Kopps-Evans Construction Co.

National Labor Relations Board - Board Decisions

Jul 22, 1963

143 N.L.R.B. 690 (N.L.R.B. 1963)

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
osition that where the International and local unions by their actions ratify an
agreement negotiated by the local 's bargaining unit, it is a violation for them not
to execute the agreement negotiated by the bargaining unit. In California Associa-
tion of Employers, 123 NLRB 922, there again it was held the union was obligated
to sign the agreement as the Board found the local had given its business agents
apparent authority to execute the contract in question whereas, in the instant case,
in view of the history of the employers in bargaining with the Respondent for over
30 years, it must be assumed that the employers knew that all agreements negotiated
by the Union's officials required ratification by the membership . The General Coun-
sel misconceives his role when he argues no evidence was produced by the Re-
spondent that the membership refused to ratify.10 The burden of proof throughout
the hearing remains on the General Counsel ; only the burden of going forward with
the evidence shifts.
In view of the foregoing conclusions , and upon the entire record , it is found no
agreement had been reached with respect to Tri-SCAP, and that the evidence war-
rants no finding that the Respondent committed unfair labor practices within the
meaning of Section 8(b) (3) of the Act, and it will , therefore , be recommended that
the complaint be dismissed in its entirety ." See International Molders and Foundry
Workers, etc., 91 NLRB 139.
11 See "The Testimony ," supra, where Smiddy's uncontradicted testimony is that he
notified Sweet on April 18, that "the boys wouldn't sign it with Tri-SCAP in it, and it
was out."
11 The conventional conclusions of law which are customarily repeated at this point are
omitted as they will be found in this body of the Intermediate Report.
Norman E. Kopp and Larry K. Evans , d/b/a Kopp-Evans Con-
struction Company and Alton-Wood River Building and Con-
struction Trades Council . Case No. 14-CA-2833. July 22, 1963
DECISION AND ORDER
On February 14, 1963, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed,
as set forth in the attached Intermediate Report. Thereafter, the
Charging Party and General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs. The Respondent filed a brief
in support of the Intermediate Report.
The Boardhas reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Decision and Order.
143 NLRB No. 78.
KOPP-EVANS CONSTRUCTION COMPANY
INTERMEDIATE REPORT
STATEMENT OF THE CASE
691
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act was heard before Trial Ex-
aminer Eugene E. Dixon at St. Louis, Missouri, on December 18 and 19, 1962,
pursuant to due notice with all parties being represented by counsel. The com-
plaint, issued by a representative of the General Counsel for the National Labor
Relations Board (herein called the General Counsel and the Board) on Novem-
.ber 9, 1962, and based upon charges filed and served by the Alton-Wood Building
and Construction Trades Council (herein called the B.T.C.) on July 11 and July 3,
1962, alleged that Respondent had engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act by (a) on or about January 25, 1962, threatening em-
ployees that it would never have members of Local 553, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, on any of its jobs, and (b) on or about May 15,
1962, threatening employees that it would never have any members of AFL-CIO
local unions on any of its jobs.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Kopp-Evans is engaged at Bethalto, Illinois , in the building and construction
industry. Alton District Independent Contractors and Associates (herein called the
Association) is an association of contractors, including Kopp-Evans, engaged in
and around Alton, Illinois, in the building and construction industry. This Associa-
tion exists in part for the purpose of representing its members in collective-bargaining
with labor organizations and it participates in the negotiation, execution, and ad-
ministration of collective-bargaining agreements on behalf of its members with labor
organizations.
During the last 12 months preceding the issuance of this complaint, which period
is representative of all times material herein, members of the Association, in the
operation of their businesses, received supplies and materials from outside the State
of Illinois valued in excess of $50,000. Kopp-Evans and the Association are and
have been at all times material herein engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS
Local 553, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO and the
Alton-Wood River Building and Construction Trades Council are and at all times
material herein have been labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
From December 1961, to the date of the hearing herein Dennis Chester was
executive secretary of the Alton-Wood River Building and Construction Trades
Council. During this same 'period he also was the business agent of Local 8 of
the Bricklayers Union and a working bricklayer himself working as an employee
in the bnIding trades.. The B.T.C. is an organization of various unions mostly
engaged in the building. trades.,, These unions send delegates to represent them in
the B.T.^,. Some of these delegates like Chester, are working mechanics in addi-
tion to being union officials.
In January of 1962 Chester attempted to induce Respondent to enter into a col-
lective-bargaining relationship with the AFL-CIO unions. Respondent's failure
to. do so and its, selection of another union for such purpose I resulted in Respond-
ent's being picketed by the, E.T.C. beginning in May 1952. The issues here 2 in-
Local 11, Congress, of Industrial Unions, herein called the CIU.
2 The picketing gave rise to a charge of unfair labor practices against the B.T.C. which
case (14-CP-31)' was one of three others all. arising out of the same general circum-
stances that _I also heard and have yet to issue Intermediate Reports on.
717-672-64-vol. 143-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volve two alleged remarks by Norman Kopp, a copartner in Respondent, involving.
his unwillingness to have anything to do with the AFL-CIO building trades. This.
simple matter is somewhat complicated by the fact that the evidence to be relied
on for its resolution comes from three sources (1) the testimony of Kopp and
Chester given in the injunction hearing before the United States District Court;.
(2) their testimony given before me in Case No. 14-CP-31; and (3) the testimony
before mein the instant case, 14-CA-2833.
. The Alleged Remarks of January 25
Kopp's undenied testimony reveals that from 1953 to 1958 he had been employed
by the Shell Oil Refinery as a pipefitter. At that time he was a member of Local
553 of the pipefitters which union was a member of the B.T.C. Kopp was laid off
by Shell in June of 1958. For some months thereafter Kopp tried several times
to get a job referral through the Union but was always informed by the Union's
business agent , Haroldson , that there was no work available. He later learned from
the superintendent of the Standard Oil Refinery , Duke Hammon , that the latter had
currently been asking ' Haroldson for pipefitters but had been advised that none were
available. Hammon told Kopp he was sure he could get a referral from Haroldson
now. Kopp then asked Haroldson for a referral and was again told that no work
was available . When he confronted Haroldson with the information given him by
Hammon , Haroldson told him that before he would refer Kopp or any of the others
who had been laid off with him, he would call in strangers or outsiders to meet
job demands.
Kopp testified that he felt Haroldson 's conduct toward him was "very unjust"
and "dirty" and that he had "no respect for the man whatsoever " and would have
nothing to do with him in any "way, shape or form ." Kopp further testified that
there was no secret about his antipathy toward Haroldson and his determination
not to have any of Haroldson 's pipefitters work for him . He freely admitted having
apprised his employees 3 of this attitude and purpose but was unable to say when
he had made such comments to them. His best guess , based upon the opportunity
for reflection afforded him by an overnight break in his interrogation , was that his
comments to his two employees about Haroldson and the AFL-CIO pipefitters was
made shortly after the two had been hired by him which was more than a year
before the unfair labor practice charges had been filed against him.
According to Kopp 's further testimony, when Chester talked to him and his
partner, Evans , about "belonging to the A .F.L.," on or about January 25, 1962,
he told Chester "about the Haroldson incident " substantially as I have indicated
he testified about it above. In this connection , he admitted on cross-examination
that he "quite possibly told Chester at this time that he would never have an A.F.L.
pipefitter on his jobs." Although he told Chester that he "would give him full con-
sideration" if he decided "to join a union ," he added that his experience with Harold-
son "would certainly enter into the picture " and pointed out that "it would be a
bit awkward" to try to do business with a man for whom he had no use.
On July 26, 1962 , Kopp testified in the Federal District Court as follows:
Q. Now, Mr. Kopp, did you tell Mr. Chester in January 1962 that you had
been at one time a member of the pipefitters Union, AFL?
A. Yes, sir.
Q. And that you had-you had a bad feeling toward the business agent of
that Union?
A. I do.
Q. And `.hat there would never be an AFL Pipefitter on any of your job?
A. I did.
In the CP case I heard in which the Respondent herein was the Charging Party,
Kopr testified that his two employees , Besaw and Hartley , were present in the
courtroom and heard him when he gave the above -quoted testimony.
The Alleged Remarks of May 15
On May 14 the B.T.C. began picketing Respondent's jobs in Bethalto , Illinois.
The next day Kopp called Chester of the B.T.C. about the picketing. This call,
8 So far as the record shows, Respondent only employed two men on a permanent basis,
Raymond Besaw and John Hartley. It is clear that Kopp works. with. tools along with
his men like a rank-and-file mechanic and that he converses with them as fellow workmen
do. He testified that he has "hundreds of conversations" with an employee during his
tenure of employment.
KOPP-EVANS CONSTRUCTION COMPANY 693
according to Kopp, lasted approximately 30 minutes .4 When Kopp told Chester
he was calling about the picketing, Chester said, "What is there to talk about?"
Kopp said he wanted to get the pickets off his job. Chester said he was "non-union
and unorganized." Kopp explained that he had a contract with the CIU which
was chartered in Washington and had been certified by the Board. He also told
Chester that "a good portion" of his work was let to AFL subcontractors and
named several of them. He said he would give Chester until noon the next day to
remove the pickets and that if they were not removed by then he "would have to doh
something about it" and "would start by firing all of the AFL subcontractors that
were on the job." In his testimony on direct examination, Kopp specifically deniedl
at this time threatening that he would never have members of AFL-CIO unions on,.,
his jobs.
According to Chester's testimony in the court hearing, in his May 15 telephone,
call Kopp told Chester that if the picket line was not down by noon the next day
"there would never be another AFL-CIO man 5 work on his job." Although
Chester claimed that part of the conversation was devoted to personalities 6 he denied
that there was any mention of subcontractors or that Kopp named any in that
conversation. I believe and find that Kopp did mention subcontractors in the con-
version and named them. In so finding I do not mean to imply an acceptance
of Kopp's testimony or inference therein that his comments about AFL-CIO per-
sonalities were restricted to subcontractors. On the contrary, I also believe and
find that Kopp, in addition to saying he would eliminate the AFL-CIO subcon-
tractors from his work, told Chester that unless the pickets were removed he would
not have any more AFL-CIO men on his jobs.
Conclusions
On the facts herein I conclude and find that the General Counsel has failed to
prove the material allegations of the complaint by the necessary preponderance of
the evidence. With the possible exception of what was said to Chester (which matter
will be considered below) it is clear that no evidence was adduced whatsoever to
show that on or about January 25, 1962, Kopp made any coercive remarks to his
employees. The General Counsel, relying on Kopp's admission that his employees
were well aware of his feelings about Haroldson and the latter's pipefitters, points
to Kopp's testimony in the district court on July 26, 1962, persumably to support
the January 25 allegation in the complaint. Whether or not this testimony made in
the presence of two employees might be said to have constituted in and of itself
a violation of the Act,7 I find that it does not prove or tend to prove the violation
attributed to Kopp on January 25.
As for the May 15 threat made to Chester, the General Counsel says:
As hereinbefore stated, these statements were made by Kopp to Chester,
a man he knows as secretary-treasurer of the Building Trades Council, and
particularly here under these circumstances, it is reasonable to assume these
remarks would be communicated back to the other working delegates of the
Council. In addition, Mr. Chester himself is a working bricklayer and a pros-
pective craftsman employee.
The substance of Respondent's defense is that even assuming that in his remarks
to Chester on May 15 Kopp may have used the term "employees" rather than the
somewhat more generic term of "men" or "persons," Kopp did not violate the Act.
For this position Respondent relies on Reilly Cartage Company, 110 NLRB 1742,
and Max Silver & Son, 123 NLRB 269. In both cases the Board refused to find
that statements which would have been coercive if made to employees were not
coercive when made only to union representatives.
* Chester testified that he could not tell exactly how long the conversation lasted but
estimated that it could have lasted at long as 5 or 10 minutes.
5 At various other times in the three hearings from which the evidence herein is gleaned,
Chester attributed to Kopp , the terms AFI CIO "men," "people" and "person" or
"persons "
E It was agreed that Kopp had said he was a "bard headed Dutchman" According
to Chester's testimony, he told Kopp he thought Kopp "was a pretty nice fellow."
7A matter I do not decide for two reasons- (1) It was not alleged as such in the com-
plaint and (2 ) in view of my disposition of the May 15 incident I would not deem the
court testimony ( even if I found it to be a violation) to be more than an isolated in-
cident or of sufficient importance upon which to base a remedial order.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel apparently would distinguish these cases on the grounds
that there was no showing in them, as here , that the union representatives in addi-
tion to their union duties also worked at their respective trades. In the circum-
stances of this case I do not believe that this distinction is of sufficient significance
to reach a result different than that which the Board reached in the cases in
question . While this distinction may detract somewhat from the strength of those
cases there are in my opinion other circumstances here which tend to strengthen
Respondent 's reliance thereon . In both the cited cases the Unions were actively
engaged in trying to organize the respective Respondent 's employees and had solicited
or were soliciting them to join the Union . Here there is no such evidence . Indeed,
in May the Union was claiming to be doing only "informational " picketing and
specifically stated through its picket signs that it did "not have organization or
recognition as an object ." Moreover, although in January the Union had sought
recognition, it did that, so far as the record shows , by a direct approach to Kopp
Without attempting to organize the employees and bypassing them completely. In
these circumstances it seems to me that there was little likelihood or reasonable
expectation that Kopp 's remarks to Chester would be communicated to the em-
ployees--certainly no more anticipation of that here than in the Reilly Cartage Com-
pany, and Max Silver & Son , cases and even less likelihood than in Everett Van
Kleeck & Company , Inc., 88 NLRB 785 and Ford Radio & Mica Corporation, 115
NLRB 1046 , where the union actually represented a majority of the employees or
Maimed to represent a majority at the time the putative remarks were made to a
union representative.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Alton-Wood River Building and Construction Trades Council and Local 553,
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO, are labor organizations
within the meaning of Section 2 ( 5) of the Act.
2. Norman E. Kopp and Larry K. Evans, d/b/a Kopp-Evans Construction Com-
pany and the Alton District Independent Contractors and Associates are and at
all times material herein have been engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a)( I) of the Act.
RECOMMENDATION
On the basis of the foregoing findings of fact and conclusions of law, and on
the entire record in the case , I recommend that the complaint be dismissed.
Topps Kerrmill , Inc. and Amalgamated Clothing Workers of
America, AFL-CIO
Retail Clerks International Association , AFL-CIO, and Local
1325, Retail Clerks International Association , AFL-CIO (Topps
Kerrmill , Inc.) and Amalgamated Clothing Workers of Amer-
ica, AFL-CIO. Cases Nos. 1-CA-3799 and 1-CB-776. July 22,
1963
DECISION AND ORDER
On February 12, 1963, Trial Examiner David London issued his
Intermediate Report herein, finding that Respondents, Topps Kerr-
mill, Inc., and Local 1325, Retail Clerks International Association,
AFL-CIO, had engaged in and were engaging in certain unfair prac-
tices and recommending that they cease'and desist therefrom and take
143 NLRB No. 75.