scalf and Jonel. Relying on Jonel, the General Counsel argues that vague or guarded threats by a union agent which are broad enough to encompass the possibility of illegal secondary action are unlawful. The decision in Jonel stands for that proposition. However, factually that case differs from the present one in that it also involved unlawful inducement of employees, a type of conduct not present here. It is noteworthy that here Respondent took no further action after Betz and Lynch talked to Harbourne, so the meaning of the words used by them are not colored by any later events attributable to Respondent. The Scalf case, on the other hand, involved no inducement of employees. Like the present case the issue was limited to the lawfulness of the particular words used by the union representative. There the union agent informed a neutral employer that the union would use "economic pressure" if the neutral employer did business with the concern disfavored by the union. The Board viewed this "as a threat to take economic action of an unspecified nature against a secondary employer without restriction or limitation, and therefore a violation of 8(b)(4)(ii)(B)." But the statements of the union agents in Scalfand Jonel were more direct and specific in indicating action to be taken by the unions there involved than in the present situation. Here the language of Betz was cast in the form of a wish of both the Union and the general contractor that there not be "trouble" or "problems." It was not a positive statement, even if the implication was present that difficulties could result for the general contractor. More- over,there is nothing to indicate what form the "trouble"or "problems" might take or who might cause such if it developed, even if it was inferable that the speaking union might cause the kind of joint employee action typical among unionized craftsmen in the construction industry. Inferences of unlawful conduct by Respondent surely were not the only possibilities. Another consideration here is the clear intent of the law that union representatives be free to express the position of their organization even to neutral employers so long as they avoid coercive language and conduct. See Section 8(c) of the Act, and also Little v. Local 481, International Brotherhood of Electrical Workers (Indianapolis Electrical Co.), 50 LRRM 2141 (D.C. Ind.). I find the language here falls in that category. Any inference that the vague and unspecific language used referred to future conduct, unlawful under the Act or otherwise, is too remote to sustain a finding of a violation under Section 8(b)(4)(ii)(B) of the Act. CONCLUSIONS OF LAW 1. North American is a person engaged in commerce within the meaning of Section 2(6) and business activities 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting commerce within the meaning of Section 2(7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By statements made on about September 28, 1973, by its agents George Betz and Floyd Lynch to North American relating to the use of a nonunion drywall subcontractor on the Continental Woods Condominiums project, Respondent did not threaten, coerce, or restrain 2 In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. North American and has not committed unfair labor practices within the meaning of Section 8(bX4Xii)(B) 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: ORDER2 The complaint is dismissed in its entirety. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes