Local Union No. 174, Teamsters

National Labor Relations Board - Board Decisions

Jul 19, 1968

172 N.L.R.B. 1212 (N.L.R.B. 1968)

1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 174 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America , Independent and Neil Pike. Case
19-CC-350
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 the Respondent had not
engaged in certain unfair labor practices and
recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer 's Decision. Thereafter, the General Counsel
filed exceptions 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed inits entirety.
' In accepting the recommendations of the Trial Examiner , we do not
adopt his dictum applying Loea ( Union No 505 , Internationa l Brotherhood
of Tea,niter, ( Carolina Lumber Companv). 130 NLRB 1438 In any event,
we note that the applicable standard is found in N L R B v Servett, Inc
377 U S 46
TRIAL EXAMINER'S DECISION
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 22, 1967,1 issued a com-
plaint alleging that the Respondent Union, by the
action of its agent, Ted Nichols, violated the
"secondary boycott" provisions of Section
8(b)(4)(ii)(B) of the National Labor Relations
Act, as amended. The Respondent filed an answer,
admitting certain jurisdictional allegations of the
complaint and that Nichols was its agent , but deny-
ing the commission of any unfair labor practices.
Pursuant to notice, I heard the case in Seattle,
Washington, on January 4 and 5, 1968. The
General Counsel, the Respondent, and the Charg-
ing Party were represented by counsel and were af-
forded 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. the
briefs of counsel, and the demeanor of the wit-
nesses appearing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Pike, the primary employer here involved, is a
partnership composed of Neil Pike and his brother,
Keith Pike. They operate a "for hire" dump truck
and excavating business as owner-operators. During
the calendar year 1966 Pike performed services for
National Construction Company, herein called Na-
tional, valued at $71,704.87; in 1967 the value of
such services to National was some $14,000, or
$16,000 less than the preceding year.
National is a utility contractor engaged in con-
struction work in the State of Washington. It an-
nually purchases cast iron pipe from Pacific States
Cast Iron Pipe which is manufactured at Provo,
Utah, and delivered to National's jobsites in the
State of Washington, of a value between $45,000
and $50,000. National also buys asbestos pipe, an-
nually valued at or about $30,000, from Johns-
Manville Company, which is manufactured in
Stockton, California, and delivered directly to Na-
tional's jobsites or yard.
I find that Pike and National are employers en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that jurisdiction
should be asserted over their operations.
STATEMENT OF THE CASE
IVAR H . PETERSON, Trial Examiner: Upon a
charge duly filed on August 23, 1967, by Neil Pike,
one of the members of a partnership doing business
as Pike 's Trucking & Excavating Co., herein called
Pike , against Local Union No. 174, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Indepen-
172 NLRB No. 122
II. THE LABOR ORGANIZATION INVOLVED
Local 174, as a constituent local of its Interna-
tional Union , has geographical jurisdiction over
Unless otherwise indicated , all dates refer to the year 1967
Originally, this case was consolidated with Case 19-CC-344 [ V G
Scalf, 172 NLRB 1217], in which I have issued a decision today. In-
asmuch as the cases are closely related , reference will be made to the other
case as the Seal case
LOCAL UNION NO . 174, TEAMSTERS 1213
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
agent involved in this proceeding is Ted Nichols, a
business agent , who also was involved in the Scalf
case.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Testimony
For about 3 years the Pike Brothers have con-
ducted an owner-operator dump truck business.
They have two trucks operating under a common
carrier permit. Each brother drives one truck and
they do not hire other drivers to drive their trucks.
Both joined Local 174 some 4 or 5 years prior to
the events with which we are involved; they were
suspended for nonpayment of dues-Neil in May
1967 and Keith in February 1967. Neither asked
for nor obtained a withdrawal card.
As owner-operators, the Pikes had been members
of the Washington Dump Truck Association, a
party to the current agreement, described in the
Scalf case, and bound by its terms. The Pikes
withdrew from this association in December 1966
or January 1967.
In February or March, and later, the Pikes had
discussions with Nichols concerning two matters:
(a) their union dues delinquency and (b) the
amount they owed, as owner-operators, to the
health and welfare and pension funds established by
the contract. According to Neil Pike's testimony, at
one time Nichols told him they owed these funds
about $700. Nichols testified that under the agree-
ment an owner-operator was obligated to pay a
monthly flat fee of $36.40 for health and welfare,
and as of the time of the hearing the Pikes' obliga-
tion in this respect was in "the area of $700."
Pike testified that Nichols (apparently early in
1967) told him that in order to continue to operate
in King County, within the Union's jurisdiction, the
health and welfare payments would have to be paid.
The applicable collective-bargaining agreement
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.
(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.
As stated above, Pike in 1966 performed dump
truck services for National valued at $71,000, and
in 1967 these services were worth $55,000 to
$57,000. Pike testified that National never called
his attention to the above-quoted provision or in-
formed him that he must comply with "all the
requirements, conditions and intents" of the agree-
ment when performing subcontracting work for it.
However, Pick acknowledged that he had received
a copy of the contract from the Washington Dump
Truck Association while a member.
On August 22 Neil Pike was performing dump
truck services for National at the latter's jobsite at
Sixth Avenue and Dearborn Street in Seattle, hav-
ing been engaged for 1 day to do cleanup work.
While the last load was being loaded on his truck,
Nichols came to the jobsite. There are three ver-
sions, to some extent conflicting, of what was said
on that occasion by the participants-Pike and Ver-
non Behrends, National's foreman on the job, and
Nichols.3
Pike testified, on direct examination, that "the
first thing" Nichols said was to ask if Pike "was
squared away with the union." When Pike an-
swered in the negative, Nichols asked whether Felix
Natamus, one of the owners of National, was at the
jobsite. Nichols, apparently told Natamus was not
present, then asked who was the foreman on the
job, and "about that time Vern Behrends came
over where we were standing and talking." When
Foreman Behrends arrived Nichols, Pike testified,
"asked Vern to get me off the job"; thereupon a
few "harsh words," which Pike could not re-
member, were exchanged by Nichols and Pike.
Nichols then left, but returned in a few moments
and the following then occurred, according to Pike:
A. He talked to Vern Behrends, the
foreman, and told Vern to get me off the job.
Vern said there was another scoop or
something and I would be loaded and that was
going to be the last load. They talked back and
forth for a couple minutes and I couldn't hear
all the conversation between Ted Nichols and
Behrends. Then Nichols said, "Either get him
off the job or I will shut the job down."
On cross-examination, Pike testified that "in the
' According to Pike Brice Hibbard, an employee of National, was present
and in a position to overhear what was said Pike testified he sees Hibbard,
a friend, about twice a week and he believed Hibbard had given a statement
to the Regional Office of the Board Hibbard was not called as a witness
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter part of August, right after this incident with
Mr. Nichols and myself," he called the Regional
Office of the Board concerning the "threat of being
kicked off the job" and the claimed obligations he
and his brother owed the Union. After being inter-
viewed, Pike signed a statement , undated, mailed to
him by the interviewer "around the first part of
September." After the August 22 incident with
Nichols, Pike called Al Cohn, the other owner of
National, asked if there was work for him, revealed
that he had a "problem" with Local 174, and was
told by Cohn that he would not be hired as Cohn
"didn't want to get involved in a labor problem."'
Pike acknowledged that he had been angry with
Local 174 not only "just this past summer, [but]
for about three summers," although not at Nichols
"particularly."
Nichols testified that prior to August 22 he had
had discussions with the brothers Pike about their
delinquency in paying_ union dues (as members)
and, as owner-operators, meeting their obligations
to the Union's health and welfare fund. Regarding
these matters , Nichols testified that, at the Dear-
born Street job, he asked Pike "if he had gotten
squared away" with the Union regarding " member-
ship dues and health and welfare ...." Nichols
testified Pike answered he had not, whereupon
Nichols said he "would ask National Construction
not to use him." Pike "got quite perturbed" and a
"few words followed after that." During the course
of Nichols' initial encounter with Pike, he asked if
Natamus was there and Pike informed him
Behrends was present Thereupon Nichols left
Pike's presence and talked to Behrends, a "few
feet" away from Pike. Nichols, so he testified,
"asked Mr. Behrends not to use Mr. Pike because
he was in violation of the heavy construction agree-
ment "; Behrends replied that he was a member of a
unions and at one time had been a member of the
Teamsters, and that "he wasn't going to hire any-
body that was nonunion " According to Nichols,
Pike was then 8 or 10 feet away from Behrends and
himself Nichols testified that Pike at this point
said, "You might have jurisdiction over here but if
you ever get up in Local 38 we will take care of
you."' When Nichols asked if Pike made that state-
ment in the "form of a threat," Pike shook his head
negatively, but "was very mad at this time."
Nichols stated that he told Brehends that, "if he
continued to use Mr. Pike, I would picket Pike on
that job " He denied that he said anything about
shutting down the Dearborn job. Thereafter,
Nichols spoke to Natamus, when the Pikes were
working for National on another job, about using
the Pikes, stating that they were in violation of the
heavy construction agreement and "not to use him
[them]." Natamus, so Nichols testified, said he
' However , Pike further testified that after August 22 Natamus called
11
him and he worked for National "a couple days or something
' Behrends later testified he then helonged to Local 440 of the Street
Pavers and Tunnel Workers
would contact the AGC to "find out what his posi-
tion was in this problem "' Nichols had no further
communication from Natamus.g
Foreman Behrends, a rebuttal witness for the
General Counsel, testified that Nichols came to the
Dearborn jobsite and called Behrends, who was
"half a block away," over to the toolshed. Behrends,
on direct examination, testified as follows:
Q. Now, will you tell us as best you re-
member it, what it was that Mr. Nichols said to
you and what, if anything, you said to Mr.
Nichols at that time?
A Well, he told me to run Neil Pike off the
job ... that he didn't belong to the union or
something ... that if I didn't he would put
pickets on the job
Q. And do you remember anything more
than what you just said about this?
A. No.
Q. Did you make a reply to Mr. Nichols
when he told you that?
A. Yes, I told him we were loading the
truck. I said, "As soon as we get it loaded we
will run it off."
Q. Was there anything more that you can
recall now that was said by either you or Mr.
Nichols at that time?
A. Just general conversation. It didn't
amount to anything.
Q. Nothing more about Mr. Pike or his
working on the job or what would happen?
A. No more than run him off. That was the
main conversation.
Q. Did Nichols say he would picket the job?
A. Yes, he did.
Q. Did Mr. Nichols say anything more par-
ticular about the nature of the picketing, how
it would be conducted or what the picket sign
would say?
A. No.
Upon cross-examination, Behrends said that he
had been interviewed by a Board agent about the
instant matter at his home and that he (Behrends)
had been asked to sign a statement but refused to
do so because "I didn't want to get involved."
Behrends' testimony on cross-examination con-
tinued as follows:
Q. (By Mr. MacDonald) Mr. Behrends, you
said at the time of this conversation that Mr.
Pike was loading his truck?
A. Yes.
Q. And I think you said something about as
soon as the truck was loaded that Pike would
leave'
A. Yes.
Q. What did you mean by that, that he
would leave the job?
' The Pikes used and housed their trucks in Snohomish County, within
the jurisdiction of Local 38, a sister local of the Union
Natamus was not called as a witness
Counsel for the General Counsel did not cross-examine Nichols
LOCAL UNION NO. 174, TEAMSTERS 1215
A. That he would leave the job, yes, which
he did.
Q. Why did you have Mr. Pike leave the
job?
A. Because Mr. Nichols told me to.
Q. Didn't you have him leave the job
because Mr. Pike wasn't obeying the collec-
tive-bargaining agreement?
A. That I didn't know nothing about. I don't
know what the deal is on that. I know he told
me to make him leave, which I did.
Q. Did Mr. Nichols tell you about the
dispute between the local union and Mr. Pike?
A. He mentioned something about a dispute
which didn't mean nothing to me.
Q. Are you a union man?
A. Yes, sir.
Q. Didn't you tell Mr. Nichols that you were
a union man in that conversation?
A. I mentioned that, yes.
Q. What did you say that meant to you, if
anything, in that conversation?
A. How do you mean?
Q. Well, did you say anything other than
you were a union man to Mr. Nichols?
A. I don't recall just what I said.
Q. Well, will you try to remember what you
said in addition to the fact that you were a
union man yourself?
A. Well, no more than I believe in unions.
Behrends testified that there "was no anger"
between himself and Nichols, and that during their
discussion Pike, who was present some of the time,
did not have "too much" to say. Behrends'
testimony continued:
Q. (By Mr. MacDonald) Didn't Mr. Nichols
just ask you to get Pike off the job?
A. Yes.
Q. And you agreed with him?
A. Yes.
Q. Why did you agree with him?
A. I didn't want no pickets on the job. I
mean I was through with the truck at the time.
TRIAL EXAMINER: Was that going to be his
last load for that day?
THE WITNESS: That was.
TRIAL EXAMINER: Did you say anything
about that to anyone?
THE WITNESS: Well, I mentioned it to both
of them.
TRIAL EXAMINER: By both, you mean who?
THE WITNESS: Neil and Mr. Nichols.
TRIAL EXAMINER: I see.
Q. (By Mr. MacDonald) What did you
mean, that this was the last load on the job?
A. Yes.
Q. And that that was the end of the job?
A. Well, we were just cleaning up the job. It
was the end of the job for him right there
because we had our own equipment to take
away with our own trucks.
Q. Do you remember Mr. Nichols saying
anything about if he picketed Pike's truck?
A. No, he mentioned us.
Q. Who is "us?"
A. National Construction Company.
Q. Can you remember exactly what he said?
TRIAL EXAMINER : In that regard.
Q. (By Mr. MacDonald) In that regard.
A. Well, like I said before, he said "Get him
off the job or we will picket the job."
Q. Are you certain of those exact words that
he said that?
A. That is as close as I can remember of it.
Q. Do you remember telling the man from
the Labor Board that you were not certain that
those were the exact words?
A. Well, as much as Iknow, yes.
Q. But you are not certain that they were
the exact words?
A. Well, I can't word it for word.
Q. And you wanted Pike off the job simply
because you didn't want any pickets around
there?
A. Well, for that reason and like I said, I
was through with him, so it made no difference
to me.
Behrends did not report the incident or the con-
versation to either of the higher officials of Na-
tional, Natamus or Cohn.
B. Conclusions
Counsel for the General Counsel contends that,
for the reasons set forth in his brief in the Scalf case
and incorporated by reference in his brief in the
present case, the Union "unlawfully enmeshed Na-
tional, a neutral, in its dispute with Pike" and, in
consequence, violated Section 8(b)(4)(ii)(B) of
the Act. For substantially the same reasons as ad-
vanced in the Scalf case, and particularly because
the Union did not threaten or coerce the secondary
employer, National, counsel for the Respondent ar-
gues that the Union did not violate the provision of
the Act here involved.
Counsel for the General Counsel argues that in
ascertaining what was in fact said, the testimony of
Foreman Behrends, being "mutually corroborative"
of that of Pike, "should carry greater weight than
either Nichols' or Pikes' because he [Behrends]
does not share their personal interest in the out-
come of this proceeding." It may be doubted that
Behrends can properly be said to be free of "per-
sonal interest in the outcome of this proceeding."
According to Behrends, he not only mentioned in
his exchange with Nichols that he believed in
unions but also, when asked (in substance) how
seriously he regarded the incident in terms of his
responsibility as a foreman of National, stated that
he did not recall mentioning it to either of the prin-
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cipals of National. Considering this attitude and
that he refused to sign a statement prepared by a
Board agent after being interviewed, on the ground
that he did not wish to get involved, I have substan-
tial reservations that Behrends can be termed a dis-
interested or an uninvolved witness. In fact, he im-
pressed me as a somewhat ambivalent witness, torn
between his job responsibilities and his evident
sympathies toward union principles. I am unable to
accept his testimony in preference to that of
Nichols. Nor do I credit Pikes' testimony that
Nichols told Behrends either to remove Pike from
the job or he would "shut the job down."
Although my finding that what Nichols said to
National's foreman, Behrends, was not a threat and
therefore noncoercive disposes of the issue before
me, it seems appropriate to observe that even if it
be assumed that the statements of Nichols (what-
ever version is accepted) amounted to a threat, the
most that could be made out is a violation of Sec-
tion 8(b)(4)(i)(B), a provision not here alleged to
have been breached. This is so because the threat
or inducement was directed at an ordinary
9 Behrends testified that he does not hire the trucks From Pike's
testimony regarding his arrangements for performing services for National,
it is clearly inferable that these are made with either Natamus or Cohn, the
owners
10 Local Union No 505, International Brotherhood of Teamsters (Carolina
foreman, not having the power to engage or ter-
minate Pike's services,9 who therefore comes within
the ambit of the words "any individual employed by
any person engaged in commerce" as used in clause
(i), rather than to an individual "more nearly re-
lated to the managerial level" who is shielded by
clause (ii) from threats, coercion, and restraint to
accomplish proscribed objectives.10
For the foregoing reasons, the complaint herein
will be dismissed.
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 Respondent
Local Union No . 174, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America , Independent , be, and it hereby is,
dismissed.
Lumber Company), 130 NLRB 1438, 1443, N L R B v Local 294, Interna-
tional Brotherhood of Teanmeters [ Van Tran sport Lines, Inc 1, 298 F 2d 105
(C A 2), enfg 131 NLRB 242, Ltcavating and Building Material Chauf-
feurs and Helpers Local Union No 379 , International Brotherhood of Team-
sters, etc (ConsalvoTruc%tng, Inc ), 132 NLRB 827