Carpenter Local 316

National Labor Relations Board - Board Decisions

Feb 20, 1980

247 N.L.R.B. 1247 (N.L.R.B. 1980)

CARPENTERS LOCAL 316
Carpenters Local 316, United Brotherhood of Carpen-
ters & Joiners of America and E & E Development
Company. Case 32-CC-148
February 20, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On October 18, 1979, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions, a supporting brief, and motion to amend
the complaint,' and Respondent filed cross-exceptions
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety
' By letter dated November 19, 1979, the General Counsel moved to
withdraw his previously filed motion to amend the complaint. The General
Counsel's motion to withdraw the proposed motion to amend the complaint is
hereby granted.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter was
held before me in San Jose, California, on June 7, 1979. The
charge was filed on October 26, 1978, by E & E Develop-
ment Company against Carpenters Local 316, United
Brotherhood of Carpenters & Joiners of America (herein
called Respondent). An amended charge was filed on
November 30, 1978, upon which date the Regional Director
for Region 32 of the National Labor Relations Board (herein
called the Board) issued a complaint and notice of hearing
alleging a violation by Respondent of Section 8(b)4)(i) and
(ii)B) of the National Labor Relations Act, as amended
(herein called the Act).
247 NLRB No. 173
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to
introduce relevant evidence. Since the close of the hearing
briefs have been received from the General Counsel and
counsel for Respondent.
Upon the entire record, and based upon my observation of
the witnesses and consideration of the briefs submitted, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
E & E Development Company is a California general
partnership with a place of business located in Milpitas,
California, and is engaged in the construction business as a
general contractor. Since about May 4, 1978, it has been the
general contractor at a construction jobsite located in
Milpitas, California. During the spring and summer of 1978
E & E together with Hubbard Construction Company (the
framing contractor on the job), purchased and received
goods valued in excess of $50,000 for use at the jobsite
through dealers or intermediaries which, in turn, purchased
such goods, which are shipped directly to the jobsite from
manufacturers outside the State of California.
On the basis of the foregoing, I find that the combined
business operations of E & E Development Company and
Hubbard Construction Company at the jobsite is sufficient
to meet the Board's standards for asserting jurisdiction, and
that it would effectuate the policies of the Act to assert
jurisdiction herein. See Carpenters Local Union No. 1028,
United Brotherhood of Carpenters & Joiners of America, AFL
(Dennehy Construction Company), 111 NLRB 1025 (1955),
enfd. 232 F.2d 454 (10th Cir., 1956); Operative Plasterers'
and Cement Masons' International Association Local #2,
AFL-CIO (Arnold M. Hansen), 149 NLRB 1264, 1274-75
(1964); Local 3. International Brotherhood of Electrical
Workers, AFL-CIO et al. Peter Di Gangi d/b/a (Di Gangi
Electrical Services). 130 NLRB 1458 (1961).
Ii. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
Respondent, through its business representative, Leonard
Thomas, threatened an employee of a secondary employer,
thereby causing him to refuse to work, and by such conduct
violated Section 8(b)(4)i) and (ii)B) of the Act.
B. The Facts
The facts are not in material dispute. Leonard Thomas is
business representative for Respondent. In October 1978
Thomas visited the jobsite in question, one of the entrances
to which was being picketed by the Carpet and Linoleum
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers Union in furtherance of a dispute between that
Union and San Jose Rug Company, a subcontractor on the
job. Thomas observed that a carpenter, Anthony Bernetti,
was at the site performing work for Hubbard Construction
Company, the framing subcontractor. Hubbard Construc-
tion was then completing the work it had contracted to do,
and apparently Bernetti was the only employee being
utilized at that time. Respondent represented the employees
of Hubbard Construction Company, and Thomas asked
Bernetti, who was a member of another local working on a
permit basis, if he knew that there was a picket on the job.
Bernetti replied that he was not aware of the picket and
asked where it was. Thomas walked with Bernetti to a
location where the picket could be seen as, according to
Thomas, it was not visible from the location where Bernetti
was working. Bernetti asked Thomas what he should do, and
Thomas told him to make up his own mind whether he
should be there or not. Bernetti determined to cease
working.
Bernetti remained off the job for several days. James
Eblen, a partner and general manager of E & E Develop-
ment Company, the general contractor, encountered Bernet-
ti near the jobsite and asked him why he had not been to
work. Bernetti said that he could not work where there was
picketing at any gate because he would be fined by the
Union. At this point Eblen and Bernetti, who were walking
together, encountered Thomas and the picket. Also, the
superintendent for E & E Development, Samuel Kimrey,
drove up. Kimrey introduced Thomas to Eblen, and Eblen
asked what Thomas was doing there. According to Eblen,
Thomas replied that he heard there was to be a meeting.
Eblen asked why the picket was there, and Thomas stated
that he did not have anything to do with the picket. Eblen
advised Thomas that he had dismissed San Jose Rug from
the job for nonperformance and could not understand why
the picket was there. Thomas said that he did not put the
picket up and would not take it down.
According to Eblen, Bernetti then asked Thomas if he
could go back to work. Thomas replied, "I didn't tell you to
go to work, and didn't tell you you couldn't go to work."
This was repeated several times like a "broken record,"
according to Eblen. Bernetti asked what would happen if he
did return to work. Thomas replied that he would do what
he had to do, adding that he might have to go up on a nearby
hill and pick every blade of grass. Eblen said they were
getting nowhere and walked away.
Kimrey testified that Eblen, not Bernetti, asked Thomas if
Bernetti could go to work and finish trimming the building.
Thomas said he was not going to tell Bernetti whether he
could or could not. Eblen asked what would happen if
Bernetti did go to work, and Thomas replied that he would
do what he had to do. Eblen asked what he meant, and
Thomas replied that if he had to go over on that hill and
pick all the grass that is under half an inch in height, that is
what he would have to do. Eblen asked Thomas to leave, and
Thomas replied that he was on a public sidewalk and did not
have to leave. At that point Kimrey, Eblen, and Bernetti left.
Kimrey asked Bernetti what he was going to do and whether
he was going to work. Bernetti replied that he did not want
' See Motion Picture Studio Mechanics Local 52. etc. (Michael Levee
Productions. Ltd. J 238 NLRB 19 (1978). enrd. 593 F.2d 197 2d Cir.
any trouble with unions and would not work. The picket
remained for about 3 days thereafter, during which time
Bernetti apparently refused to work.
Leonard Thomas testified that Eblen asked him if Bernetti
could go to work. He told Eblen that Bernetti would have to
make up his own mind. Eblen asked what Thomas would do
if Bernetti returned to work, and Thomas repeated that it
was up to Bernetti whether he wanted to work and further
stated, "he [Bernetti] does what he has to do. I do what I
have to do." Eblen asked what he meant, and Thomas said
that it could mean several things; for example, he could go
and eat dinner or go up there on the hill and pick weeds.
C. Analysis and Conclusions
The complaint does not allege and General Counsel does
not contend that the conversation between Thomas and
Bernetti on about October 22, 1978, was violative of the Act.
On that occasion Thomas pointed out to Bernetti that there
was a picket at the jobsite. Bernetti stated that he had not
previously been aware of this and thereafter chose to
discontinue working after inquiring and being told by
Thomas to make up his own mind about remaining on the
job.
I credit Thomas and Kimrey and find that several days
later Eblen, in the presence of Bernetti, initiated a conversa-
tion with Thomas in an attempt to get Thomas to affirma-
tively assuage Bernetti's fears that some adverse action
would befall him if he returned to work while the picketing
was continuing. Eblen's attempts proved unsuccessful, as
Thomas refused to be placed in the position of either
indicating approval or disapproval of Bernetti's decision to
remain off the job. When asked by Eblen what he would do
if Bernetti returned to work Thomas intentionally evaded
the question by making the nonresponsive statement that he
would do whatever he had to do at that particular time, such
as eat dinner or pick grass or weeds. Such a response, under
the circumstances, was not inconsistent with Thomas' prior
remarks that Bernetti could make his own decision.
At no time did Thomas state to Bernetti that the picketing
was "authorized or sanctioned" or that the primary employ-
er was "unfair," which verbiage has been found to constitute
unlawful inducement or encouragement. See Los Angeles
Building & Construction Trades Council, AFL-CIO (Sierra
South Development, Inc.), 215 NLRB 288 (1974); Great Falls
Building and Construction Trades Council, et al. (Purvis-
Fedco, Inc.), 154 NLRB 1637, 1644 (1965). Nor did Thomas
ever threaten to take coercive union action of an unspecified
nature against Bernetti' who, it must be concluded based on
the pleadings herein and the contentions of General Counsel,
voluntarily chose to discontinue working in the first instance
without unlawful inducement or encouragement from Tho-
mas.2 Rather, Thomas threatened no action whatsoever
against Bernetti and implied that what he had to do at the
time was unrelated to the matter then being discussed and
was of no concern to Eblen.
I am of the opinion that the conduct of Thomas
complained of in this case was no more coercive than if
Thomas had merely stood mute at the jobsite, refusing to
' But see The Technical Engineering Division. Local Union 130, U.A., ALF-
CIO (Notional Survey Services. Inc.). 204 NLRB 348 (1973).
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CARPENTERS LOCAL 316
communicate whatsoever. Indeed, by his nonresponsive and
equivocal comments Thomas was clearly attempting not to
engage or be engaged in a conversation concerning the
matter. General Counsel has not demonstrated that conduct
of this nature is violative of the Act, and I shall therefore
dismiss the complaint herein.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not violated the Act as alleged.
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
CONCLUSIONS OF LAW
I. E & E Development Company and Hubbard Construc-
tion Company are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
ORDER'
The complaint is dismissed in its entirety.
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto hall be deemed
waived for all purposes.
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