San Diego Building

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 527 (N.L.R.B. 1969)

SAN DIEGO BLDG. AND CONSTRUCTION
San Diego Building and Construction Trades
Council , AFL-CIO and Escondido Ready Mix
Concrete , Inc. Case 21-CC-1093
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On April 24, 1969, Trial Examiner Marion C.
Ladwig issued his Decision in this proceeding,
finding that Respondent had not engaged in and was
not engaging in certain unfair labor practices as
alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief, and
Respondent Union filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
'The General Counsel would have the Board overrule certain of the Trial
Examiner's credibility findings. While we may differ with the Trial
Examiner as to the significance to be placed on certain discrepancies in
testimony, nevertheless the preponderance of all relevant evidence
convinces us that the Trial Examiner's resolutions of credibility are not
clearly incorrect. We shall therefore not overrule him in that regard
Standard Dry Wall Products, Inc. 91 NLRB 544, enfd 188 F 2d 362
(C A 3) We do not however adopt the Trial Examiner's unnecessary
attribution of ulterior motives to any witness in this proceeding
In view of the Trial Examiner's resolution of the Trombley-Mullay
conversation , we consider it unnecessary to rely on his alternative basis for
dismissing the 8 (b)(4)(i) allegation
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner : This case was
tried at Vista , California , on February 19, 1969, pursuant
to a charge filed on September 30, 1968,' by Escondido
Ready-Mix Concrete , Inc., herein called the Company or
177 NLRB No. 46
527
Escondido, and pursuant to a complaint issued on
November 19. The primary issues are whether the San
Diego Building and Construction Trades Council,
AFL-CIO, herein called the Building Trades or the
Union , on or about September 3, (a) induced an employee
of neutral employer Lovell & Morgan to stop working,
and (b ) made threatening statements to Lovell & Morgan,
with an object of forcing it to cease doing business with
Escondido , in violation of Section 8(b)(4)(i )(ii)(B) of the
National Labor Relations Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Union, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
Escondido, a California corporation, is engaged in the
retail and nonretail ready-mix concrete business in
Escondido, California. The Union concedes that during a
representative year, Escondido's gross volume of business
in sales and deliveries to contractors in the construction
industry, homeowners, and others exceeds $500,000, and
that its purchases and receipts from suppliers in the State,
of supplies and equipment manufactured outside the State,
are between $15,000 and $20,000. The Board has held that
where an enterprise falls within the Board's statutory
jurisdiction, the employer's retail and nonretail operations
are properly combined for determining whether the
business satisfies the $500,000 per annum retail standard
for the Board' s assertion of its discretionary jurisdiction.
Caribe Lumber and Trading Corp., 148 NLRB 277, 278
The Union suggests no basis for holding that such a
combined retail and nonretail operation would have any
less impact on interstate commerce than a wholly retail
operation. In agreement with Trial Examiner Lowell M
Goerlich's January 23, 1969, Ruling on Respondent's
Motion to Dismiss, I find that there being undisputed
statutory jurisdiction, Escondido's total volume of
business, including retail and nonretail sales, satisfies the
Board's $500,000 per annum standard for the assertion of
jurisdiction over retail enterprises. Accordingly I find that
Escondido is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act The Union is
a labor organization within the meaning of Section 2(5) of
the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
In 1966, during an unsuccessful union attempt to
organize Escondido's employees, Escondido filed a charge
against the Building Trades for engaging in unlawful
secondary boycott activities. The case was settled
informally in January 1967. Escondido has continued to
operate nonunion.
On February 7, 1967, Lovell & Morgan, a cement
contractor, signed the Building Trades "short. form"
agreement, covering its on-site construction work and
containing various subcontractor provisions. (The General
Counsel does not challenge the legality of the agreement.)
The Building Trades has in recent years filed a number of
All dates, unless otherwise indicated, are in 1968
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
injunction actions in court to enforce the subcontractor
provisions in its agreements . Since February 1, 1966, when
the Building Trades adopted a resolution concerning
enforcement of its short-form agreements , no complaint
has been issued against the Building Trades for using
self-help to enforce these subcontractor provisions.
Until September 3, 1968, Lovell & Morgan purchased
ready-mix concrete from Escondido from time to time.
B. Alleged Inducement to Stop Work
On September 3, Building Trades Business
Representative Charles F. Trombley and Painters Local
48 Business Representative Edward W. Peterson made a
routine job check in Escondido, California, where a Lovell
& Morgan crew was working on Lincoln Avenue. When
they arrived, they saw a concrete pour being made, from
an Escondido ready-mix truck. Saying nothing to the
Escondido driver, they began checking to see if the six
employees on the job were union members in good
standing . They spoke first to a carpenter, and Trombley
took down his name and the number of his local union.
Trombley next spoke to cement finisher Ignacio "Nash"
Mullay. (What was said is in dispute, as discussed below.)
Thereafter, Trombley asked the other crew members (two
finishers and two laborers) for their identification, and
took down their names and the numbers of their local
unions. The employees continued with the pour, and
Trombley and Peterson left. There was no work stoppage.
The General Counsel's only evidence that Business
Representative Trombley "appealed to, induced, and
encouraged an individual employed by Lovell & Morgan
to engage in a work stoppage and to refuse to perform
services" is the disputed, uncorroborated testimony of
cement finisher Mullay. According to Mullay, Trombley
walked up and said to him, "Hey, Nash, don't you know
you're pouring with a nonunion outfit?" (Emphasis
supplied. This conflicts with Mullay's pretrial affidavit, in
which Mullay stated that Trombley asked about pouring
"for" a nonunion outfit.) Mullay testified that he
responded, "I don't know," and kept working. According
to Mullay, Trombley did not ask to see his union card
and did not say anything about his union status, but
proceeded to check "some cards of the other men" and
walked away - saying nothing to any of the other
employees about working "with" or "for" a nonunion
outfit . On cross-examination , Mullay testified that he
understood it was Trombley's job to check union cards
and report anyone delinquent "to whatever trade it is";
that most of the times in the past when Trombley made a
job check, Mullay had been paid up on his union dues;
that on September 3, he was in arrears; and that he had
not seen Cement Masons Business Agent Paul "Curly"
Robertson since "way before then."
Trombley, on the other hand, testified that after he
spoke to the carpenter, he approached Mullay and said,
"Hi, Nash, how are you, did you finally get squared away
with Curly? Do you have a card with you?" Mullay
answered , "No, I don' t have the card with me but I talked
to Curly and I'm all squared away." Trombley said,
"Well, okay, fine, I'll check with Curly." (Because of the
noise from the ready-mix truck , Business Representative
Peterson could not hear what was said .) Trombley denied
saying anything to Mullay about working "with " or "for"
a nonunion outfit. Trombley testified that he later checked
with Mullay' s union , found that Mullay was suspended,
and made that notation on his daily job report . Several
days later, he saw Mullay on the Duvard jobsite, where
Mullay appeared quite angry and belligerent, as if"he
knew that I had found him in a lie ." Trombley's
September 3 job report describes Mullay as a "suspended
member ," and reports the names and local union
members of the five other employees on the job. It also
indicates that Lovell & Morgan was found using
Escondido Ready Mix. The report is made to the
attention of Local 346 (Mullay's local, now Local 744)
and Local 36 (the Teamsters local which has jurisdiction
over ready-mix drivers).
Thus, according to Mullay's disputed testimony,
Business Representative Trombley asked other employes
but not Mullay -for their union cards, and singled out
Mullay to ask, "Don't you know you're pouring with a
nonunion outfit?" The General Counsel theorizes that
Trombley "apparently knew" before going to the job that
Mullay was not in good standing (and therefore did not
check his membership status), and "That Trombley made
this remark only to Mullay is not unusual in view of the
fact that Trombley apparently recognized Mullay among
the workmen when he had made his tour of the jobsite."
However, if Trombley already knew that Mullay's
membership had been suspended, and reported this on his
daily job report without checking either with Mullay or
Local 346, Trombley evidently would have regarded
Mullay as a nonunion or antiunion employee, who would
be the least likely to engage in a work stoppage. Therefore
I find, that even if Trombley did make a remark to
Mullay about pouring with (or for) a nonunion outfit,
Trombley did not do so for the purpose (or with a likely
result) of inducing Mullay to engage in a work stoppage.
At most, Trombley would have been merely needling
Mullay. Moreover Mullay, who appeared to be quite
bitter and vindictive, did not impress me as a reliable
witness . Because of his demeanor as a witness , and the
implausibility of his version of what occurred, I discredit
his testimony that Trombley made a reference to a
"nonunion outfit." There being no other evidence to
support the allegation that Trombley encouraged a work
stoppage , I shall recommend dismissal of the allegation.
C. Alleged Coercion of Lovell & Morgan
Elvin Morgan and Robert V. Lovell were partners in
the cement contracting firm of Lovell & Morgan. From
time to time , they had discussed whether they should
continue purchasing concrete from Escondido, which
assisted them in getting cement contracting business. Both
believed that purchasing concrete from this nonunion
source violated the subcontractor provisions in their
Building Trades agreement . According to Lovell,
"anything one of us did, the other one agreed to
beforehand."
Both Morgan and Lovell testified on behalf of the
General Counsel at the trial , but they gave different
versions of why their firm stopped purchasing concrete
from Escondido.
1. Morgan ' s version
Morgan testified that he was present, watching the pour
being made from the Escondido ready-mix truck, when
Business Representative Trombley made the job check at
the Lincoln Avenue jobsite on the morning of September
3. As Trombley was leaving the jobsite, according to
Morgan, "all he said to me was, `Looks like I caught you
again, Morgan, ' and I said, `Yes,' like he did .... That's
all that was said to me . . . . He just kept walking on."
SAN DIEGO BLDG . AND CONSTRUCTION 529
(Trombley remembered saying instead , "Morgan you'd
better read your agreement.") That afternoon, Morgan
canceled the order he had placed for Escondido concrete
to be delivered to another jobsite the following day.
Morgan further testified:
Q. Now, after that occasion, did you purchase any
additional concrete from Escondido Read-Mix?
A. No, I did not.
Q. And, why did you not?
A. Well, I was under the impression that we
shouldn't do it. I mean , we had an agreement with the
union to purchase material and we had all union men,
so -
Q. Why weren't [the orders for the next day]
delivered?
A. Well, I just didn't want any - to cause no trouble.
I didn't want to get in trouble with the union over it. I
mean, I knew that I had signed a contract with them.
In his brief, the General Counsel contends that "it can
be inferred that Trombley's statement to Morgan
constituted a threat to use economic or other action to
force or require Lovell & Morgan to cease doing business
with Escondido Ready-Mix." I do not agree. I see no
reason for inferring that by making the single remark,
"Looks like I caught you again ," Trombley was
threatening to take economic or any other illegal action
against Lovell & Morgan. There is no evidence of any
earlier threat (although, according to Lovell, "that had
not been the first time we had been caught using them").
Morgan made no mention of any subsequent threat, when
giving his reasons for canceling the next day's order and
for not purchasing concrete from Escondido thereafter.
2. Lovell' s version
Lovell testified that he himself had a conversation with
Business Representative Trombley; that "I would say it
was September 3rd" or "a day after, something like that";
that "I believe it was in Poway," California; and that "I
am pretty sure it was someone from the Laborer's Union"
with Trombley (therefore not the Painters representative
who accompanied Trombley on September 3 to the
Lincoln Avenue jobsite). Lovell testified that to "the best
of my recollection," Trombley "told me he had talked to
my partner and said that he had caught him using
Escondido Ready-Mix, and that's the way the
conversation had started." According to Lovell:
Well he said that if we continued to use it, that he
had two things that he could do, or we could do, I
believe he says, instead of he. They could either bring a
suit against us, or I believe he said breach of contract
or something to that effect, or they could cancel the
contract with the union, and he said he would rather, or
prefer doing that rather than to bring a suit against us.
Lovell testified that he then concluded - without discussing
itwith hispartner - that he would no longer use Escondido
Ready-Mix, and that he told Trombley, "as far as I was
concerned, I was pretty sure the same of Morgan, that we
wouldn't use them any more, that that would be the end
of it." Lovell testified that he had known Trombley for a
number of years, that he thought Trombley was with the
Cement Masons ' International , and that he thought at the
time that Trombley was speaking as a representative of
Cement Masons Local 346, and therefore was speaking as
one union member to another (Lovell himself being a
member of Local 346).
Thus, according to this testimony, the conversation
took place before Lovell talked to Morgan about
Trombley's visit to the Lincoln Avenue jobsite; Lovell
thought at the time that Trombley was making the threat
on behalf of Local 346; and because of this threat, Lovell
then made a decision - without first consulting with
Morgan - not to purchase concrete from Escondido again
(despite Lovell's claim that "anything one of us did, the
other one agreed to beforehand").
Lovell's pretrial affidavits, however, indicate that the
conversation took place after Lovell had discussed the
matter with his partner, and after the decision had been
made to stop trading with Escondido. In his October 2
affidavit (given soon after the incident), Lovell stated
vaguely that the conversation occurred "Sometime in
September 1968, about the first week," but stated that he
told the Building Trades representative "at that time we
had stopped using [Escondido] Ready-Mix and as far as I
know we wouldn't be using it again ." (Emphasis supplied.)
In Lovell's December 19 affidavit, he stated that it
occurred a "day or so" after the Lincoln Avenue job (i.e.,
a day or so after September 3). I also note other
inconsistencies between 'Lovell's testimony and his pretrial
affidavits. In his December 19 affidavit, he stated that he
did not know Trombley's name at the time, but "I knew
[him] to be a business representative of the . . . Building
Trades."' (Lovell admitted at the trial that the affidavit
was "in error" in stating that he knew Trombley as a
Building Trades representative.) In both his October 2 and
December 19 affidavits, Lovell stated that Trombley said
"he" could cancel the union agreement or file suit for its
enforcement. Apparently recognizing the implausibility of
this, Lovell testified, "I would rather think that he said
`we,"' meaning the Cement Masons "or some other part
of the union . . . or some of its affiliates or something."
Such inconsistencies, together with the vagueness in
Lovell's October 2 affidavit and his testimony, suggest
fabrications.
Testimony by Escondido President Jacob Brouwer has
some bearing on whether the Poway conversation between
Lovell and Trombley was an actual cause of the
cancellation of business, or whether it was injected as an
afterthought. Brouwer testified that on the afternoon or
evening of September 3, Vice President Harold E. Reiff
notified him that Morgan had canceled the order for the
following day. (According to Reiff's testimony, Morgan
canceled the order, stating that Trombley had come to the
job and told Morgan, "We caught you at it again.")
Brouwer testified, "We did not even think of making an
issue out of this until we lost the customer completely,
and then we went back to the case and then we have to
think back again . . ." (Emphasis supplied.) Thus, there
was no contention made at the time that Business
Representative Trombley had threatened Lovell &
Morgan, and apparently Escondido President Brouwer
(who later filed the charge) had no information then about
a conversation between Trombley and Lovell.
It is in this contest that I note Trombley's version of
what happened. He testified that his visit to the Lincoln
Avenue jobsite on September 3 was such a casual, routine
matter, he had no idea that anyone was trying to make
something of it. Concerning his conversation with Lovell,
he testified that it occurred when he was making a job
check at Poway, sometime after he saw cement finisher
Mullay acting belligerently on the Davard job (several
days after September 3), and before he received notice of
Escondido's September 30 charge. Lovell called him over
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and said , "Chuck, what about this Escondido Ready-Mix
thing? I've got a problem ." Lovell explained that he felt
obligated to buy concrete from Escondido when Escondido
gives him the plans for future jobs, helping him obtain the
contracts for the cement work . Trombley answered,
"Well, Bob , that's something you've got to make up your
mind what you're going to do . Now, you know you have
your union agreement . This is your business . I can't tell
you how to run your business . I have no authority to
permit you , or to say to you, to go ahead and work the
way you want to work . This is up to you how you run
your business." Trombley positively denied saying that
"he" or "they" could either terminate Lovell' s agreement
or bring a lawsuit against him.
3. Concluding findings
After considering all the evidence, I am convinced that
the Poway conversation occurred at least several days
after September 3; that Lovell & Morgan had already
decided to stop trading with Escondido (for the reasons
given by Morgan in his testimony); and that it was not
until Escondido realized that it had "lost the customer
completely" and "went back to the case" of Trombley
telling Morgan, "We caught you at it again," that Lovell
raised the matter of his conversation with Trombley on
the Poway job. I further find that Lovell, who considered
it to his advantage to continue dealing with Escondido,
then began to assist Escondido in building a case against
the Building Trades - misinforming the Board agents
taking his affidavits.
Of course, if Business Representative Trombley
threatened to cancel Lovett & Morgan's union agreement
to force that neutral contractor to stop doing business
with Escondido, the threat would constitute a violation of
Section 8(b)(4)(ii)(B) of the Act as shown by the General
Counsel's excellent brief, citing applicable authorities.
However, Morgan's credited testimony shows that
Trombley made no threat of contract cancellation, or
other self-help, at the Lincoln Avenue job on September 3
(the day Lovell & Morgan stopped trading with
Escondido), and there is no evidence that Trombley
thereafter threatened contract cancellation, except the
disputed testimony given by Lovell. Having found a
number of significant discrepancies between Lovell's
testimony and his pretrial affidavits, indicating that Lovell
was fabricating evidence to assist Escondido, I consider
Lovell's remaining testimony questionable, and too slender
a reed on which to base a finding that the Building Trades
- on this one occasion - resortedto such a threat ot coercive
action. Accordingly, I shall recommend dismissal of the
Section 8(b)(4)(ii)(B) allegations.
CONCLUSIONS OF LAW
The General Counsel has failed to prove that the Union
violated Section 8(b)(4)(i)(ii)(B) of the Act.
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
The complaint is hereby dismissed in its entirety.