Local 825, Int'l Union Operating Engineers, Etc.

National Labor Relations Board - Board Decisions

May 15, 1962

137 N.L.R.B. 136 (N.L.R.B. 1962)

.136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.
It is further recommended that, unless the Company shall within 20 days from
the date of receipt of this Intermediate Report notify said Regional Director in writ-
.ing that it will comply with the foregoing recommendations , the National Labor
Relations Board issue an order requiring the Company to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT discourage membership in Los Angeles Typographical Union
No. 174, International Typographical Union , AFL-CIO, or any other labor
organization of our employees , by discharging , refusing to reinstate , or in any
other manner discriminating against them in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL offer Jose Nabor Villasenor immediate and full reinstatement to
his former or substantially equivalent position , without prejudice to his seniority
or other rights and privileges previously .enjoyed, and make him whole for any
loss of pay suffered by him as the result of the discrimination against him.
WE WILL NOT in any manner interfere with , restrain , or coerce our employ-
ees in the exercise of their right to self-organization , to form labor organizations,
to join or assist the above -named Union or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , and to refrain from any or all such activities.
All our employees are free to become or remain, and to refrain from becoming or
: remaining , members of the above -named or any other labor organization.
LOZANO ENTERPRISES,
Employer.
-Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office , 849 South
Broadway , Los Angeles 14, California, Telephone Number Richmond 9-4711, if
they have any question concerning this notice or compliance with its provisions.
Local Union 825, International Union of Operating Engineers,
AFL-CIO and Wm. C. Ehret. Case No. 22-CC-137. May 15,
1962
DECISION AND ORDER
On January 29, 1962, Trial Examiner John F. Funke 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
in its entirety, as set forth in the Intermediate Report attached hereto.
'Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
'Rodgers and Fanning].
137 NLRB No. 17.
LOCAL 825, INT'L UNION OPERATING ENGINEERS, ETC. 137
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and the brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board dismissed the complaint.]
i In our opinion, the General Counsel failed to sustain the burden of proving that
Respondent committed the violations of Section 8(b) (4) (i) and (ii) as alleged in the
complaint Like the Trial Examiner, we therefore dismiss the complaint for this reason.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed August 25, 1961, by Wm. C. Ehret,i herein called Ehret, the
General Counsel issued a complaint on September 29, 1961, against Local Union
825, International Union of Operating Engineers, AFL-CIO, herein called Local
825 or the Respondent. This proceeding, with the General Counsel and Respondent
represented, was heard before me at Trenton, New Jersey, on January 2 and 3, 1962,
upon the complaint and amended complaint of the General Counsel and the answer
and amended answer of Respondent.
The complaint, as amended, alleged that Local 825 induced and encouraged the
employees of Nami Bros., herein called Nami, to engage in a strike or a concerted
refusal to perform services for Nami and threatened, coerced, and restrained Nami
with the object of forcing or requiring Nami to cease doing business with Ehret.
It further alleged that by such conduct Local 825 violated Section 8(b) (4) (i) and
(u) (B) of the Act.
Respondent's answer, as amended, denied such inducement, encouragement, threats,
coercion, and restraint and denied the commission of any unfair labor practices.
At the conclusion of the General Counsel's case Respondent moved to dismiss the
complaint and renewed this motion at the close of the hearing. Decision was re-
served and the motion is now disposed of in accordance with the recommendation
herein.
At the conclusion of the case the parties were given 21 days in which to file
briefs and counsel for Respondent submitted oral argument?
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES
Ehret is a New Jersey corporation having its principal place of business at 1723
North Olden Avenue, Trenton, New Jersey. It is engaged in the construction industry
as a general contractor and during the past year it purchased materials valued in ex-
cess of $50,000 from States other than the State of New Jersey and caused them to
be transported to the State of New Jersey.
Nami is a partnership comprised of Dewey A. Nami and Dominick Nami and
has its principal place of business at Route 33, Mercerville, Trenton, New Jersey. It
is engaged in the building and construction business as an excavating contractor.
During the past year it performed services valued in excess of $50,000 for Ehret,
for Belli Construction Co., Inc, and for Paternoster Construction Company.' The
out-of-State purchases for Belli from January 1, 1960, to January 1, 1961, totaled in
excess of $275,000 and the out-of-State purchases of Paternoster from November 1,
1960, to October 31, 1961, totaled in excess of $185,000.
'An amended charge was filed Augu st 30, 1961, and a second amended charge was
filed December 22, 1961
2 The General Counsel neither presented oral argument nor filed a brief. In view of
the record this omission is understandable
3 The testimony indicates that Nami performed services valued in the approximate
amount of $ 33,000 for Belli and of $ 19,600 for Paternoster from August 1, 1960, to
July 31, 1961.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing , I find that Ehret and Nami are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.4
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
On August 14, 1961, Ehret entered into a contract with the State of New Jersey
for the erection of a five-story office building for the Department of Education at
West State and Calhoun Streets, Trenton. Ehret subconstracted various phases of
the work, including excavation, furnishing of reinforced steel, painting, plumbing,
flooring, glazing, acoustical work, etc. The excavation work, the first stage of con-
struction, was subcontracted to Nami on August 18. This work included the
removal of trees and sidewalks, the stripping of topsoil, rough grading and excavation.
It was estimated that the excavation would take 3 or 4 weeks.
On August 22 a meeting was held at the jobsite among representatives of the State
.of New Jersey, Ehret, and the price subcontractors, including Dewey Nami. Donald
-G. Ehret, executive vice president of Ehret, testified that as he left the meeting he
was approached by Jack Smith, business representative of Local 825, who identified
himself and told Ehret that since Ehret had no contract with 825 there would be
pickets at the premises the next day. According to Ehret this was all that was said.
According to the record the first incident occurred at the jobsite either on the
morning of August 21 or 22 prior to the alleged conversation between Ehret and
Smith. Joseph Kowleski, a member of Local 825, testified that he was at the
jobsite when he noticed a front-end loader with the motor running and a bucket
load of dirt. He asked the operator, never identified on the record, for his union
card and was told by the operator that he was not a member of any union.
About this time Kowleski saw Dewey Nami leaving the building on the jobsite and
went up to Nami, introduced himself, and asked Nami why a nonunion man was
running the front-end loader. According to Kowleski (Dewey Nami was not ex-
amined on this incident), Nami replied that he had tried to get the man in the
Union but had been unable to and he then told Kowleski he would not work the
machine any more that day. The next day Kowleski reported the incident to Smith
but Smith's reaction is not revealed.
On August 22, Nanli delivered equipment to the jobsite without incident. On
August 23, Richard Davison, a truckdriver for Nami, and Charles Nami, an operat-
ing engineer and the son of Dewey Nami, delivered a backhoe to the jobsite. Charles
Nami testified that he was approached at the site by a man (identified as Kowleski)
who stated he was a member of the Operating Engineers and who told him that
Ehret was in trouble with Local 825 and that they (Nami and Davison) should not
work for Ehret. Kowleski was given a Nami Bros. card by Charles and, at Charles'
request, Kowleski wrote down Smith's name and telephone number, his own name,5
and then gave the card back to Charles. The backhoe was left at the jobsite and
Charles Nami, upon his return, delivered the card to his father and told him to call
Jack Smith. Kowleski denied having any conversation with Charles Nami, testifying
only that Charles made the request for Smith's name and number.6 Since it has
not been shown that Kowleski was an agent for Local 825 it is unnecessary to resolve
this issue of credibility.
The next day Charles returned to the jobsite in a pickup truck with Steve Nagy,
also a Nami employee and a member of the Operating Engineers. On arrival at the
site they found several men standing about, among them Jack Smith. (The men
were standing along the curb line and carried neither picket signs nor armbands.)
Charles testified that be asked Smith if it was a picket line and was told it was not.
He then asked Smith if he could go to work and was told he could but he was also
told by Smith "you know the consequences, what they will be like, if you work."
d The complaint alleges that the Building Contractors Association of New Jersey is en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that
Ehret is a member, of the Association. No finding of jurisdiction is based on these
allegations
6 General Counsel's Exhibit No 5
6 Bowleski also testified that he did not believe that Davison was the man operating
the front-end loader the day before
LOCAL 825, INT'L UNION OPERATING ENGINEERS, ETC. 139
Although Nami testified that he did not know what Smith meant by this remark, he
did not go to work. According to Charles, he and Nagy had been sent to the site
to start the removal of the trees.
Nagy testified that he drove the pickup to the site with Charles and that Smith
asked him for his book, which he did not have. He had no conversation with
Smith concerning the consequences of going to work nor concerning any dispute
between Local 825 and Ehret. He did, however, testify that he had a conversation
with a member of Local 825 named Eldridge in which Eldridge told him that if he
went to work "there was a possible chance that I could lose my book." While the
testimony discloses that Smith was seated in a car close to Eldridge and Nagy when
this conversation took place, Smith, in testifying, denied hearing it and I accept his
denial. More importantly, however, Nagy testified that before leaving for the site
he had been instructed by Dewey Nami not to do any work and that he knew when
he went there he was not going to work.?
Dewey Nami was the chief witness for the General Counsel. He attended the
meeting at the jobsite, together with the other subcontractor, on August 22. After
the meeting, according to his testimony, he had a conversation with Jack Smith. He
told Smith, in response to Smith's question as to when they (Nami) would start
work, that they "weren't quite ready yet." Since Dewey Nami's testimony, which
was neither clear nor convincing, is vital to the determination of the issues, particu-
larly as to threats, coercion, and restraint, it is necessary to report it verbatim.
Quoting his conversation with Smith on August 22, he testified
.. And, of course, the conversation started when we were going to start
work. I said we wern't quite ready yet. So then it was mentioned that there
was some kind of trouble having a contract with Ehret. So it was a question
whether we were going to be able to perform.
TYtiAL EXAMINER: What we want is what you said to him and what he said
to you. We will draw our own inferences and conclusions from it.
A. He said they were having some kind of trouble with Ehret Construction
Company with regards to signing their contract. And, of course, what I said,
the excavation part of the contract, that we were using our own men for that
and we had a sub-contract. But the main-I didn't want to see-I didn't want
to get in trouble with the Union or didn't want to get in trouble with Ehret.
Q. What did be say to you? Was that all he said or did he say anything else?
A. He thought within a couple of days things would be straightened out.
I said up until that time, we were going to continue to cooperate with you and
we were going to continue to cooperate with the men. I didn't want to get
into trouble and I didn't want my men to get into trouble. That wasn't the only
job I was ever going to do.
Q. Do you recall whether Smith said anything else to you besides what your
testimony has been so far?
A. No. The only question in my mind was how soon things would be
straightened out with Ehret, and he thought in a couple of days, why it would
be about the time when things would be straightened out as far as the contract
was concerned.
Dewey Nami also testified to the telephone conversation he had with Smith when
he received the card Kowleski had given his son Charles on August 23. He sum-
marized this conversation as follows:
. After I held the wire for possibly half a minute or so, Jack Smith answered,
and I told him I was given this number for me to call.
So the conversation was in reference to the job and how things progressed-
making any headway as far as a settlement is concerned. And he said he
thought within a couple of days everything would be all right.
I told him I was willing to go along and not-to go along and do whatever the
Union thought was all right so my men wouldn't get into trouble and I wouldn't
get into trouble, and for him to let me know what's what, keep me posted, and
that we weren't going to go to work until I was sure that things would be
straightened out.
So he didn't think it was going to be more than two or three days, the most.
' Dewey Namt was not questioned as to what instructions he gave Charles and Nagy on
this date His testimony indicates he did not intend to perform services if Local 825
objected
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On redirect his testimony as to the telephone conversation was substantially the
same:
Q. Yes. Do you recall that [telephone ] conversation?
A. Well, not too clearly. What I can recall was that this number was left for
me to call and I didn't know what it was going to be . So when he answered, I
says, "So and so asked me-left this number for me to call you." I said, "What
is it all about?" So he said , "Well," he says , "things are not quite straightened
out yet, but in about two or three days we expect things to be straightened out."
Jack Smith was the chief witness for Respondent Local 825. With respect for
Ehret's testimony that he told Ehret on August 22 that there would be a picket line 3
at the site the next day , Smith denied having any conversation at all with Ehret on
that day. He tried to talk to Ehret but , to use his words , was "brushed off."
Smith admitted having a conversation with Dewey Nami on that day but his
version is contradictory in important respects to that of Nami. According to Smith
it related to the fact that the operator of the front -end loader was not a member of
Local 825 and Nami assured Smith it would not happen again. Thus the testimony
of Smith inferentially supports the testimony of Kowelski that the dispute first arose
over the operation of the front -end loader by a nonunion man (Like Kowleski,
Smith could not identify the nonunion operator of the front -end loader.) 9
Smith's version of his telephone call from Dewey Nami on the evening of August 23
also deviates from Dewey 's testimony . Smith testified that in this conversation
Dewey told him he might need two men and Smith told him he would have to call
Larry Cahill , dispatcher for 825. Smith then asked Nami about the latest contract
between Nami and Local 825 and was told by Dewey that he (Smith ) had the con-
tract.10 Smith stated he then checked and found that Nami had not signed the latest
contract . li Dewey Nami , in his testimony , made no mention of discussing the con-
tract , although he admitted discussing his possible need for more engineers . Smith,
on the other hand, did not testify that he told Dewey things would be all right in
a couple of days.) 12
There were no other or further incidents at the jobsite and no further conversations
between Nami and Smith . Nami commenced work at the jobsite about September 1
and completed its work without interruption . The record does not reveal why
operations were commenced at this time.13
B. Conclusions
The testimony of the witnesses in this case is at times contradictory , at times
confusing, at times evasive , and in general unsatisfacory . It is, however , the testi-
mony on which recommendation to the Board must be made . The theory of the
General Counsel 's case is that the Respondent , seeking a collective -bargaining con-
tract with Ehret, induced and encouraged the employees of Nami to cease or refrain
from work at the Trenton jobsite and threatened , coerced, and restrained the Nami
partnership with the object of forcing Nami to cease doing business with Ehret.
8 No picket line was ever established at the jobsite.
9 Dewey Nami ' s version of this is that he asked Smith ' s permission to move the fiont-
end loader to another location and that permission was readily granted by Smith He
did not testify to any complaint about the use of a nonunion operator on the loader
to The contract ( General Counsel's Exhibit No . 7) ran from July 1 , 1959 , to Septem-
ber 5, 1961
11 The situation respecting this contract is confusing Charles Wilson , bookkeeper for
Nami , testified that he returned two signed copies of the contract to Local 825 in 1959
and that no copy was returned to Nami by 825 On August 22 Dewey Nami asked
Wilson about Nami ' s copy of the contract and was told Nami had no copy . Dewey told
Wilson to get a signed copy Wilson then called Local 825 and copies were forwarded
by the Local on August 2S (Respondent 's Exhibit No 3.) These were signed by Nami
and returned to Local 825 In an envelope postmarked August 30 ( Respondent 's Exhibit
No. 1.)
12 Smith was not examined by either counsel on this point so Nami ' s testimony is
uncontradicted
13 Counsel for Respondent contends that receipt of the contract ended any dispute with
Nami Smith ' s only explanation was that on September 1 or 2 "We all went for coffee
and that was it " According to this record no contract between Local 825 and Ehret was
ever signed.
LOCAL 825, INT'L UNION OPERATING ENGINEERS, ETC. 141
Respondent's defense rests, in part, on its claim that its dispute with Nami was a
primary dispute provoked by Nami's use of a nonunion operator at the jobsite and
,continued by its discovery that Nami had no contract with Local 825. Respondent's
conduct was designed, according to Respondent, to stop Nami from using nonunion
operators on Nami equipment and to secure a contract, objectives not unlawful under
Section 8(b) (4) (B). Both theories suffer from inconsistencies and implausibilities
when factual support in the record is asserted but the preliminary issue of the case
eliminates the necessity of choice between them. The prima facie case of the General
Counsel requires proof of inducement and encouragement of employees and threats,
coercion, and restraint of Nami. This is where the case flounders.
With respect to inducement and encouragement of employees, the General Coun-
sel's evidence discloses that only two employees of Nami had any discussion with
.any representative of Local 825.14 This took place on August 24 at the jobsite,
the employees were Charles Nami and Steve Nagy, the union representative was
Jack Smith, and the discussion was brief. Nami initiated the conversation when he
approached the site and saw Smith among a group of five or six men standing at
the curb. Although the men were merely standing about with neither signs nor
armbands, Nami asked Smith if it was a picket line. He was told it was not and was
also told that he could go to work. According to Nami he was also told by Smith
that he knew what the consequences would be if he did go to work. (Nagy did not
hear this; Nagy's only conversation with Smith occurred when Smith asked for his
card and Nagy said he did not have it with him.) I do not assume that the General
Counsel contends that Smith's statement that Nami could go to work constitutes
inducement not to work. If not, then his entire case under 8(b) (4) (i) rests on
Smith's parenthetical and cryptic remark regarding the consequences. Charles Nami,
who was a member of Local 825 and who knew Smith and who was aware of the
situation to the extent that Nami was involved, testified that he did not know what
Smith meant. It could have had reference to the fact that Nagy did not have his
,card; it could have had reference to the dispute with Nami over the use of a nonunion
operator; it could have had reference to the fact that Smith did not believe that
Nami had a contract with Local 825; or it could have had reference to the Local's
alleged dispute with Ehret. A remark so cloaked with ambiguity cannot be clarified
by speculation and meaning cannot be supplied by hypothesis. If rejection of the
General Counsel's theory required further support it could be found in Nagy's tes-
timony that he had been instructed by Dewey Nami not to do any work at the jobsite
and that he knew he was not going to work there on that day. This is corroborated
by Dewey Nami's testimony that he told Smith that Nami would do no work until
"things straightened out." I would, therefore, if I reached this point, encounter
difficulty in finding an inducement not to perform services where no performance
had been contemplated. No violation of Section 8(b) (4) (i) (B) has been established.
Turning to the 8(b) (4) (ii) allegations, I find them equally void of probative
support. In the absence of any 8(b)(4)(i) finding, the General Counsel must rely
on direct evidence of threats, coercion, and restraint. Dewey Nami was the only
partner to testify and the only partner who talked to Smith and Dewey had only
two conversations, one by telephone, with Smith. The substance of these conversa-
tions has been incorporated in this report verbatim, supra. The most that can be
made of these, and they are not free from a suggestion of evasiveness, is that Dewey
Nami, upon being advised by Smith that he was having trouble with Ehret over a con-
tract, volunteered not to perform any work for Ehret until Ehret and Local 825
settled their differences. There is not a scintilla of evidence that Nami agreed not
to work at the jobsite in response to any threat, veiled or otherwise, by Smith. While
it may be suspected that, since Nami's economic well-being would be aided and
abetted by amicable relations with Local 825, Dewey Nami may have modified his
testimony, it is still beyond the province of the Trial Examiner to cure deficiencies
in the proof by his own conjecture More than a suggestion or request (and it is
impossible to find any request made by Smith to Nami in the testimony) is required
to establish threats, coercion, and restraint.15
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its entirety.
11 The complaint does not allege and I do not find that either Kowleski or Eldridge
were agents of Local 825 or possessed authority to bind Respondent by their statements.
15 Carolina Lumber Company, 130 NLRB 1438.