Local Union No. 174, Teamsters

National Labor Relations Board - Board Decisions

Jul 19, 1968

172 N.L.R.B. 1217 (N.L.R.B. 1968)

LOCAL UNION NO. 174, TEAMSTERS
Local Union No. 174, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America , Independent and V. G. Scalf. Case
19-CC-344
July 19, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 2, 1968, Trial Examiner Ivar H. Peter-
son issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in certain unfair labor practices and recom-
mending that the complaint be dismissed in its en-
tirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed ex-
ceptions to the Decision and a supporting brief and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has 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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only to the extent con-
sistent herewith:
1. The Trial Examiner found that Respondent
did not violate Section 8(b)(4)(ii)(B) by the state-
ment in July 1967, by Respondent's Business Agent
Nichols to Pontius, president of Red, White & Blue
Fuel, that since Scalf and Respondent had not
resolved their differences, Pontius should not hire
Scalf's trucks, and if Pontius used Scalf, Respon-
dent would use "economic pressure."
The Trial Examiner concluded that this state-
ment was nothing more than notice to the prime
contractor of prospective strike action against a
subcontractor, and was not violative of the Act.
While we agree with the Trial Examiner that
statements to prime contractors that a union will
' Construction, Building Material and Miscellaneous Drivers Local Union
No 83 (Marshall & Haas), 133 NLRB 1144, 1145-46, plumbers & Pipefit-
terc Local No 471 (W%ckoff Plumbing), 135 NLRB 329,331-332
Y General Drivers, Chauffeurs, and Helpers, Local Union No 886 (The
Stephens Conn pans), 133 NLRB 1393, 1395, 1396, Local 38, International
Brotherhood of Electrical Workers (Bob Cutler Signs), 155 NLRB 1147,
Sheet Metal Workers International Association (5 M Kivner and Soils), 131
NLRB 1196, 1202
1217
picket a subcontractor are not violative of
8(b)(4)(ii)(B),' we do not believe that the state-
ment quoted above falls within that category. We
consider Nichols' statement to Pontius that if Pon-
tius used Scalf's trucks, Respondent would use
"economic pressure," as not merely a notice of a
prospective strike against a subcontractor, but 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).2
2. We agree with the Trial Examiner that
Respondent did not violate Section 8(b)(4)(ii)(B)
by the following statements:
(a) In June 1967, Respondent's Secretary-Trea-
surer Cavano informed Washington Asphalt Com-
pany's dispatcher Nelson that subcontractor Scalf
was in violation of the AGC agreement to which
Washington Asphalt Company was a party. Cavano
testified that in the course of the conversation he
told Nelson, "if it wasn't straightened out that we
would put pickets on as far as Scalf's [sic] was con-
cerned ... wherever Scalf was working."
(b) In July 1967, Nichols told Dascher, pre-
sident of Cherry City Trucking, Inc., that if Dascher
hired Scalf, the Union "would put a picket on Mr.
Scalf on the job."
We view these statements as threats to picket
only the primary employer (Scalf) on the jobsite.
Because picketing of this nature would not be un-
lawful, the threat to engage in such picketing
likewise is not unlawful.'
CONCLUSIONS OF LAW
1. V. G. Scalf, Washington Asphalt Company,
Cherry City Trucking , Inc., and Red, White & Blue
are engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. Local Union No. 174, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America , Independent , is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. By threatening Red, White & Blue Fuel with
economic pressure in furtherance of a dispute with
V. G. Scalf, Respondent has engaged in unfair labor
practices within the meaning of Section
8(b)(4)(ii )(B) of the Act.
' District Council of Painters No 48 (Hanulton Materials , Inc ), 144
NLRB 1523 1524-25, enfd 340 F 2d 107 (C A 9), Electrical Workers
Local 26 (McCloskey & Co ), 147 NLRB 1498, 1499, cases cited in fn 1,
supra
172 NLRB No. 123
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices , we shall order it to cease and
desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Local Union No. 174, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Independent, Seattle,
Washington, its officers, agents , and representa-
tives, shall:
1. Cease and desist from threatening, coercing,
or restraining Red, White & Blue Fuel, or any other
person engaged in commerce or in an industry af-
fecting commerce where an object thereof is to
force or require Red, White & Blue Fuel or any
other employer or person, to cease doing business
with V. G. Scalf.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its office and meeting hall copies of
the attached notice marked "Appendix. 114 Copies of
said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to members are customarily posted.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Furnish to said Regional Director sufficient
signed copies of the aforementioned notice for
posting at the premises of Red, White & Blue Fuel,
if this employer is willing.
(c) Notify the Regional Director for Region 19,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order -
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES
OF RED, WHITE & BLUE FUEL
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT threaten to picket Red, White
& Blue Fuel, or any other person engaged in
commerce or in an industry affecting com-
merce, where an object thereof is to force or
require Red, White & Blue Fuel, or any other
employer or person, to cease doing business
with V. G. Scalf.
LOCAL UNION No. 174,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA,
INDEPENDENT
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Republic Building, 10th Floor, 1511 Third
Avenue, Seattle, Washington 98101, Telephone
206-583-4532.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: Upon a
charge duly filed on July 13, 1967, by V. G. Scalf,
an individual, against Local Union No. 174, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Indepen-
dent, herein called the Respondent Union or Local
174, the General Counsel of the National Labor
Relations Board, by the Regional Director for Re-
gion 19, on November 3, 1967,' issued a complaint
alleging , as amended, that the Respondent Union,
by certain statements and conduct of its agents Ted
Nichols and George Cavano, violated the "second-
ary boycott" provisions of Section 8(b)(4)(ii)(B) of
the National Labor Relations Act, as amended. The
Respondent filed an answer, admitting certain ju-
risdictional allegations of the complaint but denying
the commission of any unfair labor practices.
' Unless otherwise indicated, all dates refer to the year 1967
LOCAL UNION NO. 174, TEAMSTERS
Pursuant to notice , I heard the case in Seattle,
Washington, on December 5, 6, and 7, 1967, and
January 5, 1968.2 The General Counsel and the
Respondent were represented by counsel, and were
afforded full opportunity to participate in the hear-
ing. Briefs filed by counsel for the Respondent and
the General Counsel, ably discussing the relevant
facts and law, have been carefully considered.
Upon the entire record in the case,' including
consideration of the briefs of counsel and the
demeanor of the witnesses appearing before me, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Scalf, the alleged primary employer here in-
volved, is an individual proprietor, in business as a
"for hire" dump truck operator, furnishing services
primarily to contractors engaged in road construc-
tion projects. During the year 1966, Scalf provided
in excess of $100,000 worth of services to contrac-
tors who are members of Mountain Pacific
Chapter, Associated General Contractors of Amer-
ica, Inc., herein called AGC, who in turn during the
same period purchased goods valued in excess of
$100,000 directly from points outside the State of
Washington. I find that under the Act and the ju-
risdictional standards of the Board, jurisdiction
here exists and should be asserted.
As amended at the hearing and by the granted
motion of counsel for the General Counsel made in
his brief, three alleged secondary employers are in-
volved: Washington Asphalt Company; Cherry City
Trucking, Inc.; and Red, White & Blue Fuel (herein
respectively called Asphalt, Cherry, and Fuel).
Each of the three "secondary employers" is en-
gaged in the construction industry and is a member
of AGC. The record shows, and I find, that each of
them, as well as Scalf, is an employer within the
meaning of Section 2(2) of the Act, and is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 174, as a constituent local of its Interna-
tional Union, has geographical jurisdiction over
King County, Washington. It is, as alleged and ad-
mitted, a labor organization within the meaning of
Section 2(5) of the Act, and is engaged in com-
merce as that term is defined in the Act and applied
by the Board to labor organizations. Its admitted
' Originally, this case was consolidated with another (Case 19-CC-350)
alleging similar violations based upon charges filed by Neil Pike Prior to
the hearing , the cases were severed I heard the P,/ a case on January 4 and
5, 1968, and my decision therein is issued this day (TXD-222-68)
' The unopposed motion of counsel for the Union to correct the tran-
script is granted, with the modification that the reference top 205 1 19,
in fact refers to p 204, 1 19 There are other errors in the transcript, but it
1219
agents involved in this proceeding are George
Cavano, secretary-treasurer for 15 years and an of-
ficer for 30 years; and Ted Nichols, a business
agent for about a year, whose duties include polic-
ing the Union's collective-bargaining agreement
which is here involved. Prior to becoming a busi-
ness agent, Nichols had worked as a truckdriver for
20 years.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue Involved; Background
The narrow issue in this case is whether the
Union threatened, coerced, or restrained any of the
three alleged secondary employers here involved by
the statements and conduct of forcing or requiring
them to cease doing business with Scalf, an em-
ployer with whom the Union had a labor dispute. In
resolving this issue, it becomes necessary to make
determinations as to the relative credibility of cer-
tain witnesses, whose testimony is to some extent in
conflict. We turn first to a brief account, as to
which there is no dispute, of the background
against which the events here in issue occurred;
then to setting forth the facts, immediately involved
in the issue before us, including a resolution of the
relevant testimony in dispute; and finally consider
the applicable law.
At all times here material, the Union has been a
party to a collective-bargaining agreement (Resp.
Exh. 2) with the AGC, which is binding upon the
three "secondary employers" here involved as well
as Scalf. The current agreement, styled the Build-
ing, Heavy and Highway Construction Labor
Agreement, is effective from June 1, 1965, until
May 31, 1968. Among other things, it provides, in
Article V, as follows:
ARTICLE V
Subcontractors-Hired, Rented, or Leased
Equipment
(a) The employer agrees that contractors to
whom subcontracts are let shall be required
orally or in writing to comply with all the
requirements, conditions and intents of this
Agreement and shall continue to do so
throughout all parts of their subcontract work.
In the case of hired, rented or leased equip-
ment, the employer will be responsible to see
that the wages and other conditions of employ-
ment hereunder are furnished the driver of
such equipment. (Emphasis in original.)
seems unnecessary to enter an order with respect to them, as they are
minor in nature and readily apparent from the context
It should here be noted that at the hearing counsel for the General Coun-
sel's motion to amend the complaint in certain respects , particularly to
delete Kent & Tucker as an affected secondary employer, was granted, a
like motion in his brief to delete Associated Sand & Gravel Company is
hereby granted
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) The Union agrees that employers who
employ men under the classifications of this
Agreement will be required to be bound by
and abide by all the requirements, conditions
and intents of this Agreement in construction
work coming under the terms of this Agree-
ment.
During the summer of 1967, Local 174 received
grievances and affidavits in support thereof from
members employed by Scalf, to the effect that
Scalf, who was bound by the contract here in-
volved, was violating certain provisions thereof ap-
plicable to him.' In the view of the Union, Scalf was
violating the agreement in a number of significant
respects, and the Union, consistent with its in-
terpretation of the relevant contractual provisions
set forth above and its long standing practice of giv-
ing courtesy notice to general contractors of dif-
ficulties encountered with subcontractors (such as
Scalf), did inform the secondary employers here in-
volved of the dispute it had with Scalf. Indeed, the
dispute was well known in the heavy construction
industry in King and Snohomish Counties in
Washington.
It is in this undisputed context that the resolution
of the issue before me turns Counsel for the
General Counsel maintains, in his brief, that
Cavano and Nichols are not to be credited where
their testimony is in conflict with the testimony of
his witnesses, representatives of the secondary em-
ployers. Counsel for the Union urges that the
testimony of Cavano and Nichols, given with "con-
sistency and directness," should be accepted, and
that no violation of the law is made out in this case.
B. The Legality of the Union's Conduct Toward the
"Secondary" Employers
As stated above, the gravaman of the General
Counsel's amended complaint against the Union is
that it threatened, coerced, and restrained the three
neutral employers with an object of forcing or
requiring them to cease doing business with Scalf,
with whom the Union had a labor dispute. Essen-
tially, two questions are to be determined, one fac-
tual and the other legal- Whether the Union's
representatives in their remarks to representatives
of the so-called neutral employers, in fact
restrained and coerced any of the latter-a
question which hinges in considerable part upon an
assessment of differing versions of testimony; and
whether the facts as found constitute a violation of
Section 8(b)(4)(ii)(B) of the Act. We first consider
and resolve the differing factual versions of what
happened, and then attempt to apply the law.
The Facts
1. As to Asphalt
Asphalt is engaged primarily in selling and laying
asphalt pavement . It owns and operates its own
dump trucks but, to meet added job requirements,
rents or leases dump trucks from others to supple-
ment its own equipment . At times here material,
Scalf was the principal source of supplemental
dump trucks used by Asphalt. When Scalf's trucks
are rented, David Nelson, the dispatcher at
Asphalt's Fremont plant, who works under Robert
Griffin, manager of the Fremont Division, gives in-
structions where the trucks are to be loaded and
unloaded, ascertains that the hired trucks are fit
and safe, and in general coordinates the work.
About the middle of July Nichols made a
telephone call to Nelson, at Asphalt's office. Nel-
son, on direct examination, testified that Nichols
"said there was a dispute between Scalf Trucking
and the union. And [he] asked that we not use the
trucks." Nelson then "asked Mr. Nichols if he
would send me a letter in writing that we were not
to use ... Scalf's trucks." In response, Nichols said
that "he would have to take it under advisement,
and he would call me back later," whereupon
Nichols "hung up the phone and naturally I hung
up the phone." Asked whether he recalled any
more of the conversation, Nelson replied, "Well,
just as I stated before, that he said he was going to
take it up with his higher authority," referring to
Nelson's request for a letter. Thereupon, Nelson
was shown his prehearing statement, particularly
the paragraph containing the following two sen-
tences:
He [Nichols] told me not to hire Scalf trucks
or else he'd shut us down. I understood him to
mean he'd shut down our total operation.
and answered as follows when asked by me to "re-
peat the whole conversation":
I can't tell you approximately what time it
was or anything, but I got the phone call. As I
stated before, the conversation said that there
was a discrepancy between the union and Scalf
Trucking. And he said that we were not to use
Scalf's trucks.
So I asked him why, and he said there was a
dispute between the two.
I don't think Mr. Nichols at that time
elaborated any more than that.
So I asked him, and I said, "Will you send it
to me in writing." He didn't give me an answer
right away, and we talked more miscellaneous
conversation at that time ....
But he said that he would then check with
' The testimony upon which these findings are based is uncontradicted
and credited Scalf, the Charging Party, was present during the hearing ex-
cept on the last 2 days, he was unrepresented and did not testify His failure
to testify or attempt to contradict the testimony of Respondent 's witnesses
serves, in my view, to give added credence to the testimony of the latter
(Cavano and Nichols) insofar as it relates to representations of action re-
garding Scalf made to representatives of secondary employers by Cavano
and Nichols
LOCAL UNION NO . 174, TEAMSTERS
his superiors, and that he would call me back
later on it. I said, "Well, that is fine." He never
did call me back himself, Ted never did.
So then-
Q. (By Mr. Nielson-interrupting) Are you
leaving the conversation now on the phone? Is
this the end of your testimony about the con-
versation?
A. No, no, just wait a minute.
So he said that they would close the job
down that we were going to do, shut the opera-
tion down, so I hung up the conversation, and
this was the end of this particular conversation.
So this was the end of it. I hung up, and I went
on with my duties in the office.
Q. So it was toward the end of your conver-
sation with Mr. Nichols that he mentioned
shutting the job down?
A. Correct.
Nelson then testified that about 30 to 45 minutes
later he received a call from Cavano.5 According to
Nelson, Cavano stated that he understood Nelson
wanted a letter from the Union asking that Asphalt
not use Scalf's trucks; when Nelson affirmed that
that was his request, Cavano stated "that he did not
have to give it to me in writing," and that "he was
telling me that I was not to use Scalf's trucks." Nel-
son continued by stating that Cavano said C. R.
Wilcox (referred to as Mr. "Cotton"), the president
of Asphalt and president of the Mountain Pacific
Chapter of AGC, who then was seriously ill with a
heart condition, "would so advise me" but, since
Wilcox could not be consulted, Nelson should seek
the advice of Mel Hord, the manager of the Moun-
tain Pacific Chapter of AGC. Nelson testified that
Cavano "said he would have our operation shut
down."
Under cross-examination, Nelson amplified his
recollection of the two conversations he had with
Nichols and Cavano. With respect to the former, he
testified, contrary to his testimony on direct, that
Nichols "never said he would shut down the [total]
operations" of Asphalt, but only "the one job we
were working on at the time," which was the Sears
& Roebuck job out of the Fremont station, on
which about four of Scalf's trucks were being used.
At that time, three other jobs, in addition to the
Sears & Roebuck job, were in process and being
conducted by Asphalt's Fremont station. Nelson ex-
plained the discrepancy between his pretrial state-
ment and his direct testimony, and his testimony on
cross-examination, by stating that "when I am talk-
ing of the total operation, I mean the Fremont
Division." At that time Scalf's trucks were only
being used at the Sears & Roebuck job.
Concerning the conversation with Cavano, Nel-
son testified on cross-examination that in response
In his affidavit he placed the time of this call as about 2 hours after the
call from Nichols
^ Nichols does not have authority to call a strike or institute picketing,
1221
to Cavano's suggestions that Nelson contact Mr.
Hord of the AGC, he agreed to do so. Although in
his sworn statement Nelson stated that Cavano
"said I was in violation of the contract . . . if we
hired Scalf's trucks," he qualified that by testifying
that Cavano said he (Nelson) should check with
Hord "to see that we would not be in violation."
It is Nelson's testimony that neither Nichols nor
Cavano referred to pickets, picket signs, or picket-
ing, and that neither stated how a shutdown of any
of Asphalt's operations would be accomplished.
Nelson did check with Hord. Asphalt did continue
using Scalf's trucks after the Nichols-Nelson and
Cavano-Nelson telephone conversations; the Union
took no action.
Nichols testified that in the conversation with
Nelson he "informed Mr. Nelson that Mr. Scalf was
in violation of our agreement, and asked him not to
use Mr. Scalf." To this, according to Nichols, Nel-
son replied that he (Nelson) "did not have the
authority to dispense with using Mr. Scalf's trucks,
and that he wanted this in writing." He denied that
he threatened Nelson with picketing or any sort of
economic action.' Cavano testified that he called
Nelson, after being advised by Nichols that Nelson
wanted a letter embodying the Union's request that
Asphalt cease using Scalf's trucks. Cavano's
testimony is that he told Nelson the Union did not
by letter notify a contractor of violations by a sub-
contractor, and that Nelson should check with
Hord of the AGC chapter to verify the Union's pol-
icy in that regard. Nelson, so Cavano testified,
"stated he would take it up with higher authorities,
because I [Cavano] told him if it wasn't
straightened out that we would put pickets on ...
wherever Scalf was working." Cavano did not tell
Nelson when picketing would occur. The day after
this conversation Cavano ordered picket signs
made reading "Scalf Trucking on Strike," but the
signs were not used because later Nichols reported
that Scalf had been removed from the job.
The day after the Nichols-Nelson conversation,
Nichols visited Robert Griffin, manager of
Asphalt's Fremont Division. Griffin testified that
"the gist of the conversation" was that the Union
"wanted us to cease hiring Scalf's trucks during the
period of time when there was a dispute" between
the Union and Scalf. Griffin replied that Asphalt
had no dispute either with the Union or Scalf, that
he "did not feel that we [Asphalt] should be in-
volved." Griffin said the Union's request concerned
a matter he could not decide, but that he would
check into it further. During the conversation,
Nichols, in substance, said that the Union planned
to take economic action against Scalf; Griffin
added that, if the Union followed that course, "I
felt at the time that by doing that we would be af-
Cavano has that authority His principal activity in contract enforcement is
to check jobs and members' books
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fected by it because of our drivers working on the
same project at the same time as Scalf 's trucks, so
in essence our job would be shut down , ordinarily "
Griffin consulted the attorney for Asphalt and
the next day telephoned Nichols as follows:
A Well, I believe the substance of the con-
versation was that I told him that I had
checked with our counsel and he had so ad-
vised us that if during this period of time it was
possible not to use Scalf 's trucks until the
dispute was ironed out, that it would be advisa-
ble not to retain Scalf 's trucks. I also told him
at the time that I would stand behind that un-
less we got into a position whereby we couldn't
conduct our business without putting Scalf's
trucks on . If that circumstance arose, then
prior to doing anything I would check with
him, I would tell him what we would do prior
to any action that would be contrary to what
we had discussed.
Q. You mean contrary to what you had
discussed about hiring Scalf again?
A. Yes. And at that time ... he accepted
that explanation and he in turn said he would
call me immediately also when the dispute was
resolved so that we would know when we
would be able to put Scalf 's trucks back on.
Griffin added that during Nichols ' visit to his of-
fice, Nichols pointed out the respects in which Scalf
was not abiding by the contract , principally the
"four and eight" provision ? and Scalfs refusal to
permit the Union to inspect his books. Asked
whether Nichols made " any threat to you to shut
Washington Asphalt down if you did not comply
with his request ," Griffin answered that Nichols
"did not say at any time ... that he would shut
Washington Asphalt Company down."
2. As to Cherry
Cherry, a dump truck operator and an associate
member of AGC, is a party to the contract with the
Union. On occasion, Cherry hires supplemental
dump trucks to augment its own equipment. Ac-
cording to John E. Dascher, president of Cherry,
his company has never hired Scalf trucks on jobs in
King County, the geographical jurisdiction of the
Union, but has rented Scalf trucks on jobs in
Snohomish County, which is within the territorial
jurisdiction of the Union's sister local, Local 38.
In the latter part of July, Cherry was engaged to
perform dump truck services for J. J. Welcome &
Sons, a general road construction contractor, on a
highway project near Woodinville, Washington,
which is in King County. Nichols, the Union's busi-
' The agreement provides that if a man works less than 4 hours, he gets
paid for 4, if he works over 4 but less than 8 , he is to be paid for 8 hours
" Dascher recounted that he and Nichols "had conversations at quiet
times when we were hashing over the industry and what should be done"
and, on other occasions, "when we were so mad we would like to take each
other by the snout ," with the result that Dascher could not "go ahead and
tell you exactly " when, where , or in what sequence statements were made
ness agent, came to the project to check the job, in-
cluding whether Dascher was complying with the
contract. According to Dascher's testimony,
Nichols "told me that he was looking around at
who I had hired and what trucks were on the job,
and he told me that he had a union dispute going
on" with Scalf and "that I wasn't supposed to hire
Scalf." To this, Dascher replied, so he testified, that
"if I needed trucks I was going to hire whom I
needed," whereupon Nichols "said if I hired them
on that job he would throw a picket line around it
and shut the job down." Dascher acknowledged (as
did Nichols) that the discussion between them
became heated at times and that both were angry."
According to Dascher, Nichols made this statement
a second time in the presence of J. J. Welcome and
the latter's son, Bud 9
From the testimony of both Dascher and Nichols,
it seems clear that their several conversations in the
latter part of July were not confined to the Union's
dispute with Scalf and what, if anything, would
occur if Dascher hired Scalf's trucks. Indeed, it is
evident that Nichols was closely checking Dascher's
compliance with the contract, which Dascher reluc-
tantly admitted he was not following in all respects.
On cross-examination, Dascher testified that before
he had the conversation with Nichols alone, around
July 21,10 he knew of the dispute between Scalf and
the Union "from numerous drivers and people in
the industry" as well as "from Scalf himself."
Asked why he questioned Nichols about the Scalf
dispute, Dascher testified he did so "[o]ut of cu-
riosity, that I wanted to know exactly what the
dispute was between Scalf and the union." How-
ever, he insisted that Nichols "came out to talk to
me about Scalf" and the dispute the Union had
with Scalf, rather than Dascher's compliance with
the contract.
Testifying with his records available and as a wit-
ness called by the Union, Dascher stated that he
last used Scalf in King County on June 27. Dascher
further testified that after he and Nichols had had
their conversations, Bud Welcome and Dascher
"sat down and talked it all out, and Bud told me
not to hire Scalf because he had this dispute and
there wasn't any sense in us muddying up the
waters." Dascher acted on those instructions from
the general contractor and did not hire Scalf's
trucks on the Woodinville road project.
It is Nichols' testimony that it was during this first
conversation with Dascher on the Woodinville job,
after some discussion about Dascher's compliance
with the contract which led to angry words, that
Dascher "asked me how Scalf's problems were
In any case, Dascher said that they talked about "different phases of the in-
dustry, and how the little one-and two-truck operators were muddying up
the water and making it tough to make a living and this and that, and
the other things "
" The Welcomes did not testify
Dascher testified that he started on the Woodinville job on July 18
LOCAL UNION NO. 174, TEAMSTERS 1223
getting along with the local union."" Nichols
responded that they had not been resolved, and
"that if he [Dascher] hired Mr. Scalf we would
have problems," and added that this meant "I
would put a picket on Mr. Scalf on the job ...."
Nichols denied that he told Dascher that he would
close down the job. Nichols also testified that
Dascher had some nonunion people on the job as
well as employees hired "off the bank" (i.e., not
through the Union's hiring hall) and that with
respect to these matters he told Dascher "to get
squared away or I would put a picket on him." Ac-
cording to Nichols, he and Dascher discussed in-
dustry problems, in the course of which Dascher
expressed the view that small dump truck operators
were "ruining the big operator" and that it was the
Union's responsibility to correct this; Nichols dis-
agreed, saying it was a problem to be handled by
the Washington Dump Truck Association.12 In
discussing alleged contract violations by Dascher's
concern, Dascher, according to Nichols, volun-
teered to allow the Union to look at his payroll
records. 13
3. As to Fuel
Fuel is engaged in the excavating and dump truck
business, and on occasion hires supplemental dump
trucks, including those of Scalf. It is a party to the
contract with the Union. The facts regarding the
Union's approach to Fuel respecting use of Scalf's
trucks rest upon the testimony of Fuel's president,
Vernon E. Pontius; Nichols, when asked whether
Pontius gave a correct account, answered in the af-
firmative.
Pontius had one conversation with Nichols, in
July, in which Scalf was mentioned. Nichols
telephoned Pontius at his home in the evening.
Pontius gave the following account of the conversa-
tion-A. Well, Mr. Nichols called, and informed
me that Virg Scalf and the union had not
resolved their differences, and that I was not to
hire Mr. Scaif's trucks.
In turn, I asked him what would occur if I
did hire Mr. Scalf's trucks. I asked if pickets
would be put on the job. He answered that, I
don't know how to phrase it, because I don't
remember the exact words, but that they would
use economic pressure. I don't really know
what economic pressure means. Perhaps it
should be clarified.
TRIAL EXAMINER: But he used that phrase,
economic pressure?
THE WITNESS: Yes.
A. But I didn't really understand it. How-
ever, I took it to mean-
Q. (By Mr. Nielson-interrupting) Don't
tell us what you took it to mean. Just tell us
everything you recall that he said or you said.
A. All right.
Then following, I said, "All right, I will not
hire Mr. Scalf's trucks." And he informed me
that he would inform me when they were
cleared.
That was it.
Q. Now, does that represent all that you can
now remember of what was said, either by you
or Mr. Nichols?
A. In that conversation, that is the extent of
it, to my memory.
Following the above testimony, Pontius was
shown the following testimony he gave in the in-
junction hearing (Joint Exh. 1):
Q. And would you tell us then, as best you
remember it, what Mr. Nichols said to you, and
what you said to Mr. Nichols?
A. Well, Mr. Nichols called me and told me
that Scalf and the Union were having disagree-
ment , which I already knew, and that I was not
to have any of his trucks on any of my jobs, or
that the jobs would be shut down, and I asked
Mr. Nichols if that meant that he would picket
my jobs, and he said, "Let's just say that we
will use economic pressure." That was the gist
of the conversation.
He then was asked whether "you now recall
anything being said other than you just testified to,"
and answered, "I believe it is the same." He stated
that Nichols "may or may not" have used the words
"shut down," but earnestly testified that his
testimony in that hearing was "the best at that time
that I could remember" and that in the instant
hearing "what I am doing now is the best of my
ability to remember the conversation. The exact
words are difficult." He stated that he did not be-
lieve Nichols used the words "picket or picket
signs." In answer to Pontius' question whether
Nichols "would put pickets on my jobs if I did hire
Scalf's trucks" Nichols "did not give an affirmative
or negative answer. He said he would use economic
pressure." Nichols "did not say anything about
picket signs at all."
Pontius described the relationship between him-
" Dascher regarded himself as being in contractual relations primarily
with Local 38, the local with which he usually deals, which had jurisdiction
in Snohomish County, his corporate headquarters However, he
acknowledged he was subject to the jurisdiction of Local 174 when work-
ing on a project in King County It seems a fair inference that Dascher
resented Nichols' close policing of the contractual provisions
12 At the time, Dascher was secretary of the Washington Dump Truck
Association, but Nichols was not aware of this Dascher resigned from the
Association in August
" Following the October 31 hearing on the Regional Director's applica-
tion for a temporary injunction against the Union, which was granted pur-
suant to Sec 10(1) of the Acton November 9 by the United States District
Court for the Western District of Washington, it appears that Dascher
called Nichols on the telephone regarding a request he had received from
the Union's attorneys to inspect Cherry's books According to Nichols' on-
denied and credited testimony, Dascher said the Union "would never see
his payroll or books" and that he was turning the request over to Secretary-
Treasurer Donovan of Teamsters Local 38 In the course of this conversa-
tion Dascher, who "was pretty mad" and used profanity, stated that "he
was going to take care of me [ Nichols ] in the near future "
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self and Nichols during 1967 as follows, in answer
to my question:
When I had occasion to hire drivers to replace
the loss of drivers, or an increase in trucks, I
have called the union hall for drivers, as I had
agreed to with Mr. Nichols. On several occa-
sions the drivers were unsatisfactory. However,
after calling Mr. Nichols at home sometimes he
has seen to it that I did receive satisfactory
drivers. Other relationships have been good.
There has been no problems.
TRIAL EXAMINER: No acrimony?
THE WITNESS. No what?
TRIAL EXAMINER: No acrimony?
THE WITNESS. No.
As I say, as far as that contract will permit,
he has a job to do. He is doing it pretty well. It
is very difficult to abide by it though.
C Concluding Findings
Upon a careful analysis of the testimony relating
to what was said by Nichols and Cavano in their
conversations with representatives of Asphalt,
Cherry, and Fuel, in the context of the obligations
and relations existing among the Union, the Charg-
ing Party, and the secondary employers- arising
both from the collective-bargaining agreement and
the arrangements made by the primary and secon-
dary employers among themselves-I am persuaded
that what Nichols and Cavano said and did falls
short of being violative of Section 8(b)(4)(ii)(B) of
the Act. I come to this conclusion because, as I as-
sess the testimony, neither representative of the
Union threatened, coerced, or restrained any of the
secondary employers with an object of forcing or
requiring them to cease doing business with Scalf.
At the most, what we have here are attempts
peaceably to persuade contractors, obligated by
their agreement with the Union to see to it that sub-
contractors (also bound by the contract) "comply
with all requirements, conditions and intents" of
the agreement , not to utilize the services of a par-
ticular subcontractor with whom the Union has a
dispute arising out of his noncompliance with the
contractual term and conditions of employment.
Such an attempt to persuade, even if accompanied
by a threat to take economic action against the of-
fending subcontractor, does not constitute a viola-
tion of the law.
The discussions Nichols and Cavano had with
Asphalt's representatives, Nelson and Griffin,
present the closest factual question, it seems to me.
Counsel for the General Counsel relies heavily
upon those portions of Nelson's testimony which
tend most nearly to attribute threats to the Union's
agents . From my observation of Nelson while testi-
fying and a study of his entire testimony, I have
concluded that he had a tendency to substitute,
perhaps unconsciously, his conclusions regarding
what was said for what in fact was said, and also to
add damaging color to his initial direct testimony
when his attention was called to statements from
his prehearing affidavit. Thus, he first testified that
Nichols, after referring to the Union's dispute with
Scalf, "asked that we not use" Scalf's trucks. He
was then shown that portion of his earlier statement
in which he stated Nichols "told me not to hire
Scalf trucks or else he'd shut us down," a version
obviously containing more threatening connota-
tions than what he had just testified Nichols said to
him. Nelson then proceeded to relate the entire
conversation and testified Nichols "said that we
were not to use Scalf's trucks", after relating some
intervening remarks exchanged by the two, in
which he quoted Nichols as saying he (Nichols)
would have to check with his superiors before he
could agree to place the Union's request in writing,
Nelson testified that the conversation ended with
Nichols saying that the Union "would close the job
down. 1114
Aside from the fact that Nelson's versions of
what Nichols said are not consistent, I particularly
note that in his prehearing statement as well as in
his testimony after having been shown it, Nelson
proceeded to state (and this is a fact about which
there is no dispute) that Nichols responded to his
request that the Union write a letter to Asphalt by
saying he would have to check with his superiors. If
in fact Nichols "told" Nelson not to use Scalf's
trucks and also threatened to "shut down"
Asphalt's operations (either where Scalf's trucks
were operating or generally if they continued to be
used), it appears strange to me that Nichols should
feel and reveal the necessity to check with higher
authority before stating whether or not he would
put in writing what the Union wanted or proposed
to do.
In contrast to Nelson's account, those of Nichols
and Cavano, which are not inconsistent with Grif-
fin's testimony of what Nichols said to him, as well
as what happened thereafter, seem more plausible.
Nichols did report to Cavano that Nelson wanted a
letter. Cavano called Nelson and told him it was not
the Union's policy to notify a contractor in writing
that a subcontractor was in breach of the contract.
I do not credit Nelson's testimony that Cavano,
after Nelson affirmed that he wanted a letter and
Cavano said he "did not have to give it to me in
writing," stated that "he was telling me that I was
not to use Scalf's trucks." If Cavano had uttered
such an ultimatum , I doubt that there would have
been much point for Cavano thereafter to send
Nichols to talk to Griffin, as he did, and for the
conversation between Nichols and Griffin to have
proceeded as Griffin credibly testified. According
I note that at the injunction hearing Nelson testified , " Mr Nichols said
I was not to hire his I Scalfs] trucks or else he would have the job shut
down " In that proceeding he testified to a later conversation with Nichols,
prior to Nichols' visit to Griffin, in which Nichols "told me not to use
his (Scalfs) trucks
LOCAL UNION NO. 174, TEAMSTERS 1225
to Griffin, Nichols said the Union "wanted us to
cease hiring " Scalf's trucks while the dispute with
Scalf remained unresolved. Griffin said he would
consult further, as the request was not one he could
decide. He did consult counsel and then advised
Nichols that Scalf's trucks would not be used dur-
ing the pendency of the Union's dispute with Scalf
unless it became necessary; in that event, Griffin
said he "would check" with Nichols. The latter
"accepted that explanation" and in turn said he
would inform Griffin when the dispute with Scalf
was resolved.15
As between Dascher and Nichols, I credit
Nichols where their testimony is in conflict.
Dascher admitted he become angry at Nichols
when the latter was checking his compliance with
the contract at the Woodinville job. Dascher
became obviously irritated and hostile when cross-
examined about this subject; indeed, I found it
necessary to call his attention to the provisions of
Section 102.44(c) of the Board's Rules,16 after
which he answered questions which I had ruled
were proper. In addition, I think it unlikely that
Nichols, while checking Dascher's contract com-
pliance and in the absence of any Scalf trucks on
the job, would on his own inject the Scalf dispute
into their conversation and threaten to "throw a
picket line around" the Woodinville job and "shut
the job down" if Dascher hired Scalf's trucks. I ac-
cept Nichols' version, as set forth above, which in
sum is that Dascher inquired about the status of the
Scalf dispute, was told that it was not resolved, and
that if Dascher hired Scalf the Union "would put a
picket on Mr. Scalf on the job ...." This account
is, I find, consistent with Dascher's subsequent ac-
tion in consulting the prime contractor (Bud Wel-
come) who told Dascher "not to hire Scalf because
he had this dispute and there wasn't any sense in us
muddying up the waters."
With respect to Fuel, there is no conflict in
testimony, although the accounts given by Pontius
before me and in the earlier injunction hearing are
not precisely the same. Pontius impressed me
favorably as a careful and honest witness, and in
reading both of his accounts of what Nichols said,
as fully set forth above, I conclude that Nichols
made no threat of economic action against Fuel if
Fuel should hire Scalf's trucks."
Counsel for the General Counsel concedes that,
under Moore Dry Dock standards'" a union has the
right " to engage in traditional primary appeals at a
common situs ... despite the fact that some inter-
ference with the operations of the neutral em-
ployers might ensue ." Having made this concession,
General Counsel then argues that "a union's threat
to secondary employers to engage in picketing or to
otherwise engage in primary activities is not saved
from" being violative of Section 8(b)(4)(ii)(B)
"merely because the union might have intended to
scrupulously observe the Moore Dry Dock stan-
dards." Citing certain language in a decision of the
Trial Examiner in Local 150, International Union of
Operating Engineers, AFL-CIO (Frisch Contracting
Service), 149 NLRB 29, 34, adopted by the Board,
General Counsel argues that the Board has held
"that where a union seeks to reap the benefits of
traditional primary activity at a common situs, it is
limited to engaging in such activities and being con-
tent with the incidental effect of such activity; it
may not in anticipation of resort to such picketing
threaten neutral employers that it will engage in
them." In sum, the argument appears to be that,
while a union may engage in protected but unan-
nounced primary activity, it may not inform or
"threaten" secondary employers that it will engage
in primary activity that may or will have incidental
effects on them.
As is well recognized, particularly in common
situs situations, legitimate actions against a primary
employer may and generally are expected to result
in the secondary or neutral employer sustaining
economic injury which, while it may be factually
substantial, is nonetheless treated as legally in-
cidental. As I understand this branch of General
Counsel's argument, a union engaged in a primary
dispute at a common situs violates the law if it in-
forms a secondary employer that it may or will
picket the primary employer but, if it engages in
such action without advance notice to the seconda-
ry employer, it does not violate the law provided its
conduct satisfies the Moore Dry Dock standards.
Were this argument to be accepted as the guide in
situations such as this, then the likely result would
be more rather than less incidental injury to neutral
employers caught in a dispute not their own. In my
opinion this view is erroneous, and I reject it.
15 1 have not overlooked the argument of counsel for the General Coun-
sel that in the present case Nichols' testimony as to what he told Nelson and
Griffin is not consistent with his testimony in the injunction proceeding I
perceive no real or significant inconsistency In the district court hearing
Nichols was asked whether he told Nelson that if he hired Scalf he
(Nichols) "would close down any Washington Asphalt job " He replied "i
pointed out to Mr Nelson that I didn't have a labor grievance with
Washington Asphalt, but that if Mr Scalf was working on the job, the ban-
ners would read that Mr Scalf was in violation of the agreement " He also
there testified that he told Griffin that "we did have the right to picket Mr
Scalf" if the latter was on a Washington Asphalt job General Counsel there
conceded this was so When asked in the present proceeding if his
testimony was "that you did not mention picketing Washington Asphalt or
anyone else to either Nelson, Griffin, or the dispatcher at Issaquah""
Nichols answered, "that is correct " General Counsel argues (br p 5) that
"the reason that Nichols testified one way at the 10(1) proceeding and
another way before the Trial Examiner is that all of his testimony is fabrica-
tion " I do not agree
1" Permitting striking all testimony of a witness on related matters if he
refuses to answer any question ruled proper
1' Although Fuel had in the past used Scalf's trucks the record does not
indicate that Fuel contemplated hiring Scalf at the time Nichols made his
call to Pontius
1N Sailors' Union of the Pacific (Moore Dry Dock), 92 NLRB 547 The
Board has, however , cautioned that these standards "are not to be applied
on an indiscriminate ' per se' basis, but are to be regarded merely as aids in
determining the underlying question of statutory violations " International
Brotherhood of Electrical Workers, Local Union 86 1 (Plauche Electric, Inc ),
135 NLRB 250, 255, Local 3, International Brotherhood of Electrical
Workers , AFL-CIO (New Power Wire and Electrical Corp.), 144 NLRB
1089, 1093
354-126 O-LT - 73 - pt, 2 - 6
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Frisch case, supra, does not stand for the
proposition that a union "may not in anticipation of
resort to" protected primary picketing "threaten
neutral employers that it will engage in" such ac-
tivity. In clear terms the Board there held, adopting
the findings of the Trial Examiner, that the labor
organization involved threatened to picket the
secondary employer and to stop other trades from
coming on the neutral's jobsite. Nor does the
Stephens case,19 characterized by General Counsel
(br. p. 7) as "a case of dubious vitality in view of
the Frisch case holding," any more than Frisch,
require that neutral employers be informed-before
a union may engage in protected primary picketing
at a common situs-that picketing will "be con-
ducted in strict conformity with Moore Dry Dock
standards."20 This argument, in essence , is that a
statement of a union agent, made to a secondary
employer, that economic action may be taken
against an offending primary employer, is con-
verted into a threat because of the failure of the
agent to elaborate that any action that may be un-
dertaken will in fact conform to Moore Dry Dock
standards. None of the cited cases, nor any authori-
ty I have been able to discover, requires a finding
that noncoercive speech, so found in the context in
'" General Drivers, Chauffeurs, and Helpers, Local 886 (The Stephens
Conipan) ), 133 NLRB 1393, cited by the Trial Examiner in support of the
result he reached in Frisch
" The General Counsel argues that , accepting Nichols' version of his
statement , as contained in his testimony at the injunction hearing, that
picket signs would identify Scalf as violating the contract , the statement
would amount to "an unqualified threat within the meaning of the Stephens
case , since there was no reference to the limitations on the times and place
of the picketing as a reference to Moore On Dock might have provided "
2' See Construction , Building Material and Miscellaneous Drivers Local
No 83 ( Marshall & Haac ), 133 NLRB 1144, 1146 (" the mere giving of
which made, is converted into coercive speech
because the speaker fails to affirm that such con-
duct as he says may be taken will, if taken, be law-
ful.
To conclude, I find that the Union, by the state-
ments of Nichols and Cavano to representatives of
Asphalt, Cherry, and Fuel, did not violate Section
8(b)(4)(ii)(B) of the Act. Accordingly, the com-
plaint will be dismissed.21
In my view of the case, it seems unnecessary to
pass upon the applicability or validity of other argu-
ments counsel for the Union makes in support of
his contention that no violation of Section
8(b)(4)(ii)(B) has been made out here.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and con-
clusions , and upon the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is ordered that
the complaint issued herein against the Respon-
dent, Local Union No. 174, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Independent, be, and it hereby
is, dismissed.
notice of prospective strike action against a subcontractor to the prime
contractor " is not violative of Sec 8 (b)(4)(u)(B)), Electrical Workers
Union Local 38, IBEW (Hoertz Llectric Maintenance Co ), 138 NLRB 160,
Local 38, International Brotherhood of Llectrical Workers, AFL-CIO (L
Wells Electrical Construction Company), 148 NLRB 757, reversed
Wells v N L R B., 361 F 2d 737 (C A 6), United Association Pipe
Fitters Local Union No 455 (D W Hickey Co, Inc), 154 NLRB 285,
293, United Association Pipe Fitters Local Union No 539 (American
Boiler Manufacturers Association), 154 NLRB 314, 318-319, cf
Local 38, International Brotherhood of Electrical Workers, AFL-CIO
(Robert R Cutler, dlbla Bob Cutler Signs), 155 NLRB 1147