Sandpaper Builders

National Labor Relations Board - Board Decisions

May 25, 1965

152 N.L.R.B. 796 (N.L.R.B. 1965)

'796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sandpiper Builders and Trenton Dunphy and John Fincher,
d/b/a Dunphy & Fincher and Ernest C. Silkwood , d/b/a Cathe-
dral City Electric and Local No. 440, International Brother-
hood of Electrical Workers, AFL-CIO. Case No. 21-CA-5576.
May 05, 1965
DECISION AND ORDER
On November 10, 1964, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed, as set forth
in his attached Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a supporting 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 [Chairman McCulloch and Members Fanning and Jenkins].
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 Decision,
the exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent that they are consistent with this Decision
and Order.
Chairman McCulloch and Member Fanning agree with the Trial
Examiner that Armand Moss, an employee of the electrical subcon-
tractor, Cathedral City Electric, herein called Cathedral, was not dis-
criminatorily discharged,' but voluntarily quit his job rather than
work at the construction site where the general contractor, Dunphy &
Fincher, herein called D & F, used employees who were not union elec-
tricians to perform electrical work. The panel members are unani-
mous in disagreeing with the Trial Examiner who, although finding
the circumstances surrounding the discharge of Joseph Poist and Rich-
ard Powers suspicious, concluded that the evidence did not establish
that they were terminated because of their protected union or con-
certed activity, and accordingly recommended dismissal of the amended
complaint as to all the Respondents. In our opinion the evidence
recited in the Trial Examiner's Decision and contained in the record
requires a conclusion contrary to that reached by the Trial Examiner.
The relevant facts are briefly these: D & F was the-general con-
tractor of a condominium apartment building project here involved.
1 See footnote 6 for Member Jenkins' dissenting %iew.
152 NLRB No. 82.
SANDPIPER BUILDERS 797
This firm and the subcontractors on the job worked under collective-
bargaining agreements with various AFL-CIO building trades unions
covering their respective crafts. In addition to supervising the work
of these subcontractors, D & F had private arrangements with pur-
chasers of completed units to do certain work. On September 5, 1963,2
in connection with one of these arrangements, D & F utilized employees
who were not union electricians to perform electrical work. Suspicious
that such was the case, Poist and Powers, members of the Union and
employees of Cathedral, which was under contract with their organi-
zation, entered the area where the electrical work in question was
being done to discuss the situation with Fincher, a partner in D & F.
Poist, as spokesman, indicated that he was speaking as a union mem-
ber ; questioned D & F's failure to use union electricians to perform
the electrical work ; and asked Fincher whether he had a building
trades agreement and why he did not honor it. Fincher replied that
this matter had come up before; referred Poist and Powers to their
foreman for an explanation ; and remarked that if they did not like
what D & F was doing, they could "get off the job." In response, Poist
stated that he intended to make a telephone call to ascertain what was
going on at the project. Poist and Powers then left and Poist tele-
phoned and reported the incident to Union Business Agent Stephen-
son, who stated that he would look into the matter. Immediately after
making this call, Poist and Powers joined their foreman, Costello, who
was engaged in conversations with Fincher and his partner, Dunphy.
Upon their arrival, either Dunphy or Fincher ordered Poist and
Powers removed from the project. When Poist raised the subject of
D & F's use of employees who were not union electricians to do elec-
trical work, either Dunphy or Fincher bluntly retorted that it was
none of his business. Costello submitted to D & F's demand and sum-
marily terminated Poist and Powers, without any explanation being
offered by D & F or Costello for this action .3
We are persuaded from the foregoing evidence that D & F, exercis-
ing the control it enjoyed over Cathedral's employees under the latter's
contract with Sandpiper, dictated the discharge of Poist and Powers
because of their inquiries into D & F's use of employees not belonging
to the electricians' craft to perform electrical work in preference to the
employment of union electricians and because of their demonstrated
opposition to such a practice, and not for the reason, as the Trial
Examiner seems to believe, that they had interfered with the work of
2 Although the record is not entirely clear , it appears that this episode occurred, on
September 5, 1963, and not September 6, 1963, as the Trial Examiner recited.
2 No contention is made that Poist and Powers were terminated because they left their
work without permission.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D & F's employees. Not only is there no evidence of any employee
interference,4 but on the contrary it is undisputed that Poist's inquiry
was addressed only to Fincher. Significantly, interference was not
even given by D & F as the reason for demanding the removal of Poist
and Powers from the construction site. Indeed, the Trial Examiner
himself recognized the doubt that the absence of an explanation at
that time casts on the purity of D & F's motives. Moreover, had inter-
ference with D & F's employees been the real cause of D & F's displeas-
ure, one would reasonably expect that Poist and Powers would have
been at least warned against a repetition of such alleged offense before
being summarily subjected to the extreme penalty of discharge.
If there is any doubt that the underlying reason for Poist's and
Powers' removal from the construction site was their efforts to ascer-
tain the status of D & F's employees performing the electrical work,
the uncontradicted testimony of Business Agent Stephenson,5 which
is not adverted to in the Trial Examiner's Decision, dispels it. Accord-
ing to Stephenson, after Poist and Powers were terminated he visited
the jobsite and asked Dunphy or Fincher why they were removed. The
only response was that they were snooping into something that was no
business of theirs and that it was none of their business whom he
employed for any particular work. On an earlier occasion, Dunphy
had addressed a similar remark to Stephenson when the latter appeared
at the jobsite to investigate reports that persons other than Cathedral's
electricians were doing electrical work. In answer to Stephenson's
inquiries at that time concerning these reports, Dunphy also uncere-
moniously informed him that it was none of his business.
That D & F was determined not to tolerate what it viewed as an
unwarranted intrusion into its employment policies, which the Trial
Examiner observed were to D & F's distinct economic advantage and
a matter of vital concern to the Union and its members, is further indi-
cated by the treatment accorded Moss, another electrician who had
worked for Cathedral on the construction project. Thus, less than
2 weeks before Poist's and Powers' separation, Moss had briefly spoken
to one of D & F's employees about the electrical work he was doing
and the wages he was being paid. When Dunphy and Fincher learned
about this interview, they promptly sought out Moss at his job, ordered
him to stay away from their employees, and admonished him that
if he did not like the way things were going, to "get the hell off the
* Much less is there any evidence to support the Trial Examiner's assertion that Poist's
and Powers ' inquiries "unquestionably disrupted the work" there.
5 The Trial Examiner credited Stephenson in another respect. We find no plausible
reason for rejecting Stephenson 's uncontradicted testimony related above.
SANDPIPER BLTILDERS 799
job." Although Dunphy shortly thereafter directed Costello to dis-
charge Moss, Moss, as found above, voluntarily quit before Costello
acted on Dunphy's demand.-
It is perfectly clear that Poist's and Powers' inquiries into D & F's
employment practices, calculated as they undeniably were to preserve
job opportunities for trained electricians and to maintain union wage
standards on the construction site, are a form of legitimate union
activity. Therefore, by causing Cathedral to discharge Poist and
Powers in reprisal for their efforts to achieve these objectives as mem-
bers of the Union, D & F caused Cathedral to discriminate against
them to discourage membership in the Union within the meaning of
Section 8(a) (3) of the Act. It is also beyond serious dispute that
Poist's and Powers' conduct constituted concerted activity for "mutual
aid and protection" which Section 7 of the Act guarantees to employees.
Whatever interruption of work might have resulted from the exercise
of this right when Poist and Powers spoke to Fincher on the job, it
at best was minimal and insufficient to deprive them of the protection
of the Act. Certainly the circumstances here presented were not so
compelling as to require the inference that the interests of the employ-
ees in concerted activity were outweighed by D & F's interests in oper-
ating its business in a particular manner. Accordingly, we find that
Poist's and Powers' discharge was also independently violative of
Section 8 (a) (1) of the Act. We further find, as did the Trial Exam-
iner, that all three Respondents, D & F, Cathedral, and Sandpiper
Builders, are responsible for these unfair labor practices.7
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order Respondents to cease and desist there-
from and take certain affirmative action designed to effectuate the
purposes of the Act.
6 Member Jenkins would also reverse the Trial Examiner as to Moss' discharge. The
record discloses that Moss , at the end of his last day on the job, told his foreman ,
Costello,
of his encounter with Dunphy and Fincher that day at the jobsite , at which time the
latter two told him that if he did not like the situation on the job ( i.e. the employment
of nonunion workmen ) he should leave and not return ; in the interim Dunphy and
Fincher had demanded that Costello discharge Moss , though there is no specific evidence
in the record that this demand was communicated to Moss . In reply to Moss ' account
of the incident on the job , Costello asserted that he knew what the "situation
" was, but
could do nothing about it. In response , Moss told Costello that under the circumstances
and in view of the remarks made to him while on the job, he would rather not return to
the job. In these circumstances , Member Jenkins would find that both Moss and Costello
were aware of the "situation" and that Moss ' quitting was , in fact, induced by the dis-
pleasure expressed by Dunphy and Fincher at his Section 7 activities and the veiled
threat of discharge by them, a threat made reality by their demand to Costello for
Moss' discharge and by Costello's none too thinly veiled communication of this to Moss.
Thus, in the circumstances here, Member Jenkins would find Moss to have been con-
structively discharged in violation of both Section 8(a) (3) and 8(a) (1).
7 Hard Corporation, 143 NLRB 306.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since Respondent Cathedral, at the instance of Respondent D & F,
acting as agent for Respondent Sandpiper, discriminatorily discharged
employees Poist and Powers, we shall order all the Respondents jointly
and severally to make these employees whole for any loss of earnings
they may have suffered by reason of the discrimination against them.
Backpay shall be computed on a quarterly basis, with interest thereon
at 6 percent per annum, in the manner prescribed by the Board in
F. TV. TVoolworth Co'?,pany, 90 NLRB 289, and Isis Plumbing cC Heat-
ing Co.; 138 NLRB 716. We. however, shall not order reinstatement,
as we would normally do in cases of this type, because the construction
project has already been completed.
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire record
in this case, we hereby delete the Trial Examiner's conclusion of law
No. 3, and adopt new conclusions of law Nos. 3 through 6 as follows:
3. By discriminating or causing discrimination in regard to the hire
and tenure of employment of employees Joseph Poist and Richard
Powers and thereby discouraging membership in, or activities on
behalf of, the Union, the Respondents have engaged in and are engag-
ing in unfair labor practices within the meaning of Section 8(a) (3)
and (1) of the Act.
4. By interfering with, restraining, and coercing these employees in
the exercise of their right to engage in concerted activities for mutual
aid or protection, the Respondents have committed unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
6. The Respondents did not engage in any unfair labor practices
with respect to Armand Moss.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondents, Sandpiper Builders, Palm Desert, California, Trenton
Dunphy and John Fincher, d/b/a Dunphy & Fincher, Rancho Mirage,
California, and Ernest C. Silkwood, d/b/a Cathedral City Elec-
tric, Cathedral City, California, their officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 440, International
Brotherhood of Electrical Workers, AFL-CIO, or in any other labor
organization, by discharging or causing the discharge of employees,
or by discriminating or causing discrimination against them in any
SANDPIPER BUILDERS 801
other manner in regard to their hire or tenure of employment or any
term or condition of employment, except to the extent that their rights
in that regard may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
by Section 8(a) (3) of the Act, as amended.
(b) Interfering with, restraining, or coercing employees in the
exercise of their right to engage in concerted activities for mutual aid
or protection as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Jointly and severally make Joseph Poist and Richard Powers
whole for any loss of pay suffered as a result of the discrimination
against them as provided in the above section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amount of backpay due
under the terms of this Order.
(c) Post at their respective places of business, the applicable copies
of the attached notices marked Appendixes "A", "B", and "C".8 Copies
of said notices, to be furnished by the Regional Director for Region 21,
shall, after being duly signed by an authorized representative of each
of the respective Respondents, be posted by each of them immediately
upon receipt thereof, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 21, in writing, within
10 days from the date of this Order, what steps the Respondents have
taken to comply herewith.
8 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 Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 our employees that:
WE WILL NOT discourage membership in, or activities on behalf
of, Local No. 440, International Brotherhood of Electrical Work-
ers, AFL-CIO, or any other labor organization, by discharging or
789-730-66-vol. 152-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
causing the discharge of employees, or discriminating or causing
discrimination against them in any other manner in regard to their
hire or tenure of employment or any term or condition of employ-
ment, except to the extent that their rights in that regard may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section
8 (a) (3) of the Act, as amended.
WE WILL NOT interfere with, restrain, or coerce employees in the
exercise of their right to engage in concerted activities for mutual
aid or protection.
WE WILL jointly and severally with Trenton Dunphy and John
Fincher, d/b/a Dunphy & Fincher, and Ernest C. Silkwood,
d/b/a Cathedral City Electric, make Joseph Poist and Richard
Powers whole for any loss of pay they may have suffered as a result
of the discrimination against them.
SANDPIPER BUILDERS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date
of posting , and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California , Telephone No. 688-5204, if they have any question concern-
ing this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
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 our employees that :
WE WILL NOT discourage membership in, or activities on behalf
of, Local No. 440, International Brotherhood of Electrical Work-
ers, AFL-CIO, or any other labor organization, by discharging
or causing the discharge of employees, or discriminating or caus-
ing discrimination against them in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment, except to the extent that their rights in that regard
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Sec-
tion 8(a) (3) of the Act, as amended.
SANDPIPER BUILDERS 803
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their right to engage in concerted activities for
mutual aid or protection.
WE WILL jointly and severally with Sandpiper Builders and
Ernest C. Silkwood, d/b/a Cathedral City Electric, make Joseph
Poist and Richard Powers whole for any loss of pay they may
have suffered as a result of the discrimination against them.
TRENTON DUNPIIY AND JOHN FiNCIIER,
D/B/A DIINPIIY & FINCIIER,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date
of posting , and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone No. 688-5204, if they have any question concern-
ing this notice or compliance with its provisions.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relation
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf
of, Local No. 440, International Brotherhood of Electrical Work-
ers, AFL-CIO, or any other labor organization, by discharging or
causing the discharge of employees, or discriminating or causing
discrimination against them in any other manner in regard to their
hire or tenure of employment or any term or condition of employ-
ment, except to the extent that their rights in that regard may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section
8 (a) (3) of the Act, as amended.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their right to engage in concerted activities for
mutual aid or protection.
WE WILL jointly and severally with Sandpiper Builders and
Trenton Dunphy and John Fincher, d/b/a Dunphy & Fincher,
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make Joseph Poist and Richard Powers whole for any loss of pay
they may have suffered as a result of the discrimination against
them.
ERNEST C. SILKWOOD, D/B/A CATHEDRAL
CITY ELECTRIC,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional,
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone No. 688-5204, if they have any question concern-
ing this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented but the Charging Party, was heard
before Trial Examiner Louis S. Penfield in Riverside, California, on June 16, 1964,
upon an amended complaint of the General Counsel and answers of Sandpiper Build-
ers, Trenton Dunphy and John Fincher, d/b/a Dunphy & Fincher, Ernest C. Silk-
wood, d/b/a Cathedral City Electric, herein collectively called Respondents.) The
issues litigated were whether Respondents violated Section 8(a) (1) and (3) of the
National Labor Relations Act, as amended, herein called the Act. Upon the entire
record, including consideration of briefs filed by the parties,2 and upon my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF RESPONDENTS
Sandpiper Builders, herein called Sandpiper, is a California corporation which at
all times material to this proceeding was engaged in the business of constructing and
selling duplex apartment units at Palm Desert, California, and elsewhere. During
the past year Sandpiper, in the course and conduct of its business operations, pur-
chased and received from various enterprises located within the State of California
materials and supplies valued in excess of $50,000, which had been received from
such enterprises directly from points located outside the State of California.
Trenton Dunphy and John Fincher, d/b/a Dunphy & Fincher, herein called D & F,
is, and at all times material to this proceeding has been, a copartnership doing busi-
ness as a general contractor in the building and construction industry and, pursuant
to a contract with Sandpiper acting as a general contractor , engaged in the construc-
tion of duplex apartment units at Palm Desert, California.
Ernest C. Silkwood, d/b/a Cathedral City Electric, herein called Cathedral, is
an individual proprietor doing business under the trade name and style of Cathedral
City Electric. Cathedral is engaged in the business of electrical contracting in the
building and construction industry with its principal place of business at Cathedral
City, California. At all times material to this proceeding Cathedral was a member
of National Electrical Contractors Association, herein called NECA, an employer
association comprised of employers in the electrical contracting business in an area
of southern California. NECA negotiates on behalf of its members, including
Cathedral , multiemployer collective -bargaining agreements with various labor orga-
'The complaint issued on April 28, 1964 , and the amended complaint on May 1S,
1964. Both are based upon a charge filed October 1, 1963. Copies of the complaint,
amended complaint , and charge have been duly served upon Respondents.
'The Charging Party, although not appearing formally at the hearing , subsequently-
filed a brief.
SANDPIPER BUILDERS 805
nizations in the area, including the Union. Members of NECA covered by such
.multiemployer contracts with the Union annually ship goods and perform services
outside the State of California valued in excess of $50,000, and annually receive
goods directly from outside the State of California valued in excess of $50,000 At all
material times Cathedral was engaged as a subcontractor to perform certain elec-
trical work in the above-mentioned duplex apartment units being constructed by
Sandpiper.
I find that each of the above-mentioned Respondents was engaged in the building
and construction industry, and that each, by virtue of its own business as well as
the relationship of each to the others at the aforementioned duplex apartment con-
struction site, was engaged in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act
to assert jurisdiction over each of them.
H. THE LABOR ORGANIZATION INVOLVED
Local No. 440, International Brotherhood of Electrical Workers, AFL-CIO,
herein called the Union, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues and the jobsite
This proceeding is concerned with the alleged discriminatory layoff of three per-
sons at an apartment project jobsite located at Palm Desert, California. It is
asserted that responsibility for the discriminatory layoffs is jointly that of all three
Respondents. The discriminatory character of the layoffs and the joint responsi-
bility is denied.
In 1963 Sandpiper undertook to construct and sell a number of condominium
apartment units at a location near Palm Desert, California, known as Sandpiper
Tract No. 2518. Sandpiper engaged the services of D & F, a licensed general con-
tractor, to perform some of the construction work and to supervise all of the work
including that of any subcontractor that Sandpiper might engage. In pertinent part
Sandpiper's contract with D & F provided that.
In carrying out the foregoing services, you will use your best efforts at all
necessary times to obtain good and workmanlike performance by the subcon-
tractors, material men and other artisans on the job.
Although Sandpiper entered into many written subcontracting agreements for project
work, the only one relevant to this proceeding is its agreement of March 1, 1963,
with Cathedral regarding the performance of all electrical work to be done in con-
nection with the building of the units. Among other provisions, the Cathedral
agreement provided that Cathedral would obtain its employees through the Union
pursuant to the labor agreements it had, and that Cathedral would employ only
competent persons to do the work covered by the contract and "upon notification by
Contractor that the conduct of any person employed by Subcontractor is unsatis-
factory Subcontractor immediately will remove such person from the project." It
is conceded that Cathedral understood that Sandpiper had delegated implementation
of this latter provision to D & F. As already noted, Cathedral was bound by the
NECA agreement with the Union and all employees which it used on the project
were obtained through union hiring halls. D & F had no contract with the Union
but it did have collective-bargaining agreements with AFL-CIO building trades
unions covering employees in other crafts which it directly employed on the project.
By mid-August of 1963 work on the project had been substantially completed, includ-
ing the electrical work performed by Cathedral.] Sandpiper undertook to sell the
individual condominium units even before completion. Sale of a unit gave each
purchaser individual ownership of his respective unit and a share in common owner-
ship of those portions of the tract used jointly by the owners of all the units. After
Cathedral had completed its work under the written contract, Sandpiper noted a need
$ The testimony indicates that by this time little remained to be done by either D & F
or Cathedral on the units generally Three notices of completion were introduced in
evidence, the final one dated September 3, 1963. There is evidence, however, that D & F
continued to regard itself as responsible for correcting any omissions or errors even
after that date and that Cathedral itself actually did some finishing-up work on the con-
tract after this time Moreover, as will be noted below, D & F remained on the jobsite
after this date and engaged in work for oinners who had purchased the individual con-
dominium units
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for additional lighting for some olive trees that had been planted in the commonly
owned section of the project, and thereupon entered into an oral agreement with
Cathedral to install this? The incidents with which we are concerned in this pro-
ceeding all occur in connection with the performance of Cathedral under the terms
of this supplemental contract.
B. The events leading to the alleged disciiminatory layoffs
On August 27, 1963, Cathedral sent Armand Moss to the jobsite to work upon the
installation of the lights pursuant to the terms of the supplemental oral agreement.
At this time, D & F was still at the jobsite finishing up some things in connection with
its principal contract, but more specifically engaged in carrying out certain individual
contracts which it had with some of the new owners of the condominium units.
Sandpiper had constructed these units to a uniform pattern from which it would
undertake no deviations. To the extent that the new owners desired additions or
changes in their private patios or apartments to meet their own individual needs, it
was incumbent upon them to arrange and pay for such changes themselves. While
the owners were free to make arrangements of this nature with any contractor, in
many instances they engaged the services of D & F since D & F was not only on the
job but was, of course, intimately acquainted with it. Sandpiper, however, had
nothing whatsoever to do with any such private contractual relationships that the
owners made with D & F. The work that Moss was performing took place on the
commonly owned portion of the project. At the same time we find D & F engaged
in patio construction work for an individual owner in such owner's private patio shut
off from the common premises by a wall. During the lunch hour of his first day,
Moss, while wandering about the project, observed a man installing patio lighting
and conduit in a private patio. Moss, noting this to be electrical work, questioned
this man and ascertained that he worked for D & F and was not being paid at union
scale. Following this questioning, and at the conclusion of his lunch hour, Moss
resumed his work in the commonly owned section About 1 or 2 p in. of the same
day the partners, Dunphy and Fincher, approached Moss, and Dunphy asked him
whether he had "been out in back talking to this man." When Moss replied in the
affirmative, Dunphy said, "well you just stay away from them, and if you don't like
the way things are going get the hell off the job." Moss made no reply to this state-
ment and he continued to work at the jobsite for the balance of the day. Shortly after
talking with Moss, however, Dunphy telephoned Clifford Costello, shop foreman
for Cathedral, and, according to Costello, told him that Moss "was not competent or
acceptable to them, and they would like to have him taken off the job." Costello
asked if Moss might remain for the balance of the day and to this Dunphy agreed.
Costello recalls that at the time Dunphy indicateed to him that his reason for request-
ing that Moss be removed from the job was that "he was talking to one of his men
during working hours and therefore his man was not working." Moss reported to
the Cathedral shop after completing his day's work and told Costello of his con-
versation with Dunphy and Fincher, and at the same time Moss told Costello that
he did not wish to return to work at the Sandpiper jobsite. Costello agreed that he
would send Moss out on another job, and made no mention whatsoever to him of
* This was a relatively small undertaking in the sum of $380 which it was contemplated
could be completed with only a few days' work There is a suggestion in the testimony
of representatives of both D & F and Sandpiper that D & F was not necessarily respon-
sible for the performance of Cathedral's employees in connection with this supplemental
agreement. This, however, appears to have been an afterthought. While this relation-
ship was not made explicit in the oral agreement, it appears to have been assumed by
all three parties that preexisting arrangements and relationships continued until all
work at the jobsite was completed Respondent D & F was still present at the jobsite
at the time and gave no indication that it no longer regarded itself as responsible for
the sufficiency of work which was then being done Sandpiper took no steps to advise
either D & F or Cathedral that any different relationship existed with regard to this
supplemental agreement Cathedral clearly regarded itself as answerable to D & F on
matters relating to the supplemental contract just as it had before with regard to the
principal contract. The conduct of D & F toward Cathedral's employees, as outlined
below, indicates that it too assumed such authority to exist. Under all the circum-
stances I find that it was the intention of Sandpiper and that it was understood by
both D & F and Cathedral, that insofar as it was necessary D & F was to continue to
supervise the performance of Cathedral under this supplemental contract.
SANDPIPER BUILDERS 807
his telephone conversation with Dunphy. Moss did go out on other jobs for
Cathedral commencing on the following day and he worked upon these until their
completion.
After the departure of Moss there was still work to be done on the yard lighting
pursuant to the supplemental agreement. Cathedral did not immediately send out
anyone else, and it was not until early September that it sent another union member,
Joseph Poist, to the jobsite for this purpose. Poist worked on the job for 1 day
and on September 6 was joined by another union member, Richard Powers. During
the morning of that day while both Poist and Powers were working on the yard light-
ing project in the commonly owned section, they happened to overhear someone
working behind a wall in a private patio call for someone else to bring a coil of
red wire. Thereafter they observed a man walking to a D & F truck, picking up
and carrying back to the patio two coils of wire. They both discussed the fact that
apparently electrical work was being done on the job, and they agreed that they
should undertake to investigate its nature The two of them thereupon left their
work in the common area and walked to the rear of an apartment unit and into the
private patio where they observed two men installing electrical wiring. One of
these men was John Fincher, a partner in D & F They thereupon engaged in a
conversation with Fincher, with Poist acting as the spokesman. The versions of
Poist, Powers, and Fincher differ as to details of this conversation but in substance
the following transpired: Poist, making it clear that he was speaking only as a
union member, questioned Fincher about the performance of electrical work without
union electricians; Fincher explained that this matter had come up before and he
referred them to their foreman, remarking that if they didn't like it they could "get
off the job." It is clear that at this time Fincher did not undertake to order them
from the job. Poist and Powers thereupon departed from the private patio area
and walked to a public telephone from which Poist placed a call to Walter Stephen-
son, a union business agent. Poist reported what they had observed to Stephenson
who replied there had been some earlier difficulties at the jobsite, and that he would
look into the matter.5 After leaving the telephone booth and before reaching their
work stations, Poist and Powers observed a Cathedral supply truck on a road at the
boundary of the project and observed that Cathedral Foreman Costello was present
and engaged in a conversation with Dunphy and Fincher. Poist and Powers pro-
ceeded to the road where this conversation was taking place. It is not entirely clear
how much time had elapsed between their arrival and the time they had left their
jobs to check on the work being done on the private patio, but they estimate that it
was between 10 and 15 minutes. Dunphy did not testify at all, and Fincher is some-
what vague exactly as to what either he or Dunphy said when Poist and Powers
reached the group. Powers, Poist, and Costello, however, testified consistently that
either Dunphy or Fincher stated quite positively that they did not want Poist or
Powers again to cross the street that marked the boundary of the jobsite, and that
what went on at the jobsite was none of their business. There is no direct testimony
that at this time either Dunphy or Fincher asserted that they were taking this action
either because they objected to the inquiries of Powers and Poist as to the union
status of their employees, or because they objected to Poist or Powers leaving their
jobs and coming into the privately owned area and interfering with the work of
employees there by their questioning. In any event, upon being advised that Poist
and Powers could no longer go on the jobsite, Costello directed another Cathedral
employee to go on the site and get their tools and lunch boxes, and after these were
obtained, Costello took Poist and Powers back to the Cathedral office where they
were given some work and were paid in full for the day. Costello testified that Poist
and Powers had been employed to finish up work on the supplemental contract at
the Sandpiper jobsite, and that when he was told by Dunphy or Fincher that Poist
and Powers were not to come on the premises again, he felt bound by the terms of
his agreement with Sandpiper to follow the orders of D & F and remove men that
D & F regarded as unsatisfactory. After the completion of work on September 6,
u Stephenson testified that sometime early in August he had received a report that
persons other than Cathedral employees were performing electrical work, and that he had
gone to the jobsite to investigate He states that he met Dunphy at this time and
questioned him about this and was told by Dunphy that it was none of his business who
was performing electrical work on the job. There is nothing to indicate that following
this Stephenson , or anyone else in the Union , undertook to follow up on the matter or
to take any further action . There is no showing that Poist or Powers had knowledge
of this earlier problem when they went to the jobsite , or that they had knowledge of the
circumstances surrounding Moss' leaving the jobsite.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cathedral had no further work for Poist and Powers and their services were termi-
nated. Several weeks later Cathedral obtained other union employees who were sent
to the jobsite and who completed the work on the supplemental contract.
C. Discussion of the issues and concluding findings
The central issue in this proceeding is whether or not it can reasonably be said
on this record that Moss, Poist, or Powers, or any one of them, was removed from
the job at the request of D & F because he had engaged in protected concerted
activity by inquiring into the union status of D & F's employees, and whether, if so,
all three Respondents must share responsibility for the removal.
There can be no doubt but that the basic Section 7 rights of employees under the
Act would assure to them the right to inquire into the union status of other employees
working at the jobsite, provided that they did so at times and in a manner that did
not interfere with either their own work or that of their fellow employees. Thus if
the record establishes such inquiry to be a motivating factor in their layoffs, such
must be found to be unlawful. Moreover, if the motivation be found unlawful the
liability is joint. Sandpiper was the principal party in interest in the construction of
the apartment units, but it had delegated to D & F its authority to supervise all
aspects of the job, including the removal of employees of any subcontractor that
D & F regarded as unsatisfactory. Thus the actions of D & F in connection with the
layoff must be imputed to Sandpiper, since D & F was acting as its agent in an area
clearly within the scope of its authority. Cathedral, the actual employer of the three
employees laid off, effected their removal at the instigation of D & F, and it con-
cededly did so because it regarded itself as bound by its contract to follow demands
made by D & F with regard to the continuation of its employees on the job. Cathedral
was fully aware of circumstances which suggested the possibility of unlawful motiva-
tion, and it cannot defend itself by hiding behind the contract if, in fact, unlawful
motivation be found to exist. Under all the circumstances, I find that all three of
the Respondents jointly share in the responsibility for removal of these employees
from the jobs.
With respect to Moss we do not reach the issue of unlawful motivation, for I am
satisfied, upon the record, that he was not discharged but quit, and that it has not
been established that his decision to quit was a constructive discharge brought about
by unlawful conduct attributable to any Respondent. When Dunphy and Fincher
spoke to Moss at the jobsite neither one told him that he could not return, but only
that if he didn't like the way things were going he could leave. Although in such
confrontation Dunphy and Fincher both indicated their displeasure that Moss had
questioned their employee, they went no further. It is true that shortly thereafter
Dunphy told Costello, on the telephone, that Moss should not come back, but
Costello never told Moss about this and never acted upon this request. On the con-
trary, it was Moss who took the initiative and told Costello that he did not wish to
return. Costello acquiesced in this request by giving Moss another assignment
Whether or not Costello would have sent Moss back, or whether if he had done so
D & F would have permitted him to work was thus not put to a test. When Moss
told Costello that he did not wish to return he had no knowledge that D & F had
taken the position that he was not acceptable. Therefore there is no basis for
inferring that his decision to quit was affected by any unlawful motivation which
might be attributed either to Dunphy or Costello. Thus, on the record, we see only a
refusal by Moss to work under conditions which did not please him, and no showing
that his choice in this respect was dictated by unlawful pressures from anyone.
Under the circumstances I find that Moss was not laid off but that he quit of his
own volition, and that the General Counsel has not established by a preponderance
of the evidence that this choice was dictated by unlawful conduct directed toward
him by either Dunphy, Fincher, or Costello.
The considerations differ as to Poist and Powers, however, since it is clear that
they were removed from the jobsite by Cathedral at the behest of D & F. As to them,
we are thus confronted squarely with determining whether the preponderance of
the evidence warrants the conclusion that D & F took this action because Poist and
Powers engaged in protected concerted activity by making inquiries into the union
status of fellow employees.
The posture in which we consider the termination of Poist and Powers is this:
They were working at a union jobsite at which all contractors were using union
employees obtained under AFL-CIO building trades contracts to perform all of the
work; circumstances caused Poist and Powers to suspect that electrical work was
being done at the jobsite by employees not in their union; Poist and Powers left
SANDPIPER BUILDERS 809
their jobs to verify their suspicions, went to a location where they were not author-
ized to be, and questioned management representatives and employees concerning
the situation; they were told by Fincher to take the matter up with their own foreman,
and that in reality it was none of their business; a short time thereafter, but before
either of them had returned to his job, D & F directed that they could not return to
the jobsite. At no time at or prior to this direction by D & F were they apprised of
the reasons that D & F ordered that they not return. On these facts the General
Counsel asserts that the layoffs were retaliatory and directed against Poist and Powers
because they engaged in protected concerted activity by inquiring into the union
status of employees on the jobsite. Respondent, on the same facts, argues that the
men were laid off because they left their jobs, went to an unauthorized location,
and interfered with the work of others.
D & F, while a union employer, was admittedly doing electrical work with employ-
ees who were not members of the electrical workers union. Its use of its own
employees in this manner was clearly to D & F's economic advantage. At the same
time, such use of nonelectncians was a matter which would obviously concern the
Union or its members. D & F, as a union employer in the building and construction
industry, was without doubt well aware that such conduct might subject it to
demands, picketing, or legal action from one or more of the unions. It is therefore
readily understandable that D & F should have preferred to have the action remain
unnoticed, and would view with some displeasure those responsible for "blowing the
whistle." It does not necessarily follow, however, that if this came about retaliatory
action against the protagonists would be the expected response. The reasonably
anticipated consequence of D & F's conduct would be some pressure from the Union
to man the job with electricians performing the electrical work. Reluctant though
it might have been to give up an economic advantage, this was an issue that D & F
could settle with relative ease and without exorbitant cost. Thus it seems highly
questionable that whatever its displeasure at, in effect, being "caught in the act,"
it would forthwith court still further, and undoubtedly far more costly, trouble with
the Union by undertaking reprisals against its members. Moreover, D & F's explana-
tion of the reasons for the removal of Poist and Powers is not altogether lacking in
substance. It must be remembered that the right to inquire concerning the union
status of one's fellow employees is not an unlimited one. While Poist and Powers
could not be prevented from exercising it altogether, they could be limited to doing
it on their own time and in a manner which would not interfere with the work of
others. Admittedly, Poist and Powers had left their jobs and gone to an unauthor-
ized area where they engaged in a conversation which unquestionably disrupted the
work going on there. It is not as if this were the only available method by which
they might have pursued an inquiry of this nature. They had already noted that
wire was being taken to the area, presumably to be used, and during the noon hour
or during a coffee break they could have reported this to the Union and brought about
an investigation and action. When they appeared in the private patio area had
D & F censured them or discharged them forthwith for leaving their jobs and coming
to an unauthorized area, its action might well have been lawful. Its position is
weakened, however, by the fact that when it directed that Poist and Powers not
return to the jobsite, it offered no explanation whatsoever for its action. The timing
of the removal, occurring so promptly after the inquiry, thus raises a suspicion that
its motivation may have been unlawful. I am not convinced, however, that such
suspicion alone is sufficient to support an inference that it was necessarily protected
concerted activity of Poist and Powers and not something else which brought about
their removal. This was not action by an antiunion employer engaged in trying to
thwart organization of its employees, or engaged in an effort to subvert the collective-
bargaining process. It did not occur in any general atmosphere of hostility toward
the exercise of employee rights. On the contrary it was action by a union employer
who, at the most, was engaged in an attempt "to get away with something" which
probably would violate its union contract. Unhappy though D & F might have been
when confronted with the likelihood that the attempt might fail, absent some further
tangible evidence, I am unwilling to infer from this alone that it would thereupon
willfully risk complicating the matter even further by undertaking retaliatory action.
The burden falls upon the General Counsel to establish the unlawful motivation by
a preponderance of the evidence Upon the record in the instant case, I find the
evidence presented to be equivocal. The timing raises a suspicion which is buttressed
in some measure by the failure of D & F to come forth with any explanation at the
time of the removals. However, the explanation now advanced by D & F, assuming
it not to be an afterthought, is a reasonable one Costello's uncontradicted testimony
is that Dunphy told him that the reason he requested Moss' termination was that
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"he was talking to one of his men and therefore his man was not working." This
is some indication that work interference was a matter of concern to D & F at
that time . The admitted conduct of Poist and Powers took place shortly after this,
involved the same job, and was of a similar although even more extreme nature. It
is therefore not unreasonable to assume that D & F might have reacted to it in a
similar manner , and that this reaction rather than retaliation for the inquiry as such
could have been the motivating factor in the removal of Poist and Powers. While
the matter is not altogether free from doubt, considering the entire background and
the relationship of the parties, I am of the opinion that the considerations are too
evenly balanced to warrant a finding that Respondent was unlawfully motivated in
the terminations of Poist and Powers. I find, therefore, that the General Counsel
has not sustained the burden of establishing such unlawful motivation by a prepond-
erance of the evidence. Since D & F was the moving party with respect to the
terminations of Poist and Powers, and since I have found that it was not unlawfully
motivated, it follows that none of the Respondents has engaged in a violation of
Section 8(a) (1) and (3) of the Act with regard to these employees.
Having found that the record does not establish that any of the employees named
in the complaint were terminated for engaging in protected concerted activities or for
other discriminatory reasons, I shall hereinafter recommend that the complaint be
dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sandpiper Builders, Trenton Dunphy and John Fincher, d/b/a Dunphy &
Fincher, and Ernest C. Silkwood, d/b/a Cathedral City Electric, are each employers
in the building and construction industry engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local No. 440, International Brotherhood of Electrical Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. Respondents Sandpiper, D & F, and Cathedral have not engaged in unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is hereby recommended that the complaint be dis-
missed in its entirety.
Miller Industries, Incorporated and District 50, United Mine
Workers of America. Case No. 7-CA-4688. May 25, 1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. The Trial
Examiner further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
mended that the complaint be dismissed with respect to the latter alle-
gations. The Respondent filed exceptions to the Trial Examiner's
Decision insofar as Respondent was found to have violated the Na-
tional Labor Relations Act, as amended, and filed a brief in support
thereof. No exceptions were filed by the General Counsel.
152 NLRB No. 94.