Carpenters Local 209 (C. E. Wylie Construction)

National Labor Relations Board - Board Decisions

Sep 26, 1991

304 N.L.R.B. 1098 (N.L.R.B. 1991)

1098
304 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
1 All dates or time periods hereinafter are within 1990 unless otherwise
specified.
Carpenters Local 209, United Brotherhood of Car-
penters & Joiners of America, AFL–CIO and
C. E. Wylie Construction Co. Case 31–CB–8256
September 26, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On June 21, 1991, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. Counsel for
the Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Carpenters Local 209,
United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL–CIO, Palmdale, California, its officers,
agents, and representatives shall take the action set
forth in the Order.
Bernard Hopkins, Esq., for the General Counsel.
Gerald V. Selvo, Esq. (DeCarlo, Connor & Selvo), of Los
Angeles, California, for the Respondent.
Mark T. Bennett, Esq. (Merrill, Schultz & Wolds, Limited),
of San Diego, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing with respect to this matter was held
before me in Los Angeles, California, on February 12 and
April 18, 1991. The charge was filed by C. E. Wylie Con-
struction Co. (the Employer) on June 5, 1990. Thereafter, on
July 10, 1990, the Regional Director for Region 31 of the
National Labor Relations Board (the Board) issued a com-
plaint and notice of hearing alleging a violation by Car-
penters Local 209, United Brotherhood of Carpenters & Join-
ers of America, AFL–CIO (the Respondent) of Section
8(b)(1)(A) of the National Labor Relations Act (the Act).
The Respondent’s answer, timely filed, denies that it has
committed any unfair labor practices.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel,
and counsel for the Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the brief submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a California corporation with an office
and place of business located in Palmdale, California, where
it was engaged as the general contractor at the Highland
High School jobsite. In the course and conduct of its busi-
ness operations at the jobsite, the Employer received con-
struction materials valued in excess of $50,000 directly from
a supplier located in the State of Oklahoma. I find that at
all material times herein, the Employer has been an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Respondent is, and has
been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are whether
the Respondent’s business agent, on separate occasions on
May 25 and June 5, 1990,1 did engage in picket line mis-
conduct by provoking and engaging in altercations with indi-
viduals as they attempted to drive through the gate of a con-
struction project, and did remove and damage property, in
violation of Section 8(b)(1)(A) of the Act.
B. The Facts
Perry Chamberlain was employed by Paxin Electric, a sub-
contractor of the Employer herein, at the Palmdale Highland
High School construction project. On the morning of May
25, as Chamberlain was reporting to work at the jobsite, he
observed that there were picketers walking in front of the 20-
foot wide gate reserved for the Employer and nonunion con-
tractors. The picketing had commenced several days before
and, as Chamberlain had done since the picketing com-
menced, he slowed down his vehicle as he was approaching
the gate and then proceeded to drive through the gate after
Joseph Eickholt, the Respondent’s business representative,
had moved out of the way and had given Chamberlain
enough room to drive through safely. Eickholt had a clip-
board in his hand and waved the clipboard indicating that he
wanted Chamberlain to stop the truck, apparently so that
Eickholt could write down the license number of the vehicle.
Chamberlain did not stop, but rather continued at a slow rate
of speed, as there was no one in front of him.
Chamberlain testified that:
1099CARPENTERS LOCAL 209 (C. E. WYLIE CONSTRUCTION)
2 The kicks to the passenger side door panel caused damage in the amount
of $698.
3 Wylie had been off work since May 31 when he had major nose recon-
structive surgery, and June 4 was his first day back at work. Wylie testified
that his nose was swollen and packed with gauze, and his face and eyes were
swollen also.
As I did that, I guess to get me to stop, the gentleman
holding the clipboard stepped forward, as I had seen
him do before, to try to intimidate people to stop. And
by the time he stepped forward my [truck] was already
beside him, not in front of him. And he stepped for-
ward and hit my mirror on my truck.
Chamberlain went on to testify that Eickholt hit his left
side rearview mirror with his chest, and pushed the mirror
against the truck. This type of mirror is designed to fold
back easily. When this occurred Chamberlain came ‘‘almost
to a perfect stop,’’ and then proceeded on as Eickholt
stepped back. Eickholt began screaming at Chamberlain, who
observed through his inside rearview mirror that Eickholt had
reached into the back of his truck and pulled out his leather
work belt which was in the bed of the truck. As Eickholt
grabbed the belt, the two pouches that were attached to the
belt remained in the truck, and Eickholt retained the belt.
At this point Chamberlain stopped the truck, got out, and
approached Eickholt, who continued yelling and screaming
that, ‘‘You tried to run me over. I’m keeping this,’’ and
spewing obscenities. According to Chamberlain, Eickholt
said, ‘‘Who the fuck do you think you are? . . . You tried
to fucking run me down, I’m taking this fucking belt. Fuck
you.’’ Eickholt was shaking the belt in front of Chamberlain,
and Chamberlain reached out and grabbed the belt and told
Eickholt to give it back. Eickholt, who had his clipboard in
one hand and the belt in the other, leaned back and with a
‘‘side kick’’ kicked Chamberlain in the stomach, and pulled
the belt from Chamberlain’s hand. Chamberlain then reached
out, grabbed the belt, and pulled it away from Eickholt.
At this point, Mark Evans, the project engineer for the
Employer, told Chamberlain to get back in his truck and pro-
ceed through the gate. Chamberlain did so.
Eickholt testified that he was in charge of the picketing on
May 25. There were five or six other pickets around at the
time of the incident. Eickholt recalled that as he was stand-
ing at the side of the roadway, Chamberlain ‘‘drove up to
me and pushed me aside with the front corner of his truck,’’
by turning the wheels of the truck toward him so that
Eickholt had to step back from the front corner of the vehi-
cle. Thus, according to Eickholt, he initially made contact
with the front fender, and as he stepped back he also made
contact with the driver’s side rearview mirror which, accord-
ing to Eickholt, was not a ‘‘spring away side mirror’’ but
rather a conventional side mirror that was not designed to
spring back upon impact. Eickholt testified that, ‘‘I lost my
balance, and trying to get my balance I ended up with a belt
in my hand that came out of his truck.’’ Explaining, Eickholt
stated that as he was pushing against the truck in an attempt
to recover his balance, he reached over the top of the bed
and ended up with Chamberlain’s belt in his hand.
Chamberlain stopped his truck and got out and an argu-
ment ensued. Eickholt accused Chamberlain of trying to hit
him with the truck. Chamberlain yelled that Eickholt was
stealing his belt. Eickholt said that he was not, and just let
go of the belt. Chamberlain then got into his truck and drove
off. When asked whether he hit or kicked Chamberlain,
Eickholt replied, ‘‘We scuffled around a little bit there, ten
seconds or so and then he left.’’ When again asked if he
kicked Chamberlain in the stomach, Eickholt said, ‘‘I don’t
believe I did.’’ Eickholt is 5 feet 9 inches and weighs about
155 pounds; Chamberlain is about 5 feet 11 inches and
weighs about 190 pounds.
The second incident took place about 10 days later, on
June 4. Paul Wylie, project superintendent for the Employer,
was attempting to exit the same reserve gate at about 5:30
or 6 a.m., and stopped his truck because Eickholt was walk-
ing slowly across the roadway while writing something down
on his clipboard. Wylie waited until Eickholt had moved to
the side of the road, and proceeded ‘‘very slowly, very care-
fully’’ out the gate. Wylie testified that:
And at that point when I was—my passenger side was
directly opposite of Mr. Eickholt’s—his body, he turned
around and as [a] burro or donkey would kick, he
kicked the side panel of my truck.2
. . . .
And he not only did it once, he did it twice. And
that’s—I stopped, whatever he was trying to do, I
stopped, got out of the truck and went around and
asked him what he was doing, and tempers were very—
it was a very tense situation.
. . . .
He did mention that I had hit him, that he was going—
I was going to pay for it and some other things that I
thought were out of context. But, that was the intent,
that he thought that I had hit him with my truck and
I did not.
. . . .
He started hitting me and calling me names, and started
pummeling me with his fists. I at that point—At this
juncture I was concerned he was going to hit me in the
nose, and I knew how sensitive it was, there’s no way
that was going to happen.3 So, I protected myself, I
kept backing away, keeping away from him. He kicked
me a couple of times, not in the groin, but he did kick
me a couple of times.
According to Wylie, he kept protecting himself by putting
his hands in front of his face, and kept backing away from
Eickholt. The altercation ended when several individuals in-
tervened and pulled them apart.
Mark Evans, project engineer, testified that he witnessed
the incident which took place early in the morning when ‘‘it
was just starting to be light.’’ Eickholt took several steps for-
ward in order to get momentum to kick the truck. After
Wylie came around to the side of the truck, apparently to ob-
serve the damage, Eickholt made the first move and tried to
hit Wylie in the face, and ‘‘then proceeded after him, hitting,
swinging. I rushed forward, some other people rushed for-
ward, and we broke the fight up.’’ During the incident Wylie
was backing up and covering his face with his arms. The en-
tire incident lasted less than a minute.
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
Galen Hartgrove, an employee of the Employer who had
just been hired that morning, corroborated Evans’ testimony,
and stated that Eickholt was 3 to 5 feet away from the side
of the truck, ‘‘and it looked like three quick steps and he
kicked in the side of the door.’’
Jim McDaniel, an employee of the Employer, testified that
he observed that Eickholt was doing the swinging and was
trying to kick Wylie, and Wylie ‘‘had his hands up in the
air and was backing off like he was trying to protect him-
self.’’
Eickholt testified that he did not see Wylie exit the gate
as he had his back turned to the gate. He became aware of
a truck coming close to him, as close as 8 inches to a foot
away, at a speed of 8 or 10 miles per hour. Eickholt spun
around and kicked backwards with his right leg, contacting
the truck. Then he pushed himself away from the vehicle.
Wylie rolled down the window and asked, ‘‘What did you
do?’’ Eickholt told him that he kicked his truck, and asked
why Wylie was running at him with the truck. Wylie then
got out of the truck and came around to the passenger side
to look at the door, and approached Eickholt. Eickholt asked
him why he was running his truck at him, and Wylie began
yelling at Eickholt about kicking his truck. Eickholt told
Wylie, ‘‘Hey, I’m just trying to protect myself.’’ Then, ac-
cording to Eickholt, Wylie ‘‘got in [his] face and we scuffled
around there a little bit.’’ Eickholt explained that, ‘‘He’s up
in my nose, you know, yelling at me. And then he gave me
a push, and I pushed back, and we scuffled around there a
little bit. And one of the pickets got in between us, and
[Wylie] turned around and walked away, and that was the
end of it.’’ Eickholt did not observe that Wylie’s face ap-
peared to be bruised or discolored from his surgery, and was
not aware that Wylie had recently had nose surgery.
Chris Davis was on picket duty during the June 4 incident.
Davis testified that Eickholt was 2 or 3 feet off to the side
of the road when Wylie drove his truck through the gate and
‘‘veered off the road towards Mr. Eickholt.’’ Then, according
to Davis, ‘‘there was some commotion of Mr. Eickholt trying
to step away from the vehicle, and then the vehicle
stopped.’’ Davis did not see Eickholt kick the truck. Wylie
then started coming around the front of the truck toward
Eickholt and pushed him back. Then the two men were sepa-
rated. Davis did not recall what words were exchanged dur-
ing the altercation.
Troy Halsey was on picket duty during the June 4 inci-
dent. He was walking across the road as Wylie was exiting
the gate. Halsey testified that Wylie directed the truck toward
Eickholt. When Wylie got out of his truck he confronted
Eickholt and Wylie kept pushing the incident as Eickholt was
backing away. There was some pushing going on but Halsey
does not know who pushed first. Then they began throwing
punches. The fight was broken up once by another picketer,
but then Wylie said something and the fight started again.
Then the fight was broken up a second time and Wylie left.
According to Halsey, the altercation lasted about 3 minutes.
C. Analysis and Conclusions
Both Chamberlain and Wylie appeared to be credible wit-
nesses with vivid recollections of the incidents in which they
were involved. The record evidence discloses no specific ani-
mosity between either of them and Eickholt in particular or
the pickets in general, and it is unlikely that they would
make deliberate attempts to strike Eickholt with their vehi-
cles with other pickets looking on. Further, Eickholt’s ac-
counts of the two incidents seem implausible. Thus, it is im-
probable that Eickholt would accidently end up with Cham-
berlain’s work belt in his hand unless he had made a delib-
erate effort to grab it, which he denies; and it is highly un-
likely that Wylie, on his first day back on the job after con-
structive nose surgery, would have instigated the altercation
or would have done anything other than protect his face from
injury. Accordingly, I credit the accounts of the incidents as
testified to by Chamberlain and Wylie. I do not credit the
accounts given by Eickholt, Davis, or Halsey.
I find that Eickholt engaged in picket line misconduct by
feigning that he had been struck by the vehicles, and by
thereupon engaging in conduct which would reasonably pro-
voke an altercation. I find that by striking, hitting, and kick-
ing Chamberlain and Wylie, or by attempting to do so, and
by removing Chamberlain’s property from the back of his
truck, and inflicting considerable damage to Wylie’s truck,
the Respondent, through Business Representative Eickholt,
has engaged in conduct violative of Section 8(b)(1)(A) of the
Act, as such conduct restrains and coerces employees in the
exercise of their Section 7 rights to elect to engage in or re-
frain from engaging in union activity without fear of reper-
cussions from a union. Teamsters Local 703 (Kennicott
Bros.), 284 NLRB 1125 (1987); Nassau Insurance Co., 280
NLRB 878 (1986); Congreso de Uniones Industriales de
Puerto Rico (Rice Growers), 279 NLRB 626 (1986).
Respondent, in it brief, argues that the record evidence
does not disclose that Chamberlain was an employee within
the meaning of the Act, and that, as there were no employees
who witnessed the May 25 incident, Eickholt’s conduct to-
ward Chamberlain could not be coercive to employees. The
record evidence shows that Chamberlain was attempting to
enter the jobsite with the tools of his trade. This is indicative
of nonsupervisory status. Moreover, any report of the inci-
dent made known to other employees on the job would tend
to coerce them to remain off the job in order to avoid injury
to their person or damage to their vehicles. I find the Re-
spondent’s argument to be without merit.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that the Respondent has engaged in conduct
violative of Section 8(b)(1)(A) of the Act, it shall be required
to cease and desist therefrom and from engaging in any simi-
lar unlawful acts or conduct. The Respondent shall also be
required to post an appropriate notice, attached hereto as
‘‘Appendix.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
1101CARPENTERS LOCAL 209 (C. E. WYLIE CONSTRUCTION)
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
5 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ORDER
The Respondent, Carpenters Local 209, United Brother-
hood of Carpenters & Joiners of America, AFL–CIO, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Feigning to be struck by vehicles as an excuse to pro-
voke an altercation with supervisors or employees.
(b) Removing property from vehicles or damaging vehicles
in furtherance of a labor dispute.
(c) Physically assaulting or attempting to physically assault
employees or supervisors in furtherance of a labor dispute.
(d) In any like or related manner restraining and coercing
employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 31, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material. Further, the Respondent
shall sign sufficient copies of the notice and return them to
the Regional Director for forwarding to the Employer, for
posting at its premises or jobsites, should the Employer elect
to do so.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT engage in misconduct on or around picket
lines at jobsites by falsely accusing employees or supervisors
of attempting to strike picketers with their vehicles and by
provoking fights with them.
WE WILL NOT physically assault or attempt to physically
assault employees or supervisors who may be crossing any
picket line we have established.
WE WILL NOT remove property from vehicles or inflict
damage to vehicles of employees or supervisors.
WE WILL NOT in any like or related manner restrain and
coerce employees in the exercise of rights guaranteed them
in Section 7 of the Act to engage in or refrain from engaging
in any union activity.
CARPENTERS LOCAL 209, UNITED BROTHER-
HOOD OF CARPENTERS & JOINERS OF AMER-
ICA, AFL–CIO